[Cite as State v. Verdell, 2018-Ohio-4766.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 27786
                                                    :
 v.                                                 :   Trial Court Case No. 2016-CR-3964
                                                    :
 JOSHUA VERDELL                                     :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                          Rendered on the 30th day of November, 2018.

                                               ...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

AMY E. FERGUSON, Atty. Reg. No. 0088397, 130 West Second Street, Suite 1818,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                              .............



WELBAUM, P.J.
                                                                                          -2-




       {¶ 1} Defendant-appellant, Joshua Verdell, appeals from his conviction in the

Montgomery County Court of Common Pleas after he pled no contest to murder, felony

murder, felonious assault, tampering with evidence, and several firearm specifications.

In support of his appeal, Verdell contends the trial court erred in failing to suppress

incriminating statements that were not preceded by Miranda warnings. Verdell also

contends that the trial court erred in failing to suppress incriminating statements that were

made after an alleged involuntary waiver of his Miranda rights. For the reasons outlined

below, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On December 29, 2016, the Montgomery County Grand Jury returned an

indictment charging Verdell with one count of murder, two counts of felony murder, two

counts of felonious assault, and one count of tampering with evidence.             With the

exception of tampering with evidence, all the charges included a three-year firearm

specification. The charges stemmed from allegations that Verdell shot and killed his

friend Stephan Shyne during a physical altercation and then disposed of the firearm he

used in the shooting.

       {¶ 3} After pleading not guilty to the charges, Verdell filed a motion to suppress

incriminating statements that he made to law enforcement. In the motion, Verdell argued

that the incriminating statements should have been suppressed because they were either

not preceded by Miranda warnings or were made after an involuntary waiver of his

Miranda rights. The trial court held a hearing on the motion, during which the State
                                                                                        -3-


presented testimony from Officer Jeremy Stewart and Detective Rod Roberts of the

Dayton Police Department.

       {¶ 4} Officer Stewart testified that at approximately 1 a.m. on December 20, 2016,

he and his partner, Officer Swagger, were dispatched to the scene of a car accident on

Westdale Court in Dayton, Ohio.       The accident in question involved a vehicle that

contained Shyne’s body.     Police officers discovered Shyne dead in the vehicle with

multiple gunshot wounds to his head.

       {¶ 5} Stewart testified that several police crews were already present at the scene

of the accident when he and Swagger arrived. Stewart was informed by the police crews

that one or two individuals were seen leaving the vehicle, and that one of the individuals

was a black male wearing all black. Stewart testified that he and Swagger decided to

canvas the area in their police cruiser to look for the individuals who were seen leaving

the scene of the car accident. At this time, Stewart testified that he was not aware of the

shooting, but only of the car accident.

       {¶ 6} Four or five blocks from the scene of the accident, Officer Stewart observed

a black male, later identified as Verdell, walking down the street wearing all black with

snow and dirt on his back. Without activating his cruiser’s lights or sirens, Stewart

ordered Verdell to stop. Verdell complied with Stewart’s order and stopped walking.

Thereafter, Stewart conducted a pat-down search on Verdell for purposes of officer

safety. Stewart testified that he found no weapons on Verdell, but noticed that Verdell

had blood on his nose and mouth and scratches on his face. Upon seeing the injuries

to Verdell’s face, Stewart testified that he had reason to believe that Verdell was somehow

involved in the car accident.
                                                                                        -4-


       {¶ 7} In addition to noticing Verdell’s injuries, Officer Stewart testified that he

detected the odor of an alcoholic beverage on Verdell’s person. Stewart testified that on

a scale from one to ten, he believed Verdell’s level of intoxication was at a five. Verdell

also appeared intoxicated in video footage taken from Stewart’s cruiser camera. See

State’s Exhibit No. 1. In the video, Stewart can be heard describing Verdell as “drunk”

with “his face all busted up.” Id.

       {¶ 8} After conducting a pat-down search on Verdell, Officer Stewart testified that

he handcuffed Verdell, placed him in the back of the police cruiser, and transported him

to the scene of the car accident. In doing so, neither Stewart nor Swagger explained to

Verdell why he was being handcuffed or where he was being transported. Stewart,

however, testified that he handcuffed Verdell for purposes of officer safety because he

did not know Verdell’s involvement in the car accident. Stewart also testified that he

transported Verdell to the scene of the car accident so that Verdell could be examined by

medics. It is undisputed that Stewart did not Mirandize Verdell before placing him in the

police cruiser. Stewart testified that he did not Mirandize Verdell because Verdell was

not under arrest.

       {¶ 9} Upon returning to the scene of the car accident, Stewart was advised by

another officer that a shooting had occurred. Stewart thereafter obtained a medic to

examine Verdell. The video evidence shows Verdell speaking to the medic while sitting

handcuffed in the back seat of Stewart’s police cruisier. The medic spoke to Verdell

through an open door of the cruiser; however, the other doors to the cruiser were shut

and locked. Stewart testified that under these circumstances, Verdell would not have

been able to leave the cruiser even if he had wanted to do so.
                                                                                         -5-


       {¶ 10} In the video evidence, the medic can be heard asking Verdell if he was

injured. In response, Verdell told the medic his nose was bleeding and that he wanted

to go home and to the hospital. When the medic asked Verdell what happened to his

nose, Verdell explained that he got into a fight. The medic then asked Verdell, “Then

what happened?” to which Verdell responded, “That’s how he got killed.” Officer Stewart

then asked Verdell “Who hit you in the fight?” Verdell responded to Stewart’s question

by stating “him” while motioning toward the vehicle where Shyne was located. Stewart

asked Verdell, “Then what happened?” and Verdell responded, “I shot him.” See State’s

Exhibit No. 1. Stewart testified that Verdell was not under arrest at the time Verdell made

these incriminating statements. Stewart also testified that when he asked Verdell “Who

hit you in the fight?” and “Then what happened?” he did not suspect that Verdell was

involved in the shooting.

       {¶ 11} After Verdell confessed to shooting Shyne, Stewart and Swagger

transported Verdell to the hospital. According to Stewart, he did not ask Verdell any

questions about the car accident or the shooting while transporting Verdell to the hospital.

Once at the hospital, Stewart remained with Verdell as he was examined by medical staff.

Stewart testified that he also did not ask Verdell any questions about the car accident or

the shooting while Verdell was being treated at the hospital.

       {¶ 12} Following Verdell’s discharge from the hospital, Officer Stewart transported

Verdell to the police station. While transporting Verdell to the police station, Stewart

once again testified that he did not ask Verdell any questions about the car accident or

the shooting. After arriving at the police station, Verdell was interviewed by Detective

Roberts. Verdell’s interview with Roberts started approximately three hours after Verdell
                                                                                        -6-


was initially found and picked up by Stewart and Swagger.

       {¶ 13} Detective Roberts testified that he was aware Verdell had been treated at

the hospital just prior to the interview.   During the interview, Roberts observed that

Verdell was limping slightly and had blood around the right side of his nose and mouth

and scratches on his forehead. Roberts also testified that Verdell complained of skinned

knees. Despite observing these injuries, Roberts testified that he was not concerned

about Verdell’s physical or mental ability to be interviewed.

       {¶ 14} Detective Roberts testified that he saw the discharge paperwork from the

hospital and was aware that Verdell’s injuries required no follow-up treatment. Roberts

also testified that Verdell was alert, coherent, and able to provide all his personal

information without difficulty. Roberts further testified that Verdell did not appear to be

intoxicated. Although Roberts testified that Verdell spoke somewhat slowly during the

interview, Roberts was unsure whether that was Verdell’s normal speech pattern.

According to Roberts, Verdell responded to questions in a logical, coherent manner and

understood why he was being interviewed.

       {¶ 15} Continuing, Detective Roberts testified that before questioning Verdell, he

had Verdell read aloud his Miranda rights that were listed on a pre-interview form. A

video recording of the interview confirmed that Verdell read aloud the first Miranda right

on the form. See State’s Exhibit No. 2. Thereafter, Roberts read the remaining rights

to Verdell, which Verdell indicated he understood. Roberts then read the waiver section

of the pre-interview form aloud to Verdell, which stated in part, “no pressure or coercion

of any kind has been used against me.” See State’s Exhibit No. 3. Although Verdell

told Roberts that he did not know what the word “coercion” meant, Roberts subsequently
                                                                                          -7-


defined that term for Verdell, and Verdell indicated an understanding of the definition.

Verdell then agreed to waive his Miranda rights as evidenced by his signing the pre-

interview form.

       {¶ 16} Following Verdell’s waiver of his Miranda rights, Roberts conducted an

interview with Verdell that elicited incriminating statements regarding the car accident and

the shooting. Specifically, Verdell admitted that he and Shyne had been drinking and

driving around in the vehicle involved in the accident. Verdell claimed that he was initially

in the backseat of the vehicle, but later moved up to the front-passenger seat next to

Shyne, who was driving. According to Verdell, he and Shyne began to argue because

Shyne answered Verdell’s cell phone and made rude comments to Verdell’s girlfriend.

Verdell claimed the argument turned physical after Shyne punched him in the face.

Verdell admitted that he punched Shyne in retaliation, grabbed a firearm, and shot Shyne

multiple times. Verdell claimed he then exited the vehicle and disposed of the firearm by

walking to a nearby alley and throwing the firearm down a hill.

       {¶ 17} Following the suppression hearing, the trial court issued a written decision

overruling Verdell’s motion to suppress. In so holding, the trial court found that the

incriminating statements Verdell made to Officer Stewart in the police cruiser did not

require Miranda warnings because Verdell was not subject to a custodial interrogation at

the time the statements were made.          The trial court also found that Verdell had

knowingly, intelligently, and voluntarily waived his Miranda rights before making

incriminating statements to Detective Roberts.

       {¶ 18} After the trial court overruled his motion to suppress, Verdell entered a no

contest plea to all the charges and specifications in the indictment.        The trial court
                                                                                           -8-


accepted Verdell’s no contest plea and found him guilty of all the charges and

specifications. At sentencing, the trial court merged several of Verdell’s offenses and

sentenced Verdell to an aggregate prison term of 18 years to life.

       {¶ 19} Verdell now appeals from his conviction, raising two assignments of error

for review that challenge the trial court’s decision overruling his motion to suppress.

Verdell’s assignments of error are as follows:

       I.     STATEMENTS          OBTAINED        ON      THE      SCENE       WERE

              INADMISSIBLE AS THE OFFICER CIRCUMVENTED MIRANDA BY

              ASKING        QUESTIONS          DURING        THE      APPELLANT’S

              CONVERSATION WITH THE MEDIC.

       II.    MR. VERDELL DID NOT KNOWINGLY AND VOLUNTARILY

              WAIVE HIS MIRANDA RIGHTS AT THE SAFETY BUILDING.



                                   Standard of Review

       {¶ 20} “In ruling on a motion to suppress, the trial court ‘assumes the role of the

trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate

the credibility of the witnesses.’ ” State v. Prater, 2012-Ohio-5105, 984 N.E.2d 36, ¶ 7

(2d Dist.), quoting State v. Retherford, 93 Ohio App.3d 586, 592, 639 N.E.2d 498 (2d

Dist.1994). “As a result, when we review suppression decisions, ‘we are bound to accept

the trial court’s findings of fact if they are supported by competent, credible evidence.

Accepting those facts as true, we must independently determine as a matter of law,

without deference to the trial court’s conclusion, whether they meet the applicable legal

standard.’ ” Id., quoting Retherford.
                                                                                          -9-




                               First Assignment of Error

       {¶ 21} Under his First Assignment of Error, Verdell contends the incriminating

statements he made in response to Officer Stewart’s questions at the crime scene should

have been suppressed by the trial court because those statements were not preceded by

Miranda warnings. We disagree with Verdell’s claim.

       {¶ 22} “The right to [Miranda] warnings is grounded in the Fifth Amendment’s

prohibition against compelled self-incrimination.” State v. Strozier, 172 Ohio App.3d

780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S.

412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). “It is well established, however, that

the police are not required to administer [Miranda] warnings to every individual they

question.” Id., citing State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891 (1997).

“Rather, only custodial interrogations trigger the need for [Miranda] warnings.” Id., citing

Biros at 440. (Other citations omitted.)

       {¶ 23} “ ‘Custodial interrogation’ means questioning initiated by the police after the

person has been taken into custody or otherwise deprived of his freedom to the degree

associated with a formal arrest.”      (Citations omitted.)   State v. Vineyard, 2d Dist.

Montgomery No. 25854, 2014-Ohio-3846, ¶ 32; California v. Beheler, 463 U.S. 1121,

1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983), quoting Oregon v. Mathiason, 429 U.S.

492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (“the ultimate inquiry is simply whether

there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated

with a formal arrest”).

       {¶ 24} Although Verdell argues that he was deprived of his freedom of movement
                                                                                        -10-

to a degree associated with a formal arrest, in order to trigger the need for Miranda

warnings, Verdell must have been subject to an interrogation at the time his freedom was

so restrained. “ ‘Interrogation’ includes express questioning as well as ‘any words or

actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating

response from the suspect.’ ” Strozier at ¶ 20, quoting Rhode Island v. Innis, 446 U.S.

291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Accord State v. Knuckles, 65 Ohio

St.3d 494, 605 N.E.2d 54 (1992), paragraph two of the syllabus (“[w]hen a statement,

question or remark by a police officer is reasonably likely to elicit an incriminating

response from a suspect, it is an interrogation”).

       {¶ 25} “ ‘Interrogation’ must reflect ‘a measure of compulsion above and beyond

that inherent in custody itself.’ ” State v. Haynes, 2018-Ohio-607, 106 N.E.3d 342, ¶ 16

(2d Dist.), quoting Innis at 300. “[S]ince the police surely cannot be held accountable for

the unforeseeable results of their words or actions, the definition of interrogation can

extend only to words or actions on the part of police officers that they should have known

were reasonably likely to elicit an incriminating response.” (Emphasis sic.) Innis at 301-

302. Therefore, “[p]olice officers are not responsible for unforeseeable incriminating

responses.” (Citation omitted.) State v. Waggoner, 2d Dist. Montgomery No. 21245,

2006-Ohio-844, ¶ 14.

       {¶ 26} In Waggoner, the defendant was traveling in a vehicle with some

companions when he was stopped and arrested on an outstanding warrant. Id. at ¶ 2-3.

After the defendant’s arrest, the arresting officer saw a cell phone and jacket on the seat

of the vehicle where the defendant had been sitting and asked the defendant whether the
                                                                                        -11-

items were his belongings. Id. at ¶ 4. The defendant replied that the items were his,

and the officer asked “if there was any other property (of his) in the vehicle.” Id. In

response, the defendant said there was a gun in the vehicle. Id. After the gun was

found, the defendant was charged with carrying a concealed weapon. Id. at ¶ 5.

       {¶ 27} The trial court in Waggoner suppressed evidence of the gun and the

defendant’s statement concerning the gun on grounds that an un-Mirandized custodial

interrogation occurred. Id. In so holding, the trial court found the arresting officer’s

question was an interrogation because it was reasonably likely to elicit the incriminating

response given by the defendant. Id. The State appealed from the trial court’s decision

and we reversed it. Specifically, we found that the record did not support finding that the

arresting officer should have known that when he asked the defendant whether there was

“any other property (of his) in the vehicle,” he would have elicited an incriminating

response from the defendant. Id. at ¶ 20. Thus, we held that Miranda warnings were

not required to precede the officer’s question as to whether the defendant had any other

property in his vehicle. Id. See also State v. Reindel, 2017-Ohio-28, 80 N.E.3d 1098

(2d Dist.), ¶ 19 (holding there was “no basis to conclude that [the officer] should have

known that his innocuous questions were reasonably likely to elicit an incriminating

response from [the defendant]”).

       {¶ 28} The situation in the present case is similar to that in Waggoner. In this

case, the record does not support finding that Officer Stewart should have known that

when he asked Verdell “Who hit you in the fight?” and “Then what happened?” that Verdell

would have confessed to shooting Shyne. The fact that Stewart’s questions were asked

during a medic’s evaluation and that the questions did not reference the shooting indicate
                                                                                          -12-


that Stewart was trying to determine how Verdell was injured, not to elicit an incriminating

response. This conclusion is supported by Stewart’s testimony that he did not suspect

Verdell was involved in the shooting at the time he questioned him. Because the record

indicates there was no way for Stewart to know that his questions would elicit Verdell’s

incriminating response, we do not find that Stewart’s questions rose to the level of

interrogation. Rather, the record indicates that Stewart’s questions amounted to general

on-the-scene fact finding, which generally does not constitute a custodial interrogation.

Miranda v. Arizona, 384 U.S. 436, 477-478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

       {¶ 29} Given that Verdell was not interrogated by Officer Stewart, there was clearly

no custodial interrogation that triggered the need for Miranda warnings.          Therefore,

Verdell’s claim that the trial court erred in failing to suppress the incriminating statements

because they were not preceded by Miranda warnings lacks merit, as Miranda warnings

were not required.

       {¶ 30} Verdell’s First Assignment of Error is overruled.



                              Second Assignment of Error

       {¶ 31} Under his Second Assignment of Error, Verdell contends the incriminating

statements he made during his interview with Detective Roberts should have been

suppressed by the trial court. In support of this claim, Verdell argues that he did not

knowingly, intelligently, and voluntarily waive his Miranda rights prior to the interview.

Verdell claims his Miranda waiver was not knowing, intelligent, and voluntary because he

was physically injured and intoxicated at the time of the waiver. We once again disagree

with Verdell’s claim.
                                                                                             -13-

       {¶ 32} “In order for a waiver of the rights required by [Miranda] to be valid, the State

bears the burden of demonstrating a knowing, intelligent, voluntary waiver based upon

the totality of the facts and circumstances surrounding the interrogation.”            State v.

Dotson, 2d Dist. Clark No. 97-CA-0071, 1997 WL 822694, *7 (Nov. 21, 1997), citing

Moran, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410. In considering the totality of the

facts and circumstances, we look at “the age, mentality, and prior criminal experience of

the accused; the length, intensity, and frequency of interrogation; the existence of

physical deprivation or mistreatment; and the existence of threat or inducement.” State

v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus,

overruled on other grounds, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

       {¶ 33} “What is essential is that the defendant have a full awareness of the nature

of the constitutional rights being abandoned and the consequences of his decision to

abandon them, and that the waiver not be the product of official coercion.” Dotson at *7,

citing Moran. “ ‘An express written or oral statement of waiver of the right to remain silent

or of the right to counsel is usually strong proof of the validity of that waiver * * *.’ ” State

v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 106, quoting North

Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979).

       {¶ 34} Intoxication will not render a defendant’s waiver of his Miranda rights invalid

unless his ability to reason is sufficiently impaired. State v. Monticue, 2d Dist. Miami No.

06-CA-33, 2007-Ohio-4615, ¶ 12, citing State v. Stewart, 75 Ohio App.3d 141, 147, 598

N.E.2d 1275 (11th Dist.1991). In State v. West, 2d Dist. Montgomery No. 23547, 2010-

Ohio-1786, we found that the “[d]efendant clearly exhibited behavior consistent with a

person who is intoxicated,” but nevertheless held that the record “supports the conclusion
                                                                                         -14-


that [d]efendant’s ability to reason was not so impaired that she was unable to understand

her [Miranda] rights or the consequences of waiving them.” Id. at ¶ 17. Accord State v.

Gray-Mosher, 2018-Ohio-1422, 101 N.E.3d 729, ¶ 7 (2d Dist.) (holding that “[e]ven if we

accept that [defendant] was intoxicated at the time of the assault and had emotional or

mental problems, he appeared to be lucid at the time of the interview, which occurred

roughly fifteen hours after the assault” and nothing in the record “suggests that

[defendant] lacked an understanding of his Miranda rights or the capacity to waive them”);

State v. Lewis, 10th Dist. Franklin No. 97APA09-1263, 1998 WL 418913, *2 (July 21,

1998) (holding that “[a]bsent any evidence that the appellant’s reasoning was impaired

by drugs or alcohol, intoxication of a defendant will not invalidate a confession”).

       {¶ 35} In this case, the record does not establish that Verdell’s physical injuries or

intoxication prevented him from knowingly, intelligently, and voluntarily waiving his

Miranda rights. Although Verdell waived his Miranda rights at an interview that occurred

immediately after he was released from the hospital, the video evidence establishes that

Verdell functioned in a normal manner during the interview and did not ask to stop the

interview at any time due to pain or discomfort. As noted by Detective Roberts, Verdell

suffered from a slight limp, wounds to his face, and skinned knees. Nothing in the record

indicates that these injuries prevented Verdell from understanding his Miranda rights or

from knowingly, intelligently, and voluntarily waiving those rights.

       {¶ 36} While Verdell appeared intoxicated at the time he was found and picked up

by Officers Stewart and Swagger, the video evidence establishes that Verdell was

nevertheless lucid at the time of his interview with Detective Roberts, which occurred

three hours later. Verdell appeared alert and coherent during the interview and had no
                                                                                          -15-


difficulty understanding Detective Roberts’s questions or providing requested information.

This is true despite the fact that Verdell spoke somewhat slowly and was animated at

times. Nothing in the video evidence suggested that Verdell lacked an understanding of

his Miranda rights or the capacity to waive them.            Indeed, the video evidence

demonstrated that Verdell understood his Miranda rights after they were provided to him

both orally and in writing. Verdell thereafter agreed to waive his Miranda rights and

signed a written waiver, which was a strong indication that Verdell’s waiver was knowing,

intelligent, and voluntary. See Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d

319, at ¶ 106.

       {¶ 37} We also note that there is nothing in the record indicating that Verdell’s

Miranda waiver was anything but a free and deliberate choice made without intimidation,

coercion, or deception. The record indicates that Verdell suffered no physical deprivation

or mistreatment during the one-hour interview with Detective Roberts. The record also

indicates that Detective Roberts made no threats or promises to Verdell during the

interview.   Verdell, who at the time of the interview was a 27-year-old high school

graduate with prior experience in the criminal justice system, did not establish that the

waiver of his Miranda rights was anything other than a knowing, intelligent, and voluntary

decision.

       {¶ 38} For the foregoing reasons, we find that Verdell’s waiver of his Miranda rights

was knowing, intelligent, and voluntary. Therefore, the trial court did not err in failing to

suppress the incriminating statements Verdell made to Detective Roberts following his

Miranda waiver.

       {¶ 39} Verdell’s Second Assignment of Error is overruled.
                                                                                       -16-




                                      Conclusion

       {¶ 40} Having overruled both of Verdell’s assignments of error, the judgment of the

trial court is affirmed.



                                     .............



FROELICH, J. and TUCKER, J., concur.



Copies sent to:

Mathias H. Heck, Jr.
Heather N. Jans
Amy E. Ferguson
Hon. Barbara P. Gorman
