J-S23010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DAYQUINE COOPER                            :
                                               :
                      Appellant                :   No. 1333 EDA 2019

       Appeal from the Judgment of Sentence Entered December 14, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008449-2016

BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 26, 2020

        Appellant Dayquine Cooper appeals from the judgment of sentence

following a jury trial and convictions for attempted murder, two counts of

aggravated assault, carrying a firearm without a license, carrying a firearm

on a public street or property in Philadelphia, possession of an instrument of

crime, and carrying a firearm by a prohibited person.1 Appellant challenges

the weight and sufficiency of evidence, as well as the discretionary aspects

of his sentence. We affirm.

        We state the facts as set forth by the trial court:


____________________________________________


118 Pa.C.S. §§ 901, 2502, 2702(a)(1), 2702(a)(4), 6108, 6106, 907, 6105.
Appellant “was acquitted of conspiracy to commit murder and aggravated
assault” of Anna Cook (Complainant) and her husband. Trial Ct. Op.,
7/29/19, at 1 n.1; N.T. Trial, 10/18/18, at 10.
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       At trial, the Commonwealth presented the testimony of
       Philadelphia   police  officers  Joseph  Rauchut,    Raymond
       Andrejczak, and Steven Berardi, Philadelphia police detectives
       Edward Tolliver, James Dunlap, and William Kelhower,
       Philadelphia associate medical examiner Dr. Daniel Brown, and
       Joseph Bey and [Complainant]. [Appellant] testified on his own
       behalf and presented the testimony of Deangelo Cooper and
       Vanneliz Ramos. Viewed in the light most favorable to the
       Commonwealth as the verdict winner, the evidence established
       the following.

       On the afternoon of July 15, 2016, Joseph Bey got into a
       physical altercation with a man in a rival rap group[2] named Paul
       Sanders. Afterwards, Sanders and two men named Noon and
       Chris, went to a house on the 2700 block of North Darien Street
       where [Appellant] was present in order to inform [him] about
       the altercation with Bey. Sanders, along with [Appellant], Noon,
       and Chris, among others, were members of a rap group called
       2700. Bey, along with Markeith McPherson, and Flacco, among
       others, were members of a rival rap group called Chop or Drop
       (“COD”). The groups were in a dispute because Flacco had left
       2700 and joined COD, which upset members of 2700 and led to
       the fight between Sanders and Bey.

       Later that day, at approximately 5:50 p.m., Bey and McPherson
       were on the 2800 block of North 9th Street near the intersection
       of North 9th and Somerset streets talking to their friends who
       were in a car. As the men conversed, Sanders, Noon, and Chris
       appeared and began walking toward Bey and McPherson. Bey
       saw Noon reach into his backpack, and, fearing that Noon was
       about to pull out a gun, both Bey and McPherson immediately
       started running away from the three men.

       As Bey was running away, an unknown member of 2700, who
       was further up the block from where Sanders, Noon and Chris
       were standing, fired gunshots towards Bey, but missed hitting
       him.

____________________________________________


2 The Commonwealth characterizes the “rap groups” as “street gangs.”
Commonwealth’s Brief at 12.




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      Later that evening, at around 8:40 p.m., [Appellant] and another
      man approached the 2800 block of North 9th Street near the
      intersection of North 9th and Somerset streets, the same place
      where the shooting described above took place, looking for
      members of COD. At the same time, [Complainant] and her
      husband, Jerry Floyd, were outside the corner store on 2809
      North 9th Street where they were going to buy ice and Kool-Aid
      for their grandchildren. [Complainant], who had cancer and had
      undergone chemotherapy treatment earlier that day, was tired
      and sat down on the store’s steps to rest. Now standing across
      from the corner store, [Appellant] and the other man began
      firing gunshots up 9th Street. One of the bullets struck a
      teenage girl, Amyde Jones in the hip. After firing the initial
      gunshots, the two men approached Floyd and [Complainant].
      Floyd was then shot in the abdomen. [Complainant], who was
      still sitting on the steps of the store, looked up, saw [Appellant],
      and begged him not to shoot her.              [Appellant] smiled at
      [Complainant] and then shot her in the upper body near her
      right armpit.        The bullet went through [Complainant’s]
      diaphragm and liver and stopped in her intestines.

      Jones, Floyd, and [Complainant] were rushed to Temple
      University Hospital.      While both Jones and [Complainant]
      survived the shooting, Floyd did not. [Complainant] underwent
      two extensive surgeries. The day after the shooting, while she
      was still in the hospital, [Complainant] identified [Appellant] as
      the man who shot her from a double blind photo array.

      Additionally, on September 12, 2016, Bey gave a statement to
      detectives about the shootings, which was later obtained by
      [Appellant] as part of the discovery in the case.           While
      [Appellant] was in jail awaiting trial, he managed to transmit the
      statement to members of 2700. Those members then posted
      the image of Bey’s statement on Instagram with the caption “N--
      --- want war but they rattin.”

Trial Ct. Op., 7/29/19, at 2-5 (footnotes and citations omitted). “This was

[Appellant’s] second trial on these charges. At the first trial, [Appellant] was

acquitted of the murder of . . . Floyd. The jury was hung on the remaining

charges.” Id. at 1 n.1.


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     We add that at Appellant’s second trial, Complainant identified

Appellant in-court as the person that shot her. N.T. Trial, 10/11/18, at 130.

Complainant testified that she did not know and did not ever speak with

Appellant. Id. at 167.

     [Assistant District Attorney:] Did there ever come a time when
     you realized that you had seen [Appellant] before?

     [Complainant:] I believe when I was in the hospital when I was
     trying to sort everything all out, I said I’ve seen this young man
     in passing before. And right there on 8th Street, 8th and Lehigh,
     there’s a series of stores, Family Dollar, Kicks, a grocery store
     over there. So when I go grocery shopping, I would pass Darien
     Street. I can remember one time I was getting a cheesesteak
     and it’s right there on the corner at Darien and Lehigh. I walked
     through there, I seen this young man, I paid no attention. A lot
     of young boys out there, a lot of young people.

     [Assistant District Attorney:] Is that the 2700 block of Lehigh –
     of Darien?

     [Complainant:] Yes. And I have seen him over there on 9th
     Street. I believe they were having, like, a block party or a
     birthday party. I’m not quite sure which one it was, but it was a
     lot of people out. But I do remember I had seen him on the
     corner with, I guess, Rich and the rest of the crew, because it’s a
     lot of young people and they all hang together. So, you know . .
     .

     [Assistant District Attorney:] The times that you had seen him
     before or that you realized you had seen him before, had those
     happened -- what period of time had that happened, had that
     been within the previous year or the previous few years or . . .

     [Complainant:] Probably the previous year. It wasn’t, like, back
     to back.




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Id. at 168-69 (ellipses in original). Complainant further testified that after

she returned home, she was “watching the news,” when she saw that

Appellant was arrested and saw his picture. Id. at 169-70.

       During cross-examination, Complainant testified that she did not know

the men that approached her. Id. at 183. She reiterated, however, that it

was Appellant who shot her and that she identified Appellant from a photo

array. Id. at 186, 194. Complainant also testified as follows during cross-

examination:

       [Appellant’s Counsel:] All right. So it came into your mind as
       you were going through this and questioning what happened;
       right? You said, wait a minute, I know this guy, I recognize him
       from before. Am I clear on that, am I wrong on that?

       [Complainant:] Yes. When I seen [Appellant’s] picture,[3] when I
       had time to sit down, cool off a bit, I’m going through things in
       my mind, and I’m saying, yes, I know this young man from
       somewhere, I’ve seen him before. Yes, I said that.

       [Appellant’s Counsel:] Okay.            As you were looking at the
       picture?

       [Complainant:] Not as I’m looking at the picture, but some point
       down the line.

       [Appellant’s Counsel:] Okay.

       [Complainant:] A few days later, yes, it did occur to me.

____________________________________________


3 The testimony is unclear, but Complainant appears to be referring to the
picture from the photo array. As previously quoted above, Complainant
identified Appellant from a photo array while recovering from surgery. Trial
Ct. Op. at 5.




                                           -5-
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      [Appellant’s Counsel:] Okay. Now, I want to ask you about those
      circumstances now. Okay? . . .

Id. at 195.     Complainant then testified that she remembered seeing

Appellant in the neighborhood a “couple of months” earlier and at block

parties. Id. at 196-98.

      Following Appellant’s convictions, the trial court ordered a pre-

sentence investigation and mental health evaluation.       On December 14,

2018, the trial court sentenced Appellant to an aggregate sentence of thirty-

two and one-half to seventy-seven years’ incarceration. The total sentence

consisted of consecutive sentences of (1) twenty to forty years’ incarceration

for attempted murder, (2) two to ten years’ incarceration for aggravated

assault, (3) three and one-half to seven years’ incarceration for carrying a

firearm without a license, (4) one to five years’ incarceration for carrying a

firearm on a Philadelphia public street, (5) one to five years’ incarceration

for possession of an instrument of crime, and (6) five to ten years’

incarceration for carrying a firearm by a prohibited person.

      Appellant filed a post-sentence motion, which we reproduce in full:

      1. The verdict was against the weight and sufficiency of the
      evidence. [Appellant] was acquitted of murder and four counts
      of conspiracy. Therefore, the verdict was inconsistent[.]

      2. The identification made of [Appellant] was insufficient to
      support a conviction from the evidence presented[].

      3. The sentence was excessive considering [Appellant’s] age and
      mitigating evidence[.]




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Post-Sentence Mot., 12/19/18, at 1. The trial court denied Appellant’s post-

sentence motion on April 4, 2019.4

       Appellant filed a timely notice of appeal on May 2, 2019. On May 6,

2019, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement

on or before May 27, 2019, which was Memorial Day. Appellant filed a Rule

1925(b) statement on Tuesday, May 28, 2019, which raised, among other

issues, a claim that the “verdict was against the weight of the evidence.” 5

Pa.R.A.P. 1925(b) Statement, 5/28/19.            The trial court prepared a Rule

1925(a) decision.

       In his appellate brief, Appellant raises the following issues:

       1. Whether the verdict against the weight and sufficiency of the
       evidence when the lone [Complainant] based her recognition of
       Appellant on her previous memory of seeing him in the
       neighborhood before the incident and not on any independent
       recognition?

       2. For the same reasons, whether the verdict was against the
       weight of the evidence.

____________________________________________


4 We acknowledge that Appellant, acting pro se, filed two motions with the
trial court, including a pro se motion for reconsideration of his sentence.
Appellant, however, was represented by counsel at that time and therefore,
his pleadings were legal nullities. See Commonwealth v. Jette, 23 A.3d
1032, 1040 (Pa. 2011).
5  Although the trial court’s order explicitly stated May 27, 2019, Appellant
filed a timely Rule 1925(b) statement. See 1 Pa.C.S. § 1908 (“Whenever
the last day of any such period shall fall . . . on any day made a legal holiday
by the laws of this Commonwealth or of the United States, such day shall be
omitted from the computation.”).




                                           -7-
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       3. Whether the decision to order consecutive sentences was too
       harsh given Appellant’s youthful age, lack of parental guidance,
       and dysfunctional family history.

Appellant’s Brief at 5.

       Appellant presents one argument in support of his first two issues. Id.

at 11.6     Initially, Appellant reiterates his Rule 1925(b) issue that the

evidence was insufficient because Complainant’s identification was based

only on her prior memory and not on any independent memory of the

shooting. Id. Appellant acknowledges, however, that any “indefiniteness or

uncertainty in [identification] testimony goes to its weight and not its

sufficiency”:

       Here, [Complainant’s] testimony at trial was that when she was
       shot, she believed that she had never seen defendant before.
       However, she testified that sometime after the shooting she
       realized that she had seen Appellant before in the neighborhood,
       perhaps at a block party or birthday party. This testimony
       clearly establishes Appellant’s contention that [Complainant’s]
       identification was not based on an independent memory of the
       incident.

Id. (citations omitted).7 Appellant notes that when Complainant identified

him, she “was still in the hospital . . . and had undergone multiple surgeries

____________________________________________


6 We note that Pa.R.A.P. 2119 states that the “argument shall be divided
into as many parts as there are questions to be argued . . . .” Pa.R.A.P.
2119.
7 In contrast, Appellant’s post-sentence motion raised a weight claim that
the verdict was inconsistent given his acquittal for the murder of Floyd and
four counts of conspiracy.




                                           -8-
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the previous day.”       Id. at 12.     Appellant observes that Complainant was

watching the news when she learned Appellant was arrested and saw

Appellant’s picture.        Id.   Appellant argues it “is that recognition and

familiarity that cause[d] [Complainant] to identify Appellant, and no other

recognition besides that.” Id. Appellant concludes that because “the guilty

verdict on attempted murder was based on insufficient evidence,” against

the weight of the evidence, and inconsistent with the not guilty verdicts,8

this Court must reverse his convictions. Id. at 13.

       The Commonwealth argues that because Appellant “challenges the

believability and credibility of [Complainant’s] identification testimony,” it “is

a   challenge    to   the   weight,      not   the   sufficiency   of   the   evidence.”

Commonwealth’s Brief at 9 (emphasis in original). Based on that premise,

the Commonwealth asserts that Appellant waived his weight claim because

his post-sentence motion asserted only the verdict was inconsistent given

his acquittal for murder and four counts of conspiracy. Id.; see also Post-

Sentence Mot. at 1.         Therefore, the Commonwealth concludes, the “trial

court was . . . never asked to rule on the weight of the evidence claim

[Appellant] now presents.” Id.




____________________________________________


8As noted earlier, the jury acquitted Appellant of conspiracy to commit
murder and aggravated assault. Trial Ct. Op. at 1 n.1.




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       In any event, on the merits of the weight claim, the Commonwealth

argues that the verdict was consistent with the weight of the evidence. Id.

The Commonwealth summarizes the record, id. at 12-13, notes that the

“jury was free to believe all, part or none of” the record, and states the jury

credited the Commonwealth’s version of events.             Id. at 13-14.    The

Commonwealth similarly restates the record and concludes that the evidence

was sufficient to support Appellant’s convictions. Id. at 15-16.

       With respect to Appellant’s argument that Complainant did not believe

she saw Appellant before the shooting, but subsequently remembered seeing

Appellant in the neighborhood, id. at 16-17, the Commonwealth argues that

Appellant waived the argument by failing “to cite to the notes of testimony

or to any legal authority . . . .” Id. at 17. The Commonwealth characterizes

Appellant’s argument as “irrelevant to sufficiency” because Complainant

identified Appellant “in a lineup the day after the shooting”9 and at trial. Id.

       The trial court opines that Appellant waived his weight claim due to

Appellant’s failure to identify “any specific reasons as to why” in his Rule

1925(b) statement. Trial Ct. Op. at 5 (citing Commonwealth v. Freeman,

128 A.3d 1231, 1249 (Pa. Super. 2015)).            In any event, relying on the




____________________________________________


9 The Commonwealth is apparently referencing the photo array that
Complainant saw in the hospital.




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weight claim framed in Appellant’s post-sentence motion, the trial court

would not grant relief:

      It is true that [Appellant] was acquitted of the murder of Jerry
      Floyd at his first trial . . . and was acquitted of all conspiracy
      charges in the second trial . . . . However, the aggravated
      assault and attempted murder convictions in the second trial,
      here at issue, pertained to [Complainant] and Amyde Jone[s];
      not to murder victim Floyd. Moreover, the jury was free to
      conclude that [Appellant] shot [Complainant] and Jones on his
      own, without conspiring with others to do so. Accordingly, the
      verdicts were not, in any manner, inconsistent.

Trial Ct. Op. at 6. The trial court noted that “even if the verdicts had been

inconsistent, no relief would be due . . . .” Id.

      Turning to Appellant’s challenge to the sufficiency of evidence, the trial

court construes his claim as “appears to be premised” on Complainant’s

testimony that she had never seen Appellant before, but “after the shooting

she realized that she had seen [Appellant] before in the neighborhood . . . .”

Id. at 7.     The trial court reasons that the record established that

Complainant’s identification was based on her independent memory of the

shooting.   Id.   The trial court notes that Complainant identified Appellant

from a double blind photo array and in-court, and she testified she was

watching the news when she identified Appellant from his photo on

television. Id. at 7-8.

      The standard of review for a “claim challenging the sufficiency of the

evidence is a question of law.” Commonwealth v. Widmer, 744 A.2d 745,

751 (Pa. 2000). “An allegation that the verdict is against the weight of the


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evidence is addressed to the discretion of the trial court.”     Id. at 751-52

(citation omitted). We discuss the standard for Appellant’s sentencing claim

below.

      Our Supreme Court has explained

      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 a reasonable doubt.
      Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is
      insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to 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.

Id. at 751 (citations omitted).

      In contrast, a “challenge to the weight of the evidence is distinct from

a challenge to the sufficiency of the evidence in that the former concedes

that the Commonwealth has produced sufficient evidence of each element of

the crime, but questions which evidence is to be believed.” Commonwealth

v. Kinney, 157 A.3d 968, 971 (Pa. Super. 2017) (citation omitted and some

formatting altered).

      “A victim’s in-court testimony, identifying the defendant as the

perpetrator of a crime, is by itself sufficient to establish the identity element

of that crime.”    Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa.

Super. 2018) (citation omitted).

      Evidence of identification need not be positive and certain to
      sustain a conviction. Although common items of clothing and
      general physical characteristics are usually insufficient to support

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      a conviction, such evidence can be used as other circumstances
      to establish the identity of a perpetrator. Out-of-court
      identifications are relevant to our review of sufficiency of the
      evidence claims, particularly when they are given without
      hesitation shortly after the crime while memories were fresh.
      Given additional evidentiary circumstances, any indefiniteness
      and uncertainty in the identification testimony goes to its weight.

Kinney, 157 A.3d at 971 (citation omitted).

      Furthermore, a defendant must preserve a weight claim either “(1)

orally, on the record, at any time before sentencing; (2) by written motion

at any time before sentencing; or (3) in a post-sentence motion.”

Pa.R.Crim.P. 607.       A defendant must also specify in the “Rule 1925(b)

statement which verdict or verdicts were contrary to the weight of the

evidence,” and “offer specific reasons as to why those verdicts were contrary

to the weight of the evidence.”          Freeman, 128 A.3d at 1248-49.              In

Freeman, the defendant “asserted only that ‘the verdict of the jury was

against the weight of the evidence.’” Id. at 1249 (quoting the defendant’s

Rule 1925(b) statement).         The Freeman Court therefore held that the

defendant waived his challenge to the weight of the evidence. Id.

      Turning   to     this   case,   Appellant   has     challenged   Complainant’s

identification of him as suspect because of testimony he characterizes as

conflicting: her initial testimony that she had never seen Appellant before in

contrast to her later testimony that she recalled seeing Appellant in the

neighborhood.        Appellant’s Brief at 11.     Appellant reasons this conflict

establishes   that    Complainant’s     “identification   was   not    based   on   an


                                        - 13 -
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independent      memory      of   the   incident.”   Id.    We   agree   with   the

Commonwealth that Appellant is challenging the credibility of Complainant’s

identification, which is a challenge to the weight of the evidence.             See

Kinney, 157 A.3d at 971.

       Having concluded Appellant is challenging the weight of the evidence,

we next address the trial court’s holding of waiver due to Appellant’s vague

Rule 1925(b) statement. See Trial Ct. Op. at 5. Appellant’s Rule 1925(b)

claim, i.e., “[t]he verdict was against the weight of the evidence,” is identical

to the defendant’s Rule 1925(b) claim in Freeman. See Trial Ct. Op. at 5;

Freeman, 128 A.3d at 1248-49.             Therefore, we agree with the trial court

that Appellant waived his weight claim. See Freeman, 128 A.3d at 1248-

49.

       Even if we were to construe Appellant’s claim as a challenge to the

sufficiency of evidence as to his identity, Complainant identified Appellant in-

court.10 N.T., 10/11/18, at 130. Therefore, Complainant’s testimony alone

was sufficient to establish Appellant’s identity. See Johnson, 180 A.3d at

478. It was for the jury to evaluate any “indefiniteness and uncertainty” in

Complainant’s testimony, i.e., any purported discrepancy between her

____________________________________________


10  We cannot address Appellant’s weight claim on the merits because the
trial court interpreted Appellant’s weight claim only in the context of
inconsistent verdicts. Therefore, the trial court never resolved a weight
claim regarding Complainant’s identification of Appellant.




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testimony that she had never seen Appellant before and her testimony that

she later recalled seeing Appellant in the neighborhood, which goes to the

weight of her testimony. See Kinney, 157 A.3d at 971. For these reasons,

Appellant is not entitled to relief for his first two issues.

      We turn to Appellant’s last issue and quote his argument in its entirety

below:

      The presentence report indicated that Appellant was without a
      father and had a dysfunctional family upbringing. He was also
      22 years old at the time of the incident. A sentence of 20-40
      years was sufficient and not 37.5 to 77 years. A sentence of this
      nature is not reasonable and balanced under all circumstances.

Appellant’s Brief at 12.         The Commonwealth asserts, among other

arguments, that Appellant waived his claim by failing to include a Pa.R.A.P.

2119(f) statement.       Commonwealth’s Brief at 20-21.         The trial court

addressed the merits and held Appellant’s sentence was appropriate. Trial

Ct. Op. at 8-10.

      In order to preserve a discretionary sentencing issue, a defendant

must raise the issue in (1) a post-sentence motion or during the sentencing

proceedings; (2) a Rule 1925(b) statement; and (3) a Rule 2119(f)

statement. Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super.

2013) (en banc).      If an appellant “has failed to include a Rule 2119(f)

statement . . . and the Commonwealth objects, then the issue is waived and

this Court may not review the claim.” Commonwealth v. Lively, ___ A.3d

___, ___, 2020 WL 1915240, *7 (Pa. Super. 2020) (citation omitted).


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     Instantly, the Commonwealth has objected to Appellant’s failure to

include a Rule 2119(f) statement.     Commonwealth’s Brief at 20.   Because

Appellant failed to preserve this appellate issue in compliance with Rule

2119(f), and the Commonwealth objected, Appellant has waived the issue.

See Lively, ___ A.3d at ___, 2020 WL 1915240 at *7. For these reasons,

we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2020




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