J-A24043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
            v.                             :
                                           :
DAMOND WALLS,                              :
                                           :
                  Appellant                :           No. 612 WDA 2017

                  Appeal from the PCRA Order March 31, 2017
              in the Court of Common Pleas of Allegheny County,
              Criminal Division, No(s): CP-02-CR-0004343-2015

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED NOVEMBER 21, 2017

      Damond Walls (“Walls”) appeals from the Order dismissing, without a

hearing, his Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”).   See 42 Pa.C.S.A. §§ 9541-9546.       We vacate the PCRA court’s

Order and remand for an evidentiary hearing.

      On January 23, 2015, Pittsburgh Police Officer David Spinneweber

(“Officer Spinneweber”) was assigned to a roving DUI checkpoint.           At

approximately 11:09 p.m., Officer Spinneweber and his partner were

dispatched to the intersection of Lorenz Avenue and Chartiers Avenue after

receiving a call regarding a two-vehicle accident at that location.

      Upon his arrival at the scene, Officer Spinneweber made contact with

the driver of the Honda Odyssey involved in the accident, Scott Klaja

(“Klaja”). Officer Spinneweber noted that Klaja seemed confused, and did

not realize that he had been in an accident.         Officer Spinneweber also
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observed that Klaja’s eyes were “pinpointed,” and that he was staggering.

Based on these observations, Officer Spinneweber asked Klaja to submit to

field sobriety tests. Klaja failed all three tests.

      Klaja admitted to Officer Spinneweber that he takes Xanax, and that

he had taken muscle relaxers prior to the accident. Klaja was also adamant

that he had just been robbed and beaten with a pipe earlier that night, and

that his confusion was the result of injury to his head. Officer Spinneweber

did not observe any outward signs of injury, but pulled back Klaja’s hair “to

oblige him,” and noticed a contusion on the back of Klaja’s head.      Officer

Spinneweber requested the assistance of paramedics at that time.

      When the paramedics arrived, they observed that Klaja had pinpoint

pupils, decreased respirations, and altered mental status. The paramedics

recommended that Klaja be taken to the hospital, and Officer Spinneweber

released him to the paramedics.           During transport, Klaja exhibited a

diminished level of responsiveness, and the paramedics administered

Narcan, an opiate antidote, with a positive result.

      The following day, Officer Spinneweber was assigned to desk duty at

the Zone 6 station. At approximately 5:00 p.m., Klaja entered the station

and filed a robbery and assault report with Officer Spinneweber. Klaja did

not recognize Officer Spinneweber from the previous night.      Klaja alleged

that he was at his friend “Rush’s” house when Walls, known to Klaja as

“Wheezy,” and two unidentified males entered the residence. Klaja alleged



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that an argument ensued between Walls, Klaja, and one of the other males

about money they believed Klaja owed them. According to Klaja, one of the

unidentified males hit him repeatedly with a metal pipe, and Walls began to

kick him when he fell to the ground. Klaja also alleged that Walls pulled him

up by his hair, pointed a firearm at his face, and threatened to shoot him.

Klaja alleged that one of the men removed cash from his wallet, and one of

them said to get the tools from his truck.

      After taking Klaja’s report, Officer Spinneweber gave the report to

plainclothes   detectives.   During   their   investigation,   Detectives Dawn

Mercurio (“Detective Mercurio”), Michael Mares, and Jeff Brock visited the

residence of the man known as Rush, Yair Amram (“Amram”). Amram told

the detectives that he was outside on the porch, and did not witness the

assault.

      Additionally, Klaja later returned to the police station to view a photo

array, and identified Walls as the individual who had assaulted him.

      Walls was charged with robbery, aggravated assault, terroristic

threats, and criminal conspiracy. Following a jury trial, Walls was convicted

of aggravated assault and conspiracy. The trial court sentenced Walls to an

aggregate term of 5 to 10 years in prison.




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      Walls filed a post-sentence Motion on December 23, 2015, and a

supplemental post-sentence Motion on March 10, 2016.             The trial court

denied Walls’s Motions on March 18, 2016.1

      Walls filed the instant Petition on July 6, 2016. On February 10, 2017,

the PCRA court issued a Notice of its intention to dismiss Walls’s Petition

without a hearing, pursuant to Pa.R.Crim.P. 907.       Walls filed a Response,

requesting that the PCRA court grant him a new trial, or conduct a hearing

on his ineffectiveness claims. On March 31, 2017, the PCRA court dismissed

Walls’s Petition without a hearing. Walls filed a timely Notice of Appeal.2

      On appeal, Walls raises the following issue for our review:

      At trial, the key issue was alleged victim [] Klaja’s credibility. []
      Walls’s counsel failed to impeach Klaja’s credibility with several
      critical pieces of evidence, including: (1) a single one of Klaja’s
      seventeen crimen falsi convictions, (2) Klaja’s inconsistent
      statements at the preliminary hearing, and (3) witness
      testimony to show that independent medical records
      contradicted Klaja’s trial testimony. Is [] Walls entitled to PCRA
      relief because he was prejudiced by counsel’s ineffective
      assistance?

Brief for Appellant at 2 (sub-issues renumbered).

             Our standard of review of a PCRA court’s [dismissal] of a
      petition for post[-]conviction relief is well-settled: We must
      examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is

1Walls subsequently filed a Notice of Appeal from his judgment of sentence,
but discontinued his direct appeal on July 1, 2016.

2 The PCRA court did not direct Walls to file a Pa.R.A.P. 1925(b) concise
statement of matters complained of on appeal. The PCRA court relied on the
reasoning set forth in its Rule 907 Notice to explain the dismissal of the
Petition.


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        free of legal error.  The PCRA court’s findings will not be
        disturbed unless there is no support for the findings in the
        certified record.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010)

(citation omitted).

        There is no absolute right to an evidentiary hearing, and a PCRA court

has discretion to deny a petition without a hearing “if the PCRA court

determines that the petitioner’s claim is patently frivolous and is without a

trace    of   support   in   either   the   record   or   from   other   evidence.”

Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006). “To obtain

reversal of a PCRA court’s decision to dismiss a petition without a hearing,

an appellant must show that he raised a genuine issue of fact which, if

resolved in his favor, would have entitled him to relief, or that the court

otherwise abused its discretion in denying a hearing.” Commonwealth v.

Hanible, 30 A.3d 426, 438 (Pa. 2011) (citation and brackets omitted).

Thus, when the PCRA court denies a petition without an evidentiary hearing,

we “examine each issue raised in the PCRA petition in light of the certified

record before it in order to determine if the PCRA court erred in its

determination that there were no genuine issues of material fact in

controversy and in denying relief without conducting an evidentiary hearing.”

Commonwealth v. Khalifah, 852 A.2d 1238, 1240 (Pa. Super. 2004).

        The PCRA permits relief when a conviction is the result of “[i]neffective

assistance of counsel which, in the circumstances of the particular case, so



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undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).

     It is well-settled that counsel is presumed to have provided
     effective representation unless the PCRA petitioner pleads and
     proves all of the following: (1) the underlying legal claim is of
     arguable merit; (2) counsel’s action or inaction lacked any
     objectively reasonable basis designed to effectuate his client’s
     interest; and (3) prejudice, to the effect that there was a
     reasonable probability of a different outcome if not for counsel’s
     error.

Franklin, 990 A.2d at 797 (citations omitted); see also Commonwealth v.

Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (stating that “[a]

defendant raising a claim of ineffective assistance of counsel is required to

show actual prejudice; that is, that counsel’s ineffectiveness was of such a

magnitude that it could have reasonably had an adverse effect on the

outcome of the proceedings.” (citations and some brackets omitted)).

     [W]hen an arguable claim of ineffective assistance of counsel has
     been made, and there has been no evidentiary hearing in the
     [PCRA] court to permit the defendant to develop evidence on the
     record to support the claim, and to provide the Commonwealth
     an opportunity to rebut the claim, this Court will remand for such
     a hearing.

Commonwealth v. Walls, 993 A.2d 289, 296-97 (Pa. Super. 2010)

(citation and some brackets omitted). However, “if the record reflects that

the underlying issue is of no arguable merit or no prejudice resulted, no

evidentiary hearing is required.”    Commonwealth v. Baumhammers, 92

A.3d 708, 726-27 (Pa. 2014); see also id. at 726 (stating that “[t]he




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controlling fact … is the status of the substantive assertions in the

petition.”).

      Walls’s claim includes three arguments regarding the effectiveness of

his trial counsel, which we will address separately.           Each of Walls’s

arguments relates to the credibility of Klaja’s trial testimony. As an initial

matter, Walls asserts that Klaja’s credibility was crucial because Klaja was

the Commonwealth’s key witness at trial.         Brief for Appellant at 28-29.

Walls directs our attention to the testimony of Amram, the eyewitness who

testified at trial, which, according to Walls, contradicts Klaja’s account of the

events in the following ways:       (1) Klaja identified Walls as one of his

assailants, but Amram stated that Walls was not involved, and was not

inside the house when the assault occurred; and (2) Klaja denied using

drugs prior to the car accident, but Amram testified that Klaja was high on

heroin. Id. at 29, 45-46.

      In his first argument, Walls contends that trial counsel was ineffective

for failing to impeach Klaja with his 17 prior crimen falsi convictions,3




3 The Commonwealth concedes that Klaja’s 2008 theft conviction would be
admissible as impeachment evidence.          Commonwealth’s Brief at 17.
However, the Commonwealth asserts that a majority of Klaja’s prior
convictions “could only have been used as general impeachment due to their
staleness,” and that Walls failed to establish that the probative value of
these convictions substantially outweighs their prejudicial effect. Id.



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pursuant to Pa.R.E. 609.4 Brief for Appellant at 32-33, 36-37. Walls argues

that six of Klaja’s convictions occurred within the past 10 years, and are

therefore per se admissible under Pa.R.E. 609(a). Brief for Appellant at 33.

Additionally, Walls argues that Klaja’s remaining convictions are nonetheless

admissible under Pa.R.E. 609(b).      Brief for Appellant at 33.   Walls argues

that trial counsel was aware of Klaja’s crimen falsi convictions because the

public defender appointed to represent Walls prior to trial counsel’s entry of

appearance had given trial counsel certified copies of the convictions. Id. at

17.     Walls again points to contradictions between Klaja’s testimony and

Amram’s testimony, and suggests that the jury was not able to appropriately


4   Pennsylvania Rule of Evidence 609 provides, in relevant part, as follows:

Rule 609. Impeachment by Evidence of a Criminal Conviction

        (a) In General. For the purpose of attacking the credibility of
        any witness, evidence that the witness has been convicted of a
        crime … must be admitted if it involved dishonestly or false
        statement.

        (b) Limit on Using the Evidence After 10 Years. This
        subdivision (b) applies if more than 10 years have passed since
        the witness’s conviction or release from confinement for it,
        whichever is later. Evidence of the conviction is admissible only
        if:

           (1) its probative value substantially outweighs its prejudicial
           effect; and

           (2) the proponent gives an adversary party reasonable
           written notice of the intent to use it so that the party has a
           fair opportunity to contest its use.

Pa.R.E. 609(a), (b).


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draw inferences relating to Klaja’s reliability as a result of trial counsel’s

failure to impeach Klaja with his prior crimen falsi convictions. Id. at 44-48.

Walls claims that “there can be no strategic or tactical explanation for failing

to impeach the Commonwealth’s key witness[.]” Id. at 40.

      “Evidence of a witness’s conviction for a crime involving dishonesty or

a false statement is generally admissible. Pa.R.E. 609(a). ‘A failure to so

impeach a key witness is considered ineffectiveness in the absence of a

reasonable strategic basis for not impeaching.’”          Commonwealth v.

Treiber, 121 A.3d 435, 456 (Pa. 2015) (citing Commonwealth v. Small,

980 A.2d 546, 565 (Pa. 2009)).

      Upon review, we conclude that Walls has set forth a claim of arguable

merit based on trial counsel’s failure to impeach Klaja with his prior crimen

falsi convictions. See Treiber, 121 A.3d at 456. Klaja and Amram were the

only witnesses to testify at trial who were at Amram’s residence on the date

of the incident.   However, Amram testified that he did not witness the

assault, and that Walls was not the assailant.      See N.T., 9/21/15, at 80

(wherein Amram testified that “[Walls] didn’t assault him. It was somebody

else.”); 81, 86 (wherein Amram stated that he and Walls were outside the

house when the assault occurred); see also id. at 113, 119 (wherein

Detective Mercurio testified that when he interviewed Amram during the

investigation, Amram told him that he was outside on the porch when the

assault took place). Klaja was the Commonwealth’s key witness at trial, as



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he was the only witness who specifically identified Walls as the assailant.

Thus, trial counsel’s failure to impeach Klaja could have reasonably had an

adverse effect on the outcome of the proceedings. See Commonwealth v.

Baxter, 640 A.2d 1271, 1274 (Pa. 1994) (concluding that trial counsel was

ineffective for failing to investigate and introduce evidence regarding the

incarceration   of   the   Commonwealth’s   primary   witness,   where   the

Commonwealth provided counsel with information about that witness’s

criminal record, and where that witness was the only individual “to provide a

solid link between [a]ppellant and the crimes charged. Thus, casting doubt

on [the witness’s] credibility was essential to [a]ppellant’s defense.”); see

also Commonwealth v. Copeland, 723 A.2d 1049, 1051 (Pa. Super.

1998) (stating that “[a] witness’s criminal record long has been considered a

necessary and valuable tool for the defense.”); Charleston, supra.

Additionally, because the PCRA court declined to conduct a hearing during

which trial counsel could testify as to his reasons for failing to offer such

impeachment evidence, we are unable to discern, based on the record,

whether there was a reasonable basis for counsel’s actions in this regard.

See Commonwealth v. Duffey, 855 A.2d 764, 775 (Pa. 2004) (stating

that “this [C]ourt should refrain from gleaning whether [] a reasonable basis

exists.”); see also Commonwealth v. Perry, 959 A.2d 932, 937 (Pa.

Super. 2008) (stating that “[o]ur Supreme Court has cautioned against




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speculating about the reasons for counsel’s actions in the absence of an

evidentiary hearing, except in the clearest of cases.” (citation omitted)).

      In his second argument, Walls argues that trial counsel was ineffective

for failing to impeach Klaja with prior inconsistent statements he made at

the preliminary hearing. Brief for Appellant at 33, 39. As an example, Walls

points to Klaja’s testimony, during the preliminary hearing, that Amram was

driving the Honda Odyssey at the time of the crash; however, at trial, Klaja

acknowledged that he had been driving.       Id. at 39-40.   Walls claims that

Klaja’s prior inconsistent statements, if they had been admitted, “would have

further undermined Klaja’s credibility,” and “likely would have impacted the

jury’s decision of whether it could, in good faith, reach a guilty verdict that

rested primarily on the foundation of Klaja’s testimony.”           Id. at 50.

Additionally, Walls asserts that trial counsel’s failure to impeach Klaja with

his prior inconsistent statements “cannot conceivably have been done to

advance [] Walls’s interests.” Id. at 40.

      Pennsylvania Rule of Evidence 613 provides that “[a] witness may be

examined concerning a prior inconsistent statement made by the witness to

impeach the witness’s credibility.” Pa.R.E. 613; see also Commonwealth

v. Henkel, 938 A.2d 433, 442 (Pa. Super. 2007) (stating that “a prior

inconsistent statement of a declarant is admissible to impeach the

declarant.”).   Generally, trial tactics pertaining to cross-examination of

witnesses are matters of strategy, and are within the province of trial



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counsel. See Commonwealth v. Smith, 17 A.3d 873, 912 (Pa. 2011); see

also Commonwealth v. Harrison, 663 A.2d 238, 241 (Pa. Super. 1995)

(stating that “so long as counsel’s tactical decisions may be objectively

viewed as having a reasonable basis designed to effectuate the client’s

interests, his stewardship cannot be deemed ineffective and the defendant

cannot be said to have been denied a fair trial.” (citation and brackets

omitted)).

      Upon review, we conclude that there is at least arguable merit in

Walls’s second contention, as Klaja was the Commonwealth’s key witness at

trial, and counsel’s failure to impeach Klaja’s credibility could have

reasonably had an adverse effect on the outcome of the proceedings. See

generally Baxter, 640 A.2d at 1274; see also Charleston, supra.

Additionally, in the absence of an evidentiary hearing on the matter, we are

unable to determine whether trial counsel’s failure to present such

impeachment evidence was related to his trial strategy.            See Duffey,

supra; see also Perry, supra.

      Finally, Walls asserts that his trial counsel was ineffective for failing to

call as a witness a medical professional to explain that the medical records

prepared by the paramedics and emergency room doctors contradicted

Klaja’s testimony. Brief for Appellant at 33. Walls identifies Mark Scheatzle,

M.D. (“Dr. Scheatzle”), the treating emergency room physician, and

paramedics Mark Demko (“Demko”) and Jonathan Dalbey (“Dalbey”), as



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potential witnesses.       Id. at 38.       Walls claims that the public defender

appointed to represent Walls prior to trial counsel’s entry of appearance

provided trial counsel a copy of the subpoena that had been served on Dr.

Schaetzle.    Id.    Additionally, during opening statements, trial counsel

indicated that the paramedics would testify. Id. Walls acknowledges that

the paramedics’ and emergency room records were admitted into evidence

at trial, but argues that “[t]hese technical medical records are difficult-to-

impossible for a layperson to understand.”              Id. at 24.   Walls asserts that

testimony by a medical professional would establish that the medical records

contradict Klaja’s trial testimony that he did not use heroin on the night of

the accident; he suffered serious head injuries and was diagnosed with a

severe concussion; and he left the hospital early, against medical advice.

Id. at 25-26, 29-30, 38-39.           Walls also argues that trial counsel lacked a

reasonable   basis   for    failing    to   introduce    testimony   from a medical

professional to explain these contradictions. Id. at 40. Additionally, Walls

claims that medical testimony that Klaja had overdosed on an opioid such as

heroin would have contradicted Klaja’s assertions that his erratic driving was

the result of a head injury, and would have strengthened the defense theory

that Klaja had a motive to lie. Id. at 30. Walls asserts that testimony by a

medical professional would have been beneficial to his defense because such

testimony would have undermined Klaja’s credibility, and there is a

reasonable probability that the jury would have acquitted Walls had it found



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Klaja’s testimony less credible.     Id. at 49; see also id. (wherein Walls

argues that “[t]rial [c]ounsel himself evidently understood this, as he

promised the jury in his opening statement that they would hear from one of

the paramedics”).

      When raising an ineffectiveness claim based on counsel’s failure to call

a potential witness, a PCRA petitioner must demonstrate that

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to
      testify for the defense; and (5) the absence of the testimony of
      the witness was so prejudicial as to have denied the defendant a
      fair trial.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). In order

to demonstrate prejudice in a failure to call a witness claim, “the PCRA

petitioner must show how the uncalled witnesses’ testimony would have

been beneficial under the circumstances of the case.” Commonwealth v.

Johnson, 966 A.2d 523, 536 (Pa. 2009) (citation omitted); see also

Commonwealth v. Chmiel, 889 A.2d 501, 546 (Pa. 2005) (stating that

“[t]rial counsel’s failure to call a particular witness does not constitute

ineffective assistance without some showing that the absent witness’[s]

testimony would have been beneficial or helpful in establishing the asserted

defense.”). “A failure to call a witness is not per se ineffective assistance of

counsel[,] for such decision usually involves matters of trial strategy.”

Commonwealth v. Michaud, 70 A.3d 862, 868 (Pa. Super. 2013).




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      Upon review, we conclude that Walls, having asserted all of the

elements of his claim as identified in Washington, supra, has raised a

genuine issue of fact regarding trial counsel’s failure to introduce testimony

to explain Klaja’s medical records, particularly in light of trial counsel’s

indication during his opening statement that he would do so. Additionally,

Walls attached to his Petition witness certifications for Dr. Schaetzle, Demko

and   Dalbey,   indicating   that   each     witness   could   testify   as   to   their

observations and evaluations of Klaja’s condition.              See 42 Pa.C.S.A.

§ 9545(d)(1) (providing that [w]here a petitioner requests an evidentiary

hearing, the petition shall include a signed certification stating the witness’s

name, address, date of birth and substance of testimony and shall include

any documents material to that witness’s testimony.”).5                  Although the

relevant medical records were admitted into evidence as exhibits, Walls, in

arguing that the records are difficult for a layperson to understand without

explanation, has set forth a conceivable claim of prejudice, i.e., that

counsel’s failure to impeach the Commonwealth’s key witness by highlighting


5  We observe that Walls’s certifications do not identify the proposed
witnesses’ addresses or dates of birth. However, the PCRA court did not
mention this defect in either its 907 Notice or its Order dismissing Walls’s
Petition without a hearing. See Commonwealth v. Pander, 100 A.3d 626,
642 (Pa. Super. 2014) (stating that “it is improper to affirm a PCRA court’s
decision on the sole basis of inadequate witness certifications where the
PCRA court did not provide notice of the alleged defect.”); see also
Commonwealth v. Lippert, 85 A.3d 1095, 1101 (Pa. Super. 2014)
(remanding to PCRA court for an evidentiary hearing despite deficient
witness certifications, where the PCRA court failed to notify appellant of the
defects, and appellant raised an ineffectiveness claim of arguable merit).


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the contradictions between Klaja’s testimony and the medical records could

have reasonably had an adverse impact on the outcome of the proceedings.

See Charleston, supra. Further, because the PCRA court declined to hold

an evidentiary hearing on this matter, we are unable to determine whether

trial counsel’s failure to call such witnesses was the result of a reasonable

strategy. See Duffey, supra; see also Perry, supra.

      Because each of Walls’s assertions, at a minimum, raises a genuine

issue of material fact which cannot be resolved on the existing record, we

conclude that the PCRA court improperly dismissed Walls’s Petition without

an evidentiary hearing, during which trial counsel could testify as to his trial

strategy. See Hanible, supra. Accordingly, we remand to the PCRA court

to conduct an evidentiary hearing to consider the ineffectiveness claims

addressed herein.    See Walls, 993 A.2d at 296-97; see also id. at 299

(remanding for evidentiary hearing where appellant’s ineffectiveness claim,

“[a]t a minimum, … raise[d] genuine issues of material fact which [could

not] be resolved on the existing record.”).

      Order vacated.   Case remanded for evidentiary hearing.       Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/21/2017




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