J-S41037-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WILLIAM JOHN MUFFLEY

                            Appellant                      No. 364 EDA 2014


                  Appeal from the PCRA Order January 7, 2014
             In the Court of Common Pleas of Northampton County
              Criminal Division at No(s): CP-48-CR-0002692-2009


BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                            FILED NOVEMBER 13, 2014

        Appellant, William John Muffley, appeals pro se from the January 7,

2014 order dismissing his first petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.              After careful

review, we affirm.

        The relevant facts and procedural history of this case may be

summarized as follows. On October 4, 2010, Appellant was found guilty in a

bench trial of one count each of robbery, terroristic threats, theft by unlawful

taking or disposition, and possession of instruments of crime (PIC), 1 in

connection     with   his   June    26,   2009   robbery   of   Wachovia   Bank   in

Northampton, Pennsylvania.             On November 14, 2011, the trial court
____________________________________________
1
    18 Pa.C.S.A. §§ 3701, 2706, 3921, and 907, respectively.
J-S41037-14


sentenced Appellant to an aggregate term of ten to 23 years’ imprisonment.

This Court affirmed Appellant’s judgment of sentence on August 14, 2012,

and our Supreme Court denied Appellant’s petition for allowance of appeal

on February 13, 2013. See Commonwealth v. Muffley, 60 A.3d 569 (Pa.

Super. 2012) (unpublished memorandum), appeal denied, 63 A.3d 776 (Pa.

2013).2

       On September 9, 2013, Appellant filed a timely pro se PCRA petition.

On September 12, 2013, the PCRA court appointed Matthew C. Potts,

Esquire (Attorney Potts) to represent Appellant. Attorney Potts did not file

an amended PCRA petition on Appellant’s behalf, but did represent Appellant

at his October 25, 2013 PCRA evidentiary hearing. On November 21, 2013,

Attorney Potts requested leave to withdraw as counsel in accordance with

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. On

November 25, 2013, the PCRA court provided Appellant with notice of its

intent to dismiss his petition, pursuant to Pennsylvania Rule of Criminal

Procedure 907.3 On December 9, 2013, Appellant filed a pro se response,


____________________________________________
2
  Appellant was represented at trial by Mark Minotti, Esquire and on direct
appeal by Brian M. Monahan, Esquire (Attorney Monahan).
3
  Since the PCRA court previously conducted an evidentiary hearing on the
merits of the issues raised in Appellant’s pro se PCRA petition, the PCRA
court was not required to file a Rule 907 notice.              See generally
Pa.R.Crim.P. 907(1) (stating, “[i]f the judge is satisfied from this review that
(Footnote Continued Next Page)


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wherein he reiterated the arguments raised in his PCRA petition, challenged

the effectiveness of Attorney Potts’ representation at his PCRA proceedings,

and requested to proceed pro se.                 See Appellant’s Response to Notice

Pursuant to Pennsylvania Rule of Criminal Procedure 907, 12/9/13, at 2-3.

      Thereafter, on January 7, 2014, the PCRA court entered an order

granting Attorney Potts’ request to withdraw.             That same day, the PCRA

court entered a second order dismissing Appellant’s PCRA petition.             This

timely appeal followed on January 23, 2014.4              On August 19, 2014, this

Court affirmed the PCRA court’s order in an unpublished memorandum.

Appellant filed a timely petition for reconsideration and reargument on

August 29, 2014.         On September 19, 2014, this Court entered an order

granting panel reconsideration and withdrawing our August 19, 2014

memorandum.        This Court’s order instructed the parties that no further

briefing would be required. Superior Court Order, 9/19/14, at 1.
                       _______________________
(Footnote Continued)

there are no genuine issues concerning any material fact and that the
defendant is not entitled to post-conviction collateral relief, and no purpose
would be served by any further proceedings, the judge shall give notice to
the parties of the intention to dismiss the petition and shall state in the
notice the reasons for the dismissal[]”). Rather, the PCRA court should have
proceeded under Rule 908, which pertains to dispositions after a hearing.
See generally id. at 908(D), 908 (D)(1) (stating, “[u]pon the conclusion of
the hearing the judge shall determine all material issues raised by the
defendant’s petition and the Commonwealth’s answer, or by the
Commonwealth’s motion to dismiss, if any … [and i]f the judge dismisses the
petition, the judge promptly shall issue an order denying relief[]”).
4
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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     On appeal, Appellant raises the following issues for our review.

           [1.]    Whether the PCRA court improperly denied
                   [Appellant’s] PCRA without providing it’s
                   [sic] reasons for each of the claims raised in
                   [Appellant’s] PCRA petition?

           [2.]    Whether the PCRA court improperly denied
                   [Appellant]     relief  with   respect    to
                   [Appellant’s] claim of a violation of his
                   speedy trial rights pursuant to Pa.R.Crim.P.
                   600, and protected by the Pennsylvania
                   Constitution Article I, § 9, and U.S.
                   Constitution Amendment VI?

           [3.]    Whether the PCRA court improperly denied
                   [Appellant] relief when it failed to address
                   the specific merits of [Appellant’s] claim that
                   a bank video existed, of which 22 still
                   photographs were derived from, a violation
                   of the Pennsylvania Rules of Evidence, Rule
                   1002, and a violation of the “Best Evidence
                   Rule[,]” [] where the contents of the video
                   were being sought?

           [4.]    Whether      the  PCRA    court   improperly
                   dismissed [Appellant’s] claim that his direct
                   appeal counsel failed to address the issue of
                   “insufficiency of evidence” to sustain a
                   verdict on appeal, as [Appellant] properly
                   laid out a “layered” claim in effectiveness
                   [sic] against direct appeal counsel in his
                   timely filed PCRA?

           [5.]    Whether PCRA counsel erred when it failed
                   to submit a brief that was requested by the
                   PCRA court following an evidentiary hearing
                   and    []   in  the   alternative,   filed  a
                   [Turner/]Finley letter without investigating
                   or illuminating upon the specific merits of
                   [Appellant’s]   claims     as    argued    in
                   [Appellant’s] pro se PCRA petition, and
                   subsequent testimony from the evidentiary
                   hearing?

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Appellant’s Brief at 3.

      We begin by noting our well-settled standard of review. “In reviewing

the   denial   of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”        Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).          “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”           Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      In his first issue, Appellant avers the PCRA court “dismissed [his] PCRA

[p]etition without providing it’s [sic] own reasons for determining that each

of the three (3) claims Appellant raised were without merit.”          Appellant’s

Brief at 11.    The PCRA court acknowledges that it did not address all of

Appellant’s issues.   PCRA Court Opinion, 2/19/14, at 2.         The PCRA court

concluded that it was not required to do so because Appellant “is not entitled

to PCRA relief on any basis as a result of his admission during the PCRA

hearing that he is the individual depicted in photos illustrating the crime in

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J-S41037-14


progress.” Id. The PCRA court cited exclusively to this Court’s decision in

Commonwealth v. Fowler, 670 A.2d 153 (Pa. Super. 1996) (en banc),

affirmed, 703 A.2d 1027 (Pa. 1997), for the proposition that a claim of

ineffective assistance of counsel “must raise an issue of whether an innocent

individual has been convicted.” Id. at 154.

      In Fowler, this Court noted that Section 9543(a)(2)(ii) of the PCRA

permits claims of “[i]neffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken

place.” Fowler, supra at 154, quoting 42 Pa.C.S.A. § 9543(a)(2)(ii). The

Fowler Court also observed, “[t]his Court has interpreted this to mean that

such a claim must raise an issue of whether an innocent individual has been

convicted.” Id. Although our Supreme Court affirmed this Court’s decision

in Fowler, our Supreme Court did not mention this specific construction of

Section 9543(a)(2)(ii).

      In Commonwealth ex. rel. Dadario v. Goldberg, 773 A.2d 126 (Pa.

2001),   our   Supreme    Court   “interpreted   the   language   from   Section

9543(a)(2)(ii) requiring proof that counsel’s ineffectiveness ‘so undermined

the truth-determining process that no reliable adjudication of guilt or

innocence could have taken place’ as embodying the prejudice element of

the Sixth Amendment standard for ineffectiveness claims articulated in

Strickland [v. Washington, 466 U.S. 668 (1984)].” Id. at 129, quoting


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42 Pa.C.S.A. § 9543(a)(2)(ii).          Our Supreme Court further held that the

General Assembly did not intend to use that clause in Section 9543(a)(2)(ii)

as a limitation on the claims of ineffective assistance of counsel that may be

alleged in a PCRA petition.         Id. at 130.   Thus, the PCRA court erred in

relying on Fowler in its legal analysis.

       However, as an appellate court, “we may affirm the decision of the

[PCRA] court if there is any basis on the record to support the [PCRA] court’s

action; this is so[,] even if we rely on a different basis.” Commonwealth v.

Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009) (citation omitted). In this

case, we are able to engage in meaningful appellate review based on the

record before us. Therefore, we need not remand this case, as the certified

record contains adequate information necessary to dispose of Appellant’s

remaining issues. See, e.g., Commonwealth v. Hood, 872 A.2d 175, 178

(Pa. Super. 2005) (declining to remand for a Rule 1925(a) opinion where

“the notes of testimony from the hearing … adequately apprise[d this Court]

of the trial court’s reasoning in relation to the … issues raised[]”), appeal

denied, 889 A.2d 88 (Pa. 2005).5


____________________________________________
5
   Although the PCRA court “did not address each issue seriatim” in its Rule
1925(a) opinion, we conclude the PCRA court did conduct its required
independent review under Turner/Finley. PCRA Court Opinion, 2/19/14, at
2. The PCRA court conducted a full merits hearing on Appellant’s PCRA
issues. Further, when dismissing Appellant’s petition, the PCRA court noted
it made “an independent review of the record.” Trial Court Order, 1/7/14, at
1. Because the lack of merit of Appellant’s issues is evident from the record,
(Footnote Continued Next Page)


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         We elect to address Appellant’s next two issues together.     Appellant

avers that the PCRA court erred in not granting him relief on the ground that

his speedy trial rights under Pennsylvania Rule of Criminal Procedure 600

were violated. Appellant’s Brief at 13. In his third issue, Appellant argues

that the PCRA court erred in denying him relief on his claim that the

Commonwealth violated the best evidence rule by not producing an original

surveillance video instead of 22 still photographs taken from the same. Id.

at 20.

         In order to be eligible for relief under the PCRA, the statute requires

the petitioner to show the following by a preponderance of the evidence.

              § 9543. Eligibility for relief

              (a) General rule.--To be eligible for relief under
              this subchapter, the petitioner must plead and prove
              by a preponderance of the evidence all of the
              following:

                                                 …

              (2) That the conviction or sentence resulted from
              one or more of the following:

                       (i) A violation of the Constitution of this
                       Commonwealth or the Constitution or laws of
                       the United States which, in the circumstances
                       of the particular case, so undermined the
                       truth-determining process that no reliable

                       _______________________
(Footnote Continued)

we do not interpret the strictures of Turner/Finley and their progeny as
requiring remand to the PCRA court for further articulation of alternative
bases for concluding Appellant’s PCRA issues are without merit.



                                            -8-
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                  adjudication of guilt or innocence could have
                  taken place.

                  (ii) Ineffective assistance of counsel which, in
                  the circumstances of the particular case, so
                  undermined the truth-determining process that
                  no reliable adjudication of guilt or innocence
                  could have taken place.

                  (iii) A plea of guilty unlawfully induced where
                  the circumstances make it likely that the
                  inducement caused the petitioner to plead
                  guilty and the petitioner is innocent.

                  (iv) The improper obstruction by government
                  officials of the petitioner’s right of appeal
                  where a meritorious appealable issue existed
                  and was properly preserved in the trial court.

                  (v) Deleted.

                  (vi) The unavailability at the time of trial of
                  exculpatory evidence that has subsequently
                  become available and would have changed the
                  outcome of the trial if it had been introduced.

                  (vii) The imposition of a sentence greater than
                  the lawful maximum.

                  (viii) A proceeding      in   a   tribunal   without
                  jurisdiction.

             (3) That the allegation of error has not been
             previously litigated or waived.

                                      …

42 Pa.C.S.A. § 9543(a). An issue is waived under the PCRA “if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”          Id.

§ 9544(b).

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      In the case sub judice, Appellant did file a direct appeal in this Court

after his judgment of sentence was imposed.      Appellant could have raised

his Rule 600 and best evidence rule arguments during his direct appeal, but

he did not. Therefore, the issues are waived under the parameters of the

PCRA. See id. §§ 9543(a), 9544(b); accord Commonwealth v. Rachak,

62 A.3d 389, 391 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

Therefore, Appellant’s second and third issues do not warrant relief.

      In his fourth issue, Appellant avers that direct appeal counsel was

ineffective for not raising the issue of sufficiency of the evidence during his

direct appeal. Appellant’s Brief at 24. We begin our analysis of this issue by

noting our standard of review regarding ineffective assistance of counsel

claims.

      In analyzing claims of ineffective assistance of counsel, “[c]ounsel is

presumed effective, and [appellant] bears the burden of proving otherwise.”

Fears, supra at 804 (brackets in original; citation omitted). To prevail on

any claim of ineffective assistance of counsel, a PCRA petitioner must allege

and prove “(1) the underlying legal claim was of arguable merit; (2) counsel

had no reasonable strategic basis for his action or inaction; and (3) the

petitioner was prejudiced—that is, but for counsel’s deficient stewardship,

there is a reasonable likelihood the outcome of the proceedings would have

been different.”   Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.

2013). “A claim of ineffectiveness will be denied if the petitioner’s evidence


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J-S41037-14


fails to satisfy any one of these prongs.”     Commonwealth v. Elliott, 80

A.3d 415, 427 (Pa. 2013) (citation omitted).

      “With regard to the second, reasonable basis prong, ‘we do not

question whether there were other more logical courses of action which

counsel could have pursued; rather, we must examine whether counsel’s

decisions had any reasonable basis.’” Commonwealth v. Chmiel, 30 A.3d

1111, 1127 (Pa. 2011) (citation omitted).        “[W]e only inquire whether

counsel had any reasonable basis for [her] actions, not if counsel pursued

the best available option.” Commonwealth v. Philistin, 53 A.3d 1, 10 (Pa.

2012) (citation omitted).     “A fair assessment of attorney performance

requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

and to evaluate the conduct from counsel’s perspective at the time.”

Commonwealth v. Carson, 913 A.2d 220, 226-227 (Pa. 2006) (citation

omitted), cert. denied, Carson v. Pennsylvania, 552 U.S. 954 (2007).

      In this case, direct appeal counsel testified at the PCRA hearing

regarding this issue as follows.

                  [Commonwealth]:

            Q:    You filed your 1925(b) statement?

                  [Attorney Monahan]:

            A:    Correct.

            Q:    According to [Appellant]’s petition, one of your
            allegations in your 1925(b) statement is that the trial

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          court improperly denied [Appellant]’s motion for
          judgment of acquittal, did you do --

          A:    Yes, I prepared that.

          Q:     You also raised an issue whether the evidence
          presented by the Commonwealth at trial was
          insufficient to sustain a guilty verdict of robbery --
          threat of imminent bodily injury, you include that in
          your 1925(b)?

          A:    Yes, I believe so.

          Q:    I have the brief in front of me. I believe the
          1925 was attached. Yes, on a direct appeal. I
          briefed four separate questions.

          …

          Q:    The two areas regarding your 1925(b)
          statement about insufficiency of the evidence, weight
          of the evidence and so forth, did you brief those?

          A:    No.

          Q:    Why not?

          A:    My review of the record – by the way, this was
          a bench trial before Judge Roscioli, it would indicate
          to me that there was insufficient -- an insufficient
          basis to brief those items.

                As I recollect, [Appellant] was charged with
          robbery of a bank. He went in to the bank in the
          morning. He was assisted by tellers in the bank and
          conducted some type of business. Later on in the
          day, he went back into the bank and the same tellers
          apparently assisted him and recognized him. It is
          my understanding that there was some type of
          surveillance, whether it was photographs -- I believe
          it was photograph stills that clearly indicate who it
          was.




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                 Judge Roscioli not only found [Appellant] guilty
           beyond a reasonable doubt, but I think she had used
           the words to the extent that there was absolutely no
           doubt that [Appellant] is the one that committed the
           crimes. Really it is just not her words on the record.
           There was no basis. There was nothing missing of
           the elements of the crime of robbery. There was no
           missing elements of the crime or any other crimes
           that would lead an appeal [sic] court to find the
           verdict was improper.

N.T., 10/25/13, at 38-41.

     “It is well settled that appellate counsel is entitled, as a matter of

strategy, to forego even meritorious issues in favor of issues he believes

pose a greater likelihood of success.”   Commonwealth v. Jette, 23 A.3d

1032, 1043 (Pa. 2011) (citation omitted).    To the contrary, our Supreme

Court has emphasized, “[t]he process of winnowing out weaker arguments

on appeal and focusing on those more likely to prevail, far from being

evidence of incompetence, is the hallmark of effective appellate advocacy[.]”

Commonwealth v. Robinson, 864 A.2d 460, 480 (Pa. 2004), quoting

Smith v. Murray, 477 U.S. 527, 536 (1986) (further citation omitted).

     In this case, Attorney Monahan raised, briefed, and litigated four

different issues to this Court during Appellant’s direct appeal.         See

generally Muffley, supra at 3-19. Attorney Monahan testified at the PCRA

hearing that he selected these four issues based on his professional

judgment that they stood the best chance of success on appeal. Specifically,

his review of the record demonstrated to him that any challenge to the

sufficiency of the Commonwealth’s evidence would have been unsuccessful.

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N.T., 10/25/13, at 40-41. Our cases permitted Attorney Monahan to make

this professional judgment. See Jette, supra; Robinson, supra. Nothing

contained within Appellant’s brief on this issue convinces us that Attorney

Monahan lacked a reasonable basis in deciding not to brief sufficiency of the

evidence in this Court.    To the contrary, most of Appellant’s points in his

brief highlight alleged inconsistencies of testimony and evidence.         See

Appellant’s Brief at 25-26. It is axiomatic that such inconsistencies go to the

weight of the evidence, not its sufficiency. Commonwealth v. Boxley, 808

A.2d 608, 612 (Pa. 2003). Based on these considerations, we conclude, at a

minimum, Appellant has not met his burden to show that Attorney Monahan

lacked a reasonable basis for not pursuing a sufficiency of the evidence

argument on direct appeal. Therefore, Appellant is not entitled to relief on

this issue.

      In his fifth issue, Appellant avers that Attorney Potts was ineffective by

failing to file either an amended PCRA petition or post-hearing brief on his

behalf, in lieu of a Turner/Finley letter.    See Appellant’s Brief at 26-28.

The courts of this Commonwealth have long recognized the procedural

posture PCRA counsel may follow under Turner/Finley when they believe a

petitioner’s claims lack merit.

              The Turner/Finley decisions provide the manner for
              post-conviction   counsel   to    withdraw    from
              representation.    The holdings of those cases
              mandate an independent review of the record by
              competent counsel before a PCRA court or appellate
              court can authorize an attorney’s withdrawal. The

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              necessary independent review requires counsel to
              file a “no-merit” letter detailing the nature and
              extent of his review and list each issue the petitioner
              wishes to have examined, explaining why those
              issues are meritless. The PCRA court … if the no-
              merit letter is filed before it … then must conduct its
              own independent evaluation of the record and agree
              with counsel that the petition is without merit.

Commonwealth v. Rykard, 55 A.3d 1177, 1184 (Pa. Super. 2012)

(internal citation omitted), appeal denied, 64 A.3d 631 (Pa. 2013).

       In this case, Appellant acknowledges in his brief that Attorney Potts

has complied with the technical requirements of Turner/Finley.                    See

Appellant’s Brief at 27 (acknowledging that, “PCRA counsel seemingly

complied with the requirements of [Commonwealth v. Friend, 896 A.2d

607 (Pa. Super. 2006)]”). As a result, Attorney Potts was not required to

file an amended PCRA petition or brief in the PCRA court on his behalf. See

Rykard, supra.        Therefore, as Appellant does not directly challenge the

adequacy of Attorney Potts’ Turner/Finley letter, he cannot show how

Attorney Potts was ineffective in this regard.6 Cf. Rykard, supra (stating,

“[a] claim that the PCRA court erred as a matter of law in permitting counsel

to   withdraw,    although     necessarily     discussing   PCRA   counsel’s   alleged

ineffectiveness, is not an ineffectiveness claim[]”).



____________________________________________
6
 We note that Appellant raised this issue in his pro se response to the PCRA
court’s Rule 907 notice. See Appellant’s Response to Notice Pursuant to
Pennsylvania Rule of Criminal Procedure 907, 12/9/13, at 2.



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      In addition, Appellant has not identified any meritorious arguments

that Attorney Potts should have raised either in an amended PCRA petition

or in a post-hearing brief to the PCRA court.     As a direct result of this

omission, Appellant cannot show how he was prejudiced by PCRA counsel’s

failure to do so.    See generally Commonwealth v. Reid, --- A.3d ---,

2014 WL 4097636, *3 (Pa. 2014) (stating, “prejudice [in the context of the

PCRA, is] measured by whether there is a reasonable probability that the

result of the proceeding would have been different[]”).

      Based on the foregoing, we conclude that all of Appellant’s issues are

waived or devoid of merit. Accordingly, the PCRA court’s January 7, 2014

order is affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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