J-S79005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ISAIAH RANSOME,

                            Appellant                 No. 1920 EDA 2013


         Appeal from the Judgment of Sentence entered June 21, 2013,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division, at No(s): CP-51-CR-0005859-2007.


BEFORE: ALLEN, OLSON, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 19, 2014

        Isaiah Ransome (“Appellant”) appeals from the judgment of sentence

imposed after a jury convicted him of second-degree murder and related

offenses.1 We affirm.

        The trial court summarized the pertinent facts as follows:

              On October 3, 2006, at approximately 9:20 pm, Gary
           Roemhild, Kevin Roemhild, Keith Pena, and the decedent
           Michael Thierry, were standing on the front steps of 1500
           Rosalie Street, where Gary rented an apartment.        As
           [they] were conversing with each other, [Appellant] and
           his [three co-defendants] all of whom were armed,
           approached them.

____________________________________________


1
    18 Pa.C.S.A. § 2502(b).




*Retired Senior Judge assigned to the Superior Court.
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          Sensing that a robbery was about to occur, Gary
       attempted to run inside. He could not open the door
       before [Appellant,] who was holding a handgun, grabbed
       him and demanded that he empty his pockets. Keith Pena
       was standing on the steps next to Gary. He was robbed by
       [Appellant’s] brother, Jerry Ransome, who brandished a
       .32 caliber revolver. Kevin Roemhild and Michael Thierry
       were at the bottom of the steps, near the pavement. Eric
       Gales pointed a .22 caliber rifle at Kevin Roemhild’s head
       during the robbery.     Sean Gordine confronted Michael
       Thierry.

          Gary, Keith and Kevin each gave up their money,
       wallets and cell phones. Michael Theirry dropped his keys
       and cell phone to the ground and ran. At that point, all
       four defendants turned toward Thierry and started
       shooting. Thierry was shot in the head and groin and
       collapsed near the intersection of Rosalie and Horrocks
       Streets. As they fled, the defendants turned their weapons
       on the surviving victims and fired multiple gunshots at
       them.

          Police arrived on the scene within a few minutes. There
       they found Thierry lying in the street. Thierry was taken
       to the hospital, where he died three days later.

          Over the next several months, homicide detectives
       interviewed the victims and spoke with several witnesses.
       One of those witnesses was [Appellant’s] brother, Jamil
       Ransome. He told police that [Appellant] owned a .357
       [M]agnum and that he kept the gun at his girlfriend’s
       house. On February 5, 2007, police executed a search
       warrant at the home of [Appellant’s] girlfriend and
       recovered a .357 Magnum.

          On February 7, 2007, [Appellant] was arrested. He did
       not give a statement to police. However, in a separate
       investigation that occurred four months before this
       incident, [Appellant] told police that he owned a .357
       Magnum and that he had gotten rid of it. Appellant also
       acknowledged during the prior investigation that
       ammunition discovered in his bedroom was his.

          At trial, two surviving victims (Gary and Kevin
       Roemhild) and multiple bystanders who observed the
       robbery and the subsequent shooting positively identified

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         [Appellant] as one of the shooters. The Commonwealth
         also presented testimony from several police officers and
         the medical examiner, ballistic evidence linking the
         defendants to the crime, inculpatory statements
         [Appellant] made to family (Jamil Ransome) and friends
         (Deante Smith) after the shooting, and a cell phone video
         depicting all four defendants playing Russian roulette with
         a .32 caliber handgun. Appellant did not have a license to
         carry a firearm.

Trial Court Opinion, 3/10/14, at 2-4 (citations omitted).

      The trial court summarized the pertinent procedural history as follows:

            The defendants were jointly tried by jury before the
         Honorable Carolyn Temin. On June 13, 2008, the jury
         returned a partial verdict finding all four defendants not
         guilty of first degree murder, but deadlocking on the
         remaining charges.

             A second jury trial was set to commence in May of
         2009. Prior to the start of trial, the Commonwealth asked
         Judge Temin to reconsider several evidentiary rulings she
         had made prior to [Appellant’s] first trial. Specifically, the
         Commonwealth sought the introduction of cell phone
         records and writings made by one or more of the
         defendants that had been ruled inadmissible at the
         previous trial. Judge Temin denied the Commonwealth’s
         Motion to Reconsider. The Commonwealth appealed Judge
         Temin’s ruling to the Pennsylvania Superior Court, which
         vacated her Order. On March 3, 2011, defense counsel
         field a Petition for Allowance of Appeal in the Pennsylvania
         Supreme Court. This Petition was denied on June 2, 2011.
         Appellant’s case was then scheduled for retrial.

            On December 14, 2012, at the conclusion of a second
         jury trial, the jury found [Appellant] guilty of second
         degree murder, four counts of robbery (F-1), three counts
         of aggravated assault (F-1), criminal conspiracy,
         possession of an instrument of crime and violating §§ 6106
         and 6108 of the Uniform Firearms Act.

            Appellant subsequently filed a post-verdict motion to
         have counsel removed from his case. [Judge Temin retired
         prior to sentencing Appellant and the case was

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         administratively reassigned to the Honorable Benjamin
         Lerner, S.J.]     On June 21, 2013, this court denied
         [Appellant’s] motion and sentenced him to a mandatory
         term of life imprisonment on the second degree murder
         bill, and concurrent prison terms of ten (10) to twenty (20)
         years on each of the robbery and aggravated assault bills
         and two-and-one-half (2½) to five (5) years on the § 6106
         bill. No further penalty was imposed on the remaining
         bills.

            Appellant did not file post-sentence motions.         This
         timely appeal followed.

Trial Court Opinion, 3/10/14, at 1-2 (footnote omitted). Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues:

         I. Is [Appellant] entitled to an arrest of judgment with
         respect to his convictions for murder of the second degree,
         aggravated assault (three counts), robbery (four counts),
         possessing an instrument of crime, carrying a firearm
         without a license and carrying a firearm on a public street
         since the evidence is insufficient to sustain the verdicts as
         to guilt as the Commonwealth failed to sustain its burden
         of proving [Appellant’s] guilt beyond a reasonable doubt?

         II. Is [Appellant] entitled to a new trial as a result of the
         trial court’s ruling that allowed the Commonwealth to play
         a videotape [sic] during trial?

         III. Is [Appellant] entitled to a new trial as a result of the
         trial court’s ruling that allowed the Commonwealth to
         present testimony identifying [Appellant] from a
         videotape?

         IV. Is [Appellant] entitled to a new trial as a result of the
         trial court’s denial of his motion for a mistrial made during
         the prosecutor’s improper summation to the jury?

Appellant’s Brief at 5.




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      Appellant first challenges the sufficiency of the evidence supporting all

of his convictions. Our standard of review is well settled:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the fact-finder to find every
        element of the 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.

Commonwealth v. Jones, 886 A.2d 689, 704 (Pa. Super. 2005).

      In rejecting Appellant’s sufficiency challenges, the trial court properly

identified each element of the criminal offenses of which Appellant was

convicted, and explained why the evidence presented by the Commonwealth

proved Appellant’s guilt, as an accomplice and co-conspirator, beyond a

reasonable doubt. See Trial Court Opinion, 3/10/14, at 5-9. Our review of

the record supports the trial court’s conclusions.

      Appellant’s argument in support of his sufficiency challenges consists

largely of citation to standards of review and conclusory statements based



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on these standards.     See Appellant’s Brief at 13-18.   Appellant does not

specify any particular element of any of the offenses and explain why,

based on the facts presented, the Commonwealth failed to meet its

evidentiary burden. Our review of the record refutes Appellant’s claim that

the Commonwealth’s evidence failed to establish his identity as a shooter,

as well as his claim that there was no physical evidence linking him to the

crimes.   The facts, as cited by the trial court, overwhelmingly establish

Appellant’s culpability. To the extent Appellant challenges the credibility of

any of the testimony or other evidence presented against him, he

challenges the weight rather than the sufficiency of the evidence, and such

claim is readily refuted by the record. See Commonwealth v. Widmer,

744 A.2d 745, 751-52 (Pa. 2000) (delineating distinctions between

challenge to weight and sufficiency of the evidence).

      Appellant’s next two issues involve the Commonwealth’s playing for a

jury a cell phone video depicting five individuals playing Russian roulette.

In his second issue, Appellant asserts that the trial court erred in allowing

the Commonwealth to play the video because it was irrelevant, improperly

constituted evidence of “prior bad acts,” and was otherwise unduly

prejudicial.   See Appellant’s Brief at 24-29.   In his third issue, Appellant

asserts that the trial court further erred in permitting a testifying police

detective to identify him as one of the participants in the video.       See




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Appellant’s Brief at 30-33.2

       Our Supreme Court has summarized:

             Appellate courts typically examine a trial court’s decision
         concerning the admissibility of evidence for abuse of
         discretion. An abuse of discretion may not be found merely
         because an appellate court might have reached a different
         conclusion,     but   requires    a    result   of    manifest
         unreasonableness, or partiality, prejudice, bias, or ill-will, or
         such lack of support so as to be clearly erroneous.
         Typically, all relevant evidence, i.e., evidence which tends
         to make the existence or non-existence of a material fact
         more or less probable, is admissible, subject to the
         prejudice/probative value weighing which attends all
         decisions upon admissibility.     See Pa.R.E. 401; Pa.R.E.
         402[.]

Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007). “Evidence is

admissible if it is relevant—that is, if it makes a fact at issue more or less

probable, or supports a reasonable inference supporting a material fact.”

Commonwealth v. Wynn, 850 A.2d 730, 733 (Pa. Super. 2004) (citations

omitted).

       In rejecting Appellant’s argument regarding the admission of the cell

phone video, the trial court explained:

             Whether relevant evidence is unduly prejudicial is, in
          part, a function of the degree to which it is necessary to
____________________________________________


2
  We reject the Commonwealth’s claim of waiver. Even though the defense
lodged no objection when the Commonwealth played the video for the jury,
the defense raised their objections during the trial court’s hearing regarding
the Commonwealth’s motion to reconsider its prior ruling on a motion in
limine filed by the defense prior to Appellant’s first trial.             See
Commonwealth v. Stokes, 78 A.3d 644, 652 (Pa. Super. 2013).




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         prove the case of the opposing party.            Here, the
         Commonwealth was required to prove that a criminal
         conspiracy existed, and that the defendants either had
         access to or used weapons as part of that conspiracy. The
         cell phone video was relevant because it demonstrated
         [Appellant’s] familiarity with and prior usage of guns. It
         also supported the Commonwealth’s contention that
         [Appellant] knew the co-defendants, and that their
         association as a group involved in the possession of guns—
         factors that were relevant to the existence of a criminal
         conspiracy.

             There is no doubt that the cell phone video was
         prejudicial to the defense. Nevertheless, it was not unduly
         prejudicial to the defense. The trial court did not err in
         allowing the admission of this evidence. Appellant’s claim
         has no merit.

Trial Court Opinion, 3/10/14, at 10-11.

      Our review of the record supports the trial court’s conclusions. See,

e.g., Commonwealth v. Antidormi, 84 A.3d 736, 752 (Pa. Super. 2014)

(reiterating that courts are not required to sanitize a trial to eliminate all

unpleasant facts from the jury’s consideration where those facts are

relevant).

      Regarding Appellant’s third issue, the trial court concluded that the

detective’s identification testimony “indeed infringed upon the jury’s function

as fact finder and should not have been permitted.”       Trial Court Opinion,

3/10/14, at 11. Nevertheless, given the overwhelming evidence of guilt, the

trial court concluded that any such error was harmless. See id., at 11-12.

      We note that this Court may affirm the trial court’s determination on

any grounds. Commonwealth v. Gatios, 76 A.3d 44, 62 n.14 (Pa. Super.

2013).       Here, we conclude that Judge Temin properly permitted the

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detective to testify to the identification of the individuals depicted in the cell

phone video under Rule 701 of the Pennsylvania Rules of Evidence.              In

accordance with this rule, the detective’s testimony was 1) “rationally based

on [his] perception”; 2) “helpful to clearly understand” the detective’s

testimony and “in determining a fact in issue”; and 3) “not based on

scientific, technical, or other specialized knowledge within the scope of Rule

702.” Pa.R.E. 701. See generally, Commonwealth v. Blessitt, 825 A.2d

1215 (Pa. Super. 2004) (en banc).

      Appellant’s argument within his brief that the detective’s identification

testimony constitutes “expert opinion” under Pa.R.E. 702 is inapt.            Our

review of the record supports the trial court’s conclusions that “the properly

admitted evidence and testimony against [Appellant] and his co-defendants

overwhelmingly demonstrated their guilt.” Trial Court Opinion, 3/10/14, at

12. Thus, the trial court also correctly concluded that “the use of the cell

phone video and the [detective’s] testimony was indeed cumulative of other

evidence presented by the Commonwealth[,]” and that “any potential

prejudice caused by the usage of the cell phone video was insignificant in

comparison to the evidence of [Appellant’s] guilt.”        Trial Court Opinion,

3/10/14, at 12. Appellant’s third issue entitles him to no relief.

      In his fourth and final issue, Appellant argues that he is entitled to a

new trial because the trial court erred in denying his motion for mistrial after

comments made by the prosecutor during the Commonwealth’s closing




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argument improperly shifted the burden of proof to the defense.           See

Appellant’s Brief at 34-42. We disagree.

      “The decision to declare a mistrial is within the sound discretion of the

court and will not be reversed absent a flagrant abuse of discretion.”

Commonwealth v. Bracey, 831 A.2d 678, 682 (Pa. Super. 2003) (citation

omitted). “A mistrial is an ‘extreme remedy . . . [that] must be granted only

when an incident is of such a nature that its unavoidable effect is to deprive

defendant of a fair trial.’” Id.

      Our standard of review for a claim of prosecutorial misconduct is

limited to “whether the trial court abused its discretion.” Commonwealth

v. Harris, 884 A.2d 920, 927 (Pa. Super. 2005) (citation omitted), appeal

denied, 928 A.2d 1289 (Pa. 2007).            In considering such a claim, our

attention is focused on whether the defendant was deprived of a fair trial,

not a perfect one. Id. This Court has observed:

         Not every unwise remark on a prosecutor’s part constitutes
         reversible error. Indeed, the test is a relatively stringent
         one. Generally speaking, a prosecutor’s comments do not
         constitute reversible error unless the unavoidable effect of
         such comments would be to prejudice the jury, forming in
         their minds fixed bias and hostility toward Appellant so
         that they could not [weigh] the evidence objectively and
         render a true verdict. Prosecutorial misconduct, however,
         will not be found where the comments were based on
         evidence or proper inferences therefrom or were only
         oratorical flair. In order to evaluate whether comments
         were improper, we must look to the context in which they
         were made.




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Id. Moreover, “the prosecutor is permitted to respond to defense arguments

and is free to present his or her case with logical force and vigor.”

Commonwealth v. Koehler, 737 A.2d 225, 240 (Pa. 1999) (citation

omitted).

     As noted by the trial court, “[d]uring closing arguments . . . counsel

for co-defendant Sean Gordine[] suggested that the police somehow

improperly influenced the witnesses to identify the defendants.” Trial Court

Opinion, 3/10/14, at 13 (citing N.T., 12/13/12, at 58-89). The prosecutor

responded to this argument during closing:

        [THE PROSECUTOR:]

           Consider the identification procedure. Consider how
        [the police] went about doing it. They put eight faces of
        similarly looking individuals on a piece of paper. They
        didn’t collectively huddle with all the witnesses. They were
        separate. They showed it to [the witnesses]. And said if
        anyone could recognize any of the assailants. Anyone
        involved.     There was no rush to judgment.            Jamil
        [Ransome] was in those photo spreads.            [The police]
        showed [the photo spreads] to the victims.

           And is it any coincidence that out of 40 faces, five sets
        of eight, five times eight, 40 faces, only these four
        defendants were identified. Only these four. The other 36
        faces were never selected by any of the victims or any of
        the eyewitnesses. What does that tell you? What are the
        chances? You do the math. One in eight. One in eight.

           An identification gets made. One in eight. There was
        no guessing. There was no pointing the finger. If [the
        police] wanted to put a case on someone, they would have
        said, Hey, you know, what about that guy? Hey, you
        know, what about that guy? No. There are blanks here
        for people that didn’t have that vantage point. There is no
        putting a case on anyone.


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          I asked every single detective, you know, you saw the
       whole squad, when the detectives got up there, I
       presented them with the witness statements. Remember
       the first thing I asked the detective, I said [d]id you take
       the statement from Gary Roemhild? Did you show the
       photo spreads to this witness, to that witness, to this
       witness, to that witness?

          And [Sean Gordine’s counsel] wants to make a big stink
       about how the detectives manipulated witnesses and
       coerced the witnesses and cannot trust the investigation.
       But did he ask any single one of those detectives anything
       about when they showed photo spreads to the witnesses?
       Did he ask anybody anything about whether someone was
       manipulated? Did you hear any of these witnesses -- I will
       get to Deshawn [Williams] because he was friends with
       [the defendants]; he’d got reason [sic] -- any of these
       people say that they were manipulated and they were told
       who to point the finger to? That would have come out;
       you would have heard it.

          Sometimes it’s the questions that are asked and
       sometimes it’s the lack of questions because it’s really
       easy for a defense attorney to just gloss over something
       and get up in closing argument and throw out a bunch of
       theories that have not been substantiated and they didn’t
       try to substantiate that - -

          [GORDINE’S COUNSEL]: Objection.

           THE COURT: The jury will disregard everything that
       [the prosecutor] said about what the defense lawyers did
       or didn’t do. You have been told a number of times that
       the burden is on the Commonwealth to prove its case
       beyond a reasonable doubt. The defense lawyers have no
       duty to ask any special questions or any specific questions.
       It’s fair for the [prosecutor] to criticize an argument. He
       can’t do it in a way to suggest that the defense lawyers
       had some duty to ask certain questions about things.

          You are the jury. You will judge whether you agree
       with the arguments of the defense or the Commonwealth
       or not. Based upon your assessment of the evidence and
       your decision about its truth and accuracy.

          Please continue.

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          [THE PROSECUTOR]: I wasn’t trying to burden shift.
       They have no burden of proof. The burden is always with
       me. It’s my responsibility to prove the defendants guilty.
       Please do not misinterpret what I’m saying. What I am
       saying is [Gordine’s counsel] presents to you an argument
       that he has not substantiated, some speculation, some
       theory - -

          [GORDINE’S COUNSEL]: Objection.

          [THE PROSECUTOR]:        - - that is trying to fly this in
       front of you - -

          [JERRY RANSOME’S COUNSEL]:               I join in the
       objection.

          [GORDINE’S COUNSEL]: Objection.

          THE COURT: Can I see counsel at sidebar, please?

          (Whereupon, the following took place at sidebar in the
       jury’s presence)

          [CORDINE’S COUNSEL]: I have a motion for mistrial
       with prejudice.

          [JERRY RANSOME’S COUNSEL]: I join.

          [GALES’S COUNSEL]: I join, as well.

          [THE PROSECUTOR]: The jury is right there.

          THE COURT: The motion for a mistrial is denied.

                [Prosecutor], please, you may comment on the
       evidence. You can say that the arguments that have been
       put forth by defense counsel are not supported by the
       evidence. You can’t intimate that they have any duty to
       make any kind of argument or ask any kind of question or
       anything like that. That’s totally, totally improper.

          I think that I told the jury that very strongly, but then
       you did go back and start to do it again. Stay away from
       the arguments of defense counsel. Argue your case.

          [APPELLANT’S COUNSEL]:           I join in the motion,
       Judge.



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           THE COURT:         I’m assuming that all defense counsel
         does.

           [GORDINE’S COUNSEL]:               Yes.   I ask you to give
         another instruction.

            (End of sidebar discussion)

            THE COURT: Just in case if anybody didn’t understand
         my first instruction, I want to make this very clear to you
         that one, the defense has absolutely no burden to do
         anything.     That the [prosecutor] should confine his
         comments to the evidence and not to criticizing the
         arguments of defense counsel. It’s up to you to evaluate,
         you, the jury, to evaluate the arguments of counsel and
         decide which arguments appeal to your reason and your
         judgment and which don’t.

            But I remind you again that nothing said by any of the
         lawyers is evidence.   Nothing said by the lawyers is
         evidence.

            You may continue in accordance with my instructions.

N.T., 12/13/12, at 146-152.

      In rejecting Appellant’s claim, the trial court explained:

            It is clear that the prosecutor’s remarks, while not wise,
         were made solely for the purpose of addressing the
         assertion – made by Sean Gordine’s counsel – that [the]
         identification process was improperly influenced by the
         police. In this context, the remarks were not made for the
         purpose of shifting the burden of proof to the defendants.
         Nor were they made with the intent to prejudice the jury
         or engender hostility or bias towards the defendants.
         Furthermore, in light of the court’s timely instructions to
         the jury, [Appellant] cannot claim that he was prejudiced
         by the [prosecutor’s] remarks.

Trial Court’s Opinion, 3/10/14, at 14.

      Our review of the record and pertinent case law supports the trial

court’s conclusion that the objectionable statements made by the prosecutor

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were not intentional, and that the trial court’s clear instructions to the jury

cured any prejudice and ensured Appellant a fair trial. See, e.g., Koehler,

737 A.2d at 241 (explaining that a prosecutor’s remark that he did not

believe the defendant and calling him a liar was proper when comments

were made in response to defense counsel’s closing regarding the credibility

of   witnesses       and   was    supported       by   the     evidence);    see     also

Commonwealth v. O’Hannon, 732 A.2d 1193, 1196 (Pa. 1999) (citation

omitted) (explaining, “[a]bsent evidence to the contrary, the jury is

presumed to have followed the trial court’s instructions”).

        In sum, the Commonwealth presented sufficient evidence to support

Appellant’s convictions, the trial court did not erroneously permit the

admission of video and testamentary evidence during trial, and the trial

court    correctly    denied     Appellant’s   motion    for     mistrial   during    the

Commonwealth’s closing           argument.        We   therefore    affirm Appellant’s

judgment of sentence.

        Judgment of sentence affirmed.

        Judge Strassburger joins the memorandum.

        Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2014




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