J-S29007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

FREDERICK SMITH,

                            Appellant                   No. 729 WDA 2015


               Appeal from the PCRA Order Entered April 14, 2015
               In the Court of Common Pleas of Allegheny County
                           Criminal Division at No(s):
                            CP-02-CR-0002180-2013
                            CP-02-CR-0002182-2013


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED MAY 24, 2016

        Appellant, Frederick Smith, appeals from the post-conviction court’s

April 14, 2015 order denying his petition under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant presents claims of ineffective

assistance of trial counsel.       After careful review, we conclude that one of

Appellant’s issues requires further examination at an evidentiary hearing.

Accordingly, we vacate the PCRA court’s order and remand for further

proceedings.

        On April 28, 2014, Appellant entered a negotiated guilty plea (in two

separate, but related, cases) to one count of statutory sexual assault, 18

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Pa.C.S. 3122.1(a)(2) (defendant eight years older but less than 11 years

older than the complainant), and one count of conspiracy to commit

intimidation of a witness, 18 Pa.C.S. §§ 903 and 4952.          That same day,

Appellant was sentenced to an aggregate term of 18 to 36 months’

incarceration, a consecutive period of 4 years’ probation, and a 25-year sex

offender registration requirement under the Sex Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41. Appellant did not

file a direct appeal from his judgment of sentence.

      On June 23, 2014, Appellant filed a timely, pro se PCRA petition and

counsel was appointed.     Counsel filed an amended petition on Appellant’s

behalf in December of 2014.     After the Commonwealth filed an answer to

Appellant’s petition, the PCRA court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing.     Appellant did not file a

response, and the court issued an order on April 14, 2015, dismissing

Appellant’s petition.   Appellant filed a timely notice of appeal, and also

timely complied with the PCRA court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.         The PCRA court

subsequently filed a Rule 1925(a) opinion.

      Herein, Appellant presents three issues for our review:

      1. Was plea counsel ineffective in permitting [Appellant] to enter
      an unintelligent and unknowing plea, for the following reasons:

         A. Plea counsel failed to ensure a ruling on [Appellant’s]
         motion in limine prior to entry of his plea and, as such,
         [Appellant] did not know whether he would be able to


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         present at trial the mistake of age defense he has clung to
         throughout these proceedings.

         B. The colloquy failed to cover certain areas deemed
         mandatory for a knowing and intelligent plea, more
         specifically, the elements of conspiracy and intimidation of
         a witness, that [Appellant] had a right to trial by jury and
         [a] presumption of innocence and that the court was not
         bound by the terms of the plea agreement unless the
         agreement was accepted by the court.

         C. The factual basis for the crime of intimidation of a
         witness set forth in the colloquy was inadequate and did
         not establish [Appellant’s] guilt of the offense.

Appellant’s Brief at 3.

      First, “[t]his Court’s standard of review from the grant or denial of

post-conviction relief is limited to examining whether the lower court’s

determination is supported by the evidence of record and whether it is free

of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)

(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).

Where, as here, a petitioner claims that he received ineffective assistance of

counsel, our Supreme Court has stated that:

      [A] PCRA petitioner will be granted relief only when he proves,
      by a preponderance of the evidence, that his conviction or
      sentence resulted from the “[i]neffective assistance of counsel
      which, in the circumstances of the particular case, so
      undermined the truth-determining process that no reliable
      adjudication of guilt or innocence could have taken place.”
      Generally, counsel’s performance is presumed to be
      constitutionally adequate, and counsel will only be deemed
      ineffective upon a sufficient showing by the petitioner. To obtain
      relief, a petitioner must demonstrate that counsel’s performance
      was deficient and that the deficiency prejudiced the petitioner. A
      petitioner establishes prejudice when he demonstrates “that
      there is a reasonable probability that, but for counsel’s
      unprofessional errors, the result of the proceeding would have


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      been different.” … [A] properly pled claim of ineffectiveness
      posits that: (1) the underlying legal issue has arguable merit;
      (2) counsel’s actions lacked an objective reasonable basis; and
      (3) actual prejudice befell the petitioner from counsel’s act or
      omission.

Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      We also are mindful of the following legal principles applicable to a

claim of counsel’s ineffectiveness in the context of a guilty plea:

         The standard for post-sentence withdrawal of guilty pleas
         dovetails with the arguable merit/prejudice requirements
         for relief based on a claim of ineffective assistance of plea
         counsel, under which the defendant must show that
         counsel's deficient stewardship resulted in a manifest
         injustice, for example, by facilitating entry of an
         unknowing, involuntary, or unintelligent plea.

      This standard is equivalent to the “manifest injustice” standard
      applicable to all post-sentence motions to withdraw a guilty plea.

Commonwealth v. Morrison, 878 A.2d 102, 105 (Pa. Super. 2005).

      In Appellant’s first claim, he contends that his plea counsel acted

ineffectively by permitting him to enter his guilty plea prior to the trial

court’s ruling on a motion in limine filed by counsel.      Essentially, in that

motion, Appellant requested that the court permit him to present a mistake-

of-age defense at trial. He argues that the court’s ruling on his motion “was

of great importance” to his defense, and because he entered his plea without

knowing how the court would rule on that motion, his plea was unknowing

and unintelligent.   Appellant’s Brief at 10.   Thus, Appellant maintains that

counsel acted ineffectively by not waiting for a ruling on the motion in limine

before permitting Appellant to plead guilty.

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         In response to Appellant’s argument, the Commonwealth stresses that

“[A]ppellant himself stated [at the plea proceeding] that he wanted to

withdraw his motion in limine so that he could resolve his case with a guilty

plea.”    Commonwealth’s Brief at 10.       The Commonwealth then quotes the

following portion of the plea hearing:

         THE COURT: [T]here was a motion with regard to the charge in
         the case had the case gone [to] a trial. The defense had
         submitted a motion in limine indicating the defense had a
         mistake of age [defense] in this case, correct?

         [The Commonwealth]: Yes, that motion is pending.

         THE COURT: At this point given the plea, [defense counsel], you
         have spoken with [Appellant] and he understands that I have
         not yet ruled on that and he would be withdrawing that motion
         today.

         [Defense Counsel]: Yes, I will request that you withdraw that
         motion.

         THE COURT: [Appellant], do you understand that, right?

         [Appellant]: Yes.

         THE COURT: And I ask that because on previous occasions you
         had indicated to me that you were dissatisfied with the previous
         attorney. Disagreed with that attorney regarding motions that
         were being filed and so on. So I want to make sure that you’re
         satisfied with this plea agreement. You understand that by
         entering a plea you are withdrawing any motion to file, and
         specifically I believe that is the only motion pending at this time;
         do you understand that?

         [Appellant]: Yes.

N.T. Plea Hearing, 4/28/14, at 5-6. Additionally, later in the colloquy, the

court once again referenced the outstanding motion in limine, reiterating

that it involved Appellant’s ability to raise a mistake-of-age defense. Id. at


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17-18. The court asked if Appellant had “talked to [defense counsel] about

that[,]” and if he understood that the motion had not yet been ruled on. Id.

at 18.    Appellant again indicated that he understood and that he had

discussed the issue with defense counsel. Id.

       In light of Appellant’s statements at the plea proceeding, we agree

with the Commonwealth that Appellant has failed to demonstrate that his

plea counsel acted ineffectively regarding the motion in limine. The record

confirms that Appellant knew about that outstanding motion, understood

that it implicated his ability to present a mistake-of-age defense, had

discussed the motion with defense counsel, and was choosing to withdraw it

in order to plead guilty.   Thus, Appellant has failed to demonstrate that

counsel’s act of allowing him to enter a guilty plea prior to the court’s ruling

on his motion in limine amounted to “a manifest injustice,” or that his plea

was “unknowing, involuntary, or unintelligent….”      Morrison, 878 A.2d at

105.

       Next, Appellant argues that “plea counsel was ineffective in allowing

Appellant to enter a plea when the plea colloquy failed to cover all of the

requisite areas for a knowing and intelligent plea.” Appellant’s Brief at 12

(unnecessary capitalization and emphasis omitted). Of particular relevance

to Appellant’s claim, the Comment to Pa.R.Crim.P. 590 requires the trial

court to ask whether the defendant understands “the nature of the charges

to which he or she is pleading guilty[,]” “that he or she has the right to trial

by jury[,]” “that he or she is presumed innocent until found guilty[,]” and

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“that the judge is not bound by the terms of any plea agreement tendered

unless the judge accepts such agreement[.]” Pa.R.Crim.P. 590 (Comment).

Appellant argues that, here, the colloquy was deficient because the court

failed to “cover the elements of either conspiracy or intimidation of a

witness[,]” and also did not inform Appellant of his “right to trial by jury and

that he would be presumed innocent until proven guilty beyond a reasonable

doubt….” Appellant’s Brief at 13. Also, Appellant maintains that the court

failed to state that it was “not bound by the terms of any plea agreement

tendered unless the court accept[ed] such agreement.”         Id.   According to

Appellant, these deficiencies in the colloquy “affect[ed] the knowing and

voluntary nature of the entire plea[,]” and “plea counsel was ineffective in

permitting Appellant to enter a plea of guilty in the face of the inadequate

colloquy.” Id. at 14.

      In reviewing Appellant’s challenge to the plea colloquy, and his related

attack on counsel’s effectiveness, we keep in mind that:

            In order for a guilty plea to be constitutionally valid, the
         guilty plea colloquy must affirmatively show that the
         defendant understood what the plea connoted and its
         consequences. This determination is to be made by
         examining the totality of the circumstances surrounding
         the entry of the plea. Thus, even though there is an
         omission or defect in the guilty plea colloquy, a plea of
         guilty will not be deemed invalid if the circumstances
         surrounding the entry of the plea disclose that the
         defendant had a full understanding of the nature and
         consequences of his plea and that he knowingly and
         voluntarily decided to enter the plea.




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       Commonwealth v. Yeomans, 24 A.3d 1044, 1047
       (Pa.Super.2011) (quoting Commonwealth v. Fluharty, 429
       Pa.Super. 213, 632 A.2d 312, 314–15 (1993)).

Commonwealth v. Eichinger, 108 A.3d 821, 832 (Pa. 2014). Additionally,

as Appellant acknowledges, “a written plea waiver form may supplement the

oral colloquy” and, therefore, “an examination of both a written guilty plea

rights form and the oral colloquy” is permitted when assessing the adequacy

of a plea.    Appellant’s Brief at 12 (citing Commonwealth v. Moser, 921

A.2d 526, 529 (Pa. Super. 2007)).1

       Having examined the totality of the circumstances of Appellant’s plea,

including the record of the oral colloquy and the written colloquy completed

by Appellant, it is clear that the above-stated deficiencies in the colloquy did

not render his plea unknowing or involuntary.          First, the written plea

colloquy stated that the court was not bound by the agreement, and
____________________________________________


1
   Appellant claims, however, that the one written plea waiver form
completed in this case bears only the docket number of his statutory sexual
assault case and, therefore, it “cannot be attributed to the plea colloquy for
the conspiracy to intimidate charge.” Appellant’s Brief at 12. We disagree.
While the two charges to which Appellant pled guilty were assigned separate
docket numbers, Appellant repeatedly indicated during the oral colloquy that
he understood he was pleading guilty in both cases. The court discussed the
written colloquy at length during the plea proceeding, and at no point did
Appellant (or plea counsel) indicate that they understood the written
colloquy as pertaining only to the statutory sexual assault charge. In any
event, the written colloquy informed Appellant of his rights, and the
consequences of his waiver thereof; these rights were stated generally and
clearly applied to any guilty plea, not just to Appellant’s guilty plea to the
offense of statutory sexual assault. Thus, it is reasonable to infer that
Appellant believed the written colloquy applied to both charges, and that he
understood that the rights and information set forth therein pertained to his
guilty pleas at both docket numbers.



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informed Appellant of his rights if the court rejected the plea. “Guilty Plea

Explanation of Defendant’s Rights,” 4/28/14, at 10.       The written colloquy

also discussed Appellant’s right to a trial by jury, id. at 3-4, and stated that

“[i]n either the jury trial or non-jury trial before a judge, you enter the

courtroom clothed with the presumption of innocence and that presumption

remains with you until such time, if ever, that all the members of the jury in

a jury trial or judge in a non-jury trial, would find you guilty beyond a

reasonable doubt.” Id. at 3-4. Appellant stated that he understood. Id.

      Further, the written colloquy asked if Appellant had discussed the

elements of each charged offense with defense counsel, to which Appellant

answered, “yes.”    Id. at 2.   Appellant also indicated that he and counsel

“discussed … how the facts of [his] case prove the elements of each charged

offense.”   Id. at 2.   At the oral colloquy, both Appellant and plea counsel

confirmed that counsel had discussed with Appellant “the elements of each

offense and what the Commonwealth would have to prove and what

defenses he may have.”       Id. at 15, 18, 22.   Both Appellant and defense

counsel indicated that Appellant understood all of the information that had

been provided to him, including the elements of the offenses. Id. at 21, 22.

Notably, Appellant did not allege in his PCRA petition, and does not argue on

appeal, that plea counsel misinformed him regarding the elements of the

crimes of conspiracy and/or intimidation of a witness.

      In sum, even though the court failed to explicitly state the elements of

conspiracy and intimidation of a witness on the record, Appellant and

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counsel both confirmed that they had discussed them, and Appellant

repeatedly indicated that he understood those offenses.      Additionally, the

other areas of inquiry that Appellant contends were improperly omitted from

the oral colloquy were sufficiently discussed in the written colloquy that he

signed. At the oral colloquy, counsel and Appellant confirmed that they went

over the written colloquy “question by question” and that Appellant

understood everything presented in that document.       Id. at 24, 26.    The

totality of the circumstances surrounding the entry of Appellant’s plea

demonstrate that he fully understood the areas of inquiry that he now

alleges were omitted from the colloquy, and that he chose to knowingly and

voluntarily enter the plea.   Consequently, Appellant has not proven that

defense counsel acted ineffectively by permitting him to plead guilty based

on these written and oral colloquies.

      In Appellant’s third issue, he argues that defense counsel ineffectively

allowed him to plead guilty to the offense of conspiracy to commit

intimidation of a witness (hereinafter, “conspiracy to intimidate”) where the

factual basis was insufficient to support that charge.      Appellant’s claim

pertains only to the elements of intimidation of a witness (rather than

conspiracy). That offense is defined as follows:

      (a) Offense defined.--A person commits an offense if, with the
      intent to or with the knowledge that his conduct will obstruct,
      impede, impair, prevent or interfere with the administration of
      criminal justice, he intimidates or attempts to intimidate any
      witness or victim to:



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         (1) Refrain from informing or reporting to any law
         enforcement officer, prosecuting official or judge
         concerning any information, document or thing relating to
         the commission of a crime.

         (2) Give any false or misleading information or testimony
         relating to the commission of any crime to any law
         enforcement officer, prosecuting official or judge.

         (3) Withhold any testimony, information, document or
         thing relating to the commission of a crime from any law
         enforcement officer, prosecuting official or judge.

         (4) Give any false or misleading information or testimony
         or refrain from giving any testimony, information,
         document or thing, relating to the commission of a crime,
         to an attorney representing a criminal defendant.

         (5) Elude, evade or ignore any request to appear or legal
         process summoning him to appear to testify or supply
         evidence.

         (6) Absent himself from any proceeding or investigation to
         which he has been legally summoned.

18 Pa.C.S. § 4952(a).

      At the plea proceeding, the Commonwealth provided the following

factual basis for Appellant’s conspiracy to intimidate charge:

      [The Commonwealth:] With regard to CC 201302180, the
      testimony would have been substantially that [Appellant,] while
      in the intake at the Allegheny County jail, placed a call to a
      witness the Commonwealth would have presented to testify by
      the name of Sebrina Malloy.

            She would testify that she received that call and we would
      put those recordings into evidence but that [Appellant]
      substantially asked her to head up to the Spring Street area
      giving her the address, make contact with the victim’s mother
      and ask [the mother] if they would drop the charges saying that
      [Appellant] was -- and asked [Malloy] to relay that [the victim]
      told [Appellant] that she was older than 13. That would be the
      sum of the Commonwealth’s testimony, Your Honor.



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N.T. Plea Hearing at 36-37.2

       Appellant offers two arguments regarding why this factual summary

was inadequate. First, he argues that these facts did not “satisfy [section

4952](a)(1), which is the subsection Appellant pleaded guilty to….”

Appellant’s Brief at 16.      However, Appellant does not cite to where in the

record it indicates that he specifically pled guilty to conspiracy to intimidate

a witness, as defined in 4952(a)(1). Our review of the criminal information

reveals that the Commonwealth did not specify what subsection of section

4952 Appellant conspired to commit, and alleged facts that would support a

conviction under either 4952(a)(1) or (a)(3).3        Thus, the record belies
____________________________________________


2
  At another point during the plea proceeding, the Commonwealth stated the
facts underlying Appellant’s conspiracy to intimidate charge, as follows:
       [The Commonwealth]: [S]hortly after being arrested, [Appellant]
       made a phone call to his then girlfriend who was charged as a
       co-defendant in this case. Her name was Sebrina Malloy.

              He asked that she go up to the victim’s mother and explain
       that he was told that the victim was 18 and requested they drop
       the charges. That did in fact happen and we have jail tapes
       wherein Ms. Malloy can be heard on the jail tapes approaching
       that address. The victim’s mother then proceeded to assault Ms.
       Malloy for even knocking on her door. The Commonwealth’s
       position on that is it was clearly [Appellant’s] intent that she do
       something with the charges.

N.T. Plea Proceeding at 4.

3
  See Criminal Information, 3/15/13, at 1 (stating that Appellant, “with the
intent of promoting or facilitating the crime(s) of Intimidation of a Witness
and/or Victim conspired and agreed with Sabrina Malloy that they or one or
more of them would engage in conduct constituting such crime(s) or attempt
or solicitation to commit such crime(s), and in furtherance thereof
(Footnote Continued Next Page)


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Appellant’s argument that the factual basis had to be adequate to support a

conviction    of   conspiracy      to   intimidate,    as   defined    only   by   section

4952(a)(1).        Appellant offers no argument that the factual basis was

insufficient to demonstrate (a)(3), other than baldly stating the facts did not

prove “any of the other subsections” of section 4952.                 Appellant’s Brief at

16.   Appellant’s underdeveloped argument does not convince us that plea

counsel acted ineffectively by allowing him to plead guilty to the conspiracy

to intimidate charge.

      In Appellant’s second claim pertaining to the factual basis to support

his conspiracy to intimidate charge, he alleges that the elements of an

offense under section 4952 “require a person to intimidate or attempt to

intimidate a person.”          Id. at 17.        Appellant goes on to argue that the

above-stated factual summary fails to prove this element because “[t]he

Commonwealth’s summary does not establish an explicit or implicit threat,

coercion, or inducement to act or refrain from acting.” Id. Appellant adopts

his definition of “intimidation” from this Court’s decision in Commonwealth

v. Brachbill, 527 A.2d 113, 116 (Pa. Super. 1987) (“Brachbill I”) (stating

“the dictionary definition of ‘intimidate’ … is any ‘(u)nlawful coercion;

extortion; duress (or) putting in fear” and “‘to compel or deter by or as if by


                       _______________________
(Footnote Continued)

committed one or more of the following overt acts: harassed [the witness] at
her residence in an attempt to persuade [her] not to testify and/or file
charges against” him) (emphasis added).



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threat’”) (citations omitted).        However, the portion of Brachbill I relied

upon    by      Appellant   set   forth   the   dictionary   definition   of   the   word

“intimidation”; we were not expressly holding that that definition was the

one contemplated by the legislature when using the word “intimidation” in

section 4952.

       Moreover, our Supreme Court vacated this Court’s decision in

Brachbill I in Commonwealth v. Brachbill, 555 A.2d 82 (Pa. 1989)

(“Brachbill II”), and Brachbill II was recently disapproved of by

Commonwealth v. Doughty, 126 A.3d 951 (Pa. 2015). In Doughty, our

Supreme Court held that pecuniary inducement, alone, is insufficient to

convict a defendant under section 4952. While the Doughty Court did not

provide an explicit definition of ‘intimidation’ as used in section 4952, it did

clarify that,

       intimidation may be accomplished with no words at all, for a
       mere look or posture can bully, threaten, coerce, frighten, or
       intimidate beyond question. See, e.g., Clint Eastwood. It is
       equally true that an offer of benefit can be presented in such a
       Machiavellian manner as to contain an unarticulated act of
       intimidation. See, e.g., The Godfather (Paramount Pictures
       1972) (“I'm gonna make him an offer he can't refuse.”). Indeed,
       one need not go to the movies to understand that people may
       purposely intimidate in any number of ways, without manifesting
       bullying or fearsome words, and if they do so with the requisite
       mens rea, the crime is made out.

Doughty, 126 A.3d at 957.

       Here, we disagree with Appellant to the extent he relies on Brachbill I

to suggest that the factual summary underlying his conspiracy to intimidate



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offense was inadequate because it did not demonstrate that he implicitly or

explicitly threatened the witness.        However, Doughty clearly supports

Appellant’s general contention that “the elements of the offense [of

intimidation of a witness] require a person to intimidate or attempt to

intimidate a person.”   Appellant’s Brief at 17; Doughty, 126 A.3d at 957.

The   factual   summary     provided   by   the   Commonwealth   in   this   case

established that Appellant called Ms. Malloy and asked her to go to the

victim’s house to request that the victim’s mother ‘drop the charges,’ and

explain to the victim’s mother that the victim told Appellant she was older

than 18.   Nothing on the face of this factual summary demonstrates that

Appellant intended that Ms. Malloy intimidate the victim’s mother when

making these requests.       Moreover, the victim’s mother clearly was not

intimidated by Ms. Malloy, as she assaulted Ms. Malloy on her doorstep.

Accordingly, we find arguable merit in Appellant’s contention that the factual

summary was inadequate to prove the intimidation element of the crime of

conspiracy to intimidate.

      We recognize that at the plea proceeding, defense counsel remarked

that he “believe[d] … the intimidation could be that a jury could find … that

merely sending someone to the house is truly intimidation.”           N.T. Plea

Hearing at 19. However, we can find no case law addressing the question of

whether ‘sending someone’ to a witness’ home would alone be sufficient to

prove intimidation.   Moreover, because the PCRA court did not conduct a

hearing, we do not have any explanation for counsel’s belief, nor the ability

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to assess the reasonableness thereof.4 We also point out that in its opinion,

the PCRA court did not address Appellant’s claim that the Commonwealth’s

factual summary failed to establish intimidation, despite that Appellant

raised that argument in his Rule 1925(b) statement. For these reasons, we

cannot assess the reasonable basis or prejudice prongs of Appellant’s

ineffectiveness claim on the record as it currently stands.

       Therefore, we vacate the PCRA court’s order denying Appellant’s

petition and remand for an evidentiary hearing limited to the issue of

whether counsel acted ineffectively by permitting Appellant to plead guilty to

conspiracy to intimidate where the Commonwealth’s factual summary was

arguably inadequate.

       Order vacated. Case remanded for further proceedings.      Jurisdiction

relinquished.




____________________________________________


4
  For instance, counsel may have reviewed the discovery and had knowledge
of facts bolstering a conclusion that Appellant intended to intimidate the
victim’s mother by sending Ms. Malloy to her home.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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