J-S12014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                      :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                         :        PENNSYLVANIA
                                      :
                                      :
              v.                      :
                                      :
                                      :
 LARRY WOODSON                        :
                                      :   No. 672 MDA 2017
                   Appellant          :

               Appeal from the PCRA Order March 29, 2017
   In the Court of Common Pleas of Luzerne County Criminal Division at
                     No(s): CP-40-CR-0002033-2007


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                        FILED APRIL 23, 2018

     Larry Woodson appeals, pro se, from the order, entered in the Court of

Common Pleas of Luzerne County, dismissing as untimely his third petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§

9541-9546. Upon review, we affirm based upon the opinion authored by the

Honorable Tina Polachek Gartley.

     On October 10, 2009, a jury found Woodson guilty of multiple drug

charges stemming from an investigation into drug trafficking in Luzerne

County. Woodson was sentenced on November 19, 2009, to an aggregate

term of 210 to 420 months’ incarceration. This Court affirmed his judgment

of sentence on August 25, 2010 and he did not seek allowance of appeal to

the Supreme Court. Thus, Woodson’s judgment of sentence became final on

September 24, 2010.
J-S12014-18



       Woodson subsequently filed two PCRA petitions, both of which were

denied by the PCRA court, whose orders were affirmed by this Court. Woodson

filed the instant petition, his third, on March 8, 2016. Following a Grazier

hearing, Woodson was allowed to proceed pro se, and standby counsel was

appointed. Following a hearing, the PCRA court denied relief by order dated

March 29, 2017.       This timely appeal follows, in which Woodson raises the

following issues for our review, verbatim:1

       1. Whether the United States Supreme Court’s decision in
       Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which
       [Woodson] contends is a new rule of [c]onstitutional law that
       require[s] the retroactive application of Alleyne v. United
       States, [570 U.S. 99] (2013), [] which is an extension of the
       United States Supreme Court’s decision in Apprendi v. New
       Jersey, [530 U.S. 466 (2000)].

       2. Whether the PCRA [c]ourt erred in denying [Woodson’s] [p]ost
       [c]onviction [r]elief petition as “untimely” filed where [Woodson]
       established that his after-discovered evidence claim was within
       the plain language of the timeliness exception set forth in 42
       Pa.C.S.A. 9545(b)(1)(ii) and [s]ection 9545(b)(2) in accordance
       with Commonwealth v. Lark, [] 746 A.2d 585 (Pa. 1999), where
       under [s]ection [] 9545(b)(2), a petitioner has (60) days to file a
       petition from the date the claim could have been presented.

Brief of Appellant, at 3 (some brackets and italicization omitted).

       We begin by noting our well-settled standard of review:

       On appeal from the denial of PCRA relief, our standard and scope
       of review is limited to determining whether the PCRA court’s
       findings are supported by the record and without legal error. Our
       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
____________________________________________


1 By order dated March 13, 2018, this Court granted Woodson’s application
to strike the Commonwealth’s brief as untimely, pursuant to Pa.R.A.P. 2188.

                                           -2-
J-S12014-18


        prevailing party at the PCRA court level. The PCRA court’s
        credibility determinations, when supported by the record, are
        binding on this Court. However, this Court applies a de novo
        standard of review to the PCRA court’s legal conclusions.

        Additionally, courts will not entertain a second or subsequent
        request for PCRA relief unless the petitioner makes a strong prima
        facie showing that a miscarriage of justice may have occurred.
        Appellant makes a prima facie showing of entitlement to relief only
        if he demonstrates either that the proceedings which resulted in
        his conviction were so unfair that a miscarriage of justice occurred
        which no civilized society could tolerate, or that he was innocent
        of the crimes for which he was charged.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014)

(citations, quotation marks, and brackets omitted).

        Here, the PCRA court concluded that Woodson’s petition was untimely

and, thus, it lacked jurisdiction to consider its merits. The timeliness of a

post-conviction petition is jurisdictional. Commonwealth v. Lewis, 63 A.3d

1274, 1280–81 (Pa. Super. 2013), quoting Commonwealth v. Chester, 895

A.2d 520, 522 (Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court

nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction,

we simply do not have the legal authority to address the substantive claims.”).

Generally, a PCRA petition, including a second or subsequent petition, must

be filed within one year of the date the judgment of sentence is final unless

the petition alleges, and the petitioner proves, that an exception to the time

for filing the petition2 is met, and that the claim was raised within 60 days of

____________________________________________


2   The statutory exceptions to the time bar are as follows:




                                           -3-
J-S12014-18



the date on which it became available. 42 Pa.C.S.A. § 9545(b) and (c). Here,

Woodson’s judgment of sentence became final on or about September 24,

2010, when the time for filing a petition for allowance of appeal to our

Supreme Court expired.         See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113.

Thus, his March 2016 petition, filed almost 5½ years after his judgment of

sentence became final, was patently untimely.         Unless Woodson pled and

proved one of the timeliness exceptions under 42 Pa.C.S.A. § 9545(b)(1), the

PCRA court was without jurisdiction to consider the merits of the petition.

       In an attempt to overcome the time bar, Woodson invokes both the

newly-discovered facts and newly-recognized constitutional right exceptions

to the PCRA time bar. First, Woodson asserts that the U.S. Supreme Court’s

decision in Alleyne, in which the Court held that any fact that increases the

penalty for a crime must be treated as an element of the offense and found

____________________________________________


       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this Commonwealth
       or the Constitution or laws of the United States;

       (ii) the facts upon which the claim is predicated were unknown to
       the petitioner and could not have been ascertained by the exercise
       of due diligence; or

       (iii) the right asserted is a constitutional right that was recognized
       by the Supreme Court of the United States or the Supreme Court
       of Pennsylvania after the time period provided in this section and
       has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).



                                           -4-
J-S12014-18



beyond a reasonable doubt by a jury, is a new rule of constitutional law made

retroactively applicable to his case by virtue of the Court’s ruling in

Montgomery.      Accordingly, Woodson argues his petition is subject to the

exception to the time bar set forth in section 9545(b)(1)(iii).        Second,

Woodson asserts that his alleged discovery in September 2016 of a

photograph showing a scar on his face, taken in prison in 2006 prior to trial in

this matter, is a newly-discovered fact under, section 9545(b)(1)(ii), which

casts doubt on his identity as the person who sold the drugs to a confidential

informant.

      Upon consideration of Woodson’s brief, the relevant law, and the

certified record in this matter, we conclude that Judge Polachek Gartley’s

opinion thoroughly, comprehensively and correctly disposes of the issues

Woodson raises on appeal.      Specifically, we concur with the trial court’s

conclusions that: (1) pursuant to Commonwealth v. Washington, 142 A.3d

810 (Pa. 2016), Alleyne does not apply retroactively to cases pending on

collateral review; and (2) the photograph taken in 2006 is not newly-

discovered evidence, as Woodson was present when the photograph was

taken and he could have obtained the photograph earlier with the exercise of

due diligence. Moreover, Woodson’s face was present at trial and the jury had

an opportunity to observe his scar.     Accordingly, we affirm based on the

opinion of the PCRA court. The parties are directed to attach a copy of that

opinion in the event of further proceedings in this matter.

      Order affirmed.

                                     -5-
J-S12014-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/18




                          -6-
                                                                                                 Circulated 03/29/2018 01:18 PM




                                                  IN THE COURT OF COMMON PLEAS
                                                        OF LUZERNE COUNTY

          COIVIMOl\lVVEALTH OF PENNSYLVANIA

                                        v.                                       CRIMINAL DIVISION

          LPRRY VVOOlJSON                                                          No. 2033 of 2007

                                                               OPINION

                      Defendant appeals from the denial of his PCRA Petition on March 29, 2017.

          l�i�g_:(UAL AI\ID PROCEDURAL HISTORY:

                      In January 2006, the Bureau of Narcotics Investigation and Drug Control and the

          Luzerne County Drug Task Force conducted a joint investigation into drug trafficking in

          Luzerne County. In August 2006, three (3) separate buys of cocaine were completed

          between two (2) different task force officers and the Defendant, Larry Woodson.

                      Subsequent thereto, on May 7, 2007 a statewide investigating grand jury

          recommended that charges be brought against Defendant. As a result, on July 25, 2007

          the Attorney General's Office issued an Information against Defendant, which included

,         thrt-?·e (3) counts of possession of a controlled substance, three (3) counts of delivery of
             ,· _l.
                        .       .
          . cocaine, c1np three (3) counts of conspiracy to deliver cocaine.
    i :



              .. ;
              •
                      At the conclusion of a three (3) day jury trial before the Honorable Peter Paul
                            '       <



          Olszewski,            .lr., Defendant was found guilty of all the charges on October 10, 2009. He

          was sentenced by Judge Olszewski, Jr., on l\lovember 19, 2009 .as follows:


                                        Count IV-Possession With Intent to Deliver-thirty-five (35) to
                                        seventy (70) months;
'
'




                    Count V-Possession With Intent to Deliver-thirty-five (35) to
                    seventy (70) months consecutive to Count IV;

                    Count VI-Possession With Intent to Deliver-thirty-five (35) to
                    seventy (70) months consecutive to Count V;

                    Count VII- Conspiracy to Commit Possession With Intent to
                    Deliver-thirty-five (35) to seventy (70) months consecutive to
                    Count VI;

                    Count Viti-Conspiracy to Commit Possession With Intent to
                    Deliver-thirty-five (35) to seventy (70) months consecutive to
                    Count Vil;

                    Count IX-Conspiracy to Commit Possession With Intent to
                    Deliver-thirty-five (35) to seventy (70) months consecutive to
                    Count VIII;

                    Count I, Possession of a Controlled Substance-merged with
                    Count IV;

                    Count 11, Possession of a Controlled Substance-merged with
                    CountV;

                    Count Ill, Possession of a Controlled Substance-merqed with
                    Count VI.

              The result was a sentence of four hundred twenty (420} months in a State

    Correctional Institution. The Defendant filed a motion to modify his sentence which was

    denied by the Court A timely appeal was filed. On August 25, 2010, the Superior

    Court aifirmed Defendant's Judgment of Sentence.

              On June 30, 20'10, Defendant filed his first a Motion for Post Conviction Collateral

    Helief.    On December 7, 20'10 and January 23, 20-11, a PCRA hearing was held. On

    June 30, 20·1 ·1, an Opinion and Order was filed denying Defendant's PCRA. On July

    27, 20·1 ·j, a Notice of Appeal was filed to the Superior Court. O� April 11, 2013,

    Defendant filed a Petition for Allowance of Appeal with the Supreme Court of

    Pennsylvania.

                                                                                                 2
       On April 25, 20'13, Defendant filed a second Motion for Post Conviction Collateral

f{elief. On July ·10, 20·13, Defendant's PCCH Petition was-dlsmiased due to

Defendant's pending pro se Petition for Allowance of Appeal with the Supreme Court of

Pennsylvania. On October 9, 20'13, the Supreme Court of Pennsylvania denied

Defendant's Petition for Allowance of Appeal.     On November 4, 2013, the Superior

Court affirmed the decision of the trial court denying Defendant's PCRA.

       On IVlarch 8, 2016, Defendant filed a third Motion for Post Conviction Collateral

F{elief seeldnq relief as to:

               VVhether a "violation of the constitution of this commonwealth
               or the constitution or laws of the United States", pursuant to
               42 Pa. C.S.A. 9543 (a)(2)(i), "the imposition of a sentence
               greater than the lawful maximum", pursuant to 42 Pa. C.S.A.
               9543 (a)(2)(vii), and based on the findings of the United States
               Supreme Court and ruled to be retroactive in Montgomery v.
               Louisiana, 'I 38 S. Ct. 7·1 a (2016).

       On May ·13, 20'16, a Grazier hearing was held and after colloquy Defendant

· stated he wanted to represent himself.   On July 29, 2016, Attorney Watt was appointed

as stand-by counsel for Defendant. On August 2, 20'16, Defendant filed a supplemental.

petition for leave to amend his PCRA. On September 3, 2016, Defendant filed a motion

for funds and private investigator and an amended PCRA Memorandum. On

Septernber ·16, 20·1 s, Defendant flied a comprehensive brief in support of his PCRA.

       On December 8, 20'16, the Commonwealth filed a motion to bifurcate the PCRA

and lirnit the scope of the first PCRA hearing to jurisdiction and the Court granted the

motion.




                                                                                           3.
         After multiple continuances were granted, the PCRA hearing date was set for

February '13, 20·17. On 1Vlarch 29, 20-11, the Court denied Defendant's PCRA without

prejudice based on the Supreme Court of Pennsylvania decision, Commonwealth v.

·vvashington, ·142 A3d s-10, 20-16 WL 3909088 (July 19, 2016). (See July 19, 2014 Trial

Court Order). On April ·10, 2017, Defendant filed a Notice of Appeal to the Superior

Court.

         The Court entered an Order on April 24, 2017 directing befendant to file of

record a Concise Statement of Errors Complained of on Appeal pursuant to Pa. R.A.P.

·i 925(b) cll�d serve a copy of same upon the District Attorney and this Court pursuant to

Pa. R.A. P. ·1925(b )('I). The Order required the Statement to concisely identify each

,:uling or error Appellant intends to challenge with sufficient detail to identify all pertinent

issues for the Court to consider. Further, the Order provided that any issue not properly

included in the Concise Statement and timely filed and served within twenty-one (21)

clays of the date of the Order shall be deemed waived pursuant to Rule 1925(b). On

IVlay 8, 20-17, Defendant filed a Concise Statement of Matters Complained of on Appeal

Pursuant to Rule 'I 925(b). The Commonwealth did not respond to Defendant's Concise

Statement of Matters Complained of on Appeal.


 QUESTIONS AT ISSUE:

         ·J. 'U\/h0fher the United States Supreme Court's decision in
              Jllfrmtgomery v. Louisiana, 136 S. Ct 718 (2016), which
            Appellant contends is a new rule of Constitutional law that
            rnquirn the retroactive application of Alleyne v. United
            Sinies, ·!33.S.Ct 2'15·1 {2013), in which is an extension of
            the United States Supreme Court's decision in Apprendi v.
            Naw Jersey, 120 S. Ct. 2348 (U.S. N.J. 2000)?

         2. "\J\/h�'i:her the PCRA Court erred in denying Appellant's post-
             conviction petition as "untlmoly'' filed where Appellant

                                                                                                   4
          established that his [after-discovered evidence] claim [was]
          within the [plain language of the timeliness exception] set
          forth at 42 PA. C.S.A. (b} (•I) (ii} and Section 9545 (b)(2} in
          accordance with Commonwealth v. Lark, 560 Pa. 487, 7 46
          A.2d 585, (Pa. "1999}, where under Section 42 Pa. C.S.A 9545
          (b)(1}, a petitioner has (60) days to file a petition from the
          dute that the claim could have been presented?

(Defendant's Concise Statement of Errors Complained of.on Appeal Pursuant to PA

RAP. ·1925(b).




          ·1. \J\/hether the United States Supreme Court's decision in
              Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which
              Appellant contends is a new rule of Constitutional law
              that require the retroactive application of Alleyne v.
               United States, ·t 33 S.Ct. 2151 (2013), in which is  an
              extension of the United States Supreme Court's decision
               in Apprendi v. New Jersey, 120 S. Ct. 2348 (U.S. N.J.
              1000)? ·


      . Defendant relies on Montgomery v. Louisiana, 136 S. Ct. 718 (2016) for his

application for retroactive relief in order to attain the timeliness requirement of his PCRA

'Petition. Comm. v. l!Vashington, '142 A.3d 810 (Pa. 2016) applied Alleyne v. United

Stales, 570 U.S._, ·133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) to Pennsylvania law. The

Pennsylvania Supreme Court ruled in Comm.        v. Washington, 142 A.3d 810 (Pa. 2016)

on the controlling question presented as to whether the Supreme Court of the United

States' decision in Alleyne v. United States, 570 U.S._, 133 S.Ct. 2151, 186 L.Ed.2d

3·14 (20'13), applies retroactively to attacks upon mandatory minimum sentences

advanced on collateral review. The Supreme Court of the United States issued its

Alleyne decision, overruling its prior precedent. Alleyne held that any fact that, by law,

 increases the penaliy for a crime must be treated as an element of the offense,


                                                                                             5
submitted to a jury, rather than a judge, and found beyond a reasonable doubt. See

Alleyne, 570 U.S. at_, 133 S.Ct. at 2163. "The effect was to invalidate a range of

Pennsylvania sentencing statutes predicating mandatory minimum penalties upon non-

elemental fact_s and requiring such facts to be determined by a preponderance of the

 evidence at sentencing. See, e.g., Commonwealth v. Hopkins, 117 A.3d 247, 262

 (20'15) (holding that Section 6317 of the Crimes Code, 18 Pa.C.S. § 6317-which

• predicates a mandatory minimum sentence upon a fact to be determined by a

 preponderance at sentencing-was constitutionally infirm, under Alleyne ). Comm. v.

 lJVashington, ·142 A.3d 8'10, 811 (Pa. 2016). The Supreme Court of Pennsylvania held

 that Alleyne does not apply retroactively to cases pending on 'collateral review, and

 'further that Appellant's judgment of sentence, therefore, is not iileqal on account of

 Alleyne. Comm. v. lJVashington, 142 A.3d 810, 820 (Pa. 2016). Furthermore, the

 Superior Court of Pennsylvania, in Commonwealth       v.   Porter, No. 986 WDA 2015 (non-

 precedentlalj.followed the lJVashington Court and noted:


               [b]ecause Appellant's PCRA petition was untimely and no
               exceptions apply, the PCRA court correctly determined that
               it lacked jurisdiction to address the claims presented and
               grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,
               398 (Pa. Super. 2002) (holding that PCRA court lacks
               jurisdiction to hear untimely petition). Likewise, we lack the
                authority to address the merits of any substantive claims
                raised in the PCRA petition. See Commonwealth v.
                Bennett, 930 A.2d ·1264, 1267 (Pa. 2007) (11[J]urjsdictional
                time limits go to a court's right or competency to adjudicate a
                controversy.").

        Additionally, the Superior Court in Commonwealth v. Ciccone, 152 A.3d 1004

 (Pa.Sup�r2016)heW:

                Appellant's sentence was not illegal when imposed, he was
                sentenced under the statute in justifiable reliance upon

                                                                                             6
                   existing United States Supreme Court precedent that it was
                   constitutional, and the statute is not a nullity. Appellant's
                   sentence can be considered illegal now only if Alleyne is held
                   to apply. retroactively. Our Supreme Court has clearly ruled
                   in IJ\/ashington that such is not the case.

                   Accordingly, the trial court did not commit an error of law or
                   an abuse of discretion in concluding that Alleyne did not
                   render Appellant's sentence illegal. We thus affirm the denial
                   of PCHA relief.
Id. at ·10·10.

          Defendant contends that the United States Supreme court ruling in Montgomery

ti.   Louisiana,   is a new rule of constitutional law that would require the retroactive

application of Alleyne v. United Slates. The application of the law put forth by Defendant

is flawed. The ruling in l!Vashington clearly states that Alleyne does not apply

retroactively to cases pending on collateral review. Therefore, Defendant's contention
                                                                     t

that the ruling in Montgomery is a retroactive application of the law in Alleyne holds no

merit

             . ��- \l\fhether the PCRA Court erred in denying Appellant's
                    post-conviction petltion as "untimely" filed where
                    Appell;,:wri: established that his [after-discovered
                    evidence] claim [was] within the [plain language of the
                   'timeliness exception] set forth at 42 PA. C.S.A. (b) ('I) (ii)
                    and Seiction 9545 (b)(2) in accordance with
                     Commonwealth v. Lnrk, 560 Pa. 4871 746 A.2d 585, (Pa.
                     ·1999), where under Section 42 Pa. C.S.A 9545 (b)(2), a
                     potitloner has (60) days to file a petition from the date
                     that the claim could have been presented?


           Under 42 Pa.C.S.A. § 9545:

             (b) Time for filing petition.-

            ('I) Any petition under this subchapter, including a second or
            subsequent petition, shall be filed within one year of the date the
            judgment becomes final, unless the petition alleges and the petitioner
             proves that:


                                                                                             7
I   I




            (i)   the failure to raise the claim previously was the result of
            interference by government officials with the presentation of the claim
            in violation of the Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were unknown to
            the petitioner and could not have been ascertained by the exercise of
            due diligence; or


            (iii) the right asserted is a constitutional right that was recognized by
            the SupremEfCourt of the United States or the Supreme Court of          ·
            Pennsylvania after the time period provided in this section and has
            been held by that court to apply retroactively.

            (2) Any petition invoking an exception provided in paragraph ( 1)
            sh,:ill be filed within 60 days of the date the claim could have been
            presented.
            Id.

          Defondant contends that his "untimely" filed PCRA falls within the timeliness

    exceptions as set forth in 42 Pa. C.S. A.§ 9545 (b)(1). Defendant further asserts that
                                                                   .
    since he meets the requirement of 42 Pa. Cons. Stat.§ 9545 (b)(1)(ii), he therefore

    meets the requirement of 42 Pa. C.S.A. § 9545 (b)(2). The matter of timeliness

    reqardinq the filing of the PCRA was addressed during the PCRA hearing held on

    February ·13, 20·17 in which Defendant argues that a photograph of him taken in 2006 is

    newly discovered evidence. Defendant stated:

                  ... I've known that I had a scar since 1991. But for what
                  photograph of me, Your Honor, this is an unrelated case.
                  had no idea what SCI Cresson would retain because SCI
                  Cresson has since closed.                    ·

                  I wont to SCI retreat to get these pictures through the
                  department. .. 1 wrote a request to the records department.

                  The first request was September 2, 2016 ...

    (See PCRJ\ Transcript of February ·13, 2017, p. 20).


                                                                                              8
             Defendant argues that the newly discovered photo is indisputable new evidence

-discovered us of September 2, 20'16. (M.T., pp. 20-21 ). defendant further argues that

 "the due diligence at "trial was a reasonable effect, according to Commonwealth versus

 l!Volfe and Commonwealth versus Selinski. It requires a reasonable effort. Your honor,

 I fried everything I knew possible." (/cl. at p. 2'1).

             The Commonwealth responded at the hearing that although the discovery of the

 picture is untimely, ii is not important because Defendant's face was present at the trial

 and-the jury had the opportunity to see Defendant's scar. The Commonwealth indicated

 that the Defendant had the opportunity to show his scar to the jury, thus, the picture is

 not newly discovered evidence. (le/. at p, 28). Furthermore, as noted above, this is

  Defendant filed multiple PCRA petitions and failed to address this issue in subsequent

� filings.

             The court addressed both the timeliness and the due diligence aspects of the law

  at the hearing in this matter as follows:

                       \/\!here I'm somewhat struggling is that this issue of his face
                       and the scar is not something that was newly discovered.
                       This was the photo of him that was taken of him while he
                       was conscious and awake going into a State Correctional
                        Institution (SCI). This picture existed, always existed, and he
                       was able to get it at this juncture, just as any other lawyer or
                       person would be able to get it for the purposes of the trial.

 'Id. 3[ p. L!. ·1.-2 ..

             Based on the foregoing reasons, Defendant did not perform due diligence in

  discovering the photograph which existed since 2006.




                                                                                              9
·' l




       COI\ICLUSIOS�

             After review of the record, trial testimony and transcripts, the Court finds no

       substantive merit to Defendant's PCRA claims. Accordingly, no meritorious issue for

       appeal exists with regard to Defendant's instant appeal.




                                          END OF OPINION




                                                                                           10
