J-S68018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTISE JAMES HOLT                         :
                                               :
                       Appellant               :   No. 536 WDA 2019

              Appeal from the PCRA Order Entered March 15, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0013629-2014


BEFORE:      GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                            FILED JANUARY 23, 2020

        Mattise James Holt appeals from the order, entered in the Court of

Common Pleas of Allegheny County, denying his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After review,

we affirm the PCRA order and vacate the SORNA order.

        Holt was convicted on June 17, 2015, of rape and related offenses

stemming from his rape of a minor female victim on two occasions. Holt was

sentenced on September 9, 2015, to an aggregate term of 208 to 416 months’

imprisonment, followed by an aggregate term of 5 years’ probation. The court

also required Holt to register for life as a Tier III sexual offender under the

Sex Offender Registration and Notification Act (“SORNA”).1

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9799.10-9799.41.
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        On September 10, 2015, the trial court granted Holt’s trial counsel, Scott

Westcott, Esquire, leave to withdraw as counsel and appointed in his stead

the Allegheny Office of the Public Defender.        On October 8, 2015, court-

appointed counsel filed a notice of appeal to this Court. On July 29, 2016,

following a hearing, the court ordered that Holt be classified as a sexually

violent predator (“SVP”). Holt filed a notice of appeal of that order on August

25, 2016.      This Court consolidated Holt’s appeals and, by memorandum

decision dated December 8, 2017, affirmed Holt’s judgment of sentence, but

vacated his SVP designation because the trial court failed to make the

necessary     factual   finding   beyond   a   reasonable   doubt   pursuant   to

Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017), appeal

granted, 190 A.3d 581 (Pa. 2018). This Court remanded the case to the trial

court for the sole purpose of issuing the appropriate notice to Holt under

section 9799.23 of SORNA, informing him that he is required to register as a

sex offender for life. The court entered the required order on February 1,

2018.

        On May 22, 2018, Holt filed a pro se PCRA petition. The court appointed

counsel, who filed an amended petition on August 27, 2018, followed by a

second amended petition on November 26, 2018. The PCRA court held an

evidentiary hearing on March 15, 2019, at the conclusion of which the court

denied relief. Holt filed a timely notice of appeal followed by a court-ordered

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). Holt raises the following claims for our review:

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      1. Whether the [PCRA] court erred in dismissing [Holt’s] second
      amended PCRA petition by not finding and ruling that [Holt] did
      not make a knowing, intelligent and voluntary waiver of his right
      to a jury trial due to trial counsel’s misrepresentations?

      2. Whether the [PCRA] court erred in dismissing [Holt’s] second
      amended PCRA petition by not finding and ruling that [Holt’s] trial
      counsel was ineffective due to failing to locate, interview and call
      [Holt’s] mother as a witness?

Brief of Appellant, at 4 (unnecessary punctuation omitted).

      We begin by noting our standard and scope of review of the denial of

PCRA relief:

      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
      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.

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

(citations, quotation marks and brackets omitted).

      Holt’s   claims   both   assert   the    ineffectiveness   of   trial   counsel.

Accordingly, we begin by noting that counsel is presumed effective, and it is

a petitioner’s burden to prove otherwise.        Commonwealth v. Ousley, 21

A.3d 1238, 1244 (Pa. Super. 2011).            In order to prove that counsel was

ineffective, a petitioner must plead and prove each of the following: “(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


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probability of a different outcome if not for counsel’s error.” Commonwealth

v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (citation omitted). A failure

to plead or prove any prong will defeat an ineffectiveness claim. Id. Further,

      [a] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth
      determining process that no reliable adjudication of guilt or
      innocence could have taken place.

Commonwealth v. Ligon, 206 A.3d 515, 519 (Pa. Super. 2019) (citation

omitted).

      Holt first claims that Attorney Westcott was ineffective for causing him

to waive his right to a jury trial when that waiver was not knowing, intelligent

and voluntary. In particular, Holt alleges that counsel “made multiple and

material misrepresentations to [him] concerning his supposedly certain

likelihood of success at a non-jury trial before [the Honorable Jill E. Rangos],

which caused and induced [Holt] to involuntarily deviate from his original

intent to proceed to a jury trial[.]” Brief of Appellant, at 23-24 (emphasis in

original). Holt is entitled to no relief.

      Our Supreme Court has long held that counsel’s advice to waive a jury

trial can be the basis for a successful claim of ineffective assistance of counsel

only when: (1) counsel interferes with his client’s freedom to decide to waive

a jury trial or (2) the petitioner can point to specific advice of counsel so

unreasonable as to vitiate the knowing and intelligent waiver of the right.

Commonwealth v. Boyd, 334 A.2d 610, 617 (Pa. 1975). However, all that


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is required for a valid jury trial waiver is that a defendant is informed “that

the jury be chosen from members of the community (a jury of one’s peers),

that the verdict be unanimous, and that the accused be allowed to participate

in the selection of the jury panel.” Commonwealth v. Mallory, 941 A.2d

686, 696-97 (Pa. 2008) (citations omitted).        When a petitioner seeks to

collaterally attack his waiver of a jury trial on grounds that it was caused by

the ineffective assistance of his trial counsel, he must demonstrate a

reasonable probability that, but for counsel's constitutionally deficient service,

he would not have waived his right to a jury trial. Id. at 704.

      At his PCRA hearing, Holt testified on direct examination that, in the

“bullpen” immediately prior to the commencement of his jury trial, Attorney

Westcott told him that: (1) the assistant district attorney and arresting officer

believed the charges against him to be false; (2) someone had spoken to

Judge Rangos about his case; and (3) his case would be thrown out if he

proceeded to a nonjury trial. See N.T. PCRA Hearing, 3/15/19, at 10-13. He

also stated that he signed a written jury waiver form, but counsel did not

explain it to him and he was unable to read at the time. See id. at 14. Holt

testified that he would not have waived his right to a jury trial in the absence

of Attorney Westcott’s representations. See id. at 15.

      On examination by the PCRA court, Holt testified that he lied during his

oral waiver colloquy when he responded in the affirmative to the following

questions from the court: (1) whether he could read and write the English

language; (2) whether anyone had offered him anything in exchange for

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waiving his right to a jury trial; and (3) whether anyone had forced,

threatened or coerced him into waiving his right to a jury trial. See id. at 18,

25, 26 (“The Court: Okay. So now you’re saying you lied? The Witness: Yes,

ma’am.”).

      Holt’s paramour, Roxanne Alexander, also testified at the PCRA hearing,

stating that Attorney Westcott asked her to tell Holt to request a nonjury trial.

Alexander testified that Attorney Westcott “said that—basically that him and

the judge, they were cool, they were friends, and basically [Holt] didn’t have

nothing to worry about” and that Holt would be found not guilty if he accepted

a nonjury trial before Judge Rangos. Id. at 29.

      Attorney Westcott also testified at the PCRA hearing. Counsel testified

that he had initially listed Holt’s case for a jury trial, because it was his

standard practice to do so in cases where he had not yet had the opportunity

to thoroughly review the case and discovery. See id. at 50. He further stated

that he never asked Holt to waive his right to a jury trial; rather, during a

meeting with Holt at the county jail, Attorney Westcott “went over the analysis

of this case with Mr. Holt, and [he] explained to him the pros and cons of a

jury [trial] vis-à-vis a nonjury [trial].” Id. at 43. Attorney Westcott stated

that it was Holt’s decision to waive his right to a jury trial. See id. at 42.

Attorney Westcott testified that, contrary to Holt’s assertion, the decision to

waive was not made “in the bullpen” on the day of jury selection, but rather

beforehand. Id. at 45. Attorney Westcott had no recollection of ever having

spoken to the arresting officer, and the arresting officer never told him that

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he believed the victim to be untruthful. See id. at 46. Moreover, counsel

testified that he never told Holt that if he opted for a nonjury trial, the court

would acquit him. See id. at 42-43. Nor did Attorney Westcott suggest that

he was friends with the judge. Rather, he testified he told Holt “I think we

have a good professional relationship” but that he couldn’t “guarantee

anything.” Id. at 45. Finally, Attorney Westcott testified that it would have

been his practice to review the waiver form with his client before allowing him

to sign it. See id. at 46.

      The PCRA court noted that Holt and Attorney Westcott “testified to a

considerably different version of events” and credited the latter’s testimony.

PCRA Court Opinion, 6/7/19, at 4. The court concluded:

      [Holt] asserts that he was duped by his trial counsel to choose a
      nonjury trial because of a secret relationship entitling him to
      special dispensation from the [c]ourt.          These scurrilous
      accusations are not only unsubstantiated and untrue, they are
      refuted by trial counsel’s testimony that he made no such
      promises and that no such relationship ever existed. Moreover,
      [Holt] has failed to argue in what manner the outcome of the
      proceedings would have differed had the case proceeded to a jury
      trial.

Id.

      Upon review of the transcript of the PCRA hearing, we can discern no

abuse of discretion on the part of the court in crediting counsel’s testimony

and denying relief.




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      In addition, prior to waiving his right to be tried by a jury, Holt

completed a written waiver form and was thoroughly colloquied by the trial

court as follows:

      THE COURT: Are you able to read, write and understand the
      English language?

      THE DEFENDANT: Yes, ma'am.

                                     ...

      THE COURT: Do you understand that you’re entitled under the
      Constitution of the Commonwealth of Pennsylvania as well as the
      United States Constitution to a trial by jury on these charges?

      THE DEFENDANT: Yes, ma'am.

      THE COURT: Do you understand that if you choose to have a jury
      trial, you, along with Mr. Westcott and Mr. Hong-Barco, would
      participate in the selection of that jury from your peers. That is,
      members of Allegheny County selected by a computer from
      various approved lists?

      THE DEFENDANT: Yes, ma’am.

      THE COURT: Do you understand that you would have the right to
      challenge members of the jury panel? That means that you would
      have the right to keep certain members of the jury panel from
      serving as jurors in your case.

      THE DEFENDANT: Yes, ma’am.

      THE COURT: Specifically, do you understand that you would have
      as many challenges for cause as the Court would approve. A
      challenge for cause is a showing of some good reason why you
      believe that a member of the jury panel could not serve as a fair
      or impartial juror in your case?

      THE DEFENDANT: Yes, ma’am.

      THE COURT: In addition to an unlimited number of strikes for
      cause, you would have seven preemptory challenges.             A
      preemptory challenge is one in which you do not need to give any
      reason for striking a member of the jury panel and keeping them
      from serving as a juror in your case; do you understand that?

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     THE DEFENDANT: Yes, ma’am.

     THE COURT: Do you understand that all jurors so selected would
     have to find and vote for your guilt before you could be
     adjudicated guilty. That is, their verdict would have to be
     unanimous?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Do you understand that in a nonjury trial before a
     judge that the judge sits as the trier of facts. And much like a
     jury trial is bound by the same rules of evidence but it is a judge
     rather than the jury that determines your guilt or innocence from
     the evidence presented?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Do you understand that in a jury trial, as in a nonjury
     trial before a judge, you do enter the courtroom cloaked in the
     presumption of innocence and that presumption remains with you
     at all times until such time that the Commonwealth should
     produce evidence for a judge or a jury to find you guilty beyond a
     reasonable doubt?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Specifically, before a judge or a jury could find you
     guilty, the Commonwealth must prove each and every element of
     the crimes beyond a reasonable doubt and as the defendant you
     bear no burden of proof; do you understand that?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Have you discussed with Mr. Westcott your intention
     to waive your right to a jury trial and proceed nonjury before me,
     understanding that it would be me who would decide your guilt or
     innocence from the evidence presented by the Commonwealth?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Knowing all that and having discussed this with Mr.
     Westcott, it is my understanding that you do wish to voluntarily
     waive your constitutional right to a jury trial and proceed before
     me without a jury; is that correct?

     THE DEFENDANT: Yes, ma’am.



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     THE COURT: Do you understand completely the proceedings here
     today?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Has anybody forced, threatened, or coerced
     you into waiving your right to a jury trial?

     THE DEFENDANT: No, ma’am.

     THE COURT: And you are satisfied with legal advice and services
     Mr. Westcott has provided?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Has anybody promised you anything in
     exchange for waiving your constitutional right to a jury
     trial?

     THE DEFENDANT: No, ma’am.

     THE COURT: I call your attention to the Waiver of Jury Colloquy,
     and this is the document I'm now showing you.

     THE DEFENDANT: Yes, ma’am.

     THE COURT: You did have the opportunity to read this
     document and discuss it with Mr. Westcott?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: You answered all of the questions in here
     honestly?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: And you indicated by adding your signature on the
     last page that you have read the entire document and you
     understand its full meaning; is that true?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Is that your signature on the fourth page?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: In addition to that, you’ve added your signature on
     the first page indicating that you do wish to waive your right to a
     jury and proceed nonjury; is that correct?


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      THE DEFENDANT: Yes, ma’am.

N.T. Waiver Trial, 5/18/15, at 5, 8-13 (emphasis added).

      The trial court’s colloquy was comprehensive and satisfied the

prerequisites for a knowing, intelligent and voluntary waiver. Mallory, supra.

Moreover, Holt’s claim that trial counsel was ineffective for coercing him to

waive his right to a jury trial requires accepting that he lied while under oath.

It is well-settled that a PCRA petitioner “may not obtain post-conviction relief

by claiming that he lied during his waiver colloquy.”         Commonwealth v.

Bishop, 645 A.2d 274, 277 (Pa. Super. 1994); see also Commonwealth v.

Pollard, 832 A.2d 517, 523 (Pa. Super. 2003) (“The longstanding rule of

Pennsylvania law is that a defendant may not challenge his [colloquy] by

asserting that he lied while under oath, even if he avers that counsel induced

the lies.”). As Holt’s allegation of ineffectiveness is predicated on the notion

that he lied during his waiver colloquy, his claim must fail.

      Finally, Holt claims that trial counsel was ineffective for failing to call his

mother, Peggy Holt, as a witness at trial. Holt asserts that: (1) the victim in

this case recanted her allegations to his mother; (2) he advised counsel of the

witness’ existence; (3) the witness would have testified on his behalf; and (4)

the absence of her testimony prejudiced him in that it would have called into

question the veracity of the victim’s testimony. Holt is entitled to no relief.

      Counsel may be deemed ineffective for failing to call a witness where a

petitioner proves that: (1) the witness existed; (2) the witness was available;

(3) counsel was informed of the existence of the witness or should have known


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of the witness’s existence; (4) the witness was prepared to cooperate and

would have testified on petitioner’s behalf; and (5) the absence of the

testimony prejudiced petitioner. Commonwealth v. Michaud, 70 A.3d 862,

868 (Pa. Super. 2013).

         Here, Holt testified at his PCRA hearing that he met with Attorney

Westcott multiple times prior to trial and provided him with a list of witnesses

to contact, including his mother. N.T. PCRA Hearing, 3/15/19, at 15. Peggy

Holt testified that the victim, her granddaughter, came to her and told her

that she had fabricated the rape claims against Holt because she was mad at

him. See id. at 34. She further stated that she would have testified had she

been called to do so, id.; however, she also stated that she was unaware that

her son was on trial until he was sentenced.         See id. at 35.    On cross-

examination, Holt testified that she never contacted the police regarding the

alleged recantation or advised the victim to do so. See id. at 37-38.

         Attorney Westcott testified that he contacted several witnesses prior to

trial.   See id. at 47.    He stated that he could not specifically remember

whether Holt asked him to contact his mother.         See id. at 52.   However,

Attorney Westcott testified that, even if Holt had asked him to contact his

mother, Attorney Westcott may ultimately have chosen not to present her

testimony for credibility reasons. The following exchange occurred on cross-

examination by the Commonwealth:

         Q. Is there any—sorry. Let me rephrase. Is there any skepticism
         about putting on a family member in a case such as this with
         concerns of credibility?

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     A. Absolutely. There’s always going to be a bias, I believe, by the
     finder of fact that the family member’s going to be biased in favor
     of the defendant.

     Q. So it could be pretty reasonable that had you known about Ms.
     Holt and what she could have potentially testified to at the time
     of trial, that you may not have put her on simply for the fact that
     she may not be considered credible to the jury?

     A. Yeah, I may or may not have depending on --

     Q. Or to the Judge being the fact finder?

     A. Yes. Every case is different, but because somebody’s going to
     speak on behalf of the defendant, I don't believe it’s automatically
     credible.

     Q. But in this case, if the petitioner had mentioned that the
     victim in this case recanted to his mom and that he wanted
     you to speak with her, you would have pursued that
     avenue. Correct?

     A. There would be no reason why I would not have.

     Q. At least to see what she had to say?

     A. Correct.

Id. at 53-54 (emphasis added).

     The PCRA court concluded as follows:

     If [Holt’s mother] had exculpatory information, it makes no sense
     that she would not reach out to the police or to her son’s attorney
     with this information. [Holt] did not tell [his mother] when the
     trial was scheduled or seek a continuance when she failed to
     appear. A far more likely scenario is that[,] had this witness
     existed at the time of trial, trial counsel, who had otherwise
     thoroughly prepared for trial, would have interviewed the witness
     and determined her credibility, or lack thereof. Moreover, the
     unsubstantiated, recently produced statement of recantation
     would be subject to significant and damaging cross-examination,
     and would be considered in the light of substantial evidence
     supporting [Holt’s] conviction.

PCRA Court Opinion, 6/7/19, at 5.



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      Upon review, we can discern no abuse of discretion in the court’s finding

that Holt’s version of events was simply not credible. Accordingly, because

Holt failed to prove either that he informed Attorney Westcott of his mother’s

purported testimony prior to trial or that his mother was available and

prepared to testify to the alleged recantation at the time of trial, he cannot

establish Attorney Westcott’s ineffectiveness. Michaud, supra. Therefore,

Holt is entitled to no relief.

      Although Holt has not challenged the legality of his sentence, our review

of the record has revealed an issue with his SORNA registration requirements.

The Pennsylvania Supreme Court held that those requirements constitute

criminal punishment. Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).

The Muniz Court declared SORNA’s purpose to be punitive in effect,

notwithstanding the General Assembly's intended purpose for the law as a civil

remedy. Id. at 1218. We have since held Muniz created a substantive rule

that retroactively applies in the collateral context.    Commonwealth v.

Rivera-Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017). Given the timeliness

of Holt’s PCRA petition, we may review the legality of his sentence sua sponte.

See Commonwealth v. DiMatteo, 177 A.3d 182 (Pa. 2018) (reiterating

general rule that legality of sentence can be reviewed in context of timely

PCRA petition); Commonwealth v. Randal, 837 A.2d 1211 (Pa. Super.

2003) (en banc) (explaining challenges to illegal sentence cannot be waived

and may be raised by this Court sua sponte, assuming jurisdiction is proper;

illegal sentence must be vacated).

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      Following   Muniz,    the   Pennsylvania    General   Assembly    enacted

legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act

10”). Act 10 amended several provisions of SORNA, and also added several

new sections, found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75.              In

addition, the Governor of Pennsylvania signed new legislation striking the Act

10 amendments and reenacting several SORNA provisions, effective June 12,

2018. See Act of June 12, 2018, P.L. 1952, No. 29 (“Act 29”). Through Act

10, as amended in Act 29, the General Assembly created Subchapter I, which

addresses sexual offenders who committed an offense on or after April 22,

1996, but before December 20, 2012. See 42 Pa.C.S.A. §§ 9799.51-9799.75.

Subchapter I contains less stringent reporting requirements than Subchapter

H, which applies to offenders who committed an offense on or after December

20, 2012. See 42 Pa.C.S.A. §§ 9799.13, 9799.54.

      Here, Holt committed his registerable offenses between January 1, 2009

and January 14, 2014, a time period which straddles the operative dates for

Subchapters H and I of SORNA.       The trial court, as finder of fact, did not

specifically determine the dates when Holt committed his offenses.         Upon

concluding the Holt was an SVP, the trial court notified Holt that he was subject

to lifetime registration pursuant to section 9799.23 of Subchapter H.

      In Commonwealth v. Alston, 212 A.3d 526 (Pa. Super. 2019), this

Court held that where, as here, an appellant’s offenses straddle the operative

dates for Subchapters H and I and the factfinder fails to make a specific finding

as to when the offenses occurred, the appellant is entitled to the lowest

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punishment. See id. at 530. Accordingly, we are constrained to vacate Holt’s

SVP order and remand the case to the trial court for the imposition of SORNA

requirements under Subchapter I.

      PCRA order affirmed. SORNA order vacated. Case remanded for further

proceedings consistent with the dictates of this memorandum. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2020




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