J-A28026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

DANIEL CLEMENT

                          Appellant                No. 217 EDA 2015


           Appeal from the Judgment of Sentence December 12, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003347-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                      FILED JANUARY 05, 2016

     Appellant, Daniel Clement, appeals from the judgment of sentence

entered December 12, 2014, in the Court of Common Pleas of Delaware

County. We affirm.

     We take the underlying history of this matter from the trial court’s

opinion.

           On December 27, 2013, [the victim, Clement’s great-
     grandfather,] was surprised to find money missing from his
     hidden safe at his Maris Grove apartment.        Multiple family
     members testified to not knowing about [the victim’s] safe. Yet,
     [Clement’s] fingerprints were found on envelopes in [the
     victim’s] safe. [Clement] claimed the fingerprints were there
     lawfully when he helped the victim move from a home in New
     Jersey to Maris Grove; however, among seven family members,
     only [Clement’s] father and brother vaguely remember seeing
     similar envelopes during the move. Neither one saw [Clement]
     ever touch an envelope.

            After the victim’s money had been stolen from his safe, he
     left his keys and a few coins in his safe. On December 31, 2013,
J-A28026-15


        the coins were unlawfully moved from the victim’s safe to his
        bathroom counter, and [Clement] was the only one who used
        [the victim’s] bathroom. The victim did not move the coins and
        [Clement] shut the victim’s bedroom door before using his
        bathroom. The victim’s bathroom connected to the victim’s
        bedroom.

Trial Court Opinion, 4/24/15 at 2.

        Clement was arrested and charged with theft by unlawful taking –

moveable property and attempted theft by unlawful taking – moveable

property.1 Following a bench trial, Clement was convicted of both charges

and sentenced to three years of probation and ordered to pay $25,000 in

restitution. This timely appeal followed.

        Clement raises the following issues for our review.

        1. Was the evidence sufficient to support appellant’s conviction
           for theft, where numerous people had access to the safe from
           which the money was allegedly stolen during the timeframe in
           which the alleged theft may have occurred and people’s
           fingerprints were on other items in the safe?

        2. Was the evidence sufficient to support appellant’s conviction
           for attempted theft of coins, where the coins in question were
           left in the victim’s apartment and there is no evidence
           appellant ever tried to take them?

        3. Did the lower court abuse its discretion in allowing appellant’s
           former girlfriend to testify that he stole $20 from her on a
           trip, where that testimony of uncharged alleged criminal
           activity served only to suggest that appellant had a
           propensity to steal?

Appellant’s Brief, at 3.



____________________________________________


1
    18 Pa.C.S.A. §§ 3921(a) and 901(a).



                                           -2-
J-A28026-15



      Clement’s first two claims on appeal challenge the sufficiency of the

evidence to support his convictions.

             The standard we apply when reviewing the sufficiency of
      the evidence is 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
      trier 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. Furthermore, when reviewing a sufficiency
      claim, our Court is required to give the prosecution the benefit of
      all reasonable inferences to be drawn from the evidence.

             However, the inferences must flow from facts and
      circumstances proven in the record, and must be of such volume
      and quality as to overcome the presumption of innocence and
      satisfy the jury of an accused's guilt beyond a reasonable doubt.
      The trier of fact cannot base a conviction on conjecture and
      speculation and a verdict which is premised on suspicion will fail
      even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-276 (Pa. Super. 2014)

(citation omitted).

      A person commits the crime of theft by unlawful taking – moveable

property if he “unlawfully takes, or exercises unlawful control over, movable

property of another with intent to deprive him thereof.”         18 Pa.C.S.A.


                                       -3-
J-A28026-15



3921(a). A person is guilty of criminal attempt “when, with intent to commit

a specific crime, he does any act which constitutes a substantial step toward

the commission of that crime.” 18 Pa.C.S.A. 901(a).

      Clement’s remaining claim challenges the admissibility of evidence.

We note that “the admission of evidence is within the sound discretion of the

trial court and will be reversed only upon a showing that the trial court

clearly abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100,

1106 (Pa. Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (internal

citations omitted).     In reviewing a court’s decision to permit evidence of

alleged prior bad acts, we note that it is impermissible to present evidence

at trial of a defendant’s prior bad acts or crimes to establish the defendant’s

criminal character or proclivities. See Pa.R.E. 404(b); Commonwealth v.

Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). Such evidence, however,

may be admissible “where it is relevant for some other legitimate purpose

and   not    utilized    solely   to   blacken   the   defendant’s   character.”

Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super. 2007)

(citation omitted).

      We have reviewed Clement’s issues raised on appeal, along with the

briefs of the parties, the certified record, and the applicable law. Having

determined that the Honorable George A. Pagano’s April 24, 2015 opinion

ably and comprehensively disposes of Clement’s issues raised on appeal,

with appropriate reference to the record and without legal error, we will

affirm on the basis of that opinion. See Trial Court Opinion, 4/24/15 at 2-4,

                                       -4-
J-A28026-15



7 (finding: 1) evidence was sufficient to support theft conviction where, inter

alia, Clement’s “innocent explanation” for his fingerprints on the envelopes

from which the money was stolen was incredible and there was no otherwise

lawful reason why the safe was opened; 2) Clement’s movement of coins

from the safe to the victim’s bathroom was a substantial step toward the

commission of theft; and 3) the trial court, sitting as finder of fact, is

presumed to disregard prejudicial evidence such that admission of alleged

prior bad acts testimony did not constitute an abuse of discretion).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2016




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IN THE COURT OF COMMON PLEAS OF DELA WARE COUNTY, PENNSYLVANIA
                       CRIMINAL DIVISION


COMMONWEALTH               OF                               NO. CP-23"CR..()003347-2014

PENNSYLVANIA

                      v.
DANIEL CLEMENT



Sheldon Kovach, Esquire, Attorney for the Commonwealth
Regina M. Oberholzer, Esquire, Attorney for the Appellant


                                           OPINION

PAGANO, J.                                                                  April 24, 2015

       On October I 0, 2014, after a day bench trial, defendant was convicted of theft by
unlawful taking and criminal attempt to theft by unlawful taking. The Defendant has filed a
timely appeal from the Trial Court's Order and Sentence of December 12, 2014.

       On appeal, defendant has argued:
           1. The evidence was insufficient to support defendant's conviction for theft by
              unlawful taking of money because people could have accessed the safe where the
              money was taken and "other people's fingerprints were on items inside the safe."
          2. The evidence was insufficient to support defendant's conviction for attempt to
             theft by unlawful taking of coins because the coins did not leave the victim's
             apartment and "there is no evidence defendant or anyone else ever[] tried to take
             them."
          3. The trial court abused its discretion in allowing the defendant's uncle to testify
             about defendant's employment history because the uncle's testimony was hearsay.
          4. The trial court abused its discretion in allowing multiple witnesses to testify to
             defendant's alleged drug use and arrest on drug charges because the "testimony
             was hearsay and prejudicial evidence of other bad acts or crimes."
          5. The trial court abused its discretion in allowing defendant's ex-girlfriend to testify
             about the defendant stealing twenty dollars from her during a vacation trip
             because the testimony was to show that the defendant had a "propensity to steal"
             based on "uncharged alleged criminal activity."
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                                         BACKGROUND

    On December 27, 2013, Mr. Kegel was surprised to find money missing from his hidden safe
at his Maris Grove apartment. [N.T. 10/10/2014, pp. 23-24]. Multiple family members testified
to not knowing about Kegel' s safe. Id. at 17, 66, 102-03, 198, 202, 210. Yet, the defendant's
fingerprints were found on envelopes in Kegel's safe. Id at 159-60. The defendant claimed the
fingerprints were there lawfully when he helped the victim move from a home in New Jersey to
Maris Grove; however, among seven family members, only the defendant's father and brother
vaguely remember seeing similar envelopes during the move. Id. at 16-17, 36, 75, 166, 196-97,
201-02, 210. Neither one saw the defendant ever touch an envelope. Id. at 202.

     After the victim's money had been stolen from his safe, he left his key and a few coins in his
safe. Id at 198-99. On December 31, 2013, the coins were unlawfully moved from the victim's
safe to his bathroom counter, and the defendant was the only one who used Kegel's bathroom.
Id. at 29. The victim did not move the coins and the defendant shut the victim's bedroom door
before using his bathroom. Id. at 28-29. The victim's bathroom connected to the victim's
bedroom. Id. at 27-28.

                          DISCUSSION OF DEFENDANT'S             APPEAL

      I.   There was sufficient evidence to find theft and attempt because the fact-finder is
           allowed to disbelieve the defendant's innocent explanation for the theft, and
           defendant's movement of another's property was a substantial step that satisfied
           an attempt.
    Defendant's appeal of his conviction of theft by unlawful taking movable property and
criminal attempt to theft by unlawful taking movable property should be denied.

    Proving the sufficiency of the evidence at trial is a question of law. Com. v. Toritto, 67 A.3d
29, 33 (Pa. Super. 2013) (quoting Com. v. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011)).
"Evidence will be deemed sufficient to support the verdict when it establishes each material
element of the crime charged and the commission thereof by the accused, beyond ~ reasonable
doubt." Id The evidence will not be found sufficient when it contradicts physical facts, or
conflicts with human experience and natural laws. Id "Guilt does not have to be established to
a mathematical certainty." Com v. Von Aczel, 441 A.2d 750, 752 (Pa. Super. 1981) (citing Com.
v. Lewis, 419 A.2d 544 (1980)). Yet, "mere conjecture or surmise is not enough." Id. (citing
Com. v. Lovette, 413 A.2d 390 (1979)).
     In determining whether the evidence is sufficient, the reviewing court must "view the
evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence." Toritto, 67 A.3d at 33. The trial evidence
does not need to "preclude every possibility of innocence'' and can be established by
circumstantial evidence. Id. (quoting Com. v. Stokes, 38 A.3d 846, 853 (Pa. Super. 2011)).

   Importantly, the reviewing court cannot act as a second fact-finder and reweigh the evidence.
Com. v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007). The fact-finder is "free to believe all, part, or


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none of the evidence presented." Com. v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (quoting
Com. v. Ratsamy, 934 A.2d 1233, 1236 (Pa. 2007)). The reviewing court may only substitute its
judgment for the fact-finder's judgment if the evidence "is so weak and inconclusive that, as a
matter of law, no probability of fact can be drawn from the combined circumstances." Toritto, 67
A.3d at 33.

               A. Because the fact-finder is free to disbelieve a defendant's "innocent
                  explanation" for how defendant's fingerprints were found on the safe's
                  envelopes, the fact-finder had sufficient evidence to find theft.
         The fact-finder was presented with sufficient evidence to find that the Commonwealth
had proven beyond a reasonable doubt theft by unlawful taking of movable property. One is
guilty of theft by unlawful taking of movable property when he "unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive him thereof." 18
Pa.C.S.A. §3921 (a). "Property of another" is defined as "property in which any person other
than the actor has an interest which the actor is not privileged to infringe." J 8 Pa.C.S.A. §3901.
"Movable property" is defined as property whose "location of which can be changed, including
things ... found in land." Id "Deprive" is defined as "[t]o withhold property of another
permanently or for so extended a period as to appropriate a major portion of its economic value."
Id. These elements raise the questions of what was taken, why it was taken, and whether any
permission was given or if there was a lawful reason the items were taken. Com. v. Deeters, 386
A.2d 1034, 1035 (Pa. Super. 1978). Here, money was taken, Daniel Clement needed the money,
Clement was not given permission to take money from his great grandfather's safe, and
Clement's fingerprints were on envelops in the safe.

        Absent an "innocent explanation" for one's fingerprints on an item, the Superior Court
has held fingerprints to be sufficient evidence by themselves. Com. v. Donohue, 62 A.3d 1033,
I 036~37 (Pa. Super.2013). Likewise, the fact-finder's "credibility determination" on an
innocent explanation is binding on the Superior Court. Com. v. Sloan, 67 A.3d 808, 816 (Pa.
Super. 2013). The fact-finder's determination will be especially deferred to when the fingerprint
evidence is supported by circumstantial evidence such as, when the fingerprint is "not in a public
place," or is "not in a readily accessible place." Com. v. Hunter, 338 A.2d 623, 625 (Pa. Super
1975).
          The fact-finder was free to disbelieve Daniel Clement's innocent explanation, as Clement
was placed at the scene, which removed any "mere suspicion or conjecture" concern. See In re
MJ.H, 988 A.2d 694, 699 (Pa. Super. 2010) (suspect could not be placed at the scene close-in-
time to the crime). Clement was placed at the scene twice, was moving about suspiciously,
money was stolen, Clement was always asking for money, the safe was not known or accessible,
and Clement had no explanation why he was at the scene so long. Id at 23, 133-34, 203-05, 211.
Furthermore, there is corroborating evidence of Clement' s guilt, as his fingerprints were inside
the safe and there was no lawful reason why the safe was opened. Donohue, 62 A.3d at I 034,
I 03 7 ( court placed substantial weight on a lack of explanation how an unopened soda bottle
became opened after the burglary).




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               B. Because the defendant took a substantial step in moving another's coins
                  and going in another's private bedroom, the fact-flnder was presented
                  with sufficient evidence to find attempted theft.
    Clement's movement ofKegel's coins by way of Kegel's bathroom was sufficient to prove
attempt because the movement of the coins was a substantial step. Criminal attempt is defined as
a person who "with intent to commit a specific crime [here, theft] ... does any act which
constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901. A
substantial step can occur even if the item is not removed from its owner's possession. Com. v.
Lewis, 438 A.2d 985, 986 (Pa. Super. 1981) (defendant was arrested and convicted when he only
moved a watch one inch on a sleeping man's arm). A substantial step occurred when Daniel
Clement took Kegel's coins and moved them to Kegel's bathroom.

     Clement's access of Kegel's private bedroom is also a substantial step. Gaining access to a
private area is sufficient evidence of a substantial step. Com. v. Farmer, 368 A.2d 748, 752 (Pa.
Super. I 976) (gaining entrance into car was a substantial step and did not require proof that there
was actually something to steal in the car). Here, even if there was nothing to steal in the safe,
Clement's closing of Kegel's bedroom door and proceeding from the bathroom to the bedroom
would constitute a substantial step. Because Daniel was in a private area, his movement of the
coins was a second substantial step. See, e.g., Com. v. Butch, 361 A.2d 380, 382 (Pa. Super.
 I 976) (first substantial step was being on private property late at night and it was enough to infer
intent to steal). Additionally, Kegel's testimony that Daniel was the sole person to use his
bathroom distinguishes this case from cases where no substantial step was found. Com. v. Clark,
735 A.2d 1248, 1253 (Pa. 1999) (caller who reported suspicious behavior did not give any facts
that "suggest[ed]" the suspects were attempting to take anything).

     II.   This court did not abuse its discretion in allowing testimony of defendant's
           employment history, alleged use of drugs and arrest on drug charges, and
           testimony that defendant had stolen money before.

        Evidence admissibility is a "matter addressed to the sound discretion of the trial court."
Com. v. Claypool, 495 A.2d 176, 178 (Pa. 1985). The appellate court must find that the trial
court abused its discretion in order to reverse the trial court's decision. Com. v. LaCava, 666
A.2d 221, 227 (Pa. 1995) (citing Com. v. Claypool, 495 A.2d 176, 178 (Pa. 1985)). '" An abuse
of discretion is not merely an error of judgment, but is rather the overriding or misapplication of
the Jaw, or the exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.:" Com v. Dent, 837 A.2d
571, 577 (Pa. Super. 2003) (citing Com. v. Cameron, 780 A.2d 688, 692 (Pa. Super. 2001)).
There was no abuse of discretion here.

         Trial judges, as finders-of-fact, are presumed not to consider inadmissible evidence.
Com. v. Davis, 421 A.2d 179, 183 (Pa. 1980) ("The evidence now objected to thus was not a
factor in determining appellant's guilt."); see also Com. v. Burke, 49 A.3d 542, 545 n.3 (Pa.
Cornrow. 2012) (citing Com. v. Davis, 421 A.2d 179 (1980)) (disregarding appe11ant's argument
that the judge improperly considered evidence as finder-of-fact). Furthermore, trial judges acting



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as finders-of-fact in criminal trials are presumed to ignore prejudicial evidence.  Com. v. Glover,
405 A.2d 945, 947 (Pa. 1979) ("the case was ultimately tried by the court, which must be
presumed to be able to disregard inflammatory evidence"); Com. v. Green, 347 A.2d 682, 683
(Pa. 1975) (disagreeing with appellant that ''mere exposure to prejudicial evidence is enough to
nullify a judge's verdict in a case"); see also Dent, 837 A.2d at 582 (noting the concern for jury
members hearing certain prejudicial evidence is not present for a trial judge sitting as finder-of-
fact).

               A. This court did not abuse its discretion in allowing defendant's uncle to
                  testify about defendant's employment history because the first comments
                  provided no hearsay statements and defense counsel opened the deor for
                  the second.

                         1. Transcript Objection 1

        While defense counsel raised a hearsay objection to Mark Clement commenting on
Daniel Clement's employment history, the prosecution noted that the statements were not
hearsay because Mark Clement had personal knowledge and Mark Clement's answer was not
offered for the truth of the matter asserted, and. (N.T. 10/10/2013, p. 73-74]. Ultimately, Mark
Clement did not know where Daniel Clement was working during December 2013. Id at 73-74.
The trial court did not abuse its discretion on hearsay grounds because Mark Clement did not
provide any statement that was hearsay because he did not know. Further, the court is presumed
to ignore prejudicial evidence. Glover, 405 A.2d at 947.

                         2. Transcript Obiection 2

        There was a second objection by defense counsel on re-direct to Mark Clement stating
that he "had heard" Daniel Clement was asked to leave his position at Swarthmore College.
[N.T. 10/10/2013, p. 90]. The prosecutor replied that the defendant had "opened the door about
[Daniel Clement's] prior employment" on cross examination. Id. Defense counsel had
previously opened the door by asking Mark Clement on cross examination about Daniel
Clement's employment history; Mark Clement's answer included Daniel Clement's employment
with Swarthmore College. Id. at 82-83. Thus, the trial court did not abuse its discretion on
hearsay grounds because defense counsel had opened the door himself.




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                  B. This court did not abuse its discretion in allowing multiple witnesses to
                     testify about defendant's drug use and drug charges because either no
                     objections were made on the basis of hearsay or prejudice, or the defense
                     atto .. ney elicited the testimony himself,

                                1. Transcript Obiection t I

        After discussing Steven Clement, Mark Clement was asked about Daniel Clement's
"habits." Id. at 95. Mark Clement stated that he "was shocked to find out that [Daniel Clement]
was doing pills." Id. at 96. Defense counsel objected solely on "[a]sked and answered" grounds
and did not object on hearsay or prejudicial grounds. Id. at 95-96. Because defense counsel
simply objected on asked and answered grounds, the court certainly operated within its discretion
in overruling the objection. Likewise, the court overruled correctly because the prior questions
had not been about Daniel, but Steven Clement. Id. at 94-95.

                             2. Transcript Obiection 2

        In questioning Police Officer Sanzick on cross-examination, defense counsel asked if the
officer filed charges against Steven Clement because of one fingerprint. Id. at 178. In
answering, the officer stated that his filing was also based on Steven and Daniel Clement being
arrested for "drug charges." Id. After eliciting the response, defense counsel sought to strike the
officer's answer. Id. at 178-79. The trial court did not abuse its discretion on hearsay or
prejudicial grounds because defense counsel brought in the witness' reply on his own. The
defense counsel asked the court to strike it, but because it was already out of the witness' mouth,
the judge could not abuse his discretion by "allowing" the statement.

                             3. Transcript Objection 3

       During re-cross examination of William Clement, Daniel's father, the prosecutor asked
whether William Clement was "aware" that Daniel Clement had "another arrest pending." Id at
206. Wil1iamClement admitted that he had. Id at 207. Defense counsel objected, but gave no
reason for his objection. Id. The trial court did not abuse its discretion on hearsay or prejudicial
grounds because there was no objection for hearsay or prejudice.

        Defense counsel did raise a relevance justification to counter the prosecution's noting that
defense counsel had "brought out" the issue of sale of pills and arrest earlier during the trial. Id.
at 207. However, defense had previously opened the door on this issue. See Id. at 94-96, 178-
179. Therefore, the trial court was within its discretion to allow the questioning. Com. v.
Ramtahal, 33 A.3d 602, 610 (Pa. 2011) (noting that "open[ing] the door" could counter a hearsay
objection).

I
 While Ms. Oberholzer, in her Notice of Appeal, referenced transcript page 6 as the first instance where an abuse of
discretion occurred in reference to drug testimony, presumably pages 95-96 were intended, as page 6 does not have
any testimony about drug use.


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               C. This court did not abuse its discretion in allowing defendant's ex-
                  girlfriend to testify to defendant stealing money from her because it went
                  to defendant's motive.

         On direct, the prosecution asked Daniel's ex-girlfriend about him stealing twenty dollars
from her. Id at 132. Defense counsel objected. Id. The prosecutor noted that the information
was "in her statement," but defense counsel argued the information was a "prior bad act," which
only went to "propensity" of Daniel Clement "to do certain things." Id Defense counsel argued
it was "not relevant to whether on a certain date, time, location that money was stolen from Pop
Kegel's safe." Id Prosecutor responded that it went to "motive" and Clement "having financial
difficulties that certainly extended past the date of the theft." Id

        The trial court did not abuse its discretion in allowing the ex-girlfriend's testimony
because motive is an allowed form of "propensity" evidence. Pa.RE. Rule 404(b)(2). While the
"potential for prejudice" must be weighed by a court for a jury trial, the trial court was the finder
of fact here, and judges are presumed to ignore prejudicial evidence. Pa.R.E. Rule 404 advisory
committee's comment; Glover, 405 A.2d at 947.
                                          CONCLUSJON

       For the foregoing reasons, this Court finds that this appeal is without basis and merit.
This Court respectfully recommends that the judgment of sentence be affirmed.




                                                                   BY THE COURT;

                                                                   ~     {)/~~·
                                                                   GEOGE'A. PAGANO                  J,




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