J-A02037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         v.

    DAVID WIGGINS

                              Appellant                No. 1668 EDA 2015


               Appeal from the Judgment of Sentence May 1, 2015
       in the Court of Common Pleas of Delaware County Criminal Division
                        at No(s): CP-23-CR-0007117-2013

BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 08, 2017

        Appellant, David Wiggins, appeals1 from the judgment of sentence

entered in the Delaware County Court of Common Pleas after a jury found him

guilty of murder of the second degree,2 robbery, 3 conspiracy, 4 and persons

not to possess firearms.5 Appellant claims that the trial court erred in denying

a motion to strike a prospective juror for cause and that the court erred in

issuing a jury instruction regarding consciousness of guilt. We affirm.



*   Former Justice specially assigned to the Superior Court.
1The appeals of Appellant’s codefendants, Tariq Mahmud and Rita Elizabeth
Pultro, are listed at J-A02035-17 and J-A02036-17, respectively.

2   18 Pa.C.S. § 2502(b).

3   18 Pa.C.S. § 903.

4   18 Pa.C.S. § 903.

5   18 Pa.C.S. § 6105.
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     Appellant’s conviction arises from the killing of Jason McClay at a Rite

Aid store in the City of Chester, where McClay was a manager.            The

Commonwealth alleged the following. In August and September 2013, Tariq

Mahmud was employed as loss prevention agent at the Rite Aid store.

Mahmud, Ashaniere White, and Christopher Parks planned to rob the Rite Aid

store. Mahmud told White and Parks about how much money was kept in the

store’s safe, who was working, and about blind spots in the store’s video

surveillance system. Mahmud warned them not to try to rob the store when

McClay was working, because he was a former marine who would fight back.

     On August 19, 2013, White and Parks robbed the Rite Aid store when

McClay was not on duty. On August 26 and September 4, 2013, White and

Parks again attempted to rob the store, but abandoned the plans when

employees recognized White.

     Mahmud, White, and Parks thereafter sought the assistance of new

people to rob the store, and they brought Appellant into their planning.

Appellant wanted another individual, Rita Pultro, to participate as well. The

group planned a robbery for September 18, 2013, but postponed it until

September 19, 2013.

     On September 19, 2013, McClay worked the day shift at the Rite Aid

store and stayed for the evening shift due to the unavailability of another

manager, Serita Cottman.      Mahmud called out from work that day.       At

approximately 9:45 p.m., an employee saw a white female, later identified as



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Pultro, and a black male, later identified as Appellant, enter the store. Pultro

retrieved a light bulb and took it to the counter. When the employee told her

the amount due, Pultro complained that it was too expensive, placed the item

back on the shelf, and asked to see the manager. McClay went back to the

aisle, and he and Pultro began discussing lightbulbs. Appellant then grabbed

McClay and told McClay to take him to the safe. Appellant and McClay began

wrestling until Pultro shot McClay at close range at the base of his neck and

killed him. Appellant and Pultro fled from the store and left the scene in a

vehicle driven by Parks.

      The investigation into the shooting revealed that Appellant left a palm

print in the Rite Aid store. Investigators obtained a photograph of Appellant

and showed it to two employees, and they both identified Appellant as one of

the robbers.

      On September 21, 2013, officers obtained a warrant to arrest Appellant

and proceeded to his residence in Philadelphia.     Philadelphia Police Officer

Daniel Farrelly was dressed in full uniform and stationed at the rear door of

the residence with his partner. Officer Farrelly heard other officers execute a

“knock and announce” at Appellant’s front door.         N.T., 2/6/17, at 134.

Approximately ten seconds later, he observed Appellant starting to exit from

the rear door. Officer Farrelly drew his weapon and ordered him to stop and

put his hands up. When Appellant saw the officers, he attempted to slam the

door shut, but Officer Farrelly managed to keep the door open, enter into the



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basement storage area of the residence, and take Appellant into custody.

After begin given Miranda6 warnings, Appellant gave an inculpatory

statement regarding his participation in the robbery and indicating that while

he was wrestling with McClay, he heard a shot. Pultro, Mahmud, Parks, and

White, Parks were subsequently arrested. Parks and White pleaded guilty to

third-degree    murder    in   exchange    for   their   cooperation,   and   the

Commonwealth dropped the charges of second-degree murder against them.

        Appellant, Mahmud, and Pultro proceeded to a joint jury trial for the

September 19, 2013 robbery and killing of McClay. Parks and White testified

against them. The Commonwealth also introduced numerous text messages

between the various parties. The jury found Appellant guilty of second-degree

murder, robbery, and conspiracy. The trial court sentenced Appellant to life

imprisonment on May 1, 2015.

        Appellant timely appealed and complied with the trial court’s order to

submit a Pa.R.A.P. 1925(b) statement. Appellant filed a supplemental Rule

1925(b) statement, which the trial court also addressed. This appeal followed.

        Appellant presents the following questions for review:

          1) Whether the trial court erred in denying the motion to
          strike prospective juror number 56 for cause since his wife
          was a crime victim and he could not state with any certainty
          that he could be fair and impartial?

          2) Whether the court erred when it instructed the jury that
          flight demonstrates consciousness of guilt since that charge
          was not supported by the facts of this case?

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


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J-A02037-17



Appellant’s Brief at 5.

      Appellant first contends that the trial court erred in denying his motion

to strike a prospective juror, juror #56, for cause.      Appellant argues the

prospective juror indicated that his wife had been a victim of a robbery, he

had read about the case in the newspaper, and his ability to decide the case

fairly was in question. He contends that the prospective juror continued to

equivocate but was “essentially pressured to say that he would follow the

instructions of the court.” Appellant’s Brief at 18. Appellant further notes that

the defense ultimately struck juror #56,7 but argues that he suffered prejudice

because the defense exhausted their peremptory challenges. No relief is due.

      Our standard of review is as follows:

             A trial court’s decision regarding whether to disqualify a
         juror for cause is within its sound discretion and will not be
         reversed in the absence of a palpable abuse of discretion.
         In determining if a motion to strike a prospective juror for
         cause was properly denied our Court is guided by the
         following precepts:

            The test for determining whether a prospective juror
            should be disqualified is whether he is willing and able
            to eliminate the influence of any scruples and render
            a verdict according to the evidence, and this is to be
            determined on the basis of answers to questions and
            demeanor. . . . It must be determined whether any
            biases or prejudices can be put aside on proper
            instruction of the court. . . . A challenge for cause
            should be granted when the prospective juror has
            such a close relationship, familial, financial, or
            situational, with the parties, counsel, victims, or

7 The Commonwealth was given nine peremptory strikes, and each of the
three codefendants were given three peremptory strikes.


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            witnesses that the court will presume a likelihood of
            prejudice or demonstrates a likelihood of prejudice by
            his or her conduct or answers to questions.

Commonwealth v. Briggs, 12 A.3d 291, 332-33 (Pa. 2011) (citations

omitted).

      In Commonwealth v. DeHart, 516 A.2d 656 (Pa. 1986), a prospective

juror in a murder trial disclosed that her friend had been murdered. During

questioning, the trial court asked whether she would be affected in her

deliberations by the experience, and the juror responded that she did not

“know exactly how [she] would feel,” that she “would want to be fair,” but

that she felt strongly about the person who killed her friend. DeHart, 516

A.2d at 662-63. When asked whether she would be able to decide the case

based solely on the facts, evidence, and the law issued by the court, she

replied, “Yes, I think I would.”    Id. at 663.    The trial court denied the

defendant’s motion to strike the juror for cause, forcing the defendant to use

a peremptory strike. Id. at 662.

      Following the defendant’s conviction and appeal, the DeHart Court

found no reversible error, reasoning that the juror’s answer “while somewhat

equivocal, reveal[ed] neither a clear predisposition to convict nor an inability

to follow the law and her testimony that she believed she was willing and able

to be fair and impartial was believed by the trial court.” Id. at 663.

      In Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982), a

prospective juror in a robbery case stated that his daughter was the victim of



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a robbery and rape with facts similar to the case in that matter. The juror

became distressed noting that he practically broke down. Johnson, 445 A.2d

at 512. The juror repeatedly acknowledged that he was surprised at how he

was reacting and how strongly he felt. Id. However, when asked whether he

could be fair, the juror answered, “Yes.” Id. at 513. The trial court denied

the defendant’s motion to strike the juror for cause, forcing the defendant to

use a peremptory challenge.      Id. at 514.     The defendant exhausted his

peremptory challenges. Id.

      Following the defendant’s conviction, he appealed. The Johnson Court

granted a new trial based on the failure to strike the juror. Id. The Court

observed that the juror “vividly demonstrated he would not likely be an

impartial juror,” “expressed substantial doubts about his ability to be impartial

at least five times,” and conceded that even if he could logically separate the

incident with his daughter from the defendant’s case,” he did not have full

emotional control. Id.

      With respect to prejudice, this Court has stated that a new trial will be

granted when “a defendant is forced to use one of his peremptory challenges

to excuse a prospective juror who should have been excused for cause, and

then exhausts his peremptories before the jury is seated, a new trial will be

granted.” Johnson, 445 A.2d at 514; see also Commonwealth v. Penn,

132 A.3d 498, 505 (Pa. Super. 2016). However, “[w]hen the defense does

not exhaust its peremptory challenges, it is harmless error to overrule a



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challenge for cause which should have been sustained, if the juror is actually

excluded by a peremptory challenge.” Commonwealth v. Hardcastle, 546

A.2d 1101, 1110 (Pa. 1988) (citation omitted).

      Instantly, the record contains the following examination of juror #56:

         THE COURT: Sir, you gave a “yes” response to three of my
         questions, one was having known something or heard about
         the case, a victim of a similar crime, and either living or
         working in the vicinity?

         JURY PANELIST #56: Yes.

         THE COURT: So could you elaborate on all those, why you
         gave a “yes” response to those?

         JURY PANELIST #56: The first one was?

         THE COURT: The first one was hearing about the case or
         reading about the case.

         JURY PANELIST #56: Oh, I read the newspaper constantly.
         I am a subscriber to the Wilmington Journal and I read the
         Sunday Daily Times every day -- every Sunday.

         THE COURT: So when’s the last time you heard about this
         case or read about it?

         JURY PANELIST #56: Last time, when it was active, a couple
         -- what’s it, two years?

         THE COURT: Pardon?

         JURY PANELIST #56: When it was active, when they were-
         -

         THE COURT: Which would have been, what --

         JURY PANELIST #56: Two years --

         THE COURT: Okay.



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J-A02037-17


       JURY PANELIST #56: -- I’ve heard this.

       THE COURT: So the last time you read anything about the
       case or heard anything about the case?

       JURY PANELIST #56: Yes. Um-hum.

       THE COURT: Okay, Someone you knew --

       JURY PANELIST #56: My wife --

       THE COURT: -- victim of a similar crime?

       JURY PANELIST #56: Yes, my wife was robbed while she
       was working in a supermarket, and we work midnights. I
       work at another store but that -- but a fellow came up with
       his couple groceries. As soon as the register opened, he
       picked up his shirt, showed her a pistol, said empty the
       register, and so that was -- I thought that was pretty
       similar.

       THE COURT: Okay. All right. And you live or work in the
       vicinity of --

       JURY PANELIST #56: I’m about three miles directly down
       Market Street.

                               *    *    *

       THE COURT: And have you ever been in that particular Rite
       Aid?

       JURY PANELIST #56: In it? No, sir.

       THE COURT: Okay.     Anyone else have any questions for
       juror #56?

       MS. RAINEY [Appellant’s counsel]: Sir, does the fact that
       your wife was robbed similar as you say in a grocery store,
       does that impact your ability to be fair in this particular
       case? Are you going to be thinking about that?

       JURY PANELIST #56: Probably not. It happened 25 years
       ago.


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J-A02037-17



       MS. RAINEY: Okay.

       JURY PANELIST #56: Probably not.

       MS. RAINEY: But you’re not sure; that’s why you’re saying
       “probably”?

       JURY PANELIST #56: Can I tell you what’s in the back of my
       mind? I was going to say (inaudible) --

       MS. RAINEY: Okay.

       JURY PANELIST #56: -- leaning towards like 51 percent not
       but --

       MS. RAINEY: Thank you for being honest.

       THE COURT: All right. Any other -- anyone else?

                                *     *      *

       MR. WISMER [Pultro’s counsel]: . . . What do you remember
       reading about the case?

       JURY PANELIST #56: Just the fellow got killed, he was the
       store manager. I forget what -- he was helping somebody
       or something and he -- oh, he was -- he covered for a day
       off for somebody so he shouldn’t even have been there that
       day and it struck me as no good deeds go unpunished. I
       say that all the time.

       MR. WISMER: Is that all you remember reading?

       JURY PANELIST #56: Pretty -- for the most part. That’s the
       highlights, yeah. I mean I don’t remember exactly how
       many people were involved, you know, or how -- too much
       of the details.

       MR. WISMER: And it was tragic, certainly, but does that --
       is that going to affect your ability to be a fair and impartial
       juror knowing what you know about what happened to this
       man?



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J-A02037-17


       JURY PANELIST #56: Probably not. Again, I’m going to say
       probably 51 percent on it.

       THE COURT: Let me phrase the question a little differently.

       JURY PANELIST #56: Please.

       THE COURT: Is there a doubt in your mind about your ability
       to be fair and impartial?

       JURY PANELIST #56: No. I can do it. I can do it.

       THE COURT: All right. Anyone else?

       MR. TINARI [Mahmud’s counsel]: May I just follow that up
       briefly?

       THE COURT: Yes.

       MR. TINARI: It seems as though you’re hesitating. There’s
       no right or wrong answer even to the Judge’s question.
       We’re just trying to find out --

       JURY PANELIST #56: I

       MR. TINARI: -- what’s in your heart and your mind, and
       when -- as lawyers especially for Defendants who are
       accused of crimes, we hear probably or 51 percent, that
       makes us nervous. So we’re just asking you --

       JURY PANELIST #56: Absolutely.

       MR. TINARI: -- just as the Court did, it seems as though
       there’s a little bit of hesitation, and if there is, just tell us.
       It’s okay. No one’s going to --

       JURY PANELIST #56: And I realize –

       MR. TINARI: -- thinking negatively of you --

       JURY PANELIST #56: -- you’ve got 120 -- 18 other people -
       -

       MR. TINARI: -- you know what I mean? We’re --


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       JURY PANELIST #56: -- that you can use.

       MR. TINARI: -- just trying to proceed in accordance with
       what we’re required to ask.

       JURY PANELIST #56: Yes.

       MR. TINARI: And if your answer is you have some doubt,
       just tell us.

       JURY PANELIST #56: I’d have to be saying I was kidding
       you if there was absolutely nothing because I experienced
       it.

       MR. TINARI: Understood.

       JURY PANELIST #56: But I still think I could probably be
       fair. I mean I understand --

       MR. TINARI: You still think you can be? See, that’s what’s
       making us --

       JURY PANELIST #56: I’m --

       MR. TINARI: You know what I’m saying? If you were in our
       shoes --

       JURY PANELIST #56: I can --

       MR. TINARI: -- you wouldn’t want to hear someone say --

       JURY PANELIST #56: I see.

       MR. TINARI: -- well, I think I could be fair, I’m hoping I
       could be fair.

       JURY PANELIST #56: I can appreciate your -- you on that.
       I think I can -- okay. So --

       MR. TINARI: All right. I won’t ask any more times.

       JURY PANELIST #56: I



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J-A02037-17


       MR. TINARI: That’s -- I think --

       JURY PANELIST #56: I believe I can.

       MR. TINARI: Okay. Thank you, sir.

       JURY PANELIST #56: I believe I can and I --

                                   ***

       MR. DIROSATO [for the Commonwealth]: Sir, the role of a
       juror is to hear the evidence –

       JURY PANELIST #56: Exactly.

       MR. DIROSATO: -- to weigh           the   evidence   per   the
       instructions given by the Court.

       JURY PANELIST #56: Exactly.

       MR. DIROSATO: And --

       JURY PANELIST #56: I’m not trying to be rude.

       MR. DIROSATO: -- the Court will give you the instructions
       on the law, take whatever facts as you find true along with
       your fellow jurors and apply that to the law to determine
       whether the Commonwealth has met its burden beyond a
       reasonable doubt to prove these Defendants guilty of the
       crimes they’re facing -- have been charged with.

       JURY PANELIST #56: Exactly.

       MR. DIROSATO: And knowing that, can you put aside your
       past experience and follow the Court’s instruction and
       render a verdict based upon a fair and impartial weighing of
       the evidence?

       JURY PANELIST #56: I think I can. I’m saying -- I said --
       okay. I can. Putting it in context, you show me evidence,
       it is or it isn’t.




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J-A02037-17


         MR. DIROSATO: If the Commonwealth fails to meet your --
         meet its burden, would you hesitate and acquit these
         Defendants?

         JURY PANELIST #56: If you didn’t prove they did it, I will.

         THE COURT: You understand that it has to be proven beyond
         a reasonable doubt. It’s not a 51 percent. It’s beyond a
         reasonable doubt. Do you understand that?

         JURY PANELIST #56: Yes, sir.

         THE COURT: And you could follow that standard, correct?

         JURY PANELIST #56: Yes, sir. I’m sure I could.

N.T., 1/28/15, at 280-88.

      Counsel for Mahmud moved to strike the juror for cause based on the

juror’s equivocation and hesitation in his responses. Id. at 288. Appellant’s

counsel joined the motion noting that the juror appeared to give two answers

to each questions. Id. at 289. The trial court denied the defense’s motion.

Id. In its supplemental Rule 1925(a) opinion, the trial court emphasized that

juror stated responded that he could “do it” when asked by the court whether

he could be fair and impartial. Trial Ct. Supp. Op., 5/20/16, at 2.

      Following our review, we are constrained to conclude that the trial court

abused its discretion when denying Appellant’s motion to strike juror #56.

The juror equivocated several times regarding his ability to separate the

incident involving his wife. He repeatedly used terms such as “I think,” and

“probably.”   When asked whether he could fair and impartial twice stated he

was only “51 percent” certain.    He hesitated at serving on the jury, noting



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that numerous other prospective jurors remained.            Although the juror

ultimately stated that he was able to decide the case fairly and impartially

based on the evidence, that fact alone does not allay concerns regarding the

juror’s ability to be impartial. See Penn, 132 A.3d at 505; Johnson, 445

A.2d at 514.

      Although all three defendant exhausted their peremptory strikes, the

record does not reveal which defendant struck juror #56.8               Therefore,

although   Appellant   exhausted    his   peremptory    strikes,   he    has   not

demonstrated that he was forced to use his peremptory strike to exclude juror

#56. Moreover, Appellant has not alleged that any of the empaneled jurors

were impartial.    Accordingly, Appellant has not demonstrated adequate

prejudice to warrant relief.

      Appellant next claims that the trial court erred in instructing the jury on

consciousness of guilt. He first contends that there was insufficient evidence

of flight to justify issuing the instruction. According to Appellant, he merely

opened the back door of it and shut it after seeing armed police, but did not

run or physically resist. He further asserts that there was no evidence he

knew why the police were there or that he was about to be arrested. Second,

Appellant contends that the trial court failed to instruct the jury that the

credibility, weight, and effect of his flight was for them to decide as suggested




8 The trial court afforded the Commonwealth and the defense nine peremptory
strike. The defendants each had three peremptory strikes.


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J-A02037-17

by Pa.SSJI (Crim.) § 3.15. We conclude that this issue is waived in part and

otherwise meritless.

      Preliminarily,

         [i]n order to preserve a claim that a jury instruction was
         erroneously given, the [a]ppellant must have objected to
         the charge at trial. As our Supreme Court has explained:

            The pertinent rules, therefore, require a specific
            objection to the charge or an exception to the trial
            court’s ruling on a proposed point to preserve an issue
            involving a jury instruction. Although obligating
            counsel to take this additional step where a specific
            point for charge has been rejected may appear
            counterintuitive, as the requested instruction can be
            viewed as alerting the trial court to a defendant’s
            substantive legal position, it serves the salutary
            purpose of affording the court an opportunity to avoid
            or remediate potential error, thereby eliminating the
            need for appellate review of an otherwise correctable
            issue.

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. 2014) (citations omitted).

      Instantly, Appellant did not object to the form or content of the

consciousness of guilt instruction given by the trial court, and there is no

indication that Appellant requested that the trial court add language to its

proposed instruction.     Therefore, we are constrained to conclude that

Appellant’s second contention—i.e., that the instruction as given was

defective—is waived due to Appellant’s failure to alert the court to the alleged

issue. See id.

      As to Appellant’s first contention, Appellant has not directed this Court

to a specific objection to the trial court’s decision to instruct the jury on



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consciousness of guilt. Nevertheless, the record establishes that Appellant did

object at some point as his counsel noted that she had taken an exception to

“the flight nonsense[.]” N.T., 2/10/15, at 18. Moreover, the trial court did

not find waiver of Appellant’s contention that a consciousness of guilt charge

was appropriate based on Appellant’s attempt to evade the officers attempting

to arrest him.     Under these circumstances, we will address Appellant’s

contention that the evidence did not support a consciousness of guilt charge.

      It is well settled that

         [a] jury instruction is proper if supported by the evidence of
         record. Th[e Pennsylvania Supreme Court] has held that
         “[w]hen a person commits a crime, knows that he is wanted
         therefor, and flees or conceals himself, such conduct is
         evidence of consciousness of guilt, and may form the basis
         [of a conviction] in connection with other proof from which
         guilt may be inferred.”

Commonwealth v. Clark, 961 A.2d 80, 92 (Pa. 2008) (citations omitted).

“The theory for admitting evidence of flight is ‘based upon a premise that the

person who flees does so in recognition of his wrongdoing and is seeking to

avoid punishment for that conduct.’” Commonwealth v. Barnes, 593 A.2d

868, 870 (Pa. Super. 1991) (citation omitted).

      The record in this case belies Appellant’s contention that the evidence

did not support the consciousness of guilt instruction. The Commonwealth

introduced evidence that Appellant was aware of his wrongdoing with respect

to the killing of McClay, and that he knew of the possibility that he left

fingerprints in the Rite Aid.    Additionally, the Commonwealth presented



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evidence that Appellant was aware that he was wanted by the police when

officers conducted a knock and announce at the front door of his residence,

and an officer in full uniform ordered him to stop as he emerged from the back

of residence. Lastly, the Commonwealth’s evidence suggested that Appellant

sought to avoid punishment when he retreated back inside his home and

attempted to close the door on the officers. Based on the foregoing, we agree

with the trial court that the trial evidence could be construed as showing

Appellant recognized his wrongdoing and was attempting to avoid punishment

when he retreated into his home.      Accordingly, we discern no error in the

issuance of a consciousness of guilt instruction and that no relief is due on

Appellant’s final preserved issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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