J-S06045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :                        IN THE SUPERIOR COURT OF
                             :                              PENNSYLVANIA
                             :
     v.                      :
                             :
                             :
RAYMOND W. SCHOEN,           :
                             :
         Appellant           ::                            No. 1304 EDA 2017

            Appeal from the Judgment of Sentence March 28, 2017
              in the Court of Common Pleas of Chester County,
              Criminal Division at No(s): CP-15-00000739-2016

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                      FILED MAY 01, 2018

        Raymond W. Schoen (“Schoen”) appeals from the judgment of sentence

imposed following his convictions of two counts each of theft by unlawful

taking and theft by receiving stolen property.1 We affirm in part, and vacate

and remand in part.

        On the night of December 15, 2015, John Fraser (“Fraser”) noticed that

his shotgun and rifle were missing.            Fraser kept the single bolt action for the

rifle in a locked gun case, hidden separately from the rifle. The key to the gun

case was also hidden in the home. Fraser contacted the police, who came to

Fraser’s home.      At that time, Fraser told the officers of his suspicion that

Schoen, Fraser’s pet sitter, had stolen the weapons, as Schoen was the only

other person with a key to Fraser’s house.

____________________________________________


1   See 18 Pa.C.S.A. § 3921, 3925.
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      Fraser subsequently contacted the gun shop from which he had

purchased the firearms. Upon hearing Fraser’s description of the firearms,

the gun shop manager, Lawrence Hudson (“Hudson”), stated that those same

weapons were offered to him for purchase. Hudson, a Delaware constable,

told Fraser that he would recognize the seller if he was shown a photograph

of that person.     Thereafter, Birmingham Police Sergeant Kevin Urbany

(“Sergeant Urbany”) displayed a driver’s-license photograph of Schoen to

Hudson. Hudson identified Schoen as the person who had offered to sell the

stolen weapons. Several weeks later, Hudson identified Schoen from a photo

array.

      Police officers subsequently executed a search warrant on Schoen’s

apartment.    Although Schoen initially denied having any knowledge of the

firearms, police located the stolen firearms inside of Schoen’s apartment.

Schoen was arrested and informed of his rights pursuant to Miranda v.

Arizona, 384 U.S. 436 (1966). Schoen agreed to speak with the police, at

which time Schoen admitted that he had stolen the firearms because he was

having financial difficulties.   However, Schoen denied trying to sell the

firearms, and stated that there was “not much to say—you found the guns at

my house.” Trial Court Order, 12/19/16, at 2 n.1.

      Schoen filed a pre-trial Motion to suppress Hudson’s identification of

Schoen as the person who had attempted to sell the firearms; to preclude

Hudson from making an in-court identification of Schoen; to suppress


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evidence seized during the execution of the search warrant on Schoen’s

apartment; and to suppress Schoen’s subsequent statements to the police.

After a hearing, the suppression court denied Schoen’s Motion.

      After a trial on stipulated facts, the trial court found Schoen guilty of the

above-described charges. Thereafter, the trial court sentenced Schoen to two

to twenty-three months in jail, followed by two years of probation. Schoen

timely filed a Notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.

      Schoen presents the following claims for our review:

      1. Did the suppression court err in failing to grant [Schoen’s]
         [M]otion[] to suppress a witness’s pre-trial identification
         based[,] on a single driver’s license photo[,] because that
         procedure was unduly suggestive[,] and the witness lacked an
         independent basis for the identifications?

      2. Did the suppression court err by finding that probable cause for
         the issuance of the search warrant for [Schoen’s] home
         existed, even though the information therein was clearly stale?

      3. Did the suppression court err in failing to find that the search
         warrant for [Schoen’s] home was defective because it lacked
         [a] sufficient factual basis to establish probable cause?

      4. Should [Schoen’s] statements to law enforcement have been
         suppressed as the fruit of the poisonous tree?

      5. Was the [trial] court’s [O]rder requiring [Schoen] to pay
         restitution to the insurance company and the victim an illegal
         sentence because the firearms were returned to the victim?

Brief for Appellant at 4-5.

      Schoen first claims that the suppression court improperly denied his

Motion to suppress Hudson’s pre-trial identification. Id. at 9. Schoen argues

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that Hudson’s identifications were tainted by the one-photograph procedure

initially employed by police officers.    Id.   Schoen acknowledges that the

suppression court struck Hudson’s first identification of Schoen from a single

photo. Id. at 11. However, Schoen disagrees with the suppression court’s

finding that Hudson had an independent basis for his identification of Schoen

from the photo array. Id.      According to Schoen, “[t]he suppression court

relied heavily [on] [] Hudson’s testimony that he remembered [Schoen’s]

face[;] however[,] it ignored the lack of corroborating time orientation with

other witnesses and [] Hudson’s inability to recall anything other than

generalized details about [the] events.” Id.; see also id. at 13 (arguing that

the suppression court ignored Hudson’s “lack of time orientation with other

witnesses.”).

      Schoen asserts that Hudson’s first identification of Schoen was tainted

by the single-photo procedure used by the police, and that the officer

improperly deleted any reference to the single-photo identification procedure

from their Affidavit of Probable Cause for the search warrant.        Id. at 12.

Schoen contends that all subsequent identifications of Schoen by Hudson were

tainted by the initial single-photo identification procedure.       Id.   Schoen

additionally directs our attention to Hudson’s inability to recall certain aspects

of the timeline offered by police. Id. at 14.




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      Schoen further challenges the suppression court’s finding that Hudson

had an independent basis for his in-court identification. Id. Schoen relies on

his challenge to Hudson’s identification as the basis for his argument that the

search warrant for his apartment, and the evidence seized as a result of the

search, should have been suppressed.     See id. at 10.

      In appeals from suppression orders, our scope of review is limited to the

evidence presented at the suppression hearing. In the Interest of L.J., 79

A.3d 1073, 1088-89 (Pa. 2013). In reviewing an order denying a suppression

motion,

      [a]n appellate court may consider only the Commonwealth’s
      evidence and so much of the evidence for the defense as remains
      uncontradicted when read in the context of the record as a whole.
      Where the record supports the factual findings of the trial court,
      the appellate court is bound by those facts and may reverse only
      if the legal conclusions drawn therefrom are in error. However, it
      is also well settled that an appellate court is not bound by the
      suppression court’s conclusions of law.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015) (citations

omitted).

      With respect to factual findings, we are mindful that it is the sole
      province of the suppression court to weigh the credibility of the
      witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this Court.

Id. (citation omitted).   “In addition, we are aware that questions of the

admission and exclusion of evidence are within the sound discretion of the


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trial court and will not be reversed on appeal absent an abuse of discretion.”

Id.

      “Whether a pretrial identification should be suppressed as unreliable is

determined from the totality of the circumstances.”       Commonwealth v.

Cousar, 154 A.3d 287, 306 (Pa. 2017). “A pretrial identification will not be

suppressed unless the facts demonstrate that the identification procedure was

so infected by suggestiveness as to give rise to a substantial likelihood of

irreparable misidentification.” Commonwealth v. Johnson, 139 A.3d 1257,

1278-79 (Pa. 2016) (citation omitted).

      If a pre-trial identification is tainted, “the subsequent in-court

identification will be admissible if there exists an independent basis for the

identification[.]” Id.

      [T]he following factors should be considered in evaluating the
      likelihood of misidentification: (1) the opportunity of the witness
      to view the criminal at the time of the crime; (2) the witness’
      degree of attention; (3) the accuracy of the witness’ prior
      description of the criminal; (4) the level of certainty demonstrated
      by the witness at the confrontation; and (5) the length of time
      between the crime and the confrontation.

Commonwealth v. Patterson, 91 A.3d 55, 70 (Pa. 2014).

      In its Order denying Schoen’s suppression Motion, the suppression court

explained its reasons for denying suppression of Hudson’s subsequent

identification of Schoen as follows:

             In the instant case, the identifying witness was an ex-
      constable[,] who is very good at remembering faces. He had
      about 15 minutes of direct contact with the person attempting to
      sell him guns in a well-lit store. He was only a couple [of] feet

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     away from the person during this time. He consistently described
     the appearance of the man with whom he spoke. He was
     absolutely positive that he could identify the person in a
     photograph[,] even before he was shown one. He identified the
     man in the photograph as the man in his store immediately. This
     identification occurred a few weeks after the man was in the store.
     When he was shown a photo line-up containing eight photographs
     a couple of weeks later, he again picked out [Schoen] within
     seconds. He was absolutely positive[,] at all times[,] that the man
     he saw in the picture was the same man who was in his store. He
     distinctly remembered the person’s appearance and attitude. The
     event stuck out in his mind because of the rarity and value of the
     guns the person was trying to sell. In addition, [] Hudson testified
     that the man in question was both a [federal firearms licensed
     dealer] and a pet sitter[,] even though no one had informed him
     of this fact prior to taking the stand. He testified that he was
     aware of this information because the man in the store gave him
     a business card that stated the same. [] Hudson was a very
     credible witness and after hearing his testimony and observing
     him in court, the court is of the opinion that his identification of
     [Schoen] resulted from his contact with the man in the store[,]
     and was not the result of a suggestive line-up….

Suppression Court Order, 12/19/16, at 4 n.1. The suppression court’s findings

are supported in the record.

     At the suppression hearing, Hudson, the manager of the Delaware gun

shop, testified that at some point in December 2015, he received a telephone

call regarding weapons stolen from Fraser’s home. N.T., 10/12/16, at 49.

Prior to receiving that call, a man had brought in firearms matching the

description of the firearms described in his telephone call with Fraser. Id.

Hudson confirmed that a person had entered the gun shop, offering the

firearms for sale. Id. at 50. Hudson described the firearms as follows:

     The first one was a Beretta 683 Graystone sporting model.
     [Schoen] first approached up to the counter, laid the Beretta case
     up on the counter. I opened up the case, looked at the shotgun

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      and [k]new exactly what it was. Then I asked him, you know, he
      said I want to sell these. I said, well, what do you want for it? I
      wanted to get a feel if somebody wanted to sell, what did he want.

Id. Schoen requested $3,300 for the Berretta 683. Id. According to Hudson,

he told Schoen that the price was too high, “especially after [Schoen] handed

me a business card telling me he’s a dealer.” Id. at 50, 65. Hudson stated

that he had declined to purchase the firearm at that price, telling Schoen that

the weapon cost “only $2500 new.” Id. at 50. Hudson described Schoen as

“kind of arrogant.” Id. at 51. Hudson stated, “I think [Schoen] thought a

new one, the new model[,] is $4,200, and that was not the same gun. So I

questioned his firearm knowledge.” Id. at 66.

      Schoen left the gun shop, then returned with a second firearm, which

he also offered for sale. Id. at 51. Hudson declined to purchase the second

firearm:

      I explained to [Schoen,] when I opened up the soft case, there
      was a rifle, a big caliber rifle, that we’re not a rifle state in
      Delaware. You’re not going to get as much money for it. … I think
      I told him that it would be around $850. I know the gun was
      worth more. I didn’t expect him to sell it.

Id. Hudson also testified that the gun shop had “all brand new lighting”; he

interacted with Schoen for about 10-15 minutes; and the firearms offered for

sale were “unusual, very unusual guns.” Id. at 51, 55. Hudson also stated

that Schoen handed Hudson his business card, which included Schoen’s name,

his status as federally licensed firearms dealer, a picture, and that Schoen was

a pet sitter. Id. at 65, 72.


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      Thus, our review of the record discloses that there is sufficient evidence

of record to support the suppression court’s findings, and the suppression

court did not err in its legal conclusions. Schoen asks this court to re-visit the

credibility findings of the suppression court. However, “it is within the lower

court’s province to pass on the credibility of witnesses and determine the

weight to be given to their testimony.” Commonwealth v. Jaynes, 135 A.3d

606, 610 (Pa. Super. 2016).      This court “will not substitute our credibility

determinations for those of the suppression court judge.”      Commonwealth

v. Johnson, 86 A.3d 182, 187 (Pa. 2014).          Accordingly, we cannot grant

Schoen relief on this claim.

      Schoen next claims that the suppression court improperly found that the

information in the Affidavit of Probable Cause was not “stale.”         Brief for

Appellant at 15. Schoen contends that “[n]o facts exist within the four corners

of the warrant to overcome [Schoen’s] manifest intent to sell the guns, nor

do they establish [that] the guns would be found in [Schoen’s] residence more

than seven weeks after the attempted sale.” Id. at 16. Schoen asserts that

there is no evidence of when the crimes “specifically occurred.” Id. (emphasis

added). According to Schoen, where, as here, police knew that Schoen “was

allegedly actively seeking to dispose of the guns” in December 2015, there is

nothing that would establish that the guns would still be at Schoen’s residence

eight weeks later. Id. at 17.

      As our Supreme Court has explained,


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      [b]efore an issuing authority may issue a constitutionally valid
      search warrant[,] he or she must be furnished with information
      sufficient to persuade a reasonable person that probable cause
      exists to conduct a search. The requisite probable cause must
      exist at the time the warrant is issued and be based on facts
      closely related in time to the date of issuance.

Commonwealth v. Jones, 484 A.2d 1383, 1387 (Pa. 1984) (internal

citations omitted).

      Settled Pennsylvania law establishes that stale information cannot
      provide probable cause in support of a warrant. In particular:

         [A]ge of the information supporting a warrant application
         is a factor in determining probable cause. If too old, the
         information is stale, and probable cause may no longer
         exist. Age alone, however, does not determine staleness.
         The determination of probable cause is not merely an
         exercise in counting the days or even months between the
         facts relied on and the issuance of the warrant. Rather,
         we must also examine the nature of the crime and the type
         of evidence.

Commonwealth v. Janda, 14 A.3d 147, 158-59 (Pa. Super. 2013) (internal

citation omitted).

      In its Order denying Schoen’s suppression Motion, the suppression court

stated the following:

      In this case, [Schoen] attempted to sell the stolen guns to []
      Hudson a few weeks before the police obtained a search warrant.
      [Schoen] claims that this is too long and therefore, the
      information contained in the search warrant was stale. The court
      disagrees.   The items [Schoen] wanted to sell were rare,
      expensive, stolen guns. In addition, [Schoen] wanted to sell them
      for more than they were worth. Considering the “hot” nature of
      the items, the rarity and value of the guns, and the difficulty of
      disposing of such items, it was not unreasonable for the
      magistrate to believe that the items described could still be found
      in [Schoen’s] home.       Thus, the court concludes that the
      information contained in the warrant was not stale.

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Suppression Court Order, 12/19/16, at 4-5 n.1 (citation omitted). We agree,

and affirm on this basis with regard to Schoen’s second claim. See id.; see

also N.T., 10/12/16, at 51 (wherein Hudson testified, “I think I told [Schoen

that the rifle] was worth more. I didn’t expect him to sell it.”).

      In his third claim, Schoen argues that the search warrant application

was defective because there was not a factual basis, nor a sufficiently

supported opinion, that firearms would be found in Schoen’s home. Brief for

Appellant at 18.   Schoen contends that the averments in the Affidavit of

Probable Cause failed to establish a nexus between the theft of the firearms

and Schoen’s residence.     Id. at 19.      According to Schoen, although the

Affidavit discusses Sergeant Urbany’s relevant experience, a nexus between

that experience and the crime is not established. Id. at 20.

      “In order for a magistrate to issue a valid warrant allowing the police to

search for and seize evidence of a crime, the police must demonstrate

probable cause to the magistrate that the items sought by the warrant have

a connection to the crime or crimes under investigation.” Commonwealth

v. Jones, 988 A.2d 649, 667 (Pa. 2010). Consequently, it is the obligation of

a reviewing court “to ensure that an affidavit in support of the issuance of

such a warrant has furnished a substantial basis for a magistrate to conclude

that probable cause of this required nexus exists.” Id.

      In determining whether particular averments establish probable cause,

we are mindful of the principle that

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      [p]robable cause … is a practical, non-technical conception
      requiring a consideration of the totality of the circumstances ….
      The task of the issuing magistrate is simply to make a practical,
      commonsense decision whether, given all the circumstances set
      forth in the affidavit before him, including the “veracity” and “basis
      of knowledge” of persons supplying hearsay information, there is
      a fair probability that contraband or evidence of a crime will be
      found in a particular place.

Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012).

      Here, the suppression court found as follows:

      [I]t is reasonable to conclude that the stolen guns would not be
      concealed on [Schoen’s] person, but rather[,] in a place under his
      control, such as his residence. … [I]t was reasonable to conclude
      that the property had not yet been disposed of. Where police are
      looking for stolen property, the logical inference is that the thief
      will return to a place where he expects privacy to conceal the
      proceeds of his crime. See Commonwealth v. Fromal, 572 A.2d
      711, 718 (Pa. Super. 1990) (search warrant properly issued based
      on logical supposition that place to be searched was connected to
      the crime); Commonwealth v. Crawford, 466 A.2d 1079, 1081
      (Pa. Super. 1983) (reasonable for issuing authority to conclude
      that proceeds from robbery would be at a place under suspect’s
      control). Accordingly, the [suppression] court finds that there was
      a logical nexus between the stolen firearms and [Schoen’s]
      residence.

Suppression Court Order, 12/19/16, at 5 n.1. We agree and affirm on this

basis with regard to Schoen’s third claim. See id.

      In his fourth claim, Schoen argues that because the search warrant for

his residence was unlawful, his statement to police “after they found the

firearms should have been suppressed as the “fruit of the poisonous tree.”

Brief for Appellant at 22.      However, we have concluded that Schoen’s

challenges to the validity of the search warrant lack merit. Consequently, his




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statement was not the “fruit of the poisonous tree,” and we cannot grant him

relief on this claim.

      Finally, Schoen challenges the legality of his sentence.       Id. at 23.

Schoen argues that the trial court improperly imposed restitution as a part of

his sentence. Id. In this regard, Schoen points out that there was no loss to

Fraser, because the firearms were returned to him. Further, there was no

evidence presented at the sentencing hearing that the insurer of the firearms

had suffered a loss.    Id. at 25.   On this basis, Schoen contends that the

restitution portion of his sentence should be reversed. Id. at 26.

      As this Court has explained,

      [i]n the context of criminal proceedings, an order of “restitution is
      not simply an award of damages, but, rather, a sentence.”
      Commonwealth v. C.L., 963 A.2d 489, 494 (Pa. Super. 2008).
      An appeal from an order of restitution based upon a claim that a
      restitution order is unsupported by the record challenges the
      legality, rather than the discretionary aspects, of sentencing.
      Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super.
      2004), appeal denied, 583 Pa. 661, 875 A.2d 1074 (2005). “The
      determination as to whether the trial court imposed an illegal
      sentence is a question of law; our standard of review in cases
      dealing with questions of law is plenary.” Commonwealth v.
      Hughes, 986 A.2d 159, 160 (Pa. Super. 2009).

Commonwealth v. Stradley, 50 A.3d 769, 771-72 (Pa. Super. 2012).

      Mandatory restitution, as a part of a defendant’s sentence, is authorized

by 18 Pa.C.S.A. § 1106. Section 1106 provides, in relevant part, as follows:

      § 1106. Restitution for injuries to person or property

      (a) General rule.—Upon conviction for any crime wherein
      property has been stolen, converted or otherwise unlawfully
      obtained, or its value substantially decreased as a direct result of

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     the crime, or wherein the victim suffered personal injury directly
     resulting from the crime, the offender shall be sentenced to make
     restitution in addition to the punishment prescribed therefor.

                                     ***

     (c) Mandatory restitution.—

       (1)    The court shall order full restitution:

         (i) Regardless of the current financial resources of the
         defendant, so as to provide the victim with the fullest
         compensation for the loss.

                                     ***

       (2) At the time of sentencing the court shall specify the amount
       and method of restitution. In determining the amount and
       method of restitution, the court:

         (i) Shall consider the extent of injury suffered by the victim,
         the victim’s request for restitution ... and such other matters
         as it deems appropriate.

         (ii) May order restitution in a lump sum, by monthly
         installments or according to such other schedule as it deems
         just.

                                     ***
       (4)

         (i) It shall be the responsibility of the district attorneys of the
         respective counties to make a recommendation to the court
         at or prior to the time of sentencing as to the amount of
         restitution to be ordered. This recommendation shall be
         based upon information solicited by the district attorney and
         received from the victim.

         (ii) Where the district attorney has solicited information from
         the victims as provided in subparagraph (i) and has received
         no response, the district attorney shall, based on other
         available information, make a recommendation to the court
         for restitution.



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18 Pa.C.S.A. § 1106.

        Here, the Commonwealth concedes that,

        [w]hile the Commonwealth believes sufficient restitution
        information was provided to the trial court, it is constrained to
        acknowledge that such information is not part of the record that
        can be considered by this Court.             Consequently, the
        Commonwealth believes that the case should be remanded to the
        trial court for a hearing to properly determine the restitution
        [Schoen] owes to the victim.

Brief for the Commonwealth at 27.

        Our review of the record discloses that at the sentencing hearing, the

prosecutor asked for restitution in the amount of $3,748.26. N.T., 3/28/17,

at 4.    The prosecutor stated that restitution was to be paid to “Allstate

Insurance. That was the insurance payout that the victim received once he

filed a claim for the burglary.” Id. Restitution would also be paid to the victim

for the deductible amount of $1,000. Id.

        The Commonwealth concedes that the prosecutor’s statement regarding

restitution is not supported by any evidence of record.           Brief for the

Commonwealth at 27-28.          The Commonwealth explains that, although

information regarding restitution was in the Commonwealth’s sentencing

memorandum, it was not officially filed of record. Id. at 28.

        “[A]n appellate court cannot consider anything which is not part of the

record in the case ... because for purposes of appellate review, what is not of

record does not exist.” Commonwealth v. Johnson, 33 A.3d 122, 126 n. 6

(Pa. Super. 2011) (citations and internal quotation marks omitted).


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      Although there is no evidence supporting the amount of restitution

ordered by the trial court, our review of the record discloses that the trial court

considered restitution to be an integral part of its sentence.          See N.T.,

3/28/17, at 4 (wherein the trial court asked the Commonwealth whether it

was seeking restitution), 23 (wherein the trial court instructed Schoen, “I want

the restitution paid off first.    Frankly, no matter what you do, get the

restitution paid.”). As such, we deem it necessary to vacate the trial court’s

judgment of sentence in its entirety, and remand for a new sentencing

hearing, during which the trial court can ascertain whether the award of

restitution is warranted, and the impact of that determination on the court’s

overall sentencing scheme. See Commonwealth v. Barton-Martin, 5 A.3d

363, 370 (Pa. Super. 2010) (providing that where vacating a sentence disrupts

a trial court’s overall sentencing scheme, this Court will remand to the trial

court for resentencing).

      Judgment of sentence vacated. Case remanded for a sentencing hearing

and resentencing consistent with this Memorandum.                 Superior Court

jurisdiction is relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/18




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