J   -A15043-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA

                 v.


    STERLING RAY ROBINSON

                         Appellant             :   No. 2487 EDA 2018

               Appeal from the PCRA Order Entered July 24, 2018
      In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0003450-2011


BEFORE:       BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                                 FILED AUGUST 06, 2019

        Appellant, Sterling Ray Robinson, pro se, appeals from the order entered

July 24, 2018, denying his first petition filed under the Post Conviction Relief

Act (PCRA).1 We affirm.

        On March 14, 2012, Appellant was convicted following a           jury trial of
robbery, possessing an instrument of crime (PIC), and providing false

identification to law enforcement authorities2 relating to an incident in which

Appellant robbed the 84 -year old owner of         a   beer distributorship in Darby,

Pennsylvania. This Court previously summarized the facts as set forth at trial

as follows:




1   42 Pa.C.S. §§ 9541-9546.
2   18 Pa.C.S. §§     3701(a)(1)(ii), 907(a), and 4914(a), respectively.



      Retired Senior Judge assigned to the Superior Court.
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        [O]n April 11, 2011, at approximately 2:00 p.m., [Yolanda]
        Acquarola was working alone at the beer distributorship that she
        owned and operated when Appellant entered the store. N.T. Trial,
        3/13/12, at 10. Appellant asked her where he could find a certain
        brand of beer, and she directed him to the back of the store. Id.
        After retrieving his beer, Appellant returned to the front of the
        store where Mrs. Acquarola was waiting. Id. at 20. As he put the
        case of beer down, he stated, "give me all your money." Id. at
        21. Mrs. Acquarola testified that "the next thing [she knew],"
        Appellant placed a "black metal thing on [her] head." Id. While
        she did not see what the object was because Appellant moved
        very quickly, "the thought went through [her] mind" that it was a
        gun. Id. at 21-22. Mrs. Acquarola testified that she "was
        petrified" and thought that the object pressed to her head "was
        going to explode." Id. at [22,] 37. While the object was still
        against her head, she handed Appellant two wads of money that
        she had in her pockets. Id. at 22, 25. Appellant then stated,
        "give me the rest of it," to which Mrs. Acquarola replied that she
        did not have any more. Id. Mrs. Acquarola was then able to
        maneuver away from Appellant and ran out the back of the store
        screaming for help, while Appellant fled out the front door. Id. at
        22

        Appellant was apprehended a short time after the robbery and
        approximately [seven] blocks away from the beer distributorship.
        Id. at 30. Mrs. Acquarola was taken to the location where
        Appellant was detained and identified him as the perpetrator of
        the robbery. Id. Appellant was found to be in possession of two
        wads of money, which Mrs. Acquarola identified as that which she
        had handed to Appellant during the commission of the crime. Id.
        at 33. Additionally, during a pat down of Appellant's person, police
        officers discovered [] a black canister of mace in his pocket. Id.
        at 129.
Commonwealth          v.   Robinson,    No.    1878   EDA    2012,   unpublished

memorandum at 3-4 (Pa. Super. filed August 26, 2013). On June 6, 2012,




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the trial court imposed an aggregate sentence of 10 to 20 years of

imprisonment followed by         6   years of probation.3

        Appellant filed   a   timely notice of appeal of the judgment of sentence;    in

his appeal, Appellant challenged the sufficiency of the evidence to support his

robbery conviction. On August 26, 2013, this Court issued            a   memorandum

decision affirming the judgment of sentence.            Id. at 5-6. Appellant filed    a

petition for allowance of appeal from the order of the Superior Court, which

our Supreme Court denied on February 26, 2014.                   Commonwealth v.
Robinson, 83 A.3d 1073 (Pa. 2014) (table).
        On February 24, 2015, Appellant filed, pro se, the instant         timely   PCRA

petition, in which he raised nine claims of ineffective assistance of counsel.

On March 2, 2015, the PCRA court ordered               that counsel be appointed to
represent Appellant and directed counsel to file an amended petition on

Appellant's behalf.

        On October 31, 2017, Appellant's            PCRA counsel filed a    petition to

withdraw as counsel and          a   "no merit" letter pursuant to Commonwealth v.

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


3 Appellant was sentenced to 10 to 20 years of imprisonment on the robbery
charge, 5 years of probation on the PIC charge consecutive to the term of
imprisonment, and an additional 1 -year, consecutive term of probation on the
false identification charge.    Certification of Imposition of Judgment of
Sentence, 6/6/12; N.T., 6/12/12, at 15-16. Appellant received a 10 -year
mandatory minimum sentence pursuant to 42 Pa.C.S. § 9714 as a result of
his second conviction of a crime of violence as defined in that statute.
Certification of Imposition of Judgment of Sentence, 6/6/12; N.T., 6/12/12,
at 15.

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550 A.2d 213 (Pa. Super. 1988) (en banc). Prior to the PCRA court's action

on the petition to withdraw, on December 14, 2017, Appellant filed a pro se

motion to allow him to represent himself through the PCRA proceedings and

for leave to amend his PCRA petition.         The PCRA court then scheduled       a

hearing on the petition to withdraw and Appellant's motion to represent

himself and amend his petition. Following the hearing, on March 1, 2018, the

PCRA    court issued an order dismissing Appellant's motion on the grounds that

counsel's petition to withdraw remained pending and the motion created            a

hybrid representation that nullified the court's ability to rule on the motion.

        On March 20, 2018, the PCRA court filed a notice of    intent to dismiss

the PCRA petition without      a   hearing in 20 days and granted PCRA counsel

leave to withdraw from representation of Appellant.       On July 17, 2018, the

PCRA    court entered an order dismissing the PCRA petition as meritless. This

order contained   a   typographical error, and therefore the PCRA court reissued

a   substantively identical order dismissing the PCRA petition on July 24, 2018.

Appellant filed, pro se,   a   notice of appeal of the order dismissing his PCRA

petition on August 20, 2018.4

        Appellant raises five issues on appeal relating to the PCRA court's

determination that his trial counsel provided effective assistance of counsel.5


4Appellant filed his statement of errors complained of on appeal on November
8, 2018. The trial court filed its opinion on November 20, 2018.
5 Appellant also argues in his brief that his appellate counsel in his direct
appeal provided ineffective assistance of counsel with respect to each of the


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We review the denial of a PCRA petition to determine whether the record

supports the PCRA court's findings and whether its decision         is   free of legal

error. Commonwealth v. Lavar Brown, 196 A.3d 130, 150 (Pa. 2018).

        When supported by the record, the PCRA court's credibility
        determinations are binding on this Court, but we apply a de novo
        standard of review to the PCRA court's legal conclusions. We must
        review the PCRA court's findings and the evidence of record in a
        light most favorable to the Commonwealth as the winner at the
        trial level
Id. (internal citation omitted).
        To be entitled to relief under the PCRA on a claim of ineffective

assistance of counsel, the convicted defendant must prove:

        (1) the underlying legal claim is of arguable merit; (2) counsel's
        action or inaction lacked any objectively reasonable basis
        designed to effectuate his client's interest; and (3) prejudice, to
        the effect that there was a reasonable probability of a different
        outcome if not for counsel's error.
Commonwealth v. Medina, 2019           PA    Super 119, *15 (filed April 17, 2019).

The defendant must satisfy all three prongs of this test to obtain relief under

the PCRA.    Id.
        In his first issue, Appellant argues that his trial counsel was ineffective

for not challenging the prosecutor's assertion that he was not in possession of

a    transcript of Mrs. Acquarola's 911 call to report the robbery.         Appellant



five issues presented herein. Appellant, however, did not raise any ineffective
assistance issues with respect to his appellate counsel in his statement of
errors complained of on appeal, and therefore such arguments are waived.
See Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Proctor, 156 A.3d 261,
267 (Pa. Super. 2017).

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maintains that the Commonwealth was in fact in possession of the transcript

and purposefully withheld it from the defense. Prior to trial, Appellant raised

his concerns regarding the production of the 911 log, and the Commonwealth

represented that it was not in possession of            a   recording of the 911 call, did

not order      a   transcription of the call, and that, approximately 11 months after

the trial, it did not believe that any transcript, recording, or report of the call

existed.       N.T., 3/12/12, at 12-13.       The Commonwealth had no obligation to

produce any evidence that was not within its possession, custody, or control.

See, e.g., Pa.R.Crim.P. 573(B)(1)(a) (providing that the Commonwealth shall

disclose, on demand, all evidence favorable to the accused "within the

possession or control of the attorney for the Commonwealth"). In any event,

Appellant's trial counsel did obtain      a   chronological log of the 911 call, used the

log to cross examine Mrs. Acquarola, and argued                     in closing   that Mrs.

Acquarola's statements during the call undermined her identification of

Appellant.6 N.T., 3/13/12, at 46-49, 51-52, 53-54, 56-58; N.T., 3/14/12, at

23-24, 26-27. Appellant has accordingly not demonstrated prejudice based

on any failure to obtain a transcript of the 911 call from the prosecutor.

           Appellant next argues that his trial counsel was ineffective for failing to

file   a   motion to suppress "to test the Affidavit of Probable cause [to show that

it] held no merit."          Appellant's Brief at 11.       The affidavit describes Mrs.



6  Appellant's counsel attempted to introduce the log into evidence, but the
trial court sustained the objection on the grounds that it had not been
authenticated. N.T., 3/14/12, at 14-15.

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Acquarola's narrative of the robbery, the stop of Appellant by Chief Robert

Smythe of the Darby Borough Police Department, the show -up identification

of Appellant by Mrs. Acquarola, and the recovery from Appellant of the money

taken from Mrs. Acquarola and         a   can of pepper spray.   Criminal Complaint,

4/12/11.    Appellant has not identified any evidence that he seeks to have

suppressed as    a   result of such   a   motion, and therefore he has not shown

prejudice from his trial counsel's decision not to file the motion.       Moreover,

prior to trial, Appellant's counsel stated that he did not believe that there were

any grounds to seek the suppression of the affidavit of probable cause, N.T.,

3/12/12, at 8,   a   statement which the PCRA court credited and concluded

demonstrated that there was       a   reasonable basis to not file the suppression

motion.     PCRA Court Opinion at          13-14.   Finally, we note that none of

Appellant's alleged discrepancies in the affidavit of probable cause withstand

scrutiny.7 Therefore, we agree with the PCRA court that Appellant's second


  Appellant identifies three alleged inconsistencies in the affidavit: (i) that the
flash information in the affidavit indicated that he was 5'6" in height when he
is in fact 5'10" in height, (ii) that the affidavit states that Ms. Acquarola
identified him as a black male when she testified at trial that she did not
identify the race of her assailant in her 911 call, and (iii) that Ms. Acquarola
identified the perpetrator as wearing yellow shorts, while he was in fact
wearing beige shorts. First, as to the issue regarding Appellant's height, the
affidavit states that Ms. Acquarola reported that the perpetrator was 5'10",
not 5'6", in height. Second, Ms. Acquarola did not testify that she definitely
did not identify the perpetrator's race in the 911 call, but instead only that she
was so upset after the robbery that she was not sure what she told the 911
operator.     N.T., 3/13/12, at 29-30, 66.        Finally, while Ms. Acquarola
acknowledged that she appeared to have stated that she identified the
perpetrator as wearing yellow, rather than beige, shorts, Appellant's trial


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issue lacks arguable merit and his trial counsel had         a   reasonable basis for not

filing   a   motion to suppress the affidavit of probable cause.

         In his third issue, Appellant contends that his trial counsel was

ineffective for not filing        a   motion to suppress the show -up identification.

Appellant argues that the identification was inherently suggestive and violated

his due process rights because he was identified while handcuffed and without

counsel present. Appellant's trial counsel explained at the outset of trial that

he did not believe         that there was any basis for suppression and instead he
requested       a   line-up identification, in which Mrs. Acquarola did not successfully

identify Appellant.           N.T., 3/12/12, at 8, 10; N.T., 3/13/12, at 61-64.

Therefore, trial counsel concluded that this issue was one of witness credibility

rather than suppression. N.T., 3/12/12, at 8, 10. The PCRA court credited

this statement and concluded that trial counsel had          a   reasonable basis for not

seeking suppression of the show -up identification. PCRA Court Opinion at 13-

14. We agree with the trial court's conclusion.

         We further conclude that Appellant's third issue lacks arguable merit.

"In reviewing the propriety of identification evidence, the central inquiry            is

whether, under the totality of the circumstances, the identification was

reliable." Commonwealth v. Marcus Brown, 23 A.3d 544, 558 (Pa. Super.

2011) (en banc) (citation omitted).             An out -of -court identification will be

suppressed only "where, after considering all the relevant circumstances, the


counsel vigorously cross-examined Ms. Acquarola on this point and argued
this issue in closing. Id. at 46-50; N.T., 3/14/12, at 19-21, 23, 30, 36.

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facts demonstrate that the identification procedure was so impermissibly

suggestive as to give rise to        a   very substantial likelihood of irreparable

misidentification."      Commonwealth v. Milburn,          191 A.3d 891, 900 (Pa.

Super. 2018) (citation, quotation marks, and emphasis omitted).                 "Our

Supreme Court has held that on -scene identifications are not only consistent

with due process but also enhance the reliability of identifications as they

occur when events are fresh in            a   witness's mind."   Id. at 899 (citing
Commonwealth v. Edward Turner, 314 A.2d 496,498-99                   (Pa. 1974)).

        The show -up identification in this matter took place when Mrs. Acquarola

was driven in    a   police vehicle to the location where Appellant was detained

approximately seven blocks from the beer distributorship; Mrs. Acquarola

remained in the police vehicle and viewed Appellant from              a   distance of

approximately    8 to 10   feet. N.T., 3/13/12, at 102-03,133,142-43,187. The

record is inconclusive regarding whether Appellant was handcuffed at the time

of the show -up identification.     Id. at 33,103,133,142,180. In any event,
this Court has upheld identifications conducted under similar situations where

the suspect was handcuffed. Milburn, 191 A.3d at 900; Marcus Brown, 23

A.3d at 559. Furthermore,        "[i]n Pennsylvania, the right to counsel attaches
at the time of arrest, and exists for identification confrontations occurring after

arrest, except prompt on -the -scene confrontations."            Commonwealth v.
Minnis, 458 A.2d 231, 234         (Pa. Super. 1983).     The trial testimony reflects

that the show -up identification here occurred promptly after Appellant's
apprehension, in     a   location close in proximity to the scene of the crime, and

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that Appellant was not arrested until after he was identified by Mrs. Acquarola.
N.T., 3/13/12, at 102-03, 133, 142-43, 186-87.

          Appellant argues in his fourth issue that his trial counsel was ineffective

for not further questioning prospective juror number 10, who was eventually

seated on the trial jury as juror number 4, after the juror stood to indicate her

affirmative response to the following voir dire question: "[H]ave you, or has

a    member of your family or     a   close friend ever been the victim of or accused

of   a   crime similar to those with which [Appellant] is charged?" N.T., 3/12/12,

at 42. Appellant contends that the lack of follow-up questions to address juror

number 4's response to this question demonstrated                  potential bias or

impartiality    in the   jury weighing   his guilt or innocence.

          This issue is waived because it was not raised in Appellant's pro se PCRA

petition, nor did Appellant amend his PCRA petition to include this issue.8 See


8  Following the filing of PCRA counsel's no -merit letter, Appellant did in fact
file a motion to represent himself through the remainder of the proceeding
and to amend his PCRA petition to include unspecified additional arguments.
The PCRA court denied this motion, concluding that to permit the filing would
constitute hybrid representation as the court had not yet permitted PCRA
counsel to withdraw. This conclusion appears to have been in error as the
rule prohibiting hybrid representation was no longer applicable once PCRA
counsel indicated his intent to withdraw. See Commonwealth v. Ford, 44
A.3d     1190, 1198 n.4 (Pa. Super. 2012) ("When counsel files
a Turner/Finley no -merit letter and counsel has not yet been permitted to
withdraw, the rule against hybrid representation is inapplicable, as the
petitioner can file a pro se response."). However, Appellant had ample
opportunity to renew his filing seeking to amend the PCRA petition from March
20, 2018, the date that the PCRA filed the Pa.R.Crim.P. 907 notice and
permitted PCRA counsel's withdrawal, until July 17, 2018, the date when the
PCRA court entered its order dismissing the PCRA petition. Therefore, even if



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Pa.R.Crim.P. 902(B) ("Each ground relied upon in support of the relief

requested shall be stated in the petition. Failure to state such            a   ground in the

petition shall preclude the defendant from raising that ground in any

proceeding for post -conviction collateral relief."); Commonwealth v. Mason,

130 A.3d 601, 627 (Pa. 2015). Even if this issue were not waived, however,

we would conclude that Appellant has not demonstrated                           a   meritorious

ineffective assistance of counsel claim.

        A criminal defendant's    right to an impartial jury   is   guaranteed by Article

I, Section 9 of the Pennsylvania Constitution, and the jury selection process

is a   crucial preservation of that right.       Commonwealth v. Penn, 132 A.3d
498, 502 (Pa. Super. 2016).         The voir dire examination process serves the

essential function of assessing the qualifications of prospective jurors, and the

inquiry must be directed at ascertaining whether the prospective juror                       is

competent and capable of rendering           a   fair, impartial, and unbiased verdict.

Id. "The     law also recognizes that prospective jurors were not cultivated in

hermetically sealed environments free of all beliefs, conceptions and views.

The question relevant to    a   determination of qualification      is   whether any biases

or prejudices can be put aside upon the proper instruction of the court."                   Id.
(citation omitted). The defendant bears the burden of showing that the jury

was not impartial.     Commonwealth v. Smith, 206 A.3d 551, 562-63                         (Pa.

Super. 2019).


the PCRA Court's initial denial of Appellant's attempt to amend his PCRA
petition was in error, Appellant was not prejudiced by this determination.
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        The PCRA court concluded that, even if Appellant had satisfied the first

two prongs of the ineffective assistance of counsel test, he had not

demonstrated prejudice. PCRA Court Opinion at 14-15. The PCRA court noted

that Appellant's appointed         PCRA counsel stated in his no     merit letter that he

had attempted to locate       juror number       4 but was unable to do so and      that in
the absence of potential testimony from that juror, prejudice could not be

established.     Id. at   15; PCRA Counsel's No Merit Letter, 10/31/17, at 9-10.

        We agree with the PCRA court's conclusion that no prejudice was

demonstrated        and     that     Appellant        therefore   cannot   establish       his

ineffectiveness claim. Medina, 2019          PA       Super 119, *15. In addition to the

PCRA    court's reasoning, we observe that after the trial court asked whether

the prospective jurors or someone close to them had been guilty of              a   similar

crime to the one charged, it then asked the prospective jurors whether they

had been previously involved in a criminal proceeding in any fashion and

whether the nature of the allegations would prevent them from being                    a   fair

and impartial juror.        N.T., 3/12/12, at 44-45. The trial court then asked

whether the jurors could follow the court's instructions that Appellant was

presumed innocent, his arrest was not evidence of guilt, the Commonwealth

bore the burden of proving guilt beyond           a   reasonable doubt, and no inference

should be drawn from an accused's decision not to testify.            Id.at 47-48. Juror
number 4 did not stand in response to any of those questions. Id. at 44-45,

47-48.



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        In his final issue, Appellant argues that his trial counsel was ineffective

for not objecting to the prosecutor's closing argument, in which he made the

following statement:

        So let me ask you this, a man wearing a green shirt or having a
        green shirt, light colored shorts, covered in sweat, seven blocks
        away. Is it reasonable to conclude [Appellant] was sweating for a
        reason[?] That he hauled ass away from [the beer distributorship]
        as fast as he could back to Philadelphia, Pennsylvania.    . I am
                                                                       .       .


        just going to ask you to infer he was getting away from [the beer
        distributorship] as fast as he could.
N.T., 3/14/12, at 48-49.     Appellant contends that this argument was based

on facts not in evidence, namely     that he was running towards Philadelphia,
and in fact was contrary to the testimony of Chief Smythe that Appellant was

not running when Chief Smythe detained him. N.T., 3/13/12, at 85 ("He was

just walking, I mean it was    he wasn't running, he was walking along                 .   .   .").

        Our Supreme Court has explained the legal standards with respect to                           a

claim that   a   prosecutor engaged in misconduct with respect to commentary

made during summation as follows:

        To succeed    on such   a  claim, [a defendant is] required to
        demonstrate that the prosecutor's comments violated a
        constitutionally or statutorily protected right, such as the Fifth
        Amendment privilege against compulsory self-incrimination or the
        Sixth Amendment right to a fair trial, or a constitutional interest
        such as due process. To constitute a due process violation, the
        prosecutorial misconduct must be of sufficient significance to
        result in the denial of the defendant's right to a fair trial. The
        touchstone is the fairness of the trial, not the culpability of the
        prosecutor.
        A prosecutor may make  fair comment on the admitted evidence
        and may provide fair rebuttal to defense arguments.      Any
                                                                   .       .       .




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        challenge to a prosecutor's comment must be evaluated in the
        context in which the comment was made.
        Not every unwise, intemperate, or improper remark made by a
        prosecutor mandates the grant of a new trial. Reversible error
        occurs only when the unavoidable effect of the challenged
        comments would prejudice the jurors and form in their minds a
        fixed bias and hostility toward the defendant such that the jurors
        could not weigh the evidence and render a true verdict.
        While it is improper for a prosecutor to offer any personal opinion
        as to the guilt of the defendant or the credibility of the witnesses,
        it is entirely proper for the prosecutor to summarize the evidence
        presented, to offer reasonable deductions and inferences from the
        evidence, and to argue that the evidence establishes the
        defendant's guilt. .   . The prosecutor must be free to present his
                                   .


        or her arguments with logical force and vigor, and comments
        representing mere oratorical flair are not objectionable.
Commonwealth v. Burno, 94 A.3d 956, 974                      (Pa. 2014) (internal citations,

quotation marks, and brackets omitted).

        The PCRA Court concluded that the prosecutor's comments "were fair

assertions from the facts established" and that Appellant had therefore not

demonstrated arguable merit to his claim.                  PCRA Court Opinion at 13.    We

concur in this conclusion.             The testimony of Chief Smythe was clear that,

though the events at issue occurred on            a    pleasant spring day, Appellant was

"sweating profusely, like he had just gotten out of the shower" when Chief

Smythe detained him, and both of the other two officers who testified at trial

corroborated this observation. N.T., 3/13/12, at 81, 85; see also id. at 93,

121, 132, 136, 141, 181-82, 187. While Chief Smythe testified that Appellant

was walking when Chief Smythe first observed him, id. at 85, Chief Smythe

also stated that he detained Appellant at              a   location approximately eight or



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nine blocks9 from the beer distributorship less than five minutes after the

robbery and that he could not rule out that Appellant was sweating because

he had been previously running.                  Id. at 84, 92-93. In addition, testimony at
trial indicated that Appellant was walking in the direction of his home in

Philadelphia, located              a   short distance across the border with Darby Borough.

Id. at   79, 94, 119-20, 172. The prosecutor's statement that Appellant "hauled

ass away          from" the beer distributorship towards Philadelphia and "he was
getting away         .   .   .   as fast as he could" was therefore a reasonable inference

from the evidence based on the trial testimony that Appellant was sweating

profusely, walking towards Philadelphia where he lived, and had apparently

covered       a   large distance in approximately five minutes. Therefore, Appellant's

allegation of prosecutorial misconduct is without merit, and his trial counsel

cannot be found ineffective for failing to raise               a   meritless claim.   Medina,
2019     PA   Super 119, *15.

         Based on the foregoing, Appellant is not entitled to relief.

         Order affirmed.




9Another officer testified that Chief Smythe detained Appellant approximately
seven blocks away from the beer distributorship. N.T., 3/13/12, at 133. Mrs.
Acquarola stated that Appellant was detained four or five blocks from her
store. Id. at 30.

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Judgment Entered.




Jseph  D. Seletyn,
Prothonotary



Date: 8/6/19




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