[Cite as State v. Garcia, 2019-Ohio-4885.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 107027
                 v.                                :

JESUS GARCIA,                                      :

                 Defendant-Appellant.              :



                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: November 27, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-622561-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Holly Welsh and Tasha Forchione,
                 Assistant Prosecuting Attorneys, for appellee.

                 Britt Newman, for appellant.


ANITA LASTER MAYS, J.:

                   Defendant-appellant Jesus Garcia (“Garcia”) appeals his jury trial

convictions for multiple counts arising from the sexual assault of his 13-year-old

daughter Jane Doe (“Doe”) on two occasions during the summer of 2017.
                 We reverse the trial court’s convictions and remand for a new trial.

I.   Background and Facts

             Doe was indicted on October 27, 2017, on the following 10 counts:

      Count 1:       Rape, a first-degree felony, R.C. 2907.02(A)(2);

      Count 2:       Gross sexual imposition,         a    fourth-degree   felony,
                     R.C. 2907.05(A)(1);

      Count 3:       Kidnapping, a first-degree felony, R.C. 2905.01(A)(4);

      Count 4:       Illegal use of a minor in nudity-oriented material or
                     performance,         a    second-degree       felony,
                     R.C. 2907.323(A)(l);

      Count 5:       Endangering children,        a       second-degree    felony,
                     R.C. 2919.22(B)(1);

      Count 6:       Rape, a first-degree felony, R.C. 2907.02(A)(2);

      Count 7:       Gross sexual imposition,         a    fourth-degree   felony,
                     R.C. 2907.05(A)(1);

      Count 8:       Kidnapping, a first-degree felony, R.C. 2905.01(A)(4);

      Count 9:       Illegal use of a minor in nudity-oriented material or
                     performance,        a     second-degree       felony,
                     R.C. 2907.323(A)(l); and

      Count 10:      Endangering children,        a       second-degree    felony,
                     R.C. 2919.22(B)(1).

The indictments included two sexual motivation specifications pursuant to

R.C. 2941.147(A) and six sexually violent predator specifications, pursuant to

R.C. 2941.148(A).

             Doe was 14 years old at the time of the March 2018 trial. Doe has

always resided with her maternal grandparents. Doe’s mother and her biological

father Garcia married several years after Doe’s birth, and the couple bore three
additional siblings. Two of the siblings joined Doe at the grandmother’s home while

her mother and Garcia resided with the remaining sibling. Doe was pleased when

in 2017, Doe, her siblings, and parents began to spend time together and do “regular

family things.” (Tr. 350.)

              At approximately 10:00 a.m. on July 7, 2017, Garcia picked up Doe

from her grandmother’s house to take her to breakfast. He then took Doe to his

house where the two were alone, watching television, when Garcia pulled Doe’s shirt

up and gave her a “mean look” when she told him “no” and tried to pull her shirt

back down. (Tr. 352.)

              Doe said that Garcia made her put on her mother’s lingerie and “that’s

when he started touching me.” (Tr. 353.) Garcia touched Doe’s breasts and “[he]

stuck two fingers in me.” (Tr. 353.) He also took pictures of Doe using a silver

camera, and warned her that he would post the pictures on the internet if she told

anyone about the incident, and that her mother and siblings would hate her.

(Tr. 354.)

              On the morning of July 17, 2017, Garcia took Doe and her eight-year-

old brother C.G. to Garcia’s automobile repair garage that was located several doors

from Garcia’s residence. Garcia locked the garage doors to prevent C.G. from

entering. He removed Doe’s shirt, pulled down her pants and underwear, and

touched her breasts. Garcia also took photographs and made Doe “touch him.”

(Tr. 356.)
              Out of fear that Garcia would post the pictures, Doe did not tell

anyone what happened. Several weeks later, after attending a church sermon that

advised that the truth “will set you free,” Doe told her grandparents about the

incidents. (Tr. 358.) They contacted Doe’s mother and met with Detective Charles

McNeely (“Det. McNeely) of the Cleveland Police Department (“CPD”).            Doe

informed Det. McNeely that Garcia placed the storage chip containing the

photographs on top of a tall chest. At that point during the testimony, Doe became

visibly distressed. After a brief recess, Doe identified photographs of Garcia’s

residence and the automotive garage and the state rested. The defense had no

questions for Doe.

              Doe’s mother testified that she began dating Garcia at the age of 14

and gave birth to Doe at 16. Doe’s grandparents are her legal guardians. Doe’s

mother subsequently married Garcia, and they had three sons. Doe’s mother

confirmed that Garcia owned the automotive garage and that, when the

grandmother and Doe called her in October 2017, Doe was very upset. Her mother

said that she did not discuss the conversation with Garcia and did not tell her son

C.G. not to speak with anyone about the case. The defense had no questions for the

witness.

              The grandmother testified that she allowed Doe to go to breakfast

with Garcia the morning of July 7, 2017, and that Doe returned to the grandmother’s

house a little after 1:00 p.m. She also confirmed that Garcia picked up Doe and her

brother C.G. at about 10:00 a.m. on July 17, 2017, and they returned about 7:30 p.m.
Several exterior security cameras at the home documented the presence of Doe,

siblings, and Garcia for both dates outside of the house or apparently departing and

returning. Doe told the grandmother to tell Garcia that she was doing homework

the next time Garcia called to invite her to breakfast.

               The grandmother confirmed that Doe was very upset when she

returned from a church service about telling the truth and shared the abuse

information with her grandparents who contacted the police. The grandmother

insisted that Doe had no reason to fabricate the allegations. “She lost her mother.

She doesn’t have a father. She is losing her brothers.” (Tr. 342.) “She wanted

[Garcia] in her life. She was happy.” Id. “She was happy because they were doing

things as a family. Even the brothers are upset now because they can never do

anything as a family together.” Id. The grandmother was also upset that Doe’s

mother was not supportive of her.

               Det. McNeely, with the CPD Sex Crimes and Child Abuse Unit, and a

rape crisis victim’s advocate interviewed Doe and her grandmother on October 8,

2017. Search warrants for Garcia’s home and the automotive garage were executed

on October 19, 2017. Multiple cameras were discovered including several silver

cameras as well as storage device cards and flash drives were recovered from the

locations. Det. McNeely confirmed during cross-examination that no corroborative

evidence was discovered as a result of the searches.

               Garcia’s friend David LaFraniere (“LaFraniere”) testified for the

defense. LaFraniere said that he has known Garcia for about 20 years and also
knows the family. He testified that he has known 14-year-old Doe for roughly “16 or

17 years,” but subsequently testified that he first met Doe in June 2017, when Doe

accompanied him and Garcia to the Amish country where they were going to repair

a vehicle. (Tr. 407.)

               LaFraniere said the case allegations were ridiculous and that Doe and

Garcia appeared to get along well. LaFraniere also saw Doe and Garcia at the shop

at least three or four times after the trip but never observed anything inappropriate.

Doe’s siblings were also present during those visits.

               During cross-examination, LaFraniere admitted that he knew about

Garcia’s 2002 conviction for unlawful sexual conduct with a minor and his 2015

conviction for carrying a concealed weapon. LaFraniere was not aware of allegations

that Garcia was involved in gang activities.

               Garcia testified in his defense and denied molesting Doe.          He

explained that the 2002 conviction stemmed from his premarital relationship with

Doe’s mother, and that the grandmother introduced the then 27-year-old Garcia to

Doe’s mother who was 14 years-old. Garcia denied knowing that her mother had

been registered as a runaway at the time of the introduction.

               According to Garcia, the only time that he was alone with Doe was

during the June 30, 2017 trip with LaFraniere to the Amish country and he had cell

phone photographs of the trip showing that Doe was enjoying herself. Garcia also

challenged the accuracy of the home security video indicating that he picked Doe up

at her grandmother’s house on July 17, 2017. He did not deny that Doe had been to
his residence or automotive garage during 2017 and admitted to ownership of the

cameras recovered during the warrant search, including a silver one.

              Garcia was at home on October 7, 2017, when grandmother and Doe

contacted her mother about the assault allegations. He also said that grandmother

placed several calls to Doe’s mother asking her to search for the photographs of Doe.

              At the close of the state’s case, Garcia moved for judgment of acquittal

of all charges pursuant to Crim.R 29. The trial court ruled that the motion was

“unopposed and granted with regard to Count 6” and overruled for “Counts 1-5 and

7-10.” Journal entry No. 102818155 (Mar. 06, 2018). Garcia’s renewed Crim.R. 29

motion was overruled.

              The counts were renumbered due to the dismissal of Count 6. The

state’s unopposed motion to dismiss the “furthermore” clauses for the “resulting in

serious physical harm” portions of Counts 5 and 9 (formerly Count 10)” were

granted. Id. As a result, one of the sexually violent predator specifications was

removed.

              Garcia was convicted of:

      Rape, R.C. 2907.02 (A)(2), a first-degree felony with a sexually violent
      predator specification as charged in Count 1 of the indictment;

      Gross sexual imposition, R.C. 2907.05(A)(1), a fourth-degree felony
      with a sexually violent predator specification as charged in Counts 2
      and 6 (formerly Count 7) of the indictment;

      Kidnapping, R.C. 2905.01(A)(4), a first-degree felony with a sexual
      motivation specification, and a sexually violent predator specification
      as charged in Counts 3 and 7 (formerly Count 8) of the indictment;
      Endangering children, R.C. 2919.22 (B)(1), a first-degree misdemeanor
      as amended in Counts 5 and 9 (formerly Count 10) of the indictment
      (minus the furthermore clause(s) dismissed by the state); and

      Illegal use of a minor in nudity-oriented material or performance,
      R.C. 2907.323(A)(1), a second-degree felony as charged in Count 8
      (formerly Count 9) of the indictment.

Journal entry No. 102952867 (Mar. 8, 2018). The jury returned a verdict of not

guilty of illegal use of a minor in nudity-oriented material or performance,

R.C. 2907.323(A)(1) as charged in Count 4 of the indictment.

              Garcia was sentenced to life with parole eligibility after 20 years and

adjudged to be a Tier I, II, and III registered sex offender. The instant appeal

followed.

II. Assignments of Error

              Garcia poses five assigned errors for analysis.

      I.     The evidence was insufficient to support appellant’s convictions
             for rape, kidnapping, gross sexual imposition and illegal use of a
             minor in nudity-oriented material or performance.

      II.    Appellant was denied effective assistance of counsel due to the
             cumulative effect of defense counsel’s errors during the pretrial
             phase, the trials on the underlying charges and sexually violent
             predator specifications, and the sentencing hearing.

      III.   The trial court erred in sentencing appellant to consecutive
             prison terms because the statutory requirements for imposing
             consecutive service were not present in the record.

      IV.    The trial court erred in ordering appellant to pay the maximum
             $20,000 fine without determining his ability to pay and because
             the record demonstrates that appellant is indigent.

      V.     The trial court erred in ordering appellant to pay the costs of
             prosecution in its sentencing order due to the court’s failure to
             advise him that he is liable for court costs at the sentencing
             hearing.

III. Missing Evidence

              On appeal, the transcript, jury charge, and jury questions were filed

with this court. The transcript index states that any exhibits that did not accompany

the transcript were retained by the state. After a series of informal requests to the

state, this court sua sponte issued an order for exhibits that were missing from the

record.

      Sua sponte and pursuant to App.R. 9(E), the appellee Cuyahoga County
      Prosecutor is ordered to deliver to the clerk of the Eighth District Court
      of Appeals, under seal, the following exhibits that were admitted into
      evidence in the underlying criminal case of State v. Garcia, Cuyahoga
      C.P. No. CR-17-662561: (1) state’s exhibit Nos. 1 thru 23 (search
      warrant and photographs); (2) state’s exhibit Nos. 40 thru 48
      (surveillance videos); (3) exhibit Nos. 49 thru 50 (search warrant
      inventories); (4) exhibit Nos. 51 thru 57 (cameras and SD cards); and
      (5) exhibit No. 60 (journal entry of defendant’s prior conviction). All
      of the aforesaid exhibits shall be delivered to the clerk of the Eighth
      District Court of Appeal, under seal, by May 31, 2019.

              This court granted an extension of time at the state’s request, and on

June 17, 2019, the state filed a notice of submission and delivered exhibit Nos. 40-

48 (surveillance videos); exhibit Nos. 51, 52, and 53 (Nikon camera, Olympus

camera and Kodak camera); exhibit No. 54 (Nikon camera box and receipt); exhibit

No. 55 (envelope containing 4 SD cards); exhibit No. 56 (an SD card adaptor); and

exhibit No. 57 (a USD card reader). This court already had on file exhibit Nos. 49

and 50 (search warrant inventory lists), and exhibit No. 60 (the journal entry of

Garcia’s prior conviction).
               The state explained that it was unable to locate exhibit Nos. 1-23

(search warrants and photographs) and listed the efforts that were made to obtain

the exhibits. “The state has exhausted all efforts to date and has not located” the

exhibits. Notice of Submission, p. 2.

               The state then argued that the burden is on Garcia to provide the

requisite record for review.

      The burden is on [a]ppellant to provide the Court with the necessary
      transcript for appellate review. State v. Cross, 8th Dist. Cuyahoga
      No. 58646, 1991 Ohio App. LEXIS 2752, *4, 1991 WL 106040 (June 13,
      1991). “This is necessarily so because an appellant bears the burden of
      showing error by reference to matters in the record.” Knapp v.
      Edwards Laboratories, 61 Ohio St. 2d 197, 199, 400 N.E.2d 384, 385
      (1980).

      Under App.R.9(B), this duty includes the obligation to order a
      transcript of any proceedings [a]ppellant considers necessary for
      inclusion in the record and to ensure that the transcript of the
      proceedings required by App.R.9(B) is filed with the clerk of the trial
      court under App.R. 10(A).

Notice of Submission, p. 3.

               Finally, the state concluded that, due to Garcia’s failure to provide a

complete trial record that includes the “items necessary to the resolution of the

assigned errors, the reviewing ‘court has no choice but to presume the validity of the

lower court’s proceedings, and affirm.’”       Notice of Submission, p. 3, quoting

Knapp v. Edwards Laboratories, 61 Ohio St. 197, 199, 400 N.E.2d 384 (1980).

                On September 30, 2019, this court issued a second sua sponte order

that requested, in pertinent part, that the parties brief the following issue:
      This court sua sponte ordered the state to submit for the record exhibits
      that were admitted into evidence during trial, were returned to the state
      after trial, but are missing from the record, * * *

      Under App.R. 9(B) and 9(B)(4), the burden is on a criminal defendant
      to provide a complete record that includes all evidence relevant to an
      assignment of error that challenges the sufficiency or manifest weight
      of the evidence. A criminal defendant may be entitled to a new trial
      where the failure to provide a complete record is not the fault of the
      defendant. State v. Jones, 71 Ohio St.3d 293, 297, 643 N.E.2d 547
      (1994); Knapp v. Edwards Laboratories, 61 Ohio St. 197, 199, 400
      N.E.2d 384 (1980).

      Where the state has conceded that it has exhausted all efforts to recover
      the evidence and the rules require that the evidence relevant to
      challenges of sufficiency and manifest weight of the evidence are
      included in the record what, if any, is the scope of this court’s inquiry?

               Condensed, Garcia responded that the case should be remanded to

the trial court to determine whether Garcia was substantially responsible for the

missing evidence pursuant to Jones, Knapp, and State v. Tiedjen, 8th Dist.

Cuyahoga No. 106794, 2019-Ohio-2430 (case remanded to determine whether

defendant was substantially responsible for the missing photographic exhibits). If

the trial court were to find that Garcia is not responsible, Garcia requested that the

trial court vacate the convictions or grant a new trial.

               Distilled, the state’s argument cites Tiedjen for the proposition that

this court’s focus should be on whether the missing evidence is material to the case.

It also advises, in contrast with the state’s prior representation that the exhibits

could not be located, that it “has digital, full color copies of all twenty-three Search

Warrant photographs, which depict the original photographs in detail” and that the

digital photographs were produced to Garcia during discovery.
               The state further says that “if this Court finds the photographs

material to resolution of the appeal, the appropriate action would be to instruct the

parties to supplement the record pursuant to App.R. 9.” In addition, the state offers

that this court has enough evidence to determine the issues on appeal. We remind

the state that the determination of the materiality, weight, and sufficiency of the

evidence on appeal is within the authority of this court and is not the state’s

determination. See, e.g., Article IV, Section 3(B)(3) of the Ohio Constitution;

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

               As the state has suggested was indeed Garcia’s duty, at the time that

Garcia filed this appeal, he instructed the office of the clerk to prepare and submit

the papers, exhibits, and transcript pursuant to App.R. 9(B). That rule provides, in

part, “it is the obligation of the appellant to ensure that the proceedings the appellant

considers necessary for inclusion in the record” are submitted on appeal and to

“include in the record a transcript of proceedings that includes all evidence relevant”

to an assignment of error that challenges the sufficiency or manifest weight of the

evidence. App.R. 9(B) and 9(B)(4).1

               It is true that a “criminal defendant must suffer the consequences of

nonproduction of an appellate record where such nonproduction is caused by his or




      1  The state also cites App.R. 10(A) regarding an appellant’s duty to request the
record under App.R. 9(B). The last sentence of App.R. 10(A) states that once an appellant
has made reasonable arrangements to enable transmission of the record, appellant is not
responsible for the failure to transmit.
her own actions.” Jones, 71 Ohio St.3d at 297, 643 N.E.2d 547. However, where an

appellant is not the cause of the failure to produce a complete appellate record,

      [the] absence of the record may require reversal of the underlying
      conviction and the grant of a new trial.” [State v.] Jones, 71 Ohio St.3d
      293, 297, [643 N.E.2d 547 (1994)]. See also Knapp v. Edwards
      Laboratories, 61 Ohio St.2d 197, 400 N.E.2d 384 (1980) (a new trial
      may be granted if it is determined, after an evidentiary hearing, that the
      record is incomplete and the moving party is not at fault); State v. Polk,
      8th Dist. Cuyahoga No. 57511, 1991 Ohio App. LEXIS 900 (Mar. 7, 1991)
      (granting a new trial when the transcript was unavailable through no
      fault of the parties).

Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-2430, ¶ 21.

               Tiedjen involved a defendant’s motion for a new trial based on newly

discovered photographic evidence that was missing from the appellate record. This

court determined that “[w]hile a trial court record need not be perfect for appellate

review, we must balance adequacy of the record with the deprivation of a defendant's

due process rights.” Id. at ¶ 15, citing State v. Skatzes, 104 Ohio St.3d 195, 2004-

Ohio-6391, 819 N.E.2d 215, ¶ 161.2 This court also determined that attempted

compliance with App. 9(C) that allows an appellant to compile a statement of the

proceedings where no transcript is available was futile because whether the

photographs were missing is not in issue.




      2    We distinguished the holding in Skatzes, a capital punishment case that
determined that the missing charts employed by the prosecution during voir dire to advise
prospective jurors of the capital trial process did not constitute a failure to preserve
evidence for appeal because the charts were not exhibits introduced at trial. Tiedjen at
¶ 16, citing Skatzes at ¶ 160 and 163. The missing exhibits in the instant case reflect the
search warrant photographs and were admitted into evidence.
                  The trial court’s judgment denying the motion was vacated, and the

case was remanded

       for either: (1) an evidentiary hearing based on State v. Jones, 71 Ohio
       St.3d 293, 643 N.E.2d 547 (1994), to determine whether Tiedjen is
       substantially responsible for the missing evidence if the evidence is, in
       fact, still missing; or (2) a full hearing on Tiedjen’s motion for a new
       trial if the evidence is located.

Tiedjen at ¶ 2.

                  Pursuant to App.R. 9(E), this court ordered the state to submit the

omitted exhibits that the record reflects were delivered to the state. The state

responded with the Notice of Submission listing the efforts made to obtain the

exhibits, that it had exhausted all efforts to secure them, and that it is up to Garcia

to provide them. Notwithstanding this court’s order, the state now advises this court

that the state can, in fact, replicate the exhibits from the digital records, information

omitted from the Notice of Submission.

                  Employing the fact as a shield and a sword, the state also shares that

the digital records were provided to Garcia during discovery. However, the state

says that it created the exhibits from the digital record and introduced them into

evidence. According to the transcript, the exhibits were returned to the state after

the trial. Further to the issue of Garcia’s responsibility in this situation, the appellate

docket indicated that the transcript and envelope of exhibits were filed with the

appellate court. The Ohio Supreme Court

       rejected the notion that an appellant has the duty to supervise the
       actions of a trial court clerk to ensure the proper transmission of the
       record. This court held that placing that duty on an appellant “‘would
      render meaningless the duty imposed upon the clerk, by App.R. 10(B),
      to transmit the record to the Court of Appeals.’”

In re Holmes, 104 Ohio St.3d 664, 2004-Ohio-7109, 821 N.E.2d 568, ¶ 17, quoting

Cobb v. Cobb, 62 Ohio St.2d 124, 125, 403 N.E.2d 991 (1980).

               Typically, pursuant to Tiedjen, Jones, and Knapp, we would reverse

the conviction and remand the case to the trial court to determine whether Garcia is

“substantially responsible” for the inability to produce a complete record in light of

the missing exhibits. Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-2430, at

¶ 28. We would advise the trial court that if Garcia is determined to be substantially

responsible, “his appeal should proceed only on such record as the trial court can

settle, or on only those issues for which a [complete] factual record is unnecessary.”

Id.

              We would further inform the trial court that if Garcia is not

substantially responsible for the incomplete record, a new trial would be in order:

      App.R. 9 does not explicitly provide the appellate court with the
      authority to grant a new trial. However, per Knapp v. Edwards
      Laboratories, supra, an appellant is entitled to a new trial where, after
      an evidentiary hearing, a record cannot be settled and it is determined
      that the appellant is not at fault. See also State v. Polk, [8th Dist.]
      Cuyahoga No. 57511, 1991 Ohio App. LEXIS 900 (Mar. 7, 1991).

Jones, 71 Ohio St.3d at 298, 643 N.E.2d 547.

              However, this case poses a distinct set of facts. Exhibits 1-23 consists

of photographs introduced during the testimony of Doe and Det. McNeely. The

exhibits were also displayed on the computer screen for the jury.
               Doe described several of the exhibits that contained photographs of

the parent’s home, brother’s bedroom, and various areas of the automotive garage

where the second assault allegedly occurred. Det. McNeely addressed Exhibits 1-23

as photographs taken of areas of the parents’ home and the automotive garage

during execution of the search warrants and photographs of cameras and SD storage

cards that were reportedly among those that were confiscated as evidence.

               There is no evidence in the record or before this court of any

wrongdoing on the part of Garcia for the failure to provide a complete record.

Tiedjen, 8th Dist. Cuyahoga No. 106794, 2019-Ohio-2430, at 28.3 According to the

trial transcript, the trial exhibits admitted in the case were in the state’s possession.

The state concedes in the Notice of Submission that the exhibits are necessary for

Garcia to address the assigned errors, and further that it has exhausted all efforts to

locate the evidence. The grounds “for reversal only arise ‘after all reasonable

solutions are exhausted.’” State v. Keeney, 4th Dist. Lawrence No. 08CA36, 2009-

Ohio-3094, ¶ 21, quoting State v. Jones, 71 Ohio St.3d 293, 298, 643 N.E.2d 547

(1994). Thus, an evidentiary hearing is not required.

               We reverse the judgment and remand the case for a new trial.




      3 In Tiedjen, we elected to address the assigned errors “in part should the missing
evidence be located on remand.” Id. at ¶ 22. Since recovery of the evidence is not in issue
here and the case has been remanded for a new trial, we decline to address the assigned
errors.
IV. Conclusion

              Judgment is reversed, and the case remanded for proceedings

consistent with this opinion.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



JUDGE ANITA LASTER MAYS

MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
