J-S79016-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JEROME KING,

                        Appellant                   No. 3136 EDA 2013


             Appeal from the PCRA Order of October 18, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0401961-2006


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 24, 2015

      Appellant, Jerome King, appeals from an order entered on October 18,

2013 in the Criminal Division of the Court of Common Pleas of Philadelphia

County that dismissed, without a hearing, his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court summarized the factual and procedural history in this

case as follows:

      On September 13, 2003 at approximately 11:30 pm, Romaine
      Wells (also identified as “Romaine” or “Ali”) and his cousin John
      Wells (victim/decedent, also identified on the record as “John” or
      “J-Balls”) agreed to go to Dooner’s [B]ar located at 2748 North
      29th Street in the City and County of Philadelphia. John and
      Romaine parked across the street from the bar and went inside.
      After ordering a beer, John walked to the jukebox located in the
      center of the bar.

      A short time later, [Appellant] (also identified as “Lemon”) and
      Ed [Edward Jackson] arrived at the bar on their bicycles.
      [Appellant] talked briefly with Kevin Jackson [no relation to

*Retired Senior Judge assigned to the Superior Court.
J-S79016-14


     Edward Jackson], who was sitting outside the bar, then both
     [Appellant] and Ed dropped their bicycles on the sidewalk and
     went inside.

     John Wells was standing by the jukebox, as [Appellant] walked
     by and bumped his shoulder. [Appellant] turned and grabbed
     John’s arm pulling him close and whispered into his ear.
     [Appellant] and Ed immediately left the bar with Romaine
     following him. Once outside, [Appellant] told John Wells, “we
     can talk about this right here.” They engaged in a verbal
     argument for about five (5) minutes. During the course of the
     argument, [Appellant] pulled a silver handgun from his pocket
     and shot John five (5) to six (6) times. John collapsed to the
     ground and Romaine ran into the bar. [Appellant] and Ed left
     their bicycles and fled the scene.

     An officer parked at the corner of 29th and Oakdale streets heard
     gunfire from the direction of the bar. As the officer approached
     the scene, patrons were running from Dooner’s [B]ar. When he
     located John Wells, [Wells] was unresponsive.         The officer
     arranged for him to be immediately transported to a local
     hospital. John Wells sustained seven (7) fatal gunshot wounds
     to the neck, head, lungs, and pulmonary artery.

     A few days following the shooting, [Appellant] told Kevin Jackson
     that “[John Wells] said he was going to kill me, so I seen him
     first.” [Appellant] also told Hassan Kinnard, a longtime friend of
     [Appellant], that he “rocked that nig*** at Dooner’s.”

     Romaine Wells and Kevin Jackson provided statement[s] to
     homicide detectives concerning the shooting death of John Wells
     and both identified [Appellant] as the [shooter] from a [police]
     photo array.

     On March 4, 2008, following a jury trial before the Honorable
     Renee Cardwell Hughes, [Appellant] was convicted of murder
     [in] the third[-]degree and possessing an instrument of crime.
     Sentencing was deferred until May 22, 2008, on which date
     Judge Hughes sentenced petitioner to the mandatory term of life




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       imprisonment.[1] [Appellant] did not file post-sentence motions.
       On June 23, 2008, [Appellant] filed a timely notice of appeal.
       On January 25, 2010, th[is Court] affirmed [Appellant’s]
       judgments of sentence. On February 12, 2010, [Appellant] filed
       a petition for allowance of appeal, which our Supreme Court
       denied on July 7, 2010.

       On May 2, 2011, [Appellant] filed a timely pro se petition
       pursuant to the [PCRA]. Counsel was appointed and, after
       investigation, filed an amended petition on May 25, 2012. On
       August 8, 2012, the Commonwealth filed a motion to dismiss.
       On March 7, 2013, [Appellant] filed a [s]upplemental
       [m]emorandum in support of [a]mended [PCRA p]etition. On
       June 14, 2013, [Appellant] again supplemented his pleadings
       with additional legal argument. The Commonwealth responded
       to that filing on June 18, 2013.       On July 29, 2013, after
       considering the pleadings of the parties and conducting an
       independent review, th[e PCRA c]ourt sent [Appellant] notice
       pursuant to Pa.R.Crim.P. 907 (907 Notice) of its intent to deny
       and dismiss his PCRA petition without hearing. On August 23,
       2013, th[e PCRA c]ourt granted post-conviction counsel’s
       request for additional time to communicate with [Appellant]
       about responding to the 907 Notice.        After speaking with
       [Appellant], counsel elected not to respond to the 907 Notice.
       On October 18, 2013, th[e PCRA c]ourt dismissed [Appellant’s]
       PCRA petition consistent with its 907 Notice. [Appellant filed a
       notice of appeal on November 12, 2013 and was ordered to file a
       concise statement pursuant to Pa.R.A.P. 1925(b) on November
       13, 2013. Appellant filed his concise statement on December 4,
       2013. The PCRA court issued its Pa.R.A.P. 1925(a) opinion on
       May 1, 2014.]

PCRA Court Opinion, 5/1/14, at 1-3.
____________________________________________


1
   Appellant received a mandatory life sentence for his third-degree murder
conviction because he had previously been convicted for the first-degree
murder of Nathaniel Giles in Philadelphia County.          See 42 Pa.C.S.A.
§ 9715(a) (“any person convicted of murder of the third degree in this
Commonwealth who has previously been convicted at any time of murder or
voluntary manslaughter in this Commonwealth or of the same or
substantially equivalent crime in any other jurisdiction shall be sentenced to
life imprisonment”).



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      Appellant raises the following claim for our review:

      Should [Appellant] be remanded to the PCRA [c]ourt for a full
      [e]videntiary [h]earing where that [c]ourt denied such an
      [e]videntiary [h]earing and all where [Appellant] pled and would
      have been able to prove that he was entitled to PCRA relief as
      the result of ineffective assistance of trial counsel where counsel
      failed to object to the [t]rial [c]ourt clearing the room prior to
      the testimony of Kinnard Hassan in violation of [Appellant’s]
      constitutional rights to a public trial and where appellate counsel
      was ineffective for failing to raise that issue on direct appeal and
      where appellate counsel failed to properly raise and preserve the
      issue surrounding the prior inconsistent statement from witness
      Romaine Wells and was ineffective for failing to properly
      preserve the issue of redaction of Kevin Jackson’s statement for
      appellate review?

Appellant’s Brief at 3.

      Appellant challenges an order that dismissed, without a hearing, his

petition under the PCRA alleging layered claims of ineffective assistance by

trial and appellate counsel. The standard and scope of review, as well as the

general principles of law under which we consider such claims, are

well-settled.

      Under our standard of review for an appeal from the denial of
      PCRA relief, we must determine whether the ruling of the PCRA
      court is supported by the record and is free of legal error. The
      PCRA court's credibility determinations are binding on [appellate
      courts] when they are supported by the record. However, this
      Court applies a de novo standard of review to the PCRA court's
      legal conclusions.

      To be eligible for PCRA relief, a petitioner must plead and prove
      by a preponderance of the evidence that his or her conviction or
      sentence resulted from one or more of the circumstances
      enumerated in 42 Pa.C.S. § 9543(a)(2). These circumstances
      include . . . ineffective assistance of counsel which “so
      undermined the truth-determining process that no reliable

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J-S79016-14


     adjudication of guilt or innocence could have taken place.” 42
     Pa.C.S. § 9543(a)(2)(ii). []

     Under Pennsylvania Rule of Criminal Procedure 90[7], the PCRA
     court has the discretion to dismiss a petition without a hearing
     when the court is satisfied “that there are no genuine issues
     concerning any material fact, the defendant is not entitled to
     post-conviction collateral relief, and no legitimate purpose would
     be served by any further proceedings.” Pa.R.Crim.P. 90[7(1)].
     To obtain reversal of a PCRA court's decision to dismiss a
     petition without a hearing, an appellant must show that he
     raised a genuine issue of fact which, if resolved in his favor,
     would have entitled him to relief, or that the court otherwise
     abused its discretion in denying a hearing.

     To prevail in a claim of ineffective assistance of counsel, a
     petitioner must overcome the presumption that counsel is
     effective by establishing all of the following three elements[:]
     (1) the underlying legal claim has arguable merit; (2) counsel
     had no reasonable basis for his or her action or inaction; and (3)
     the petitioner suffered prejudice because of counsel's
     ineffectiveness. [A claim possesses arguable merit if counsel’s
     action or inaction is inconsistent with a constitutional guarantee,
     statute, rule of procedure, or established precedent.]        With
     regard to the second, reasonable basis prong, we do not
     question whether there were other more logical courses of action
     which counsel could have pursued; rather, we must examine
     whether counsel's decisions had any reasonable basis. We will
     conclude that counsel's chosen strategy lacked a reasonable
     basis only if Appellant proves that an alternative not chosen
     offered a potential for success substantially greater than the
     course actually pursued. To establish the third, prejudice prong,
     the petitioner must show that there is a reasonable probability
     that the outcome of the proceedings would have been different
     but for counsel's ineffectiveness[.]

                               *     *     *

     To prevail on a claim of appellate counsel ineffectiveness for
     failure to raise an allegation of trial counsel ineffectiveness, a
     PCRA petitioner must present a “layered” claim, i.e., he or she
     must present argument as to each of the three prongs of the
     [test for ineffectiveness] for each layer of allegedly ineffective
     representation. To establish the arguable merit prong of a claim

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J-S79016-14


       of appellate counsel ineffectiveness for failure to raise a claim of
       trial counsel ineffectiveness, the petitioner must prove that trial
       counsel was ineffective under the three-prong [ineffectiveness]
       standard. If the petitioner cannot prove the underlying claim of
       trial counsel ineffectiveness, then petitioner's derivative claim of
       appellate counsel ineffectiveness of necessity must fail, and it is
       not necessary for the court to address the other two prongs of
       the [ineffectiveness] test as applied to appellate counsel.

Commonwealth v. Paddy, 15 A.3d 431, 441-444 (Pa. 2011) (internal

quotations and case citations omitted).

       Appellant’s first issue alleges that prior counsel were ineffective in

failing to challenge the trial court’s closure of the courtroom to the public

prior to receiving the testimony of Hassan Kinnard. In its opinion, the PCRA

court conceded that the trial court violated Appellant’s right to a public trial

when it cleared the courtroom based solely on the word of the district

attorney and investigating detective, without input from Kinnard. See PCRA

Court Opinion, 5/1/14, at 8 n.11 (finding both arguable merit in Appellant’s

claim and no reasonable basis for trial counsel’s failure to request in camera

examination of Kinnard)2; Commonwealth v. Penn, 562 A.2d 833, 838

(Pa. Super. 1989) (noting that while the right to a public trial may bow to
____________________________________________


2
  The Commonwealth argues at some length that Appellant’s public trial
claim lacks arguable merit, largely on the basis that information about the
threat of witness intimidation was credible and that the alleged threats took
place in the courthouse. In our view, the arguable merit of Appellant’s
public trial claim is a question that involves contested issues of fact that
would require a hearing before the PCRA court. Since Appellant’s petition
was dismissed without a hearing on grounds that he failed to plead and
prove prejudice as a matter of law, we focus on this aspect of the PCRA
court’s disposition.



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J-S79016-14


interest in preventing witness intimidation, trial court abuses its discretion in

clearing courtroom without interviewing witness to verify nature and extent

of attempted intimidation that occurred outside the presence of the presiding

judge), appeal denied, 590 A.2d 756 (Pa. 1991). Thus, we shall confine our

analysis of this issue to the question of whether Appellant met the prejudice

prong of the test for ineffective assistance.

      Appellant maintains that he met the prejudice prong by demonstrating

a reasonable probability that the outcome of the proceedings would have

been different but for counsel's ineffectiveness.          He advances three

arguments in support of this contention. First, Appellant declares that, but

for counsel’s omission, the outcome of the proceeding would have been

different in that his trial would have proceeded without a deprivation of his

constitutional rights. Second, Appellant argues that if appellate counsel had

not waived the issue on direct appeal, then “[Appellant] would have been

awarded a new trial instead of having had his conviction for murder

affirmed[.]” Appellant’s Brief at 22. Lastly, Appellant asserts that we should

presume prejudice as if this case were pending on direct appeal. See id. at

20, citing Commonwealth v. Knight, 364 A.2d 902 (Pa. 1976) (holding on

direct appeal that “no showing of prejudice is required where a violation of

an accused’s right to a public trial is asserted”).         We address these

assertions in turn.




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J-S79016-14


      We are unable to agree with Appellant’s first contention which claims

that prejudice has been established merely because something different

would have transpired during the course of trial. Every collateral challenge

involving claims of ineffective assistance alleges, essentially, that counsel

should have taken some course of action that he did not originally elect. If

this alone satisfied the third prong of the test for counsel’s ineffectiveness,

then prejudice would no longer be a meaningful factor that distinguishes

valid claims from those that lack merit. Hence, we reject this proposition.

      We are likewise unable to agree with Appellant’s second argument in

support of finding prejudice. The record belies Appellant’s assertion that he

would have been awarded a new trial if appellate counsel had not waived the

public trial issue in the context of his direct appeal. Appellant’s own letter

brief submitted in support of his amended petition for PCRA relief makes

clear that appellate counsel raised the public trial issue on direct appeal

before this Court. See Appellant’s Letter Brief in Support of Amended PCRA

Petition, 5/21/12, at 5 (listing public trial issue as one of seven issues raised

by direct appeal counsel). Moreover, the panel memorandum issued by this

Court identifies the public trial issue as one of the claims raised by direct

appeal counsel. Commonwealth v. King, 991 A.2d 358 (Pa. Super. 2010)

(unpublished memorandum) at 4, appeal denied, 997 A.2d 1176 (Pa. 2010).

Indeed, the panel’s memorandum makes clear that trial counsel’s failure to

raise a specific objection precluded this Court from addressing Appellant’s


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J-S79016-14


public trial claim on direct appeal. Commonwealth v. King, 991 A.2d 358

(Pa. Super. 2010) (unpublished memorandum) at 23.                Thus, the record

establishes that appellate counsel raised Appellant’s constitutional challenge

on direct appeal, that appellate counsel was not ineffective in failing to raise

this issue, and, therefore, that Appellant suffered no prejudice resulting from

the performance of direct appeal counsel.

       To succeed on his public trial claim, then, Appellant must demonstrate

how trial counsel’s performance prejudiced efforts of the defense. Appellant

claims on appeal that prejudice should be presumed and, therefore, he is not

required to prove how he was prejudiced by the closure of the courtroom.

       Prior cases such as Knight held, on direct appeal, that where an

appellant was denied his right to a public trial, a new trial must be granted

and that no showing of prejudice is required.3 However, these cases neither

address nor hold that a petitioner on collateral review is relieved of the

burden to prove prejudice within the context of a claim asserting counsel’s

ineffectiveness arising from a failure to assert a public trial right.

       Indeed, to apply our holdings in such cases to the PCRA context would

effectively deem counsel’s actions in such situations per se ineffective.

However,      as    the    Supreme       Court   of   Pennsylvania   explained   in
____________________________________________


3
   Like Knight, the decision of this Court in the direct appeal of
Commonwealth v. Johnson, 455 A.2d 654, 658 (Pa. Super. 1982)
declared that a new trial must be granted, without a showing of prejudice, if
the defendant is denied his right to a public trial.



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Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007), the

situations within the PCRA context in which prejudice is presumed are rare,

and are limited to when counsel’s actions wholly deny a defendant the right

to appellate review, such as the failure to timely file a requested appeal or

Rule 1925 statement. In Reaves, the High Court held that counsel’s failure

to move for reconsideration of sentence following a violation of probation

proceedings did not waive any and all appellate issues – only those claims

subject to issue preservation requirements which were not otherwise

properly preserved.    Id. at 1128-1129.      The Supreme Court in Reaves

expressly distinguished counsel’s actions that result in the total deprivation

of appellate rights, from counsel’s actions that allow an appeal, albeit on a

more limited scope.    Id. at 1128.    In the latter situations, the Supreme

Court explained, prejudice is not presumed. Id. (“It is thus apparent that

counsel's lapse did not deprive appellee of his right to appellate review; at

most, his attorney's conduct at the trial level ‘narrowed the ambit’ of the

appeal new counsel pursued. As such, it is clear that…appellee must satisfy

the…actual prejudice standard.”)

      In this matter, as in Reaves, trial counsel’s failure to object to closure

of the courtroom at most limited the scope of Appellant’s challenges on

direct appeal, but it did not wholly deny appellate review. Consequently, the

fact that Appellant here has raised a public trial claim does not obviate the

need to demonstrate prejudice in the PCRA context. See Commonwealth


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v. Williams, 9 A.3d 613, 619 (Pa. 2010) (holding that while the defendant’s

unqualified right to be present at every stage of the trial was violated

without an objection from trial counsel, counsel’s failure to object did not

result in a total failure to subject the case to the adversarial process, and

therefore was not an instance where a presumption of prejudice applied);

see also Commonwealth v. Johnson, 500 A.2d 173, 177-178 (Pa. Super.

1985) (petitioner alleging ineffective assistance arising from counsel’s failure

to seek public voir dire must demonstrate actual prejudice; new trial

unwarranted where petitioner did not “suggest a likelihood that a jury

selected in a different manner would have reached a different result”);

Commonwealth v. Brandt, 509 A.2d 872, (Pa. Super. 1986) (counsel’s

failure to object to voir dire conducted in chambers rather than in open court

did not constitute ineffective assistance of counsel where petitioner failed to

show, among other things, that jury selected in another manner would have

reached a different verdict), appeal denied, 521 A.2d 930 (Pa. 1987).

Because Appellant has not pled and proved that the outcome of his trial

would have been different if his trial counsel had lodged a proper objection,

Appellant’s claim of ineffective assistance of counsel must fail.4

____________________________________________


4
   The PCRA court conducted a lengthy analysis of whether Appellant could
demonstrate the likelihood of a different outcome if an objection was made
and Kinnard had not testified. See PCRA Court Opinion, 5/1/14, at 8-10. In
its analysis, the PCRA court noted that “[w]hile Kinnard’s testimony
strengthened the Commonwealth’s case, it was not essential.” Id. at 8.
(Footnote Continued Next Page)


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J-S79016-14


      We are not persuaded by Appellant’s contention that the prejudice

presumed on direct appeal equates with the prejudice necessary for an

ineffective assistance of counsel claim.            They are, in fact, quite different.

Indeed, in Williams, the Supreme Court explained that:

      Although it purported to apply the [three-prong test for
      ineffective assistance], the Superior Court conducted a harmless
      error analysis, which was improper given the procedural posture
      of this case. See Commonwealth v. Williams, 959 A.2d 1272,
      1283 (Pa. Super. 2008). The harmless error standard typically
      applies to claims of trial court error raised on direct appeal, and
      the burden of proof is on the Commonwealth, which must
      demonstrate beyond a reasonable doubt that the error did not
      affect the verdict. See Commonwealth v. Howard, 645 A.2d
      1300, 1307 (Pa. 1994). In contrast, an ineffectiveness claim
      shifts the focus to counsel's stewardship, and under [the
      conventional test for ineffective assistance], the defendant has
      the burden of showing that counsel's performance “had an actual
      adverse effect on the outcome of the proceedings.” Howard,
      645 A.2d at 1307. Thus, it is more difficult to obtain relief on
      collateral review because [ineffectiveness claims] place[] a
      heavier burden on the defendant. See Commonwealth v.
      Reaves, 923 A.2d 1119, 1130 (Pa. 2007) (discussing the
      evidentiary standards applicable to preserved issues of trial court
      error and derivative claims of ineffective assistance of counsel).

Williams, 9 A.3d at 619, n.7 (parallel citations omitted).

      Simply because on direct appeal Appellant would not have been

required to establish prejudice resulting from the improper closure of his trial

                       _______________________
(Footnote Continued)

This assessment rested on the court’s observation that the Commonwealth
introduced the testimony of Romaine Wells, who witnessed the entire
interaction between Appellant and the victim, and Kevin Jackson, who
testified that Appellant admitted his role in killing Wells. We find no error in
the PCRA court’s conclusion.



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J-S79016-14


proceedings, does not mean that he is entitled to the same presumption of

prejudice on collateral review.   Because counsel’s failure to object to the

closing of the proceedings did not result in a total abandonment of counsel

or a failure of the adversarial proceedings, we do not believe that a

presumption of prejudice applies. Consequently, Appellant was obligated to

establish that his counsel’s failure to object resulted in prejudice to his

proceedings.     Having failed to establish prejudice, we hold that the trial

court properly denied Appellant’s PCRA petition as a matter of law.

      Appellant’s next claim asserts that prior counsel were ineffective in

failing to challenge the trial court’s refusal to admit a portion of a statement

by Kevin Jackson on grounds that the redacted utterance constituted

hearsay. In a pretrial ruling, the court admitted a statement by Jackson that

relayed a prior declaration by Appellant in which Appellant explained that he

killed John Wells because he believed that Wells intended to kill him.

However, the court excluded a similar statement by Jackson in which

Jackson declared, “I heard that J-Balls [(Wells)] was looking for Lemon

[(Appellant)].   J-Balls says Lemon killed his cousin, Collar-Green, his real

name is Mikal.” N.T., 2/26/08, at 8. Appellant argues that the preceding

statement was relevant and admissible since it shows that Wells was looking

to retaliate against Appellant on the night of the shooting. He argues further

that the statement was not hearsay since it was not offered for the truth of

the matter asserted, but instead to corroborate Appellant’s beliefs by


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showing they were consistent with information that was circulating in the

community.     In the alternative, Appellant claims that the statement was

admissible under the state of mind exception found at Pa.R.E. 803(3).

       On direct appeal, a panel of this Court addressed this claim as an

alternate disposition to its finding that that the issue was waived. The panel

concluded that the trial court did not err since the statement attributed to

Appellant conveyed his subjective beliefs with greater force than the

excluded statement, which presented substantial problems of reliability in

that   it   originated   from   an    unidentified,   out-of-court   declarant.

Commonwealth v. King, 991 A.2d 358 (Pa. Super. 2010) (unpublished

memorandum) at 19. The panel also noted that there was no indication that

Appellant was even aware of the rumor known to Jackson and that the

excluded statement would only be relevant if it were offered to prove the

truth of the matter asserted. Id. For these reasons, the panel concluded

that the trial court did not err in excluding the challenged statement as

inadmissible hearsay. Id. at 20. We, like the PCRA court, concur in these

assessments; hence, we deny relief.

       Appellant’s final issue on appeal claims that prior counsel was

ineffective in failing to challenge the trial court’s determination that

Appellant was not entitled to a specific jury instruction concerning

substantive consideration of an alleged prior inconsistent statement by

Romaine Wells.    As Appellant failed to include this issue in his Pa.R.A.P.


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1925(b) concise statement, he has waived appellate consideration of this

claim. Commonwealth v. Mattison, 82 A.3d 386, 393 (Pa. 2013). Thus,

no relief is due on this claim.

      Order affirmed.

      Judge Allen joins this memorandum.

      Judge Strassburger files a Concurring Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2015




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