J. S28015/14

NON-PRECEDENTIAL DECISION               SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
CHRISTOPHER BAROSH,                       :         No. 1103 EDA 2013
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, February 11, 2013,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0008461-2010


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 07, 2014

        Christopher Barosh set fire to a home owned by his girlfriend just

before an insurance policy taken out for the property was about to be

cancelled.     Following a jury trial in the Court of Common Pleas of

Philadelphia, appellant was convicted of arson, endangering persons, and

insurance fraud.1 Following careful review, we affirm.

        The facts and procedural history of this case are as follows. In July of

2005, appellant purchased a home at 1148 South 54th Street in Philadelphia

on behalf of his girlfriend, Jill Wezorek.2     On the deed to the property,




* Retired Senior Judge assigned to the Superior Court.
1
    Appellant was found not guilty of conspiracy.
2
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Wezorek was listed as the buyer and appellant was listed as possessing a



signature appeared on a tax document with the deed.

      On September 9, 2005, ap



Allstate Insurance Company regarding the aforementioned property.        The

policy had coverage limits of $126,533 for the dwelling, $12,653 for other

structures, and $94,000 for personal property.        (Notes of testimony,

12/5/12 at 16-17.)    In order to obtain this policy, the property was to be

occupied by the owner, and the home must be under 45 years old. (Id. at

17.) Additionally, appellant needed to provide proof of insurance from July

2005 to September 2005, the date of the application.         The application

submitted indicated the property was purchased in September 2005 and

would be owner occupied.

                                                             e premises be

owner-occupied, appellant rented the house to Yolanda Dingle, who planned

to live there with five children. (Id. at 17-18, 29-30.) Appellant had agreed



child, and he took $2,000 from Ms. Dingle to cover the costs. (Id. at 29.)

Appellant, however, did not make any of the promised renovations, and

Ms. Dingle filed a police report. (Id. at 31.)




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       Approximately a month after she moved into the 1148 South 54 th

Street property, appellant forcefully evicted Ms. Dingle. Ms. Dingle testified

that as she was putting her key into the front door, appellant approached

her from behind, grabbed the key, went inside by himself, and locked her

out. (Id. at 33.) She was not able to remove her personal property from

the house. (Id. at 34.)

       On September 16, 2005, Allstate, having discovered several reasons

why the house did not qualify for the Deluxe Plus Policy,3 sent Wezorek a

letter notifying her that the insurance policy would be cancelled effective

October 27, 2005. (Id. at 19.) Appellant did not deny receiving the letter;

rather, he claimed he thought the cancellation had already taken effect at

the time he read the letter.

       At approximately 11:00 p.m. on October 25, 2005, approximately

25

set on fire.   Doris House, who lived directly next door at 1150 South 54 th

Street, heard her fire alarm go off and noticed a lot of smoke coming from

the wall of her residence shared with 1148 South 54th Street. (Id. at 55-

57.)    Ms. House lived with her son, her 11-year-old nephew, and

2 grandchildren who were approximately 4 and 5 years old. (Id. at 55-56.)

Ms. House woke the children and got them out of the home to safety.



3
 Specifically, the house was not owner occupied, was purchased in July of
2005 as opposed to September 2005, and was over 45 years old.


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Ms. House then contacted Ms. Dingle.         Ms. House testified that there was

smoke damage to her home and personal items, and she no longer is able to

live in the home. (Id. at 60.)

        Ms. Dingle testified that she received a phone call from a neighbor,

Ms. House,4 who informed her of the fire, knowing her belongings were

inside. (Id. at 35.) Upon arrival, Ms. Dingle met with Ms. House, who was

                                 Id. at 36.)    Ms. House told her that she saw

appellant coming from the back of the house when the fire started. (Id. at

37.) Ms. Dingle testified that she observed appellant across the street in the



Wilson. (Id. at 38-39.)

        Lieutenant Bordes Ramseur of the Philadelphia Fire Department, an

expert in the area of determining the causes and origin of fires, investigated

this matter. He determined that the fire had been intentionally set in the

basement area and that an ignitable liquid had been used. Louis Gahagan, a

private fire investigator hired by Allstate, also testified as an expert who

subsequently conducted his own investigation and reached the same

conclusion; a fire began in the basement, was incendiary, and an ignitable

fluid was used to accelerate the fire. (Notes of testimony, 12/6/12 at 13-16,

20, 43, 55-58.)




4
    Ms. House died before trial. (Id. at 37.)


                                       -4-
J. S28015/14

      After the fire, appellant made two separate admissions of guilt.



argument about a property in New Hope Pennsylvania, and appellant



                  Id. at 72.) Bryan further testified that appellant stated he



. . . or use a flammable liquid or kerosene gas, whatever you use to remove

                                     Id. at 73.) Appellant also attempted to

pay David Tarmin, an acquaintance and former tenant at another property,

to provide him an alibi for the arson.     During that conversation, appellant

admitted to Mr. Tarmin that he had set fire to the house in order to collect

the insurance proceeds. (Id. at 91.)

      Appellant testified that he left 1148 South 54th Street between

6:00 p.m. and 6:30 p.m. and went to watch a baseball game near the

University of Pennsylvania. (Id. at 40-41.) Upon his return, he thought the



to do. (Id. at 43.) Appellant left and stayed overnight in a nearby hotel.

Appellant also stated that Dingle was a squatter and he had to have her

evicted. (Id. at 35-36.) He also denied laughing with Wilson at the time of

the fire. (Id. at 47.) In fact, he stated that he did not get along with Wilson

and would not be in his company. Appellant averred that House mistrusted




                                     -5-
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him and believed he wanted to steal houses in the neighborhood. (Id. at

48.)

       A jury trial was held and on December 11, 2012, appellant was

convicted of arson and insurance fraud.          At the February 11, 2013

sentencing hearing, the trial court read into the record a letter he received



not to appear at trial and, when that failed, threatened to kill him. (Notes of

testimony, 2/11/13 at 22-23.)      The Honorable Chris R. Wogan sentenced



arson and 6 months to 3 years for insurance fraud. Additionally, he ordered

appellant to pay restitution for the damage caused by the fire.

       On February 18, 2013, appellant filed a post-sentence motion seeking

reconsideration of his sentence; the motion was denied after a hearing on

March 15, 2013. On April 2, 2013, a timely notice of appeal was filed. On

April 11, 2013, the trial court ordered appellant to file a concise statement of

errors complained of on appeal within 21 days pursuant to Pa.R.A.P.,

Rule 1925(b), 42 Pa.C.S.A.       A Rule 1925(b) statement was filed on

September 16, 2013, following an extension of time that was granted.

            I.
                   guilt of arson and insurance fraud?

            II.    Are the verdicts of guilt against the weight of
                   the evidence?

            III.   Did the pretrial court err when it denied a
                   motion to dismiss and/or sanction as a result


                                     -6-
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                 of    the   destruction   of   evidence   and   the

                 custody?

          IV.    Did the trial court err when it allowed
                 testimony showing that appellant was involved

                 Yolanda Dingle?

          V.     Did the trial court err when it allowed hearsay
                 testimony?

          VI.    Did the trial court err when it did not allow
                 testimony     concerning   civil  proceedings
                 appellant was involved in with Commonwealth
                 witness David Tarmin?

          VII.   Did the trial court err when it allowed
                 cross-examination of appellant to establish



          VIII. Did the trial court err when it allowed
                cross-examination of appellant concerning his
                alleged failure to present documentary
                evidence and witnesses?

          IX.
                 for arson excessive, unreasonable and not

                 condition?

          X.
                 excessive and not supported by the evidentiary
                 record?

                      -6.



          In determining sufficiency of the evidence, the Court
          must review the evidence admitted at trial, along
          with any reasonable inferences that may be drawn
          from that evidence, in the light most favorable to the


                                     -7-
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           verdict winner. Commonwealth v. Kimbrough,
           872 A.2d 1244, 1248 (Pa.Super. 2005), appeal
           denied, 585 Pa. 687, 887 A.2d 1240 (2005). A
           conviction will be upheld if after review we find that
           the jury could have found every element of the crime
           beyond a reasonable doubt. Commonwealth v.
           Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003). The
           court may not weigh the evidence or substitute its
           judgment      for    that     of    the    fact-finder.
           Commonwealth v. DiStefano, 782 A.2d 574, 582
           (Pa.Super. 2001), appeal denied, 569 Pa. 716, 806

                                                        -finder
           unless the evidence is so weak and inconclusive that
           as a matter of law no probability of fact may be
           d
           Commonwealth v. Sheppard, 837 A.2d 555, 557
           (Pa.Super. 2003).

Commonwealth v. Judd, 897 A.2d 1224, 1233-1234 (Pa.Super. 2006),

appeal denied, 912 A.2d 1291 (Pa. 2006).

                                                        nce failed to establish




                                 Id. at 29.) Finally, while he acknowledges

the Commonwealth need not prove motive, he avers that he had no motive

to commit the crimes, as he would not have benefitted from an insurance

claim since he did not own the property. (Id. at 30.)

     In order to sustain a conviction for arson, the Commonwealth must

have established beyond a reasonable doubt that the defendant intentionally

set a fire on his own property or that of another, which recklessly placed

another person in danger of death or bodily injury.             18 Pa.C.S.A.


                                    -8-
J. S28015/14

§ 3301(a)(1)(i).     It is well established that a conviction for arson may be

based solely on circumstantial evidence. Commonwealth v. Trafford, 459

A.2d 373 (Pa.Super. 1983).

      Insurance fraud can be committed in several ways, including:

               [k]nowingly and with the intent to defraud any
               insurer or self-insured, presents or causes to be
               presented to any insurer or self-insured any
               statement forming a part of, or in support of, a claim
               that contains any false, incomplete or misleading
               information concerning any fact or thing material to
               the claim.

18 Pa.C.S.A. § 4117(a)(2).

      Clearly, the evidence was sufficient to establish that appellant

intentionally set fire to the house. The Commonwealth presented evidence

that the fire was set 25 hours before the insurance policy, that appellant had

fraudulently obtained, was about to expire. Two different experts testified

that pursuant to their investigations, the fire was set intentionally and that a

liquid accelerant was used. Testimony was presented that a neighbor saw

appellant coming from the area where the fire was started. Moreover, two

witnesses testified that appellant admitted to intentionally setting the fire;

one witness was threatened by appellant if he testified, while the other was

                                                    s whereabouts on the night

of the fire.    Uncontroverted evidence that the fire seriously damaged the

house next door, which was occupied by several people, established that

individuals were placed in danger of death or serious bodily injury.



                                       -9-
J. S28015/14

      As appellant states, the Commonwealth had no obligation to prove

motive for committing the arson. However, testimony presented contributed

insight that burning down the property would result in his girlfriend being

paid $126,553 from the insurance company.            Appellan

damage or destroy the property by fire would result in his benefit, directly or

indirectly, by receiving funds from Ms. Wezorek.

      The Commonwealth also established that appellant made several false,

misleading, or incomplete statements to Allstate concerning material facts.

Testimony established that appellant falsely claimed the house was

purchased in September rather than July of 2005; Allstate would not have

covered the property had it known it had been uninsured for three months.

Appellant also falsely claimed that the house was less than 45 years old,



policy. Appellant also falsely claimed that the property was owner occupied,

yet another requirement for obtaining the preferred policy.         Moreover,



setting the fire in order to collect money from the insurance company.

These facts are sufficient to establish that appellant committed the crime of

insurance fraud.

      While appellant provided contradictory testimony, the jury resolved all



were supported by sufficient evidence.



                                    - 10 -
J. S28015/14

        Next, appellant argues that his convictions are against the weight of



reasserts the argument he set forth in support of his sufficiency claim: the



charg



sufficiency of the evidence cannot establish an abuse of discretion in the trial

                                          o    the   weight   of   the   evidence.

Commonwealth v. Sullivan, 864 A.2d 1246, 1248-1249 (Pa.Super. 2004).

                       -of-the-evidence claim concedes that the evidence is

                                    Commonwealth v. Lyons, 79 A.3d 1053,

1067 (Pa. 2013). Nor does appellant provide any relevant authority for us

to decide his weight of the evidence claims.         As a result, we find all of

                                                       See Pa.R.A.P. 2119. See

also Commonwealth v. Mercado, 649 A.2d 946, 954 (Pa.Super. 1994)

(stating that failure to provide support for an issue may result in waiver of

the claim).

        The third issue presented is whether appellant is entitled to a new trial

as a result of a pre-trial ruling, which permitted Mr. Gahagan, the private

fire investigator retained by Allstate, to testify as to samples recovered from

the crime scene. Specifically, appellant argues that this testimony should be




                                      - 11 -
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ordinary course of business, and the Commonwealth failed to establish a

                                              -36.) We find no error with either



                                                       12, 2013 opinion.   (Trial

court opinion, 11/12/13 at 15-18.)




                                                    fied that she paid appellant

$2,000 for rent and renovations regarding the property, that she was later




                          conduct.

      Evidence of other crimes or prior bad acts is generally inadmissible



other legitimate purpose and not merely to prejudice the defendant by

showing him to be a person of b                      Commonwealth v. Lark,

543 A.2d 491, 497 (Pa. 1988). Such evidentiary issues are within the sound

discretion of the trial court.   Commonwealth v. Banks, 521 A.2d 1 (Pa.

1987), cert. denied, 484 U.S. 873 (1987).



                                     - 12 -
J. S28015/14

      Ms. Dingle never referenced a specific conviction or an arrest; rather,



money and not performing the promised renovations as well as forcefully

evicting her before setting the fire.       Defense counsel cross-examined

Ms.

                                                                         -53.)



probative as part of the natural history of this case. Moreover, any possible



such prejudice as to justify a new trial. We agree with the Commonwealth

                                                           his jury trial from

December 5 to 11, 2012, and there is not a reasonable probability that the

verdict would have been different but for this noun.           Moreover, the



                            avers that the trial court abused its discretion in



concerning unidentified individuals telling her to stop paying appellant rent

                                                           ng statements of

Ms.

(3) Ms.



made to him by appellant as to his setting fire to the properties.



                                   - 13 -
J. S28015/14




law, the record, and the opinion authored by the Honorable Chris R. Wogan.

                                                                        issues



(See trial court opinion, 11/12/13 at 20-25.)



the ruling of the trial court that precluded him from presenting testimony

concerning civil proceedings he was involved in with the Commonwealth



Commonwealth observe, this claim is belied by the record.          (Trial court

opinion, 11/12/13 at 26; Commonwealth brief at 36.) The trial court did not

prohibit evidence of the existence of a civil proceeding involving appellant

and Mr. Tarmin; rather, the court prohibited evidence of the result of that

proceeding. (Notes of testimony, 12/7/12 at 54-55.)

      In his brief on appeal, appellant now claims that he did not



the trial court did not specifically explain to the jury that it could consider

the fact that t



instructed the jury caused the jury to ignore the testimony as to the civil

proceedings in their entirety, not just




                                     - 14 -
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any comment about the results

testimony 12/7/12 at 54-55 (emphasis added).) This prompt instruction, to

which appellant did not object and for which he did not request further

clarification, was clear and concise.        Appellant cannot now belatedly

complain that the court should have given the jury a special instruction.

See Pa.R.A.P. 302(a).       A new trial is not warranted since the jury is

                                                   See Commonwealth v.

Baker, 614 A.2d 663, 672 (Pa. 1992) (our law presumes that juries follow



                                                        id the trial court err

when it allowed cross-examination of appellant to establish that he evicted



brief at 54.)      In his brief, he claims the Commonwealth engaged in a

character assassination when it questioned him regarding his eviction of



                                                                    Id.) No

relief is due.

      The scope of cross-

discretion and will not be disturbed by this court absent an abuse of that

discretion.      Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa.Super.

2011). An abuse of discretion is not a mere error in judgment but, rather,



                                    - 15 -
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involves bias, ill-will, partiality, prejudice, manifest unreasonableness, or

misapplication of law. Id.

      Pa.R.E. 611 governs the mode and order of interrogation and

presentation and provides, in relevant part, as follows:

            (b)     Scope of cross-examination.                Cross-
                    examination of a witness other than a party in
                    a civil case should be limited to the subject
                    matter of the direct examination and matters
                    affecting credibility; however, the court may,
                    in the exercise of discretion, permit inquiry into
                    additional matters as if on direct examination.

Pa.R.E.   611(b).      Our   courts   have     broadly   defined   the   scope    of

cross-

may be drawn therefrom, which explain or destroy the effect of the direct

             Commonwealth v. Snoke, 580 A.2d 295, 300 (Pa. 1990).

      Appellant claims that his testimony did not amount to character

testimony; rather, he avers

relationship with Dingle, Tarmin, his brothers and other people. . . . At no

time did appellant claim he was non-violent, law abiding or peaceful, the



                         -56.) We disagree; character testimony takes many

                                                                                 See

Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa.Super. 1983) (it has

long been the law in Pennsylvania that an individual on trial is permitted to

introduce evidence of his good reputat



                                      - 16 -
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                                                                      tances of



merely testifies to historical facts and does not describe his or her

reputation, defendant will not have put general character in issue.

Commonwealth v. Percell, 454 A.2d 542, 544 (Pa. 1982).

       The record herein reveals that appellant testified to his reasons for

evicting Ms. Dingle and Mr. Tarmin, and his testimony described several

admirable character traits he believed that were generally known about him

in the community. We cannot find that the trial court abused its discretion

in permitting the Commonwealth to cross-examine appellant concerning his

testimony as to the circumstances of evicting Ms. Dingle and Mr. Tarmin or

his reputation, as he essentially testified as a character witness on his own

behalf.   The cross-examination of appellant was limited to the same traits

appellant testified he possessed.      Appellant is not entitled to a new trial

pursuant to this theory of relief.

       The   eighth claim,   that    the   trial court erred when it allowed

cross-examination of appellant concerning his alleged failure to present



57.)




                                      - 17 -
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     Appellant testified that he was at a bar during the time of the fire and

that he withdrew money from an ATM to give to a man who performed work

for him.   The Commonwealth questioned appellant about his inability to

produce the ATM receipt or the man whom appellant claimed he paid.

Appellant also testified that he was not in

fire, and the Commonwealth questioned him about his inability to produce



purchase of 1148 South 54th Street as well as her intentions with regard to

the property.   On cross-examination, the Commonwealth questioned him

about his inability to produce Wezorek as a witness.   Appellant claims the

                      -                                                 Id.)

We disagree.

     We can quickly dispose of this meritless issue. Simply put, appellant

opened the door to questions regarding the existence of a witness to

corroborate his alibi. See Commonwealth v. Hawkins, 701 A.2d 492, 510



statement that she was going to prove that someone other than the



to the subject); Commonwealth v. Yarris, 549 A.2d 513, 526 (Pa. 1988),

cert. denied, 491 U.S. 910 (1989) (p



the day of the murder, did not testify did not impermissibly shift burden of



                                   - 18 -
J. S28015/14

proof to defendant).     See also Commonwealth v. Ford, 650 A.2d 433,

442 (Pa.

evidence, but if defendant opens an evidentiary door concerning his past

criminal record, then Commonwealth is allowed to cross-examine on that

issue).

        In addition, the trial court properly i



accused of a crime is not required to present evidence or prove anything in

                                                             -42.)   Thus, any

possi

summation would have been eliminated by the instruction.             Hawkins,

supra at 511 (possible prejudicial effect of prosecutorial remark allegedly

implying that appellant bore burden of proof wa

general instruction that Commonwealth always bore the burden of proof;




imposing what appellant characterizes as an excessive sentence for arson;5

this issue presents a challenge to the discretionary aspects of his sentence.

See Commonwealth v. Boyer, 856 A.2d 149 (Pa.Super. 2004).




5
    Appellant does not challenge his sentence for insurance fraud.


                                      - 19 -
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sen                                                      Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010).

                  Before we reach the merits of this [issue], we
            must engage in a four part analysis to determine:
            (1) whether the appeal is timely; (2) whether
            Appellant preserved his issue; (3) whether

            reasons relied upon for allowance of appeal with
            respect to the discretionary aspects of sentence; and
            (4) whether the concise statement raises a
            substantial question that the sentence is appropriate
            under the sentencing code. The third and fourth of

            on his sentence is not an appeal as of right. Rather,
            he must petition this Court, in his concise statement
            of reasons, to grant consideration of his appeal on
            the grounds that there is a substantial question.
            Finally, if the appeal satisfies each of these four
            requirements, we will then proceed to decide the
            substantive merits of the case.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)

(citations omitted).

      In the instant case, appellant filed a timely notice of appeal, preserved

his claim in his timely post-sentence motion,6 and included in his appellate

brief a separate Rule 2119(f) statement.     Thus, we proceed to determine

whether appellant has presented a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code.               See

Mastromarino, supra.


6
  Appellant also presented the issue in his court-ordered Pa.R.A.P. 1925(b)
statement.


                                    - 20 -
J. S28015/14

                                                                          ceration

for arson, an upward departure from the guidelines, is unreasonable and

excessive as it does not take into consideration his history and character.

Appellant also avers that the court failed to provide adequate reasons for the

sentence. He also posits that the trial court placed undue emphasis on the

nature of the crime committed.     This court has held that a claim the trial

court focused solely on the nature of the offense, without considering the

protection of the public or the rehabilitative needs of the appellant, as is

required by 42 Pa.C.S.A. § 9721(b), presents a substantial question.

Commonwealth       v.    Riggs,   63     A.3d   780,   786   (Pa.Super.    2012);

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)

(indicating substantial question raised when issue raises question of whether

trial court sentenced in aggravated range without considering mitigating

circumstances);   Commonwealth          v.   Monahan,    860   A.2d   180,    181

(Pa.Super. 2004) (a claim that the sentencing court failed to place sufficient

reasons on the record for deviating upwards from the guidelines presents a

substantial question).   Thus, we shall proceed to an examination of the



      Our standard of review is as follows:

                   Sentencing is a matter vested in the sound
            discretion of the sentencing judge, and a sentence
            will not be disturbed on appeal absent a manifest
            abuse of discretion. An abuse of discretion is more
            than just an error in judgment and, on appeal, the
            trial court will not be found to have abused its


                                       - 21 -
J. S28015/14

            discretion unless the record discloses that the
            judgment exercised was manifestly unreasonable, or
            the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013), appeal

denied, 85 A.3d 481 (Pa. 2014).

      More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance



            [T]he sentence imposed should call for confinement
            that is consistent with the protection of the public,
            the gravity of the offense as it relates to the impact
            on the life of the victim and on the community, and
            the rehabilitative needs of the defendant.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.Super. 2012) (quotation

omitted).   Thus, under 42 Pa.C.S.A. §

formulate a sentence individualized to that particular case and that particular

             Boyer, 856 A.2d at 153.



of the record, and the trial cour

opinion, 11/12/13 at 31-36.)    The record reflects due consideration of the



constitute an abuse of discretion.

      The final issue presented cla

restitution was excessive and was not supported by the evidentiary record.

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, it is our



                                     - 22 -
J. S28015/14

determination that there is no merit to this question raised on appeal. Once

                                                   -reasoned opinion. (Id.

at 36-38.)

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2014




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