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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
PHILLIP DANIEL ARCHER,                  :         No. 3471 EDA 2015
                                        :
                           Appellant    :


           Appeal from the Judgment of Sentence, October 11, 2013,
             in the Court of Common Pleas of Northampton County
                Criminal Division at No. CP-48-CR-0000485-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 03, 2016

        Phillip Daniel Archer appeals nunc pro tunc from the October 11,

2013 judgment of sentence of five to ten years’ imprisonment imposed after

a jury found him guilty of unlawful possession of a firearm.1   After careful

review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts adduced at trial as

follows:

                  Early in the morning on May 28, 2012,
             [appellant] checked into Room 125 of the Knights
             Inn Hotel. [Appellant] was in the company of a
             female companion, Rashida McClain [(“McClain”)].
             [Appellant] and [McClain] requested to change their
             room approximately forty-five minutes later,
             apparently complaining that bugs were located in

* Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6105.
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          Room 125. The hotel staff provided [appellant] with
          a new room, numbered 268.

                 After [appellant] and [McClain] vacated
          Room 125,     Virginia   Sarver,    the    executive
          housekeeper at the Knights Inn Hotel, was alerted to
          the presence of a gun under the pillow in Room 125
          by one of her employees who had been cleaning the
          recently-vacated room. Upon inspection, Ms. Sarver
          observed a gun under the pillow of the bed in
          Room 125.     Ms. Sarver informed the front desk
          manger to immediately “lock the room out.”
          Ms. Sarver locked Room 125 out and did not go back
          into it.

          ....

                 On May 28, 2013, Raja Mehta was working as
          the front desk manager at the Knights Inn Hotel.
          Her shift was 9:00 pm – 4:00 am. During her shift,
          a male guest informed Ms. Mehta that he had left
          something in Room 125. Ms. Mehta recalled that a
          female may have been standing behind the male.
          Ms. Mehta gave the male guest access to Room 125
          to search for his items, pursuant to the Knights Inn
          Hotel’s policy. Nearly simultaneously, Ms. Mehta was
          notified of the presence of a gun in Room 125. Upon
          inspection of the record for the room, Ms. Mehta
          discovered that the name of the guest for Room 125
          was “Archer.” Ms. Mehta then called the general
          manager and the police to report the presence of a
          gun in the hotel room to them, again following
          established protocol.

                 [At approximately 9:30 a.m.,] Trooper Ryan
          Belusko of the Pennsylvania State Police was
          dispatched to the Knights Inn Hotel due to the report
          of a firearm in a hotel room. Trooper Belusko spoke
          with the office manager about the report and
          requested information regarding the person who
          rented the room. He was given a Connecticut ID for
          [appellant].    Trooper Belusko ran the ID and
          discovered that [appellant] was not permitted to
          possess a firearm. Trooper Belusko conducted a


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             search of Room 125, but did not find the firearm.
             Trooper Belusko did not conduct a search of the
             second room, Room 268.             According to his
             testimony, [Trooper Belusko] went to Room 268 [at
             approximately 11 a.m., accompanied by other
             troopers] and knocked and announced [their]
             presence. [McClain] opened the door to Room 268.
             Both [appellant] and [McClain] were removed from
             the room and transported to the State Police
             barracks [(“PSP Bethlehem”)]. . . .

Trial court opinion and order, 11/19/13 at 2-3 (footnote omitted).

        After the troopers entered Room 268, appellant repeatedly denied that

there was a gun in the room. (Trial court opinion, 7/15/13 at 5, citing notes

of testimony, 2/12/13 at 37.)     The troopers did not search Room 268 or

gather any evidence at this time. (Notes of testimony, 5/31/13 at 14-15.)

While the troopers waited for approval of the search warrant, they secured

Room 268 by closing the door and posting a trooper outside. (Id. at 15.)

At approximately 11:30 a.m., appellant was read his Miranda2 rights at PSP

Bethlehem, and declined to make any verbal or written statements to police.

(Id. at 15-16.) Thereafter, at approximately 12:30 p.m., Corporal Jason R.

Troutman, a supervisor in charge of the Pennsylvania State Police forensics

services unit, executed a search warrant for Room 268.       (Id.)   Corporal

Troutman found a silver .40-caliber Ruger P94 pistol submerged in the

retention tank behind the toilet, as well as cash and jewelry.          (Id.)

Appellant was subsequently placed under arrest. While in custody, appellant


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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inquired as to whether McClain would be charged and ultimately made a

statement indicating that McClain “doesn’t know nothing about nothing.”

(Trial court opinion 7/15/13 at 8-9, citing notes of testimony, 2/12/13 at 38,

42.)

       On May 28, 2012, appellant was charged with unlawful possession of a

firearm.3   On May 6, 2013, appellant filed an omnibus pre-trial motion to,

inter alia, suppress the evidence seized from his unlawful detention and the

search of his room, as well as any statements he made to police.         (See

“Omnibus Pre-Trial Motion for Relief,” 5/6/13 at ¶¶ 6-10.)        Following a

hearing, the trial court filed a comprehensive opinion and order denying

appellant’s suppression motion on July 15, 2013.        Thereafter, appellant

proceeded to a jury trial and was found guilty of unlawful possession of a

firearm on September 10, 2013. As noted, appellant was sentenced to five

to ten years’ imprisonment on October 11, 2013.       On October 23, 2013,

appellant filed untimely post-sentence motions. See Pa.R.Crim.P. 720(A)(1)

(stating, “[e]xcept as provided in paragraphs (C) and (D), a written

post-sentence motion shall be filed no later than 10 days after imposition of

sentence.”).   The trial court denied appellant’s post-sentence motions on

November 19, 2013.       On November 26, 2013, appellant filed notice of



3
  Appellant was also charged at docket No. CP-48-CR-0000486-2013 with
robbery and related offenses for an incident that took place earlier that same
day. That matter went to trial in August 2013, and appellant was found not
guilty of all charges.


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appeal that was ultimately dismissed by this court for failure to file a brief.

(See per curiam order, 10/10/14.)

        On October 7, 2015, appellant filed a timely petition pursuant to the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, requesting that his

direct appeal rights be reinstated.     On October 23, 2015, the trial court

granted appellant’s petition and reinstated appellant’s direct appeal rights

nunc pro tunc. This timely appeal followed on November 10, 2015.4

        On appeal, appellant raises the following issue for our review:

              Did the [trial] court er[r] in failing to sup[p]ress
              statements made by [appellant] as well as physical
              evidence and observations obtained from a
              warrantless entry into a hotel room in which he was
              staying as well as the later entry into the same room
              pursuant to a search warrant?

Appellant’s brief at 5.

        Our standard of review when addressing a challenge to a trial court’s

denial of a suppression motion is well settled.

              [An appellate court’s] standard of review in
              addressing a challenge to the denial of a suppression
              motion is limited to determining whether the
              suppression court’s factual findings are supported by
              the record and whether the legal conclusions drawn
              from those facts are correct.           Because the
              Commonwealth prevailed before the suppression
              court, we may consider only the evidence of the
              Commonwealth and so much of the evidence for the
              defense as remains uncontradicted when read in the
              context of the record as a whole.          Where the
              suppression court’s factual findings are supported by
              the record, [the appellate court is] bound by [those]

4
    Appellant and the trial court complied with Pa.R.A.P. 1925.


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                findings and may reverse only if the court’s legal
                conclusions are erroneous.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015), appeal

denied, 135 A.3d 584 (Pa. 2016) (citation omitted; brackets in original).

        Appellant raises multiple sub-issues in support of his claim that the

trial court erred in denying his suppression motion. (See appellant’s brief at

5-6.)    For the ease of our discussion, we elect to address some of these

issues concurrently.

        Appellant’s first two claims challenge his initial encounter with police

and whether the troopers’ warrantless entry into his hotel room was illegal.

(See id. at 16-29.)

        “Both the Fourth Amendment of the United States Constitution and

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.”                Commonwealth v.

Bostick, 958 A.2d 543, 550 (Pa.Super. 2008), appeal denied, 987 A.2d

158     (Pa.    2009)   (citation    and    internal   quotation   marks    omitted).

“[W]arrantless searches and seizures are . . . unreasonable per se, unless

conducted       pursuant   to   a   specifically   established   and   well-delineated

exception to the warrant requirement.” Id. at 556. One exception to the

warrant requirement is when probable cause and exigent circumstances are

present.       “Absent probable cause and exigent circumstances, warrantless

searches and seizures in a private home violate both the Fourth Amendment

[of the United States Constitution] and Article 1[,] § 8 of the Pennsylvania


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Constitution.”   Commonwealth v. Bowmaster, 101 A.3d 789, 792

(Pa.Super. 2014) (citation omitted).    These constitutional protections have

been extended to include a person’s hotel room. See Commonwealth v.

Dean, 940 A.2d 514, 521 (Pa.Super. 2008) (stating, “[w]arrantless searches

and seizures inside a . . . hotel room are presumptively unreasonable unless

the occupant consents or probable cause and exigent circumstances exist to

justify intrusion.”) (citations and parentheses omitted).

      Herein, appellant first argues that the troopers lacked probable cause

to enter his hotel room on the day in question.      (Appellant’s brief at 16.)

“Probable cause exists where the facts and circumstances within the officer’s

knowledge are sufficient to warrant a prudent individual in believing that an

offense was committed and that the defendant has committed it.”

Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa.Super. 2011), appeal

denied, 34 A.3d 82 (Pa. 2011) (citation omitted).

      Instantly, our review of the record reveals that the troopers had

probable cause to believe that appellant had committed a crime at the time

they entered his hotel room.      The record reveals that at approximately

9:30 a.m., Trooper Belusko was dispatched to the Knights Inn Hotel to

investigate a report that a firearm had been discovered in one of the rooms.

(Notes of testimony, 5/31/13 at 7-8.)           Upon arriving at the hotel,

Trooper Belusko spoke to the front desk manager and the member of the

cleaning staff, both of whom had observed the firearm under a pillow in



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Room 125. (Id. at 8-9, 19-21.) Trooper Belusko checked Room 125 with

cleaning staff personnel but did not find the firearm.          (Id. at 10.)

Trooper Belusko was aware that appellant had checked into Room 125

earlier that morning, but had recently switched to Room 268.        (Id. at 8,

10-11.) Trooper Belusko was also aware that appellant had two prior felony

convictions that disqualified him from lawfully possessing a firearm and had

re-entered Room 125 prior to the trooper’s arrival to retrieve something he

had forgotten. (Id. at 9-11.)

      Appellant also contends that there were no exigent circumstances in

this case sufficient to justify the troopers’ warrantless entry in appellant’s

hotel room. (Appellant’s brief at 21.) We disagree.

      Exigent circumstances arise only where “the need for prompt police

action is imperative, either because the evidence sought to be preserved is

likely to be destroyed or secreted from investigation, or because the officer

must protect himself from danger . . . .” Commonwealth v. Lee, 972 A.2d

1, 5 (Pa.Super. 2009) (citation omitted).

            [V]arious factors need to be taken into account to
            assess the presence of exigent circumstances; for
            example: 1) the gravity of the offense; (2) whether
            the suspect is reasonably believed to be armed;
            (3) whether there is a clear showing of probable
            cause; (4) whether there is a strong reason to
            believe that the suspect is within the premises being
            entered; (5) whether there is a likelihood that the
            suspect will escape if not swiftly apprehended;
            (6) whether the entry is peaceable; (7) the timing of
            the entry; (8) whether there is hot pursuit of a
            fleeing felon; (9) whether there is a likelihood that


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               evidence will be destroyed if police take the time to
               obtain a warrant; and (10) whether there is a danger
               to police or other persons inside or outside of the
               dwelling to require immediate and swift action.

Dean, 940 A.2d at 522 (citation omitted).

      Contrary to appellant’s contention, our examination of the Dean

factors reveals that there were exigent circumstances in this case sufficient

to justify the troopers’ warrantless entry in appellant’s hotel room.        The

gravity of the offense in this matter is high; unlawful possession of a firearm

is graded as a second-degree felony.         See 18 Pa.C.S.A. § 6105(a.1).    As

discussed, Trooper Belusko clearly had probable cause to believe appellant

was in unlawful possession of the firearm that was observed by hotel staff

earlier that morning. The record further reveals that Trooper Belusko was

informed by hotel staff that appellant was in Room 268.                (Notes of

testimony, 5/31/13 at 11.)      Trooper Belusko also testified that one of the

reasons he elected to enter Room 268 rather than wait for the search

warrant was that “the search warrant does take some time and in that time

[appellant] could have left . . . the motel room, possibly with a firearm.”

(Id. at 13).

      Additionally, the record reflects that the troopers’ entry into Room 268

was relatively peaceable. Prior to obtaining a search warrant for Room 268,

Trooper Belusko received verbal confirmation to detain appellant and secure

Room 268. (Id. at 11-12, 27.) At approximately 11 a.m., Trooper Belusko,




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Trooper Alamo,5 and Corporal Peter Candianis (“Corporal Candianis”)

knocked on the door of Room 268, announced who they were, and stated

that they wished to speak to appellant. (Id. at 12-14.) Although Corporal

Candianis removed McClain from the doorway and Troopers Belusko and

Alamo entered the room behind a ballistics shield, appellant was found

standing naked at the foot of the bed. (Id.) There was no indication of any

violence, undue force, or threats.     Furthermore, the troopers’ entry into

Room 268 did not occur at night, but rather mid-morning, at approximately

11 a.m.      See cf. Commonwealth v. Berkheimer, 57 A.3d 171, 179

(Pa.Super. 2012) (stating that, “the fact that an entry is made at night

raises particular concern over its reasonableness[.]”) (citation omitted).

        The troopers in this matter were not in hot pursuit of a fleeing felon

and had no reason to believe appellant was attempting to destroy the

firearm. However, the record reveals that the troopers’ entry into Room 268

was conducted, in part, based upon their belief that appellant posed a

danger to both the troopers and the other hotel guests.       Trooper Belusko

testified that after he was unable to locate the firearm in Room 125, he

made the decision to obtain a search warrant for Room 268 because the

hotel’s “rooms were rented out by multiple people[,]” appellant had two

prior felony convictions, and “[t]he public was at risk, officer safety [was] at

risk[.]” (Notes of testimony, 5/31/13 at 12-13.)


5
    Trooper Alamo’s first name is not apparent from the record.


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      Based on the foregoing, we conclude that appellant’s claim that the

trial court should have granted his suppression motion because there was no

probable cause nor exigent circumstances to justify the troopers’ entry into

his hotel room must fail.

      Appellant next argues that the trial court erred in denying his motion

to suppress various statements he made to the troopers.             Appellant

contends that, even if exigent circumstances existed for the troopers to

enter his hotel room, his statement that there was no firearm in the room

should have been suppressed because he was not advised of his Miranda

rights prior to making this statement. (Appellant’s brief at 30, citing notes

of testimony, 2/12/13 at 37.) Appellant further avers that the statement he

made to the troopers at PSP Bethlehem indicating that McClain “doesn’t

know nothing about nothing” should have been suppressed because it

stemmed from his illegal arrest and was made after he indicated that he did

not want to speak with the troopers. (Appellant’s brief at 45, citing notes of

testimony, 2/12/13 at 42.) These claims are meritless.

            It is a fundamental precept enshrined in the United
            States Constitution that a suspect subject to a
            custodial interrogation by police must be warned that
            he has the right to remain silent, that anything he
            says may be used against him in court, and that he
            is entitled to the presence of an attorney.

Commonwealth v. Cruz, 71 A.3d 998, 1003 (Pa.Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (citation omitted). A custodial interrogation

occurs when there is a “questioning initiated by the police after a person has


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been taken into custody or otherwise deprived of his or her freedom of

action in any significant way.” Commonwealth v. Clinton, 905 A.2d 1026,

1032 (Pa.Super. 2006), appeal denied, 934 A.2d 71 (Pa. 2007) (citations

and emphasis omitted).        In determining whether police conduct is the

functional equivalent of interrogation, our supreme court has noted that,

             the court must focus on a suspect’s perceptions and
             give relevance to the officer’s constructive
             knowledge. Such considerations were required by
             the [Supreme Court’s] direction [in Rhode Island v.
             Innis, 446 U.S. 291, 301 (1980)] that the inquiry
             must look at the suspect’s perceptions rather than
             the intent of the police. Moreover, a practice that
             the police should know is reasonably likely to evoke
             an incriminating response from a suspect . . .
             amounts to an interrogation.

Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006), cert. denied, 552

U.S. 939 (2007) (internal quotation marks omitted).          In conducting this

inquiry, we are mindful of the fact that “not every statement made by an

individual   during   a   police   encounter   constitutes   an   interrogation.”

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa.Super. 2013), appeal

denied, 80 A.3d 776 (Pa. 2013) (citation omitted).

      In the instant matter, we agree with the trial court that appellant was

not entitled to receive Miranda warnings prior to his statement regarding

the firearm, as he was not subject to interrogation at the time this

statement was made. (See trial court opinion, 7/15/13 at 5.) Rather, the

record reveals that appellant’s repeated denial that there was a firearm in

his room was made voluntarily and not in response to any questioning or


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interrogation by police. This court has long recognized that “[v]olunteered

or spontaneous utterances by an individual are admissible even without

Miranda warnings.”         Commonwealth v. Williams, 941 A.2d 14, 30

(Pa.Super. 2008) (citation omitted).

        Likewise, appellant’s contention with regard to the statement he made

about     McClain   is   also   without   merit.   The   trial   court   credited

“Trooper Belusko’s testimony that he witnessed Corporal Candianis provide

[appellant] with Miranda warnings before [appellant] made the statement

about McClain.”      (Trial court opinion, 7/15/13 at 9; see also notes of

testimony, 5/31/13 at 15-16.)        “It is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight

to be given their testimony[,]” and we will not disturb the court’s credibility

determinations on appeal. Commonwealth v. Dutrieville, 932 A.2d 240,

242 (Pa.Super. 2007) (citation omitted). Accordingly, appellant’s motion to

suppress these statements was properly denied by the trial court.

        Appellant’s remaining claims concern the validity of the affidavit of

probable cause upon which the search warrant issued for Room 268 was

based. Appellant contends that the affidavit of probable cause did not set

forth sufficient information within its four corners to provide the magistrate

with a substantial basis for concluding that probable cause existed to issue

said warrant. (Appellant’s brief at 34-35, 40-45.)




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     Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution mandate that search warrants

must be supported by probable cause. See Commonwealth v. Johnson,

42 A.3d 1017, 1031-1032 (Pa. 2012), cert. denied, 133 S.Ct. 1795 (2013).

           [T]he question of whether probable cause exists for
           the issuance of a search warrant must be answered
           according to the totality of the circumstances test
           articulated in Commonwealth v. Gray, [503 A.2d
           921 (Pa. 1985)], and its Pennsylvania progeny,
           which incorporates the reasoning of the United
           States Supreme Court in Illinois v. Gates, 462 U.S.
           213, 103 S.Ct. 2317 (1983).          The task of the
           magistrate acting as the issuing authority is to make
           a practical, common sense assessment of whether,
           given all the circumstances set forth in the affidavit,
           a fair probability exists that contraband or evidence
           of a crime will be found in a particular place. A
           search warrant is defective if the issuing authority
           has not been supplied with the necessary
           information.     The chronology established by the
           affidavit of probable cause must be evaluated
           according to a common sense determination.

Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa.Super. 2013), appeal

denied, 78 A.3d 1089 (Pa. 2013) (some citations and internal quotation

marks omitted; citation formatting corrected).

     Upon review, we conclude that the affidavit provided a substantial

basis to support the issuing authority’s finding of probable cause to search

the hotel room in question.    The affidavit of probable cause detailed the

discovery of a firearm in Room 125 by hotel staff, the fact that Room 125

had been previously occupied by appellant, and that appellant had moved to

Room 268. (Affidavit of probable cause, ¶¶ 2-4; certified record at 6.) The


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affidavit further indicated appellant had returned to Room 125 prior to

Trooper Belusko’s arrival to retrieve something he had forgotten, and less

than ten minutes after appellant re-entered Room 125, cleaning staff

returned to the room and the firearm was no longer there. (Id. at ¶¶ 5-6.)

Additionally,   the    affidavit   indicated       that    Trooper   Belusko    obtained

information that appellant had multiple felony convictions that prohibited

him from possessing a firearm. (Id. at ¶¶ 7-8.) Based on the totality of the

circumstances, we find that the affidavit in question provided probable cause

to search Room 268.

      Appellant further contends that the affidavit of probable cause relied

on   evidence   that    was   illegally   obtained        during   the   trooper’s   initial

warrantless entry into his hotel room to detain him. (Appellant’s brief at 36-

39.) The record belies this claim. As explained, the trooper’s initial entry

into appellant’s hotel room was lawful, as there were exigent circumstances

in this case sufficient to justify a warrantless entry. Moreover, as the trial

court properly recognized, the troopers did not even gather any evidence or

even search Room 268 when they entered the room to detain appellant.

(Trial court opinion, 7/15/13 at 5, 13-14; see also notes of testimony,

5/31/13 at 14-15.) Accordingly, this claim must fail.

      Lastly, appellant argues that the trial court erred in concluding that the

independent source doctrine is applicable to the instant matter. (Appellant’s

brief at 48.) Our review of the record indicates that appellant did not raise



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this specific issue in his Rule 1925(b) statement. Accordingly, we deem this

issue waived. See Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in [an

appellant’s    1925(b)]   Statement     ...    are    waived”);      see   also

Commonwealth v. Dozier, 99 A.3d 106, 110 (Pa.Super. 2014), appeal

denied, 104 A.3d 523 (Pa. 2014) (deeming appellant’s issues waived for

failure to present them in his Rule 1925(b) statement).

      Accordingly, for all the foregoing reasons, we discern no error on the

part of the trial court in denying appellant’s suppression motion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/3/2016




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