J-S53015-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellee              :
                                        :
             v.                         :
                                        :
ERIC DAVID WEAVER,                      :
                                        :
                  Appellant             :   No. 109 MDA 2015

           Appeal from the Judgment of Sentence August 20, 2014,
                  Court of Common Pleas, Lebanon County,
              Criminal Division at No. CP-38-CR-0000827-2013

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED OCTOBER 09, 2015

       Eric David Weaver (“Weaver”) appeals from the August 20, 2014

judgment of sentence entered by the Lebanon County Court of Common

Pleas following his conviction of attempted sexual assault. 1 Upon review, we

affirm.

       On April 12, 2013, Weaver worked at a horse rescue and rehabilitation

facility in Bernville, Pennsylvania with the twenty-year-old victim.    N.T.,

4/9/14, at 4-5. It was a rainy day, and the owner of the business instructed

the employees to take a long lunch and return to work around 3:00 p.m.

Id. at 7. Weaver invited the victim to have lunch with him at his apartment,

and she accepted. Id. According to the victim, she regularly had lunch with

Weaver with or without her other coworkers, but she had never previously



1
    18 Pa.C.S.A. §§ 901(a), 3124.1.
J-S53015-15


been to his apartment.    Id. at 7-8.     They drove to Weaver’s apartment

together in Weaver’s vehicle. Id. at 8.

      At the apartment, the victim removed her shoes and one of the two

sweatshirts she was wearing at the time. Id. at 9. They watched television,

chatted and ate soup for lunch.    Id. at 9.   After she finished eating, the

victim went into the kitchen to throw away her trash.     Id.   Weaver then

began pushing her into the bedroom. Id. at 9-10. She questioned what he

was doing, and in response, Weaver instructed her to “just relax.”     Id. at

10.   According to the victim, Weaver pushed her onto the bed in his

bedroom, disrobed, and then removed her clothing.        Id. at 11-12.    She

recalled being paralyzed with fear and unable to leave the room or to tell

him to stop. Id. at 12. Weaver climbed onto the victim and laid on top of

her, telling her that she is “so gorgeous,” and that he was “going to fuck

[her] brains out.” Id. at 12-13. He touched and kissed her lips and cheeks,

kissed, licked and sucked her breasts, digitally penetrated her vagina, and

performed oral sex on the victim. Id. at 13-15. While this was occurring,

the victim stated that she wanted to leave, but she was unable to get herself

to move. Id. at 15. Finally, when Weaver began trying to penetrate her

vagina with his penis, the victim was able to move herself and tried to push

him off of her. Id. She told Weaver “no” and that she did not want to have

sex with him, but he again told her to “just relax.”   Id. at 15-16.     In an

attempt to stop the assault, the victim stated that she offered to “give him



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[] a hand job or anything to make him stop,” but that Weaver declined. Id.

at 16.

         According to the victim, there was no discussion about the two

engaging in sexual activity prior to the assault, and other than her offer to

“give [Weaver] a hand job,” the victim did not reciprocate in any way or

engage in any of the sex acts with Weaver. Id. at 18. After the assault, the

victim got back into Weaver’s car and the two returned to work, where they

finished their day.    Id. at 19. Upon leaving for the day, the victim never

returned to work at the horse rescue and rehabilitation facility. Id.

         That night, the victim telephoned her mother and asked to move back

into her parents’ house from the apartment to which she had recently

moved. Id. at 19-20, 60. The day after that, the victim’s mother observed

that she seemed depressed and was not eating.             Id. at 61.    Concerned

because of the victim’s history of suffering from an eating disorder, she took

the victim to Hershey Medical Center and then to Belmont Behavioral

Hospital (“Belmont”) in Philadelphia for treatment. Id. at 62.

         While speaking with a counselor at Belmont, the victim disclosed for

the first time that Weaver had sexually assaulted her.           Id. at 20.     The

counselor reported the assault to the Philadelphia Police Department, which

referred the case to the Pennsylvania State Police because the incident

occurred in Lebanon County. Id. at 68. The victim had reported that the

perpetrator     was   “Eric   Cruz,”   and   Trooper   Nathan   Trate   began   his



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investigation on May 3, 2013 by calling the victim’s place of employment to

obtain the alleged perpetrator’s contact information.     Id. The owner gave

Trooper Trate Weaver’s cellphone number, who returned Trooper Trate’s

message within two hours of his call. Id. at 69, 71-72. Although Weaver

denied that he was Eric Cruz or that he knew an Eric Cruz, he admitted that

he knew the victim and that he worked at the horse rescue and

rehabilitation facility. Id. at 72. Weaver agreed to come in to speak with

Trooper Trate, and ultimately did so on May 7, 2013. Id. at 73.

     In the meantime, Trooper Trate met with the victim on May 4, 2013.

Id. at 69.    He described her as “distraught,” “very[,] very upset,” and

observed her to be “shaking a little bit.”    Id. at 69, 70. She was able to

provide some details of the assault, but it was difficult for her to verbalize

what happened, at times sitting silently for five minutes before answering a

general question posed by the trooper.       Id. at 70.   Trooper Trate instead

provided her with a written statement form, which the victim took home and

returned to him several days later, at which time the trooper was able to ask

her follow up questions. Id. at 70-71, 100.

     When Weaver met with Trooper Trate on May 7, he informed the

trooper that he was adopted and that he does sometimes go by Eric Cruz, as

Cruz is his biological father’s last name.      Id. at 76.    After questioning

Weaver as to why he denied that identity when they spoke on the phone,

Trooper Trate uttered a date – April 24, 2013 (the date of the Philadelphia



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Police Department’s report) – following which Weaver began to ramble on

about the sexual encounter he had with the victim. Id. at 77-80. Weaver

acknowledged that he had sexual contact with the victim at his apartment,

but stated that it was consensual. Id. at 78-79. He contended that it all

began while they were still at work, with the victim hugging and kissing him,

and that she requested to go to Weaver’s apartment, as she was looking for

an apartment and was contemplating moving in with him. Id. at 79, 84, 91.

Weaver said that at the apartment, they “messed around a little bit,”

meaning that they were “making out,” and that the victim agreed to

accompany Weaver into his bedroom. Id. at 79-80. Weaver stated that the

victim told him she did not want to have intercourse because she was not

taking birth control pills, but Weaver later told Trooper Trate that the victim

did not want to have sex because “she is a Christian.”          Id. at 86-87.

Weaver said that the victim offered to perform oral sex on him, but that he

declined. Id. at 80. Weaver stated that he respected the victim’s wishes

and did not pursue intercourse with her. Id. at 86, 90.

       At the conclusion of the May 7 interview, Weaver agreed to come back

in to take a polygraph examination, which occurred on May 20. Id. at 95-

96.2   Trooper Wesley John LeVan, II, conducted the examination and the

pre- and post-examination interviews. Id. at 123. Following the polygraph



2
   The jury was not made aware that Weaver participated in a polygraph
examination or the results thereof.


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examination, Trooper LeVan informed Weaver that he failed and he began

interrogating Weaver.   Id. at 130.    Trooper LeVan asked Weaver if he

attempted to put his penis inside the victim’s vagina, and Weaver initially

denied that he did this. Id. at 131-32. He subsequently admitted that “[h]e

tried to poke it into her vagina a couple times” while they were “spooning,”

but that the victim put her hand down to stop him from penetrating her

vagina. Id. at 132. Weaver ultimately confessed to crawling down to the

end of the bed, spreading the victim’s legs, and trying to penetrate her

vagina with his penis even though he knew the victim “was not into this,”

“she kept backing away,” and he “felt like he took advantage of her.” Id. at

132, 134-36. Weaver stated that he knew he should have stopped, but “his

hormones weren’t allowing him to stop[.]” Id. at 135. He further admitted

that the victim did not request to perform oral sex on Weaver, but that

Weaver “asked her for it … [and] [s]he said no.” Id. at 137.

     The Commonwealth charged Weaver with attempted rape, involuntary

deviate sexual intercourse, sexual assault, attempted sexual assault, and

two counts each of aggravated indecent assault and indecent assault.3 On

August 16, 2013, Weaver filed an omnibus pretrial motion seeking

suppression of the statements he made to the police on May 7 and May 20,




3
  18 Pa.C.S.A. §§ 901, 3121(a)(1), 3123(a)(1), 3124.1, 3125(a)(1)-(2),
3126(a)(1)-(2).


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2013. The trial court held a hearing on the motion on October 2, 2013. On

January 20, 2014, the trial court issued an order denying the motion.

      A jury trial convened on April 9, 2014, following which the jury

acquitted Weaver of all charges other than attempted sexual assault. The

trial court sentenced Weaver to five to ten years of imprisonment on August

20, 2014. He filed a timely post-sentence motion on September 2, 2014,

challenging the trial court’s denial of his pretrial motion and the sufficiency

and weight of the evidence to support his conviction. The trial court denied

the motion on December 12, 2014.

      Weaver filed a timely notice of appeal and complied with the trial

court’s order for the filing of a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). He raises the following issues for our

review, which we reordered for ease of disposition:

      I.     Should [Weaver]’s [m]otion for [j]udgment of
             [a]cquittal be granted because the Commonwealth
             failed to present sufficient evidence at trial to prove
             beyond a reasonable doubt that [Weaver] attempted
             to engage in non-consensual sexual intercourse with
             the [v]ictim?

      II.    Should [Weaver]’s [m]otion for a [n]ew [t]rial be
             granted because the jury placed too great a weight
             on the testimony of the [v]ictim [] [?]

      III.   Should [Weaver]’s [m]otion for a [n]ew [t]rial be
             granted because the [t]rial [c]ourt erred by denying
             [Weaver]’s    [o]mnibus     [p]retrial  [m]otion   to
             [s]uppress [Weaver]’s statements to Trooper Trate
             and Trooper Le[V]an because [Weaver] was subject
             to a custodial interrogation without being advised of



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            []his [Miranda4] rights, and [Weaver]’s statements
            were not given freely and voluntarily[?]

Weaver’s Brief at 4.

       We begin with Weaver’s first issue, which challenges the sufficiency of

the evidence to support his conviction. “Whether sufficient evidence exists

to support the verdict is a question of law; our standard of review is de novo

and our scope of review is plenary.” Commonwealth v. Tejada, 107 A.3d

788, 792 (Pa. Super. 2015) (citation omitted).

               We review the evidence in the light most
            favorable to the verdict winner to determine whether
            there is sufficient evidence to allow the jury to find
            every element of a crime beyond a reasonable
            doubt.

                In applying the above test, we may not weigh the
            evidence and substitute our judgment for the fact-
            finder. In addition, we note that the facts and
            circumstances established by the Commonwealth
            need not preclude every possibility of innocence. Any
            doubts regarding a defendant's guilt may be resolved
            by the fact-finder unless the evidence is so weak and
            inconclusive that as a matter of law no probability of
            fact    may    be    drawn     from   the     combined
            circumstances. The Commonwealth may sustain its
            burden of proving every element of the crime beyond
            a    reasonable    doubt    by    means     of   wholly
            circumstantial evidence. Moreover, in applying the
            above test, the entire record must be evaluated and
            all evidence actually received must be considered.
            Finally, the finder of fact while passing upon the
            credibility of witnesses and the weight of the
            evidence produced, is free to believe all, part or none
            of the evidence.



4
    Miranda v. Arizona, 384 U.S. 436 (1966).


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J-S53015-15


Id. (citations omitted).

      The Pennsylvania Crimes Code defines sexual assault as follows: “[A]

person commits a felony of the second degree when that person engages in

sexual intercourse or deviate sexual intercourse with a complainant without

the complainant’s consent.” 18 Pa.C.S.A. § 3124.1. “A person commits an

attempt when, with intent to commit a specific crime, he does any act which

constitutes a substantial step toward the commission of that crime.”      18

Pa.C.S.A. § 901(a).   Thus, to convict Weaver of attempted sexual assault,

the Commonwealth was required to prove (1) Weaver intended to engage in

sexual intercourse with the victim; (2) without the victim’s consent; and (3)

Weaver took a substantial step towards engaging in sexual intercourse with

the victim without her consent.

      Weaver contends that the evidence did not sufficiently establish that

he attempted to commit sexual assault because “the testimony adduced at

trial clearly established that after [the victim] said ‘no,’ when Weaver

attempted to place his penis in her vagina that ultimately Weaver did not

place his penis in her vagina.”   Weaver’s Brief at 9-10.    A conviction of

attempted sexual assault, however, does not require proof of penetration.

See, e.g., Commonwealth v. Pasley, 743 A.2d 521, 524 (Pa. Super.

1999) (finding evidence sufficient to support conviction of attempted sexual

assault where the defendant, “who was only wearing shorts, threw the

victim on his bed, straddled her, pushed up her shirt and bra to her neck,



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and attempted to unbutton her pants,” during which the victim scratched

and punched the defendant until he bled).

      As the above summary of the evidence presented at trial reflects, the

victim testified, and Weaver admitted to police, that he attempted to

penetrate the victim’s vagina with his penis despite the fact that the victim,

through her words and her body language, indicated that she did consent to

sexual intercourse.   N.T., 4/9/14, at 15-16, 132, 134-36.      Weaver further

admitted to police that he knew the victim did not want to engage in sexual

intercourse and that he knew he should have stopped, but “his hormones

weren’t allowing him to stop[.]” Id. at 135. As such, this argument does

not entitle Weaver to relief.

      Weaver’s second issue on appeal challenges the weight of the evidence

to support his conviction, which we review according to the following

standard:

               A claim alleging the verdict was against the
            weight of the evidence is addressed to the discretion
            of the trial court. Accordingly, an appellate court
            reviews the exercise of the trial court’s discretion; it
            does not answer for itself whether the verdict was
            against the weight of the evidence. It is well settled
            that the [jury] is free to believe all, part, or none of
            the evidence and to determine the credibility of the
            witnesses, and a new trial based on a weight of the
            evidence claim is only warranted where the [jury’s]
            verdict is so contrary to the evidence that it shocks
            one’s sense of justice. In determining whether this
            standard has been met, appellate review is limited to
            whether the trial judge’s discretion was properly
            exercised, and relief will only be granted where the



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             facts and inferences of record disclose a palpable
             abuse of discretion.

Tejada, 107 A.3d at 795-96 (citation omitted).

        Weaver’s sole argument here is that “the [victim]’s testimony was not

credible[] and the [j]ury’s verdict was against the weight of the evidence in

that the [j]ury placed too great a weight on [the victim]’s testimony.”

Weaver’s Brief at 16. He does not point to any specific passage or portion of

the victim’s testimony that was not worthy of belief.                  Moreover, he

completely ignores the evidence presented of his confession to the police,

which corroborated the victim’s testimony in support of his conviction. We

therefore find no abuse of discretion in the trial court’s denial of his request

for a new trial on this basis.

        As his final issue on appeal, Weaver asserts that the trial court erred

by denying his pretrial motion to suppress the statements he gave to the

police on May 7 and 20, 2013. We review this issue to determine whether

the record supports the trial court’s findings of fact and whether the legal

conclusions drawn therefrom are correct.          Commonwealth v. Garvin, 50

A.3d 694, 697 (Pa. Super. 2012). We are bound by the trial court’s factual

findings, but not by its legal conclusions, which we review de novo. Id.

        Regarding his May 7 statement to police, Weaver states that Trooper

Trate    began   questioning     Weaver   about    the   allegations    and   elicited

“incriminating information from Weaver” prior to providing him his Miranda




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warnings during what he asserts was a custodial interrogation.      Weaver’s

Brief at 12. The trial court found that because Weaver was not subjected to

a custodial interrogation on May 7, Miranda warnings were not required.

Trial Court Opinion, 1/20/14, at 7; Trial Court Opinion, 12/12/14, at 12.

      The law is clear Miranda warnings must be provided to a defendant

only if he is subjected to a custodial interrogation. Garvin, 50 A.3d at 698.

“[V]olunteered or spontaneous utterances by an individual are admissible

without the administration of Miranda warnings.”      Id.   The United States

Supreme Court in Miranda v. Arizona defined “custodial interrogation” as

“questioning initiated by law enforcement officers after a person has been

taken into custody or otherwise deprived of his freedom of action in any

significant way.” Miranda, 384 U.S. at 444. Our Supreme Court has stated

that a finding of custody is warranted if the defendant “is physically denied

his freedom of action in any significant way or is placed in a situation in

which he reasonably believes that his freedom of action or movement is

restricted by the interrogation.”   Commonwealth v. Cooley, __ A.3d __,

2015 WL 4068720, *5 (Pa. June 15, 2015) (citation and quotation marks

omitted). “The standard for determining whether an encounter is custodial

is an objective one, focusing on the totality of the circumstances with due

consideration given to the reasonable impression conveyed to the individual

being questioned.” Id.




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      In arriving at the determination of whether the defendant was

subjected to a custodial interrogation or the functional equivalent thereof,

courts in this Commonwealth have identified several factors to consider:

“the basis for the detention; its length; its location; whether the suspect was

transported against his or her will, how far, and why; whether restraints

were used; whether the law enforcement officer showed, threatened or used

force; and the investigative methods employed to confirm or dispel

suspicions.”   Commonwealth v. Baker, 963 A.2d 495, 501 (Pa. Super.

2008) (citation omitted). However, “[t]he fact that a police investigation has

focused on a particular individual does not automatically trigger ‘custody,’

thus requiring Miranda warnings.” Id.

      The record in the case at bar reflects that on May 7, 2013, Weaver

came to the Jonestown barracks to meet with Trooper Trate, having been

transported there by a friend.    N.T., 10/2/13, at 25.    Trooper Trate was

wearing a suit, not a police uniform, and did not believe he was carrying a

firearm at that time. Id. at 26. The interview took place in a ten-by-ten

room and Weaver sat directly next to the door. Id. at 25. Weaver was not

restrained in anyway; in fact, Trooper Trate informed Weaver both before

and after the interview that he was free to leave.     Id. at 27-28. Trooper

Trate made no threats or promises during the interview. Id. at 28.

      Other than the fact that the interview took place at a police station,

nothing suggests that the interview was a custodial interrogation. Thus, we



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have no basis to conclude that a custodial interrogation occurred prior to

Trooper Trate administering Miranda warnings to Weaver on May 7, 2013.

     Turning to his May 20 statement to police, Weaver acknowledges that

he waived his Miranda rights prior to his polygraph examination.         He

asserts, however, that pursuant to this Court’s holding in Commonwealth

v. Hill, 42 A.3d 1085 (Pa. Super. 2012), vacated, 104 A.3d 1220 (Pa.

2014),5 and, more specifically, the case upon which it relied, U.S. v. León–

Delfis, 203 F.3d 103 (1st Cir. 2000), which he contends is “analogous” to

the case at bar, the statements made to police during and after the

polygraph examination on May 20, 2013 should have been suppressed.

Weaver’s Brief at 13-15. The trial court found that the statements made by

Weaver during the polygraph and after the polygraph examination were

admissible. Trial Court Opinion, 1/20/14, at 9-10.

     Our review of León–Delfis reveals that it is far from “analogous” to

the case before us, as Weaver contends.     In León–Delfis, the defendant

was under investigation concerning his involvement in an alleged conspiracy

to embezzle money while an employee of the United States Department of

Veterans Affairs in Puerto Rico.   León–Delfis, 203 F.3d at 106.    Federal



5
   We note with disapproval that Weaver does not include any notation in his
appellate brief that this Court’s decision in Hill was reversed by our
Supreme Court. Indeed, despite the fact that our Supreme Court’s decision
in Hill was authored prior to the notice of appeal in this case, neither the
Commonwealth nor Weaver include any discussion regarding the reversal of
this Court’s decision in Hill.


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agents requested that León–Delfis participate in a polygraph examination,

and he agreed. Id. at 107. He signed two waiver of rights forms, neither of

which included any indication that he would be subjected to post-polygraph

questioning, and León–Delfis was not otherwise advised of the possibility of

a post-polygraph interrogation. Id. at 107-08, 109. His attorney, who also

was not informed that a post-polygraph interview would occur, was told the

exam would take two hours, and so he returned to his office. Id. at 108.

The exam actually took less than a half hour, following which the federal

agent informed León–Delfis that he was not being honest and began

interrogating him and, along with a second agent, interrogated him for an

hour, at which point he confessed to his participation in the conspiracy. Id.

      León–Delfis filed a motion to suppress his post-polygraph statement,

which the district court denied. Id. at 108-09. On appeal, the first circuit

court of appeals reversed, concluding, based on the totality of the

circumstances, that “the district court erred in concluding that León–Delfis

intelligently and knowingly waived his Sixth Amendment right to counsel for

the post-test interrogation and that his confession was not admissible.” Id.

at 112. In so holding, the court considered “relevant facts” articulated by

other federal courts examining this question, including “who requested the

polygraph examination; who initiated the post-polygraph questioning;

whether the signed waiver clearly specifies that it applies to post-polygraph

questioning or only to the polygraph test; and whether the defendant has



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consulted with counsel.” Id. at 111 (citing Wyrick v. Fields, 459 U.S. 42,

47 (1982) (per curiam); United States v. Johnson, 816 F.2d 918, 921 n.4

(3d Cir. 1987); United States v. Gillyard, 726 F.2d 1426, 1427–29 (9th

Cir. 1984); United States v. Eagle Elk, 711 F.2d 80, 82 (8th Cir. 1983)).

Applying these factors to the case before it, the court found that the federal

agents requested the polygraph examination and initiated the post-

polygraph questioning and that León–Delfis had counsel and was never

informed about the possibility of post-polygraph questioning such that he

could waive his right to counsel. Id.

      Subsequent to the decision in León–Delfis, the United States

Supreme Court decided Montejo v. Louisiana, 556 U.S. 778 (2009),

wherein it held that a defendant’s waiver of his Sixth Amendment right to

counsel may be valid in a custodial interrogation initiated by the police. Id.

at 794-96. This represented a departure in the law that existed at the time

of the León–Delfis decision, as the United States Supreme Court had

previously held in Michigan v. Jackson, 475 U.S. 625 (1986), overruled by

Montejo, 556 U.S. at 797, that a criminal defendant could not validly waive

his Sixth Amendment right to counsel in a custodial interrogation initiated by

the police.   Id. at 636; see also Hill, 42 A.3d at 1095 n.9.       Thus, the

Montejo decision has negated the first two factors enunciated in León–

Delfis. See Hill, 42 A.3d at 1095 n.9; see also Hill, 104 A.3d at 1248 n.3

(Eakin, J., Concurring).



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      Applying the remaining two factors announced in León–Delfis to the

case at bar, our review of the record reveals that it bears no resemblance to

that case. Here, Trooper LeVan testified that he provided Weaver with his

Miranda warnings prior to the polygraph examination, expressly stating that

the examination encompasses both the pre- and post-test interviews. N.T.,

10/2/13, at 5-6. Furthermore, Weaver never requested counsel and was not

represented, despite being informed of his right to counsel both during the

May 7, 2013 interview and prior to the May 20, 2013 polygraph examination.

See id. at 5, 11, 27-28.        We therefore conclude that Weaver was not

entitled to a new trial on this basis.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/9/2015




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