J-S73020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                            Appellant

                     v.

TYLER LAVAR COTTINGHAM,

                            Appellee                  No. 521 WDA 2018


                Appeal from the Order Entered April 2, 2018
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001312-2017

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 1, 2019

      The Commonwealth appeals from the order entered by the Court of

Common Pleas of Cambria County granting the motion to suppress evidence

filed by Appellee, Tyler Lavar Cottingham. After careful review, we affirm in

part and reverse in part.

      The affidavit of probable cause filed in this matter read as follows:

             On 8 July 2017, units were [called] out to a shooting at
      Swallow PI behind the Wood St playground. The caller, Derek
      Rose, was also the shooter. Rose remained on scene and
      cooperated with [o]fficers. Rose was in the process of backing his
      vehicle into his garage. Rose opened the garage door and was
      returning to his vehicle [when] a maroon Nissan bearing PA
      [license plate number] JWP0304, came down the alley at a high
      rate of speed. The passenger, Leslie Jones, remained in the
      vehicle. The driver, [Appellee], got out of the Nissan ran up to
      Rose[,] began yelling at him[, and] then punched Rose in the
      head. [When] Rose asked [Appellee] what this [was] about,
      [Appellee] punched Rose again. [Appellee] said, “[Y]ou know
      what this is about! If you want to take this to the next level, I
J-S73020-18


      have something under the seat for you!” [Appellee] punched Rose
      again in the head. At [that] point, Rose took a small Ruger .380
      handgun from his pocket. [When Appellee] turned to run, Rose
      fired multiple shots[,] hitting [Appellee] 4 times in the back.
      [Appellee] continued running[,] lo[]sing his sandals along the
      way. Rose immediately called 911, and told Jones[,] “Don’t be
      scared, I’m not gonna hurt you.” Rose placed the firearm on the
      back of his trunk and waited for police to arrive. Jones got out of
      the vehicle and ran after [Appellee,] picking up the Nissan key
      along the way. Rose and Jones cooperated with police and
      provided … statement[s].

            On 10 July 2017, this detective and Detective Adams
      responded to Conemaugh Hospital to check the status of
      [Appellee]. [Appellee] was still on a breathing tube and was
      unable to speak to police. This Detective spoke to [Appellee]’s
      mother Jeanene Callaway, who is also the owner of the Nissan….
      Callaway did sign a consent to search form for the Nissan
      [Appellee] was driving and in control of on the day of the incident.

             This [d]etective and Detective Adams went to Brat Towing
      and conducted a search of the Nissan. Between the driver[’]s seat
      and center console, in plain view, was a flashlight stun gun (similar
      to a cattle prod). Inside the middle console was found a mason
      jar, the inside of which was covered in marijuana residue.
      Detective Adams found a green Crown Royale Bag under the
      driver[’]s seat. Inside the bag was another mason jar, containing
      a large amount of marijuana and a digital scale. One cell phone
      was found in the center console. All items were photographed and
      collected as evidence.

Affidavit of Probable Cause, 7/11/17, at 1.

      On September 19, 2017, the Commonwealth charged Appellee, by

criminal information, with possession with intent to deliver marijuana (PWID),

35 P.S. § 780-113(a)(30); possession of drug paraphernalia (PDP), 35 P.S. §

780-113(a)(32); prohibited offensive weapons, 18 Pa.C.S. § 908; and simple

assault, 18 Pa.C.S. § 2701(a)(1).      On March 1, 2018, Appellant filed an

omnibus pretrial motion presenting 1) a motion to suppress the seized



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physical evidence; and 2) a motion to quash the criminal information based

on the assertion that the Commonwealth failed to present a prima facie case

that Appellee possessed the seized contraband. On March 15, 2018, the court

conducted a suppression hearing. On April 2, 2018, the lower court filed an

opinion and order granting the motion to suppress with respect to the seized

marijuana and paraphernalia, but denying the motion with respect to the

weapon.

        On April 16, 2018, the Commonwealth filed an interlocutory appeal

pursuant to Pa.R.A.P. 311(d) (“In a criminal case, under the circumstances

provided by law, the Commonwealth may take an appeal as of right from an

order that does not end the entire case where the Commonwealth certifies in

the notice of appeal that the order will terminate or substantially handicap the

prosecution.”).1 On May 4, 2018, the Commonwealth filed a timely, court-

ordered Pa.R.A.P. 1925(b) statement. The suppression court issued its Rule

1925(a) opinion on May 14, 2018, in which the court relied substantially on

its April 2, 2018 opinion that accompanied the order under review.

        The Commonwealth now presents the following questions for our

review:

        1. Whether the suppression court erred by suppressing evidence
        that was seized pursuant to the consent of the owner of the vehicle
        that was subject to a search after the consent was given to
        Detective Adams[?]


____________________________________________


1   In its notice of appeal, the Commonwealth so certified.

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     2. Whether, in the alternative, if it was the suppression court’s
     intention to dismiss certain counts or quash certain counts based
     on a lack of prima facie evidence, … whether the suppression court
     erred by doing so[?]

Commonwealth’s Brief at 7.
     Our well-settled standard of review of the granting of a motion to
     suppress evidence is as follows:

        When the Commonwealth appeals an order suppressing
        evidence, we may consider on review only the evidence
        from the defendant’s witnesses along with the
        Commonwealth’s evidence that remains uncontroverted.
        Our standard of review is restricted to establishing whether
        the record supports the suppression court’s factual findings;
        however, we maintain de novo review over the suppression
        court’s legal conclusions.

     Commonwealth v. Guzman, 44 A.3d 688, 691–92 (Pa. Super.
     2012) (citing Commonwealth v. Brown, … 996 A.2d 473, 476
     ([Pa.] 2010)).

        Where the suppression court’s factual findings are
        supported by the record, [the appellate court] is bound by
        [those] findings and may reverse only if the court’s legal
        conclusions are erroneous. Where ... the appeal of the
        determination of the suppression court turns on allegations
        of legal error, the suppression court’s legal conclusions are
        not binding on an appellate court, whose duty it is to
        determine if the suppression court properly applied the law
        to the facts. Thus, the conclusions of law of the courts below
        are subject to [] plenary review.

     Commonwealth v. Jones, … 988 A.2d 649, 654 ([Pa.] 2010)
     (internal citations and quotation marks omitted).

Commonwealth v. Forsythe, 164 A.3d 1283, 1286–87 (Pa. Super. 2017).

     We begin with a summary of the suppression court’s reasons for

granting suppression. First, the court determined that “the Johnstown Police

Department conducted a lawful, warrantless search of the vehicle because the

Johnstown Police Department sought and obtained the consent of the owner


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of the vehicle before effectuating the search.”   Suppression Court Opinion

(SCO), 4/2/18, at 3 (unnumbered pages).       Second, the court found that

Appellee “was aware of the presence of the weapon in the vehicle and,

therefore, the evidence of the weapon cannot be suppressed.” Id. at 4. Third,

the court found that there was “no evidence that [Appellee] exercised actual

or constructive possession over the drugs or drug paraphernalia,” and,

therefore, the court found it to be “appropriate for this evidence to be

suppressed.” Id.

     As its first issue, the Commonwealth asserts that the trial court erred

by granting Appellee’s suppression motion with respect to the seized

marijuana and related paraphernalia. The Commonwealth argues that, once

the suppression court determined that the consent obtained to search the

Nissan was valid, the court’s suppression analysis should have ended. We

agree.
           Both the Fourth Amendment to the United States
     Constitution and Article I, Section 8 of the Pennsylvania
     Constitution protect individuals, their homes, their papers, and
     their effects and possessions from unreasonable searches and
     seizures. For a search to be lawful, police must first obtain a
     warrant, supported by probable cause, from a neutral and
     detached magistrate. A search conducted without a warrant is
     deemed to be unreasonable and therefore constitutionally
     impermissible, unless an established exception applies.

           One of the limited exceptions to the warrant requirement is
     a consensual search. [W]e have long approved consensual
     searches because it is no doubt reasonable for the police to
     conduct a search once they have been permitted to do so.
     Although a warrantless, but consensual, search is constitutionally
     permissible, obtaining consent is an investigative tool utilized by
     law enforcement. It allows police to do what otherwise would be


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       impermissible without a warrant. As a consent search is in
       derogation of the Fourth Amendment, there are carefully
       demarked limitations as to what constitutes a valid consent
       search.

             First, consent must be voluntarily given during a lawful
       police interaction. For a finding of voluntariness, the
       Commonwealth must establish that the consent given by the
       defendant is the product of an essentially free and unconstrained
       choice – not the result of duress or coercion, express or implied,
       or a will overborne – under the totality of the circumstances.

             If consent is given voluntarily, the ensuing search must be
       conducted within the scope of that consent. The standard for
       measuring the scope of an individual’s consent is one of objective
       reasonableness. We do not ascertain the scope of consent from
       the individual’s subjective belief or the officer’s understanding
       based on his or her training and experience, but based on what ...
       the typical reasonable person would have understood by the
       exchange between the officer and the suspect.

Commonwealth v. Valdivia, 195 A.3d 855, 861–62 (Pa. 2018) (citations,

footnotes, and quotations marks omitted). Moreover, “[i]t is well established

that the government may search a vehicle without a warrant or probable cause

if   the   owner   of   the   vehicle   voluntarily   consents   to   the   search.”

Commonwealth v. Yedinak, 676 A.2d 1217, 1220 (Pa. Super. 1996).

       Here, like the Commonwealth, we ascertain no error in the suppression

court’s initial legal determination regarding consent.       The police obtained

written consent from the vehicle’s owner to search it. Accordingly, there was

no violation of the state or federal constitutions when a search conducted

pursuant to that consent ensued.         The second aspect of the suppression

court’s order – the denial of suppression with respect to the discovered




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weapon – is not under dispute. Accordingly, we will not address that aspect

of the court’s order.2

       Nevertheless, the suppression court went on to suppress the discovered

marijuana and related paraphernalia because there was, ostensibly, “no

evidence” of Appellee’s constructive possession of those items.              SCO at 4.

This was plain error. Possession, constructive or otherwise, is an element of

the criminal offenses at issue; it is not a factor pertinent to suppression

analysis in this case.

       Indeed, the suppression court did not provide any case law supporting

its conclusion in that regard, nor has this Court discovered any jurisprudence

supporting the suppression court’s reasoning.               The only cases cited by

suppression     court    regarding      the    issue   of   constructive    possession,

Commonwealth v. Valette, 613 A.2d 548 (Pa. 1992), and Commonwealth

v. Macolino, 469 A.2d 132 (Pa. 1983), were cases dealing exclusively with

sufficiency-of-the-evidence claims, not suppression claims.                Our Supreme

Court in Valette, after citing the standard of review for sufficiency claims, and

after discussing the Commonwealth’s evidence produced at trial, concluded

that the evidence was insufficient to demonstrate Valette’s constructive

possession of narcotics discovered in his co-defendant’s apartment. Indeed,


____________________________________________


2 As discussed, infra, it is of no moment that the court determined that
Appellee knew of the presence of the stun gun with regard to the issue of
suppression. Once the court determined that the consent to search given was
valid, the weapon was not suppressible.

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the Valette Court clearly defined the dispute under consideration in that case

as follows:
       The appellant argues that the evidence was not sufficient to
       establish constructive possession. He contends that he merely was
       in the wrong place at the wrong time, and that although he knew
       the co-defendants, he himself was not involved in drug dealing.

      In response, the Commonwealth contends that the testimony of
      lay and expert witnesses, together with the physical evidence, was
      sufficient to prove constructive possession of the controlled
      substances, and hence, the evidence was sufficient to sustain the
      convictions.

Valette, 613 A.2d at 549 (emphasis added). Nowhere in that opinion does

the Court cite the standard of review for a suppression claim, nor does it

discuss the Fourth Amendment or related search and seizure jurisprudence.

      The Macolino Court reached the opposite result regarding constructive

possession, but, again, the Court was clearly addressing the sufficiency and

not the suppression of evidence. See Macolino, 469 A.2d at 133 (“The sole

issue confronting this Court is whether the Superior Court erred in reversing

the trial court’s judgment of sentence against Carl Macolino. The Superior

Court … held that the Commonwealth failed to produce sufficient evidence to

establish that appellee was in constructive possession of the controlled

substance, since his wife could also have had possession of the drug. We find

that the Superior Court did err, and we reverse.”) (emphasis added, footnote

omitted).

      As our Supreme Court has explained:
      Absent a successful motion to suppress, or its equivalent, the
      Commonwealth like any other party is entitled to attempt to
      introduce at trial any and all relevant evidence. The point of a

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      motion to suppress physical evidence is to eliminate certain
      tangible      evidence     from     the     Commonwealth’s       trial
      armamentarium, on grounds that the manner of the government’s
      acquisition of that evidence involved a violation of the defendant’s
      constitutional rights. Whether that evidence is to be suppressed
      does not depend upon whether the Commonwealth has committed
      itself to introduce the evidence at trial, or how important it is to
      the Commonwealth’s case, or how strong the evidence is, or
      whether it is subject to trial contradiction, explanation or rebuttal;
      the focus is upon its manner of acquisition, and how that manner
      of acquisition implicated the defendant’s constitutional rights. By
      the same token, an unsuccessful motion to suppress does not
      restrict the defendant from arguing at trial that the evidence
      should be excluded, or discounted by the factfinder, on grounds
      unrelated to the constitutionality of its acquisition.

Commonwealth v. Millner, 888 A.2d 680, 693 (Pa. 2005) (emphasis added,

some emphasis in original omitted).

      Accordingly, we conclude that the trial court clearly erred when it

suppressed evidence of the seized marijuana and paraphernalia. Constructive

possession or want thereof concerns the sufficiency of the evidence, not the

admissibility of the evidence on constitutional grounds.       The lower court’s

inquiry into suppression should have ended once it determined that the

consent to search the Nissan was constitutionally valid.

      Next, the Commonwealth argues in the alternative that the suppression

court erred if it intended to rule that the Commonwealth had failed to present

a prima facie case for the crimes of PWID and PDP.

      Initially, we note that in the order under review, the court expressly

stated that, “upon consideration of [Appellee]’s Motion to Suppress Evidence

of drug possession, … it is hereby ORDERED and DIRECTED that said Motion

is GRANTED.” Suppression Order, 5/2/2018, at 1 (single page). Likewise,


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in the opinion accompanying that order, the suppression court stated: “Finally,

we find that there is no evidence that [Appellee] excercised actual or

constructive possession over the drugs or drug paraphernalia, therefore, we

find [it] appropriate for this evidence to be suppressed.” SCO at 4. Despite

the fact that the Commonwealth raised the instant claim in its Rule 1925(b)

statement, the suppression court did not discuss it at all in its Rule 1925(a)

opinion. Thus, there is no indication in the record that the court intended to

dismiss the PWID and PDP charges for want of a prima facie case, and the

court did not enter any order to that effect.

      However, in his omnibus pre-trial motion, Appellee raised, in addition to

his motion to suppress, a motion to quash those charges based on his

assertion that the “Commonwealth has presented no prima facie evidence that

the stun gun and drugs found in the vehicle were in fact owned by

[Appellee]….” Appellee’s Omnibus Pretrial Motion, 3/1/18, at 8-9 ¶¶ 38-40

(unnumbered pages). Moreover, “the law is well settled that if the record

supports the result reached by the suppression court, we may affirm on any

ground.”   Commonwealth v. Cartagena, 63 A.3d 294, 301 (Pa. Super.

2013) (en banc). As such, we will address this issue out of an abundance of

caution.

      Appellee’s motion to quash the criminal information was the equivalent

of a pre-trial petition for habeas corpus.
            We review a decision to grant a pre-trial petition for a writ
      of habeas corpus by examining the evidence and reasonable
      inferences derived therefrom in a light most favorable to the


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     Commonwealth. Commonwealth v. James, 863 A.2d 1179,
     1182 (Pa. Super. 2004) (en banc). In Commonwealth v.
     Karetny, … 880 A.2d 505 ([Pa.] 2005), our Supreme Court found
     that this Court erred in applying an abuse of discretion standard
     in considering a pre-trial habeas matter to determine whether the
     Commonwealth had provided prima facie evidence. The Karetny
     Court opined, “the Commonwealth’s prima facie case for a
     charged crime is a question of law as to which an appellate court’s
     review is plenary.” Id. at 513…; see also Commonwealth v.
     Huggins, … 836 A.2d 862, 865 ([Pa.] 2003) (“The question of the
     evidentiary sufficiency of the Commonwealth’s prima facie case is
     one of law [.]”). The High Court in Karetny continued, “[i]ndeed,
     the trial court is afforded no discretion in ascertaining whether, as
     a matter of law and in light of the facts presented to it, the
     Commonwealth has carried its pre-trial, prima facie burden to
     make out the elements of a charged crime.” Karetny, supra at
     513…. Hence, we are not bound by the legal determinations of
     the trial court. …

           A pre-trial habeas corpus motion is the proper means for
     testing whether the Commonwealth has sufficient evidence to
     establish a prima facie case. [Commonwealth v.] Carroll, [936
     A.2d 1148,] 1152 [(Pa. Super. 2007)]. “To demonstrate that a
     prima facie case exists, the Commonwealth must produce
     evidence of every material element of the charged offense(s) as
     well as the defendant’s complicity therein.” Id. To “meet its
     burden, the Commonwealth may utilize the evidence presented at
     the preliminary hearing and also may submit additional proof.”
     Id.

Commonwealth v. Dantzler, 135 A.3d 1109, 1111–12 (Pa. Super. 2016)

(en banc).

     Furthermore,
           [e]vidence 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



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      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      As noted above, the suppression court did not directly address the

Commonwealth’s second issue.         However, in conflating the issues of

suppression and sufficiency of the evidence, the court did opine on the matter

to an extent that provides this Court with a clear understanding of the trial

court’s reasoning regarding whether there was sufficient evidence that

Appellee constructively possessed the seized contraband.
      Constructive possession is a legal fiction, a pragmatic construct to
      deal with the realities of criminal law enforcement. Constructive
      possession is an inference arising from a set of facts that
      possession of the contraband was more likely than not. We have
      defined constructive possession as “conscious dominion.” We
      subsequently defined “conscious dominion” as “the power to
      control the contraband and the intent to exercise that control.” To
      aid application, we have held that constructive possession may be
      established by the totality of the circumstances.

Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa. Super. 2011) (citations

omitted).

      Here, there is no question that Appellee had the power to control the

marijuana and related paraphernalia when the evidence is construed in a ‘light

most favorable’ to the Commonwealth.          The suppression court received

testimony indicating that Appellee had been in the driver’s seat of the Nissan.

N.T., 3/15/18, at 7. Appellee had immediate access to any items within his

reach while sitting there.   Common sense dictates that Appellee’s area of

control necessarily included the space under his seat, as well as any items in

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the center console positioned between the front seats. These are the locations

where the police discovered the marijuana and related paraphernalia.

      Thus, the only remaining question is whether there was sufficient

evidence produced by the Commonwealth to demonstrate that Appellee

intended to exercise control over the contraband.          In this regard, the

suppression court stated:
      Here, there was no evidence provided that proves [Appellee] was
      aware of the presence of the drugs and paraphernalia located in
      the vehicle. This is further complicated by the fact that the vehicle
      did not belong to [him]. Furthermore, because of the presence of
      the female passenger in the front seat, we cannot speculate as to
      who exercised control over the drugs or drug paraphernalia.
      Therefore, we cannot find that the defendant maintained actual or
      constructive possession over the drugs or paraphernalia.

TCO at 3.

      The Commonwealth contends, however, that it
      presented evidence that [Appellee] occupied the driver’s seat of
      the vehicle. The Commonwealth also presented evidence that
      [Appellee] indicated he had knowledge of what was under the seat
      of the vehicle. It is a reasonable inference that, as a driver or
      occupant of the vehicle, [Appellee] who claims knowledge of
      something secreted under the seat would also have knowledge of
      items that are located in other areas to which the driver would
      have access. These areas include the center console, the area
      between the driver’s seat and the center console and items that
      are in fact under the driver’s seat. While the facts noted by the
      suppression court that the vehicle did not belong to [Appellee] and
      there was another occupant of the vehicle are potential defenses
      against a finding that they were constructively possessed and/or
      jointly constructively possessed, they do not support dismissal of
      the charges at this stage.




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Commonwealth’s Brief at 13-14.3 For the following reasons, we agree with

the Commonwealth. See Widmer, supra.

       It is certainly possible that Appellee did not know about the marijuana

and related paraphernalia when he operated the Nissan.        As noted by the

suppression court, the presence of a passenger in the vehicle, and the fact

that Appellee was not the owner of that vehicle, could easily create a

reasonable doubt for a factfinder as to whether Appellee had such knowledge.

However, as noted by the Commonwealth, such evidence effectively

constitutes the elements of a defense to the claim of constructive possession

(and perhaps a strong defense thereto), but these facts do not render the

inference that Appellee intended to control the contraband in “contradiction to

the physical facts,” or “in contravention to human experience and the laws of

nature.”    Widmer, supra.

       It is true that “we may not infer that” an occupant of a vehicle “knew of

[an item]’s existence simply from the fact that it was hidden in the

automobile.”     Commonwealth v. Hamm, 447 A.2d 960, 962 (Pa. Super.

1982). However, in the instant case, additional evidence was produced to

demonstrate that Appellee knew and intended to exercise control of the

weapon located between the center console and the driver’s seat. See N.T.

at 8 (“Mr. Rose did state to me that [Appellee said] that if you want to take it

there, there’s something under my seat.”). Would it be unreasonable for a
____________________________________________


3The record establishes that the weapon was located between the driver’s
seat and the center console, not under the driver’s seat. See N.T. at 20.

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juror to conclude that Appellee’s demonstrated intent to control the weapon

extended to the drugs and drug paraphernalia that were adjacently located?

This is a difficult, subjective question. However, precisely because we cannot

say with any certainty that such an inference would be unreasonable or

reasonable, this is a matter best left to the factfinder at trial. The sufficiency

test does not weigh the strength of evidence but, instead, establishes a bare

minimum of evidence necessary to place a matter before a jury or judge sitting

as factfinder as a matter of law. We then trust the factfinder to sort weak

from strong inferences while assessing the presence or absence of a

reasonable doubt in the context of the totality of the evidence produced.

      Thus, we conclude that the Commonwealth produced the bare minimum

of evidence necessary to survive Appellee’s motion to quash for want of

sufficient evidence of his alleged constructive possession of the seized

marijuana and related paraphernalia.           We so conclude because the

Commonwealth produced marginally more evidence than the mere fact that

marijuana and related paraphernalia were secreted within the area of

Appellee’s potential control; thus, the Commonwealth provided a modicum of

evidence in excess of the floor set by the standard we stated in Hamm.

      For these reasons, we affirm the lower court’s order to the extent it

denied Appellee’s motion to suppress the seized weapon. We reverse that

order to the extent that it granted Appellant’s motion to suppress the

marijuana and related paraphernalia. Alternatively, we reverse that order to




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the extent that the trial court intended to grant Appellant’s motion to quash

the charges of PWID and PDP for a lack of sufficient evidence.

     Order affirmed in part, reversed in part.            Case remanded.

Jurisdiction relinquished.

     President Judge Gantman concurs in the result.

     Judge Olson concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/2019




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