J-S21021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    QURAN S. LINDSEY-COOLEY                    :
                                               :
                       Appellant               :   No. 1276 WDA 2017

             Appeal from the Judgment of Sentence June 29, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                           CP-25-CR-0001356-2016


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                                 FILED MAY 07, 2018

        Quran S. Lindsey-Cooley (Appellant) appeals from the judgment of

sentence imposed after he pled guilty to one count of aggravated assault and

one count of possession of a firearm by a minor.1 We affirm.

        The trial court summarized the factual and procedural background of

this case as follows:

              On March 6, 2016, Appellant removed a loaded semi-
        automatic Hi-point nine millimeter pistol from his waistband and
        shot Jessie Wolfgang at 23rd and Wallace Streets. The bullet
        traveled two feet through the victim’s body and the victim
        required a bowel resection. Appellant was 17 years old at the
        time.

              On June 29, 2016, Appellant filed a Motion to Decertify to
        Juvenile Court. On October 24, 2016, after a hearing on the issue,
        this [c]ourt denied Appellant’s Motion.      On May 10, 2017,
        Appellant filed a Motion to Recuse the Honorable John Garhart.
____________________________________________


1   18 Pa.C.S.A. §§ 2702, 6110.1.
J-S21021-18


      On May 12, 2017, Appellant’s Motion to Recuse was denied. On
      May 16, 2017, [Appellant] pled guilty to Aggravated Assault and
      Possession of a Firearm By a Minor. The Commonwealth nolle
      prossed the remaining counts of Criminal Attempt/Criminal
      Homicide, Aggravated Assault, Firearms not to be Carried Without
      a License, Possessing Instruments of Crime, two counts Recklessly
      Endangering Another Person, and Terroristic Threats. At the plea
      hearing, Appellant acknowledged that he fired the bullet and that
      the shooting was done without legal justification or defense.

             [Appellant] was sentenced on June 29, 2017 to a period of
      incarceration of 54 months to 108 months, followed by 10 years
      of probation on the Aggravated Assault charge, and a concurrent
      sentence of 5 years’ probation on the Firearms charge. This
      sentence was in the low end of the standard range. On July 7,
      2017, Appellant filed a post-sentence motion which was denied by
      this [c]ourt on August 7, 2017.

            On September 5, 2017, Appellant filed a timely Notice of
      Appeal. This [c]ourt filed a 1925(b) Statement on September 7,
      2017, to which Appellant filed a Concise Statement of Matters
      Complained of on Appeal on September 28, 2017, raising the
      following alleged errors: (1) the [c]ourt erred in failing to
      decertify the charges in this case to juvenile court; (2) the court
      erred in failing to recuse itself after a “scathing and far-reaching
      recitation of findings of fact and opinion” at the conclusion of the
      decertification hearing; (3) the court erred in failing to sentence
      Appellant in the mitigated range, or below, of the sentencing
      guidelines.

Trial Court Opinion, 10/18/17, at 1-2 (citations to notes of testimony omitted).

      On appeal, Appellant presents two issues for our review:

      1. Did the trial court commit an abuse of discretion and/or error
         of law when it denied Appellant’s request for decertification to
         Juvenile Court?

      2. Did the trial court commit an abuse of discretion by relying on
         an impermissible factor, namely, uncharged criminal conduct,
         while fashioning his sentences?

Appellant’s Brief at 8.



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J-S21021-18



       In his first issue, Appellant asserts that the trial court erred when it

denied his request to have his case decertified to juvenile court based on the

court’s findings that a transfer of Appellant’s case would not serve the public

interest and Appellant would not be amenable to treatment in the juvenile

system. Appellant’s Brief at 33, 36-42. Appellant argues, “[s]pecifically, the

Court erred when it concluded the three years remaining before Appellant’s

21st birthday would not provide sufficient opportunity for rehabilitation and

supervision and that old and unsubstantiated photographs posted to social

media, purportedly depicting Appellant with guns/money, provided true

insight in Appellant’s character and history.2 Id. at 36.

       We have discussed our review of an order in response to a request for

a decertification order:

       The Juvenile Act, 42 Pa.C.S.A. § 6301[,] et seq., is designed to
       effectuate the protection of the public by providing children who
       commit ‘delinquent acts’ with supervision, rehabilitation, and care
       while promoting responsibility and the ability to become a
       productive member of the community. 42 Pa.C.S.A. § 6301(b)(2).
       The Juvenile Act defines a ‘child’ as a person who is under eighteen
       years of age. 42 Pa.C.S.A. § 6302. Typically, most crimes
       involving juveniles are tried in the juvenile court of the Court of
       Common Pleas.

       Our legislature, however, has deemed some crimes so heinous
       that they are excluded from the definition of ‘a delinquent act.’
       Pursuant to 42 Pa.C.S.A. § 6322(a) and § 6355(e), when a
       juvenile is charged with a crime, including murder or any of the
       other offenses excluded from the definition of ‘delinquent act’ in
____________________________________________


2   The Commonwealth has not filed a responsive brief, stating in
correspondence to this Court that it “relies on the well-reasoned Order of the
trial court and requests that appellant’s claims be dismissed.” Letter, 3/12/18.

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     42 Pa.C.S.A. § 6302, the criminal division of the Court of Common
     Pleas is vested with jurisdiction. See 42 Pa.C.S.A. § 6302[.]

     When a case involving a juvenile goes directly to the criminal
     division, the juvenile can request treatment within the juvenile
     system through a transfer process called ‘decertification.’ To
     obtain decertification, it is the juvenile's burden to prove,
     by a preponderance of the evidence, that transfer to the
     juvenile court system best serves the public interest. 42
     Pa.C.S.A. § 6322(a).

     Pursuant to § 6322(a), the decertification court shall consider the
     factors contained in § 6355(a)(4)(iii) in determining whether the
     child has established that the transfer will serve the public
     interest. These factors are as follows:

     (A) the impact of the offense on the victim or victims;
     (B) the impact of the offense on the community;
     (C) the threat to the safety of the public or any individual posed
     by the child;
     (D) the nature and circumstances of the offense allegedly
     committed by the child;
     (E) the degree of the child's culpability;
     (F) the adequacy and duration of dispositional alternatives
     available under this chapter and in the adult criminal justice
     system; and
     (G) whether the child is amenable to treatment, supervision or
     rehabilitation as a juvenile by considering the following factors:
     (I) age;
     (II) mental capacity;
     (III) maturity;
     (IV) the degree of criminal sophistication exhibited by the child;
     (V) previous records, if any;
     (VI) the nature and extent of any prior delinquent history,
     including the success or failure of any previous attempts by the
     juvenile court to rehabilitate the child;
     (VII) whether the child can be rehabilitated prior to the expiration
     of the juvenile court jurisdiction;
     (VIII) probation or institutional reports, if any;
     (IX) any other relevant factors[.]

     42 Pa.C.S.A. § 6355(a)(4)(iii).




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      While the Juvenile Act requires that a decertification court
      consider all of these factors, it is silent as to the weight assessed
      to each by the court. However, [w]hen a juvenile seeks to
      have his case transferred from the criminal division to the
      juvenile division, he must show that he is in need of and
      amenable to treatment, supervision or rehabilitation in the
      juvenile system. If the evidence presented fails to establish that
      the youth would benefit from the special features and programs
      of the juvenile system and there is no special reason for sparing
      the youth from adult prosecution, the petition must be denied and
      jurisdiction remains with the criminal division.

      . . . This Court will not overturn a decision to grant or deny
      decertification absent a gross abuse of discretion. An abuse of
      discretion is not merely an error of judgment but involves the
      misapplication or overriding of the law or the exercise of a
      manifestly unreasonable judgment based upon partiality,
      prejudice or ill will.

Commonwealth v. Brown, 26 A.3d 485, 491-193 (Pa. Super. 2011) (most

quotations, some citations, and emphasis omitted; other emphasis added).

      Instantly, the trial court determined that Appellant failed to meet his

burden of demonstrating that transfer of his case to juvenile court was

warranted.    The trial court stated that it “properly considered the serious

nature of the crime and Appellant’s calculated role in the shooting of the

victim.”   Trial Court Opinion, 10/18/17, at 6.       The court referenced its

“commentary [which] was an on-the-record consideration of the entire

decertification record, which resulted in a 246 page transcript and a small

Everest of Exhibits.” Id. The trial court offered a detailed explanation:

            First of all, let’s go right through them. 6322(a) requires me
      to consider certain factors and I'll go through them.




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          The impact of the victim - of the offense on the victim. And
     here there’s one primary victim. And in this case the
     defendant...was the person who shot the victim.

           A bullet tore into the victim’s body, tore through his internal
     organs and lodged in a leg. In doing so it did enormous damage
     to the intestinal tract of the victim and it is likely, although not
     certain, that the victim will forever be forced to wear a bag, and
     as he said, spend the rest of his life smelling like a two-year-old’s
     diaper. It will diminish every effect of his life; his ability to work,
     his ability to mate and procreate, his ability to simply enjoy life...

             What effect did it have on the community? Here, you know,
     I think the impact is enormous. This gunshot, this act, tends to
     cause people to move from communities, it destabilizes
     communities, and it was part of an act of drug dealing, which is
     literally pouring poison into the youth of the community from
     generation to generation...

           The threat of safety to the public. Here your expert focused
     on, "Well, he shot another addict," which frankly I find offensive
     and I reject. He shot a human being he had no right to shoot and
     whether that person was an addict or an addict that owed him
     money, that person was entitled to have his bodily integrity and
     his safety protected by the law...no less...than...an altar boy.

            Plus often these gunshots...don’t hit the intended
     target...And oftentimes...the bullet ricochets and hits an innocent
     child....

            So, the threat to the safety of the public by a defendant
     discharging a firearm in an urban environment, where he might
     hit the person intended, [is] enormous...

           The circumstances [of the offense] committed by - and here
     the statute uses the word child, but I will not use that word
     because the defendant, although he is a juvenile, is not a child.
     He was a young adult. And I’m already familiar with the literature
     that the expert points to me here about how the brains of
     adolescents aren't fully developed. And in certain circumstances
     that may come into play where a person doesn't make nice
     judgments...




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           But here, the judgments made by this defendant, as the
     Commonwealth would have it, are much more gross. The
     judgments he made were, one, to engage in dealing heroin; to
     engage in that as a business; and to be prepared to carry a firearm
     to protect himself, and it appears here to inflict death on other
     human beings who didn’t pay him. This isn't a case brought to the
     razor's edge by nice judgments by an immature mind. This is a
     case which is brought to fruition by some very longstanding
     judgments by the defendant in this case...made with full
     awareness of his ability to be killed or to kill in his business
     endeavor.

           So in terms of the juvenile's culpability? Enormous,
     substantial.

             The adequacy [of dispositional alternatives] under this
     chapter, okay, let’s talk about that. (F). If the juvenile system
     handles this case, the defendant, who I think is largely resistant
     to treatment by virtue of some of the things he said in unguarded
     moments - and I do credit the Facebook posts more than most
     because I think they’re unguarded moments. You can say they are
     merely one kid bragging to another, but oftentimes they’re
     unguarded moments. They’re aspirational. And here he talks
     about having contempt for these stupid ass classes...And his
     demeanor is fuck the law. I don’t believe that can be mitigated or
     changed by a few months, in this case 24 months, in a juvenile
     facility...Certainly what's going to happen to him as an adult
     perhaps is not as nuanced as what might happen in the juvenile
     system, but the state has taken the steps to give some special
     treatment to him while he remains a minor....

           ...The next question, is the child amenable to treatment,
     rehabilitation as a juvenile. Given the time available to him, my
     answer is no, not in 24 months. If this crime had been committed
     at a younger age, we were talking about a 12 or 13 year old...and
     the juvenile system had longer to work, I might feel differently.
     But, on what I see on the defendant’s actions, on his willing to kill
     another human being for money, on his willing to deal in heroin,
     on his willing to say fuck the law, and on his expression of, “I
     would like to see a police officer dead,” I don’t think he’s amenable
     to treatment under the juvenile system.

           Age. He was a juvenile at the time of the offense, but he
     was in months, in months of his birthday.

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           Mental capacity. He’s within the low normal range...

           Maturity. Here are some things we know about the
     defendant. He’s able to run a business, although it's an illegal
     business. He’s able to conceal that from his probation officer. He’s
     able to master the tools of youth, the social networks of Facebook
     and Twitter, or whatever. And he’s got a girlfriend that he’s
     involved in a fully mature [intimate] relationship...So he’s not
     quote, unquote, a mere child...

           The degree of sophistication. Granted we don’t have in order
     to be a drug dealer need to be Professor Moriarty from Sherlock
     Holmes, but nevertheless someone who's going to be involved in
     drugs has to make certain calculations. They have to make a risk
     reward calculation....How do I collect my debts? And more
     importantly in this case how do I enforce my will against those
     people who would choose not to pay me. So there's a good deal
     of sophistication here....It’s clearly not the impulsive act that we
     sometimes see. It’s not someone who takes a gun from their
     father's gun case and does something with alcohol. This is a
     deliberate act...

           In his favor, his prior record is not extensive, that’s true.
     What we have him for is a DUI; and he struck his girlfriend,
     allegedly, and that was thrown out. But it appears to the Court,
     given what the evidence of this crime reveals about him, what his
     phone calls reveal and what his Facebook postings reveal, is that
     he was able to conceal a criminal enterprise for a substantial
     period of time and people in his life blinded themselves to his
     criminality...

           The nature and extent of any prior delinquent history and
     here it’s minimal, here it’s minimal. But probation officer testified
     that their evaluation of him from the brief time they had to deal
     with him was that he was not amenable to further treatment. And
     he hadn’t failed in that, but he was not making progress. He was
     going through the steps. So under 6 and 7 of my checklist, they
     don’t think the child can be rehabilitated prior to the expiration of
     juvenile court jurisdiction and neither do I. 24 months is simply
     not enough.

           Those, I think are all the factors that are here. And so the
     question for me is, look, what do I do with him? Do I send him to

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J-S21021-18


       Juvenile Court? And the answer is I think a clear and resounding
       no.

Trial Court Opinion, 10/18/17, at 4-6, citing N.T., 10/21/16, at 237-245

(footnotes omitted). Notably, the trial court concluded, “[t]his isn’t a case

where the defense came close, close to convincing me.” N.T., 10/21/16, at

245.

       Our review confirms the trial court’s findings.      The decertification

transcript contains testimony from the following 10 witnesses:

       -    Jessica Macrino, a therapist who counseled Appellant at his
       high school on four occasions;

       -     Randolph Matuscak, an expert in forensic social work who
       evaluated Appellant, advocated for decertification and opined that
       Appellant would be amenable to treatment in the juvenile system;

       -     Daryl Craig, Sr., a family friend and minister who had
       frequent contact with Appellant through the years and expressed
       his concern that Appellant not be placed in an adult facility
       because Appellant “is not a bad kid” and the adult system is “very
       emotionally psychologically oppressive”;

       -      Ryan Gaines, a pastor from Appellant’s church with
       employment experience in the juvenile justice system who opined
       that “the adult system [would] not rehabilitate or help” Appellant;

       -      Dale Henderson, a retired school teacher and volunteer at
       the Erie County Prison who attested to Appellant’s positive
       attitude and academic capabilities;

       -      Gary Seymour, the Deputy Warden at the Erie County Prison
       who stated that Appellant had incurred three misconduct
       violations (1 for interfering with staff and using abusive language
       and 2 for fighting with other juveniles) during the seven months
       he had been imprisoned for the underlying offenses;

       -    Erie Police Detective Sean Bogart, the affiant in the
       underlying case who testified to recovering a gun, bullets and

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      digital scales from the home Appellant shared only with his
      mother;

      -     Jesse Wolfgang, Appellant’s victim, who testified to knowing
      Appellant, being a heroin addict, purchasing from heroin from
      Appellant, and “stiffing” Appellant on a sale; Mr. Wolfgang opined,
      “I hate to say it, but if this incident hadn’t happened with
      [Appellant], I’d be dead” from the addiction or “other reckless
      behaviors.”

      -      Stephanie Ackley, who administers the program for youth
      and serves as the re-entry coordinator at SCI-Pine Grove, where
      Appellant likely would be imprisoned if convicted as an adult,
      testified that SCI-Pine Grove serves individuals ages 18-22, with
      programs “developed specifically to house juveniles convicted as
      adults,” and a multitude of programs including individualized
      educational, vocational, therapeutic and life skills training. Ms.
      Ackley stated her belief that “Pine Grove now offers everything
      that the youth system has to offer with the addition of now extra
      programming, extra transitional opportunities . . .”

      -     Nick Strauch, a juvenile probation officer who began
      supervising Appellant in December 2014 and testified to
      Appellant’s juvenile history.

      On this record, reviewed as a whole, we discern no abuse of discretion

by the trial court. Brown, supra. Contrary to Appellant’s assertions, there

is ample support for the trial court’s conclusion that Appellant failed to meet

his burden that transfer of his case to juvenile court would serve the public

interest, and that he would be amenable to treatment in the juvenile system.

As noted above, the trial court stated that Appellant “did not come close to

convincing” the court that decertification was appropriate. Further, the trial

court’s reference to Appellant’s Facebook posts was a mere complement to

the court’s detailed reasoning addressing myriad factors in support of its




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determination that Appellant would not be amendable to treatment in the

juvenile system.3 Accordingly, Appellant’s decertification issue lacks merit.

       In his second issue, Appellant challenges the discretionary aspects of

his sentence.     He claims that the trial court erred because it “fashioned a

lengthier sentence based upon its conclusions about Appellant’s involvement

in the drug trade, which was uncharged criminal conduct.” Appellant’s Brief

at 45. We disagree.

       Preliminarily, we note that Appellant has failed to cite any case law or

legal authority to support his sentencing argument. The Rules of Appellate

Procedure provide:

          Rule 2119. Argument

          (a) General rule. The argument shall be divided into as
          many parts as there are questions to be argued; and shall
          have at the head of each part—in distinctive type or in type
          distinctively displayed—the particular point treated therein,
          followed by such discussion and citation of authorities as are
          deemed pertinent.

Pa.R.A.P. 2119(a). Importantly:

          The argument portion of an appellate brief must include a
          pertinent discussion of the particular point raised along with
          discussion and citation of pertinent authorities. This Court
          will not consider the merits of an argument, which fails to
          cite relevant case or statutory authority. Failure to cite


____________________________________________


3 This Court has affirmed the trial court’s denial of a motion in limine where
the Commonwealth was precluded from admitting Facebook posts because it
failed to authenticate them. Commonwealth v. Mangel, --- A.3d ---- (Pa.
Super. March 15, 2018). In this case, Appellant did not challenge the
authenticity of the Facebook posts admitted at the decertification hearing.

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         relevant legal authority constitutes waiver of the claim on
         appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal

denied, 69 A.3d 603 (Pa. 2013) (citations and quotation marks omitted).

Accordingly, Appellant’s sentencing claim is waived.

      Waiver notwithstanding, Appellant’s argument regarding “uncharged

criminal conduct” lacks merit. When appealing the discretionary aspects of a

sentence:

      [w]e conduct a four-part analysis to determine: (1) whether [the]
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      Pa.R.Crim.P. 720; (3) whether [the] appellant's brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (citation

omitted). Here, Appellant filed a timely notice of appeal, preserved the issue

in his post-sentence motion, and included a Rule 2119(f) statement in his

appellate brief. As to whether Appellant has raised a substantial question,

“[i]n order to establish a substantial question, the appellant must show actions

by the trial court inconsistent with the Sentencing Code or contrary to the

fundamental norms underlying the sentencing process.” Commonwealth v.

Treadway, 104 A.3d 597, 599 (Pa. Super. 2014) (citation omitted). “The

determination of whether a particular case raises a substantial question is to

be evaluated on a case-by-case basis.” Commonwealth v. Seagraves, 103


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A.3d 839, 841 (Pa. Super. 2014), appeal denied, 116 A.3d 604 (Pa. 2015)

(citation omitted).

      To the extent Appellant may be deemed to have raised a substantial

question, the trial court properly observed:

        Sentencing is a matter vested in the sound discretion of the
        sentencing judge, and a sentence will not be disturbed on
        appeal absent a manifest abuse of discretion. In this context,
        an abuse of discretion is not shown merely by an error in
        judgment. Rather, the appellant must establish, by reference to
        the record, that the sentencing court ignored or misapplied the
        law, exercised its judgment for reasons of partiality, prejudice,
        bias or ill will, or arrived at a manifestly unreasonable decision.

      Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999)
      (en banc) (internal quotations and citations omitted).

            Where the sentencing court has the benefit of a pre-
      sentence report, the law presumes that the court was aware of
      the relevant information regarding the appellant’s character and
      weighed those considerations along with the mitigating statutory
      factors delineated in the Sentencing Code. Commonwealth v.
      Cruz-Centeno, 668 A.2d 536, 545 (Pa. Super. 1995)(quotation
      and citations omitted). Having been fully informed by the pre-
      sentence report, the sentencing court’s discretion should not be
      disturbed. Id.

            Here, [the trial court] considered the following: (1) pre -
      sentence investigative report; (2) the Pennsylvania Sentencing
      Code and all its factors; (3) the Pennsylvania Sentencing
      Guidelines; (4) statements by Appellant and counsel; (5)
      statements by the counsel for the Commonwealth; (6) letters from
      Appellant’s friends/relatives; (7) Appellant’s age, background and
      rehabilitative needs; (8) the nature, circumstances, and
      seriousness of the offense; and, (9) protection of the community;
      (9) the unusual fact that the victim felt that the shooting
      prevented the victim from dying of a drug overdose; (10) the
      posts and photographs of Appellant’s Facebook page. (Sentencing
      Transcript, June 29, 2017, pp. 22-23). [The trial court] further
      noted that [it] was sentencing Appellant in the low end of the


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      standard range of the sentencing guidelines, rather than the
      mitigated range due, in part, to:

        The explanations [Appellant] has offered for me of how he came
        to be in that car, his denial of his relationship with drugs, and
        his denial of his relationship with guns, I find to be untruthful
        and I do not credit.

      (Sentencing Transcript, June 29, 2017, p. 23). The sentence was
      tailored to Appellant’s individual situation and the reasons for the
      sentence imposed were clearly set forth on the record. Any lesser
      sentence would have depreciated the nature of the offense.
      Because Appellant’s sentence was within the statutory limits and
      not manifestly excessive, there was no sentencing error.

Trial Court Opinion, 10/18/17, at 7-8. The trial court’s reasoning is supported

by the record and appropriate. See, N.T., 6/29/17, at 2-26. Finding no error,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2018




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