J-S16037-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GREGORY MCDOWELL,                          :
                                               :
                      McDowell                 :    No. 1122 EDA 2019

        Appeal from the Judgment of Sentence Entered April 15, 2019
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002302-2017

BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                  FILED JUNE 30, 2020

        Gregory     McDowell    (“McDowell”)       appeals   from   the   judgment   of

sentence imposed following his convictions of rape, sexual assault and

indecent assault.1 We vacate and remand for further proceedings.

        In its Opinion, the trial court summarized the factual history as

follows:

              On Friday, February 10, 2017, the Complainant, [J.J. (the
        “Complainant”)], [had been staying] for an extended period of
        time at the apartment of her boyfriend, [T.C.]. The Complainant
        had been staying in [T.C.’s] apartment because she had gotten
        into an argument with her mother. [T.C.] shared the apartment
        with [McDowell], his uncle by marriage. At around 3 [p.m.],
        [T.C.] left for a full eight (8) hour work shift and the
        Complainant remained at the apartment.         Sometime in the
        evening, while the Complainant was in the shared kitchen of the
        apartment, she was approached by [McDowell]. Afterward, the
____________________________________________


1   See 18 Pa.C.S.A. §§ 3121(a)(4), 3124.1, 3126(a)(1).
J-S16037-20


     Complainant and [McDowell] went back to [McDowell’s] room to
     talk[,] because the Complainant wanted someone to talk to
     about the altercation between her and her mother.

           After   their   conversation,    [McDowell]    offered   the
     Complainant a drink. She accepted his offer. [McDowell] left
     the room and returned with a brown[-]colored alcoholic drink in
     a big shot glass for the Complainant.           This was not the
     Complainant’s first time drinking alcohol. However, after she
     drank the beverage served to her by [McDowell,] she blacked
     out and became unconscious. Upon waking, she observed that
     both she and [McDowell] were nude and [McDowell] was on top
     of her[,] having vaginal intercourse with her. The Complainant
     told [McDowell] to get off of her, but he continued despite her
     protests. After [McDowell] finally got off of the Complainant, she
     ran into the bathroom and closed the door.

           At around 10 [p.m.], while inside the bathroom, the
     Complainant called [T.C.] via her cellular phone’s FaceTime
     feature. During the Complainant’s FaceTime call to [T.C.], [T.C.]
     was only able to see a black screen rather than the
     Complainant’s face. The Complainant told [T.C.] in a panicky
     voice that she was scared and sick; she appeared to be vomiting
     into the toilet; and she told [T.C.] repeatedly that she wanted
     him to return to the apartment. The Complainant continued to
     repeat herself during the FaceTime call, until the call was
     disconnected because her phone died. The Complainant later
     texted [T.C.,] via iMessage[,] after recharging her phone. She
     continued to ask him to come home.              Throughout the
     Complainant’s time in the bathroom[,] the Complainant testified
     that [McDowell] was pounding on the door and saying
     threatening things to her. [T.C.] also testified that he heard
     someone pounding on the door and a male voice. At some point
     while still in the bathroom, the Complainant lost consciousness
     again.

           When [T.C.] arrived home after work[,] at around
     midnight[,] he found the Complainant dressed in her pajamas[,]
     unconscious on [T.C.’s] bed. He also saw [McDowell] in the
     bathroom with an unidentified woman. [T.C.] attempted to
     wake the Complainant by moving her, but received no response.
     [T.C.] testified [that] this was unlike the Complainant’s normal
     sleeping behavior.



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            The next day, while grocery shopping, the Complainant
     disclosed to [T.C.] that [McDowell] had sexually assaulted her
     the previous night. Despite this assertion, she continued to stay
     in the apartment with [T.C.] and [McDowell] during the following
     week. The Complainant explained that this was because of the
     fight with her mother. While [T.C.] wanted the Complainant to
     immediately report the incident to the police, the Complainant
     testified that she was too scared to report the assault because of
     the threatening things that [McDowell] continued saying to her
     throughout the week.

           On February 16, 2017, about six days after the incident,
     [T.C.] drove the Complainant to the police station so that she
     could report this assault. When the Complainant arrived at the
     police station, she gave a statement to Detective Justin
     Montgomery [with the Philadelphia Police Department’s Special
     Victim’s Unit (“Detective Montgomery”)]. Detective Montgomery
     noted that the Complainant was very soft-spoken, embarrassed,
     and avoided making eye contact with him during the interview.
     After interviewing both the Complainant and [T.C.], Detective
     Montgomery prepared an [A]ffidavit for a search and seizure
     warrant at the apartment that [McDowell] and [T.C.] shared to
     try to locate any type of narcotic that could have possibly been
     used to drug the Complainant.

          At around 3:18 [p.m.] on February 16, 2017, Detective
     Montgomery and a supervisor … executed the search warrant …
     and seized two prescription pill bottles. Both pill bottles were
     found in [McDowell’s] room on top of a wardrobe dresser. Both
     were prescribed to [McDowell]. One bottle contained seven 20
     mg tablets of Famotidine and the other bottle contained two 5
     mg tablets of Diazepam, also known as Valium.

Trial Court Opinion, 7/23/19, at 1-4. McDowell was subsequently charged

with, inter alia, the above-mentioned crimes.

     Following a non-jury trial, McDowell was found guilty of rape, sexual

assault, and indecent assault. The trial court sentenced McDowell to 10 to

20 years in prison for the rape conviction, and 2½ to 5 years in prison for

the sexual assault conviction, to run consecutive to the rape sentence. The


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trial court merged the counts of rape and indecent assault for sentencing

purposes. McDowell filed a post-sentence Motion, challenging, inter alia, the

weight and sufficiency of the evidence regarding each of his convictions.

The trial court denied the Motion. McDowell filed a timely Notice of Appeal,

and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

     On November 6, 2019, McDowell filed with this Court a Motion to

remand his case to the trial court, so that he could file a supplemental

Pa.R.A.P. 1925(b) concise statement, raising additional claims.            On

November 26, 2019, this Court granted the Motion, remanded to the trial

court, directed McDowell to file his supplemental concise statement within 21

days, and directed the trial court to file a supplemental opinion within 30

days thereafter.      On remand, McDowell filed a Supplemental Concise

Statement, raising two additional issues, and the trial court filed a

Supplemental Opinion.      McDowell subsequently filed with this Court an

Application for leave to file a supplemental brief, which was granted, and a

Supplemental Brief.

     On appeal, McDowell raises the following questions for our review:

     1) Were the verdicts against the weight of the evidence for rape,
     sexual assault and indecent assault, for the following reasons:[FN]

           A. Complainant’s testimony was not credible as she
           stayed several days in the home of [McDowell] (at
           times alone with [McDowell]) after [McDowell]
           allegedly committed the assault on her; and



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              B. Complainant reported the assault to police five
              days after it allegedly occurred, and therefore no
              rape kit examination could be administered and no
              toxicology report could be done to prove she was
              drugged and raped by [McDowell]; and

              C. Complainant’s testimony was unreliable due to
              many inconsistencies between the statement she
              gave to police and her trial testimony, such as, but
              not limited to, the date and time of the assault, what
              she reported to her boyfriend about the assault, and
              how many drinks she consumed with [McDowell]
              immediately preceding the assault.

       2) Was the evidence insufficient to sustain the guilty verdicts for
       all of the charges because there was no corroborative evidence
       that [McDowell] had sexual intercourse or any sexual contact
       with the Complainant[?]

       [3)] Was the sentence illegal[,] as the lower court imposed
       separate sentences that were consecutive on the rape and
       sexual assault convictions, where the convictions were
       predicated on the same criminal act, [and] therefore merged for
       purposes of sentencing?

       [4)] Was the sentence illegal, as [the Sexual Offender
       Registration and Notification Act (“SORNA II”),2, 3 is]
       unconstitutional, violates due process and is punitive in nature?

       ___________________________________________________




____________________________________________


2   See 42 Pa.C.S.A. §§ 9799.10-9799.42, 9799.51-9799.75.

3Following our Supreme Court’s decision in Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017), and our subsequent decision in Commonwealth v.
Butler, 173 A.3d 1212 (Pa. Super. 2017), the Pennsylvania General
Assembly enacted SORNA II as a replacement to the invalidated portions of
SORNA I, 42 Pa.C.S.A. §§ 9799.10-9799.41. Commonwealth v. Bricker,
198 A.3d 371, 375 (Pa. Super. 2018).



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       [FN][McDowell] asserts that the sentence may have been illegal,
       as PA SORNA may be unconstitutional, may violate due process
       and may be punitive, and may be deemed to have violated the
       Ex Post Facto clause. This issue is still being litigated before the
       Pennsylvania Supreme Court.         In an abundance of caution,
       [McDowell] is thus stating this contention in this footnote, and
       will file the necessary pleading accordingly, pending the
       resolution of the pending litigation.[4]

Brief for Appellant at 7; Supplemental Brief for Appellant at 7 (raising

questions three and four) (one footnote in original; footnotes added).

       In his first claim, McDowell challenges the weight of the evidence

supporting each of his convictions.            See Brief for Appellant at 13-18.

McDowell argues that the Complainant’s testimony was not credible because

the Complainant (1) continued to stay in McDowell’s home after he allegedly

had assaulted her, (2) waited five days to report the assault to the police,

preventing the collection of a rape kit and drug screening, and (3) gave

inconsistent testimony. Id. at 15-18.

       As this Court has recognized,

____________________________________________


4 The claims McDowell has raised in his Brief’s footnote appear to be the
same claims he raises in his Supplemental Brief. To the extent that any
claims raised in McDowell’s footnote are not raised in his Supplemental Brief,
said claims are waived, because they were not raised in his court-ordered
Concise    Statement      or   Supplemental       Concise   Statement,   see
Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa. Super. 2002) (stating
that “issues not included in a Pa.R.A.P. 1925(b) statement are deemed
waived on appeal.”), or sufficiently developed for our review in his Brief or
Supplemental Brief. See Pa.R.A.P. 2119(a); see also Commonwealth v.
Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (stating that an appellant’s
“brief must support the claims with pertinent discussion, with references to
the record and with citations to legal authorities.”).



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      [a]ppellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge
      has had the opportunity to hear and see the evidence presented,
      an appellate court will give the gravest consideration to the
      findings and reasons advanced by the trial judge when reviewing
      a trial court’s determination that the verdict is against the weight
      of the evidence. One of the least assailable reasons for granting
      or denying a new trial is the lower court’s conviction that the
      verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(citation omitted). Further,

      [w]hen the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citation

omitted). In order for an appellant to prevail on a challenge to the weight of

the evidence, “the evidence must be so tenuous, vague and uncertain that

the verdict shocks the conscience of the court.”            Commonwealth v.

Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

      Here, McDowell asks that we re-weigh the evidence and re-assess the

credibility of the witnesses presented at trial, a task which we must decline

to undertake. See Gibbs, supra; see also Commonwealth v. Sanchez,

36 A.3d 24, 39 (Pa. Super. 2011) (stating that “this Court cannot substitute

its judgment for that of the jury on issues of credibility, or that of the trial

judge respecting weight.”). The trial court, sitting as the finder of fact, had

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the exclusive duty of determining the credibility of the testimony, as well as

the weight of the evidence presented at trial.     See Talbert, 129 A.3d at

546.     The verdict is not so contrary to the evidence as to shock the

conscience of the court. See Sullivan, supra. Thus, this claim is without

merit.

       In his second claim, McDowell alleges that the evidence was

insufficient to support each of his convictions. See Brief for Appellant at 18-

20.      McDowell argues that the only evidence was the Complainant’s

testimony at trial, and that there was no evidence to corroborate the

Complainant’s testimony that McDowell had engaged in sexual intercourse or

indecent contact with her. Id. at 19-20. McDowell points out that because

the Complainant waited five days to report the alleged assault, the collection

of a rape kit and drug screening was not possible.5 Id. at 19.

       The standard for reviewing a challenge to the sufficiency of the

evidence is

____________________________________________


5 McDowell’s claim is limited to a single element on each of the charges—
whether the evidence was sufficient to prove that he had sexual intercourse,
for purposes of his rape and sexual assault convictions, or indecent contact,
for purposes of his indecent assault conviction, with the Complainant. See
18 Pa.C.S.A. § 3121 (defining rape, in relevant part, as “when [a] person
engages in sexual intercourse with a complainant….”); 18 Pa.C.S.A.
§ 3124.1 (defining sexual assault as “when [a] person engages in sexual
intercourse … with a complainant….”); 18 Pa.C.S.A. § 3126(a)(1) (stating
that “[a] person is guilty of indecent assault if the person has indecent
contact with the complainant….”). Accordingly, we only address this element
regarding each of the crimes.



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     whether[,] viewing all the evidence admitted at trial in the light
     most favorable to the verdict winner, there is sufficient evidence
     to enable the fact-finder to find every element of the crime
     beyond a reasonable doubt. In applying the above test, we may
     not weigh the evidence and substitute our judgment for the fact-
     finder. In addition, we note that the facts and circumstances
     established by the Commonwealth need not preclude every
     possibility of innocence. Any doubts regarding a defendant’s
     guilt may be resolved by the fact-finder[,] unless the evidence is
     so weak and inconclusive that as a matter of law no probability
     of fact may be drawn from the combined circumstances. The
     Commonwealth may sustain its burden of proving every element
     of the crime beyond a reasonable doubt by means of wholly
     circumstantial evidence. Moreover, in applying the above test,
     the entire record must be evaluated and all evidence actually
     received must be considered. Finally, the finder of fact[,] while
     passing upon the credibility of witnesses and the weight of the
     evidence produced, is free to believe all, part or none of the
     evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

           This Court has long[]recognized that the uncorroborated
     testimony of a sexual assault victim, if believed by the trier of
     fact, is sufficient to convict a defendant, despite contrary
     evidence from defense witnesses. If the factfinder reasonably
     could have determined from the evidence adduced that all of the
     necessary elements of the crime were established, then that
     evidence will be deemed sufficient to support the verdict.

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006)

(citation and quotation marks omitted).

     Here, the Complainant testified that McDowell had sexual intercourse

with her.   See N.T., 1/11/19, at 24 (wherein the Complainant stated that

“[McDowell was on top of [her] having sex. … His penis was in [her]

vagina.”). The trial court found the Complainant’s testimony credible. See



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Trial Court Opinion at 5. Viewing the evidence in a light most favorable to

the Commonwealth as the verdict winner, this evidence was sufficient to

establish that McDowell had sexual intercourse and indecent contact with the

Complainant. See Melvin, supra; Charlton, supra; 18 Pa.C.S.A. § 3101

(defining indecent contact, in relevant part, as “[a]ny touching of the sexual

or other intimate parts of the person….”).    Accordingly, McDowell’s second

claim fails.

      In McDowell’s third claim, he alleges that the trial court imposed an

illegal sentence by not merging the offenses of rape and sexual assault, and

by ordering the jail sentences for each to run consecutively.               See

Supplemental Brief for Appellant at 13-14. McDowell argues that all of the

elements of sexual assault are included in the elements of rape, and the

crimes arise from a single act of sexual intercourse. Id. McDowell further

points to the trial court’s statement in its Supplemental Opinion that

      [McDowell] is correct in his assertion that the convictions of rape
      and sexual assault should have merged for sentencing purposes.
      In the case at hand, the convictions arose from a single criminal
      act rather than separate criminal acts and should therefore have
      merged.

Supplemental Brief for Appellant at 14 (citing Trial Court Supplemental

Opinion, 12/4/19, at 2).

      “Issues relating to the legality of a sentence are questions of law. Our

standard of review over such questions is de novo and our scope of review is




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plenary.”   Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa. Super.

2014) (brackets and ellipses omitted).

           No crimes shall merge for sentencing purposes unless the
     crimes arise from a single criminal act and all of the statutory
     elements of one offense are included in the statutory elements of
     the other offense. Where crimes merge for sentencing purposes,
     the court may sentence the defendant only on the higher graded
     offense.

42 Pa.C.S.A. § 9765; see also Commonwealth v. Roane, 204 A.3d 998,

1002 (Pa. Super. 2019) (stating that “[m]erger of offenses is appropriate

where: (1) the crimes arise from a single criminal act; and (2) all of the

statutory elements of one of the offenses are included in the statutory

elements of the other offense.” (citations and quotation marks omitted)).

     Here, the evidence reveals that McDowell’s crimes against the

Complainant arise from a single criminal act.     See N.T., 1/11/19, at 24

(wherein the Complainant stated that “[McDowell] was on top of [her]

having sex. … His penis was in [her] vagina.”); see also Trial Court

Supplemental Opinion, 12/4/19, at 2 (stating that “the convictions arose

from a single criminal act rather than separate criminal acts….”). Therefore,

we proceed to determine whether all of the elements of rape, pursuant to 18

Pa.C.S.A. § 3121(a)(4), or sexual assault, pursuant to 18 Pa.C.S.A.

§ 3124.1, are included in the elements of the other offense.

     Section 3121(a)(4) of the Crimes Code states as follows:

     § 3121. Rape




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     (a) Offense defined.--A person commits a felony of the first
     degree when the person engages in sexual intercourse with a
     complainant:

                                      ***

           (4) Where the person has substantially impaired the
           complainant’s power to appraise or control his or her
           conduct by administering or employing, without the
           knowledge of the complainant, drugs, intoxicants or other
           means for the purpose of preventing resistance.

18 Pa.C.S.A. § 3121(a)(4).

     The Crimes Code defines sexual assault as follows:

     § 3124.1. Sexual assault

     Except as provided in section 3121 (relating to rape) or 3123
     (relating to involuntary deviate sexual intercourse), a person
     commits a felony of the second degree when that person
     engages in sexual intercourse or deviate sexual intercourse with
     a complainant without the complainant’s consent.

18 Pa.C.S.A. § 3124.1.

            [R]ape, … and sexual assault [both] require proof of sexual
     intercourse. Compare 18 Pa.C.S.[A.] § 3121(a) … with 18
     Pa.C.S.[A.] § 3124.1. The remaining question in assessing the
     relationship [between] the offenses is whether lack of consent
     (the only other element of sexual assault) is necessarily included
     within the elements of the greater offense[, rape].

Commonwealth v. Buffington, 828 A.2d 1024, 1031-32 (Pa. 2003).

     Although Section 3121(a)(4) does not explicitly reference a lack of

consent as an element, “the absence of consent is assumed from the state of

the victim.” Id. (citing Commonwealth v. Erney, 698 A.2d 56, 58-59 (Pa.

1997) (stating that the “essence of the criminal act of rape is involuntary




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submission to sexual intercourse.”)).6 Therefore, all the elements of sexual

assault are included in the elements of rape under subsection 3121(a)(4).

Consequently, McDowell’s convictions of rape and sexual assault should have

merged for sentencing purposes, and the trial court imposed an illegal

sentence.     We vacate McDowell’s judgment of sentence as to the sexual

assault conviction.      Additionally, because we may have altered the trial

court’s sentencing scheme,7 we also vacate the judgment of sentence

imposed as to McDowell’s remaining convictions of rape and indecent

assault, and remand to the trial court for further proceedings.

       In McDowell’s fourth claim, he alleges that his sentence is illegal,

because his registration requirements pursuant to “PA SORNA”8 are

unconstitutional based on our Supreme Court’s holding in Commonwealth

v. Muniz, 164 A.3d 1189 (Pa. 2017). Supplemental Brief for Appellant at
____________________________________________


6 We note that the Court in Buffington was addressing subsection
3121(a)(3), which applies where the complainant is “unconscious[,] or
where the [defendant] knows that the complainant is unaware that the
sexual intercourse is occurring.” 18 Pa.C.S.A. § 3121(a)(3). However, we
conclude that the Buffington Court’s holding, that a lack of consent may be
assumed, is equally applicable here, under subsection 3121(a)(4), where the
complainant is “substantially impaired” by “drugs, intoxicants or other
means….”

7  See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006)
(stating that “[i]f our disposition upsets the overall sentencing scheme of the
trial court, we must remand so that the court can restructure its sentence
plan.”).

8McDowell uses the term “PA SORNA,” without specifying which version of
SORNA he is referring to.



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14-15. McDowell further states that “[t]his issue is still being litigated in the

Pennsylvania appellate courts,” and that “the [c]onstitutionality of [] SORNA

is still in question, and is currently being considered by this Commonwealth’s

Supreme Court….” Id. at 14.

      In Muniz, our Supreme Court held that SORNA was punitive in nature,

and that the retroactive application of SORNA’s registration and reporting

requirements violates the ex post facto clauses of the United States and

Pennsylvania Constitutions. See Muniz, 164 A.3d at 1218, 1223.

      Here, the holding in Muniz does not apply to McDowell, because

McDowell committed his crimes after SORNA was enacted. See id.

      To the extent that McDowell asserts that his sentence is illegal based

on other cases pending before our Supreme Court, this claim is waived.

McDowell makes only bald allegations that SORNA is unconstitutional,

without presenting any legal argument in support of his claims.        McDowell

states that this issue is “currently being considered by this Commonwealth’s

Supreme Court,” without citing to any specific cases, stating what portions

of SORNA are being challenged, or explaining how these purported cases

relate to his case.   “The failure to develop an adequate argument in an

appellate brief may result in waiver of the claim under Pa.R.A.P. 2119.

While this Court may overlook minor defects or omissions in an appellant’s

brief, we will not act as his or her appellate counsel.” Commonwealth v.

Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015) (citations and quotation


                                     - 14 -
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marks omitted).    Accordingly, to the extent that McDowell relies on cases

purportedly pending before our Supreme Court to challenge his sentence,

this claim is waived.

      Judgment    of    sentence   vacated.   Case   remanded     for   further

proceedings consistent with this Memorandum. The Prothonotary is directed

to remand the certified record to the trial court. Superior Court jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/30/2020




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