J-S48003-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DEMETRIUS D. GIBSON

                         Appellant                    No. 590 WDA 2015


          Appeal from the Judgment of Sentence January 15, 2015
             In the Court of Common Pleas of Cambria County
            Criminal Division at No(s): CP-11-CR-0001873-2013


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                             FILED AUGUST 25, 2016

      Demetrius Gibson appeals from the aggregate judgment of sentence of

sixteen to forty years of incarceration following his conviction for, inter alia,

third-degree murder. We affirm.

      The trial court summarized the factual history of this case in its

Pa.R.A.P. 1925(a) opinion.

      The testimony and evidence presented at trial revealed that
      [Appellant] was involved in a relationship with Elizabeth [Miller]
      that was marred by incidents of mutual domestic violence. On
      the evening of August 5, 2013, [Appellant] and Elizabeth were at
      their residence at 1157 Catherine Street, Apartment 7 in Tire
      Hill, with Elizabeth's brother Quinn Miller (Quinn). Around
      midnight Quinn heard Elizabeth screaming and upon going to the
      upstairs bedroom he found that [Appellant] had Elizabeth on a
      bed and was choking her. Quinn intervened at which time
      [Appellant] threatened both Elizabeth and Quinn with a hammer
      he picked up from beside the bed. While holding the hammer
      [Appellant] asked Quinn if he wanted to die. Following this
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     incident Elizabeth and [Appellant] began a series of verbal and
     physical assaults on one another ending up downstairs. At some
     point during this altercation [Appellant] obtained a kitchen knife
     and threatened Elizabeth and Quinn with it again asking Quinn if
     he wanted to die.

     Eventually Elizabeth and Quinn left the apartment and started
     driving around in her car intending to return to the house Quinn
     shared with other family members. Elizabeth discovered that
     she left her cell phone in the apartment and called [Appellant]
     using Quinn's cell phone several times to arrange to get her
     phone back. She agree[d] to meet [Appellant] at a car wash in
     the Moxham section of Johnstown to return her phone. Elizabeth
     and Quinn arrived at the car wash first around 4:30 a.m. and
     [Appellant] arrived shortly after in his red Chevrolet Blazer and
     parked in one of the car wash stalls. Elizabeth exited her car
     and got into the front passenger seat of [Appellant]'s car where
     she remained for sometime.            Elizabeth and [Appellant]
     eventually began arguing loudly and Quinn exited Elizabeth's car
     and walk[ed] towards the Blazer to see if his sister was all right.

     Quinn observed [Appellant] and Elizabeth arguing and fighting in
     the vehicle. Elizabeth told Quinn that [Appellant] had a knife
     and [Appellant] admitted to Quinn that he did. Quinn walked to
     the passenger side of the Blazer and tried to pull Elizabeth from
     the vehicle while she was fighting with [Appellant].        While
     engaged in this effort Quinn saw a large knife in [Appellant]'s
     hand and saw [Appellant] stab Elizabeth in the back. [Appellant]
     then threw the knife out the driver's side window.              As
     [Appellant] drove off Elizabeth partially fell and was partially
     pulled by Quinn out of the Blazer.
     ...

     Police and emergency personal arrived and Elizabeth was
     transported to Conemaugh Memorial Hospital. Elizabeth suffered
     massive blood loss due to the knife puncturing her inferior vena
     cava. She died as a result of her wounds at the hospital as
     doctors attempted to stop the bleeding.
     ...

     Efforts to locate [Appellant] continued for ten days and involved
     both state and federal authorities. [Appellant] eventually turned
     himself in to Johnstown Police. The knife and other evidence

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       w[ere] recovered from the crime scene with additional evidence
       being recovered after searches of the Blazer and apartment were
       conducted after search warrants had been obtained. Elizabeth's
       cell phone was eventually recovered from the apartment.
       [Appellant] did not testify but argued, inter alia, that Quinn, the
       only eyewitness, did not see the entire incident that occurred
       inside the Blazer, that it was Elizabeth who was the initial
       aggressor with the knife, and that [Appellant] was acting in self -
       defense when they struggled. [Appellant] argued he had taken
       the knife from Elizabeth and that the stabbing was accidental
       and resulted when Elizabeth fell backwards into the Blazer when
       Quinn was trying to pull her out of the vehicle which resulted in
       her falling onto the knife and impaling herself. By nature of the
       verdicts the jury rejected [Appellant]'s theory and found Quinn's
       testimony credible as the only eyewitness to these events.

Trial Court Opinion, 8/11/15, at 4-7.

       On September 3, 2014, the jury found Appellant guilty of third-degree

murder, as well as aggravated assault, aggravated assault with a deadly

weapon, and recklessly endangering another person.1                The trial judge

imposed the aforementioned sentence on January 15, 2015.

       Appellant filed timely post-sentence motions, which were denied.           A

notice of appeal was perfected, followed by a timely Pa.R.A.P. 1925(b)

statement that raised twelve issues.           The trial court issued its opinion in

response and the matter is now ready for our review. Appellant raises three

issues.

____________________________________________


1
   Appellant was also alleged to have attempted to run over a civilian when
he briefly returned to the scene in his vehicle. He was found not guilty of
aggravated assault as to that bystander.




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      1. Whether the trial court erred in denying the motion to
      suppress the warrantless seizure of a motor vehicle, which was
      not mobile, and evidence derived from the seizure and the fruits
      thereof, inasmuch as the Commonwealth failed to prove any
      exigency or other justification for such warrantless seizure?

      2. Whether the trial court abused its discretion in denying the
      motion for new trial asserting that the verdicts were against the
      weight of the evidence, being manifestly unreasonable in light of
      countervailing evidence from the Commonwealth's experts?

      3. Whether the trial court abused its discretion in permitting an
      exhibit, a DNA report, about which an expert had testified, to go
      to the jury during their deliberations, which was over defense
      objection, inasmuch as the report was prejudicial, subject to
      misinterpretation, cumulative and unnecessary due to the
      expert's testimony, and contained matters outside of the
      testimony?

Appellant’s brief at 6.

      Appellant first asserts that the trial court should have suppressed all

evidence recovered from the vehicle. The search, conducted pursuant to a

warrant, is alleged to be the fruit of an unreasonable warrantless seizure.

When reviewing the denial of a suppression motion, we are subject to the

following standard of review:

      [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.




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

omitted).

     The facts pertinent to the seizure are as follows.       Detective Larry

Wagner of the City of Johnstown Police testified that, based on information

from Mr. Miller and other eyewitnesses, he obtained a list of vehicles

registered to Appellant.   N.T. Suppression, 5/6/14, at 12.     A “be on the

lookout” was sent via dispatch. Subsequently, a homeowner called police to

report a vehicle was blocking his driveway. Id. at 12-13. Sergeant Thomas

Owens responded to the scene and observed the vehicle in question, which

was stuck due to its back end hanging over an embankment. Id. at 52. The

vehicle was blocking part of the street as well as the driveway. Id. at 53.

The officer observed blood on the passenger seat. Believing the vehicle to

be the same one involved in the murder, Sergeant Owens had the vehicle

towed to a facility. Id. The trial court upheld the seizure as valid due to

probable cause and exigent circumstances, in that Appellant, who was not

yet in custody, could return to the scene and have the vehicle removed.

Trial Court Opinion, 8/11/15, at 9. The trial court also stated the Blazer was

abandoned and blocking the roadway, thus permitting officers to remove it

pursuant to 75 Pa.C.S. § 3352 (unattended vehicle obstructing roadway or

posing safety hazard may be moved).

     According to Appellant, the police either needed a warrant, or probable

cause and exigent circumstances, to seize the vehicle, ”[S]ince the evidence

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showed that [the Blazer] was stuck, negating its inherent mobility, which

obviated the motor vehicle exception to the warrant requirement, as that

exception was announced in Commonwealth v. Gary, 91 A.3d 102 (Pa.

2014).” Appellant’s brief at 14. Gary, decided after the search in question,

expanded, rather than limited, the ability of police to search vehicles without

a warrant by adopting the federal automobile exception to the warrant

requirement.2      Thus, Article I, Section 8 of the Pennsylvania Constitution

affords no greater protection than its Fourth Amendment to the United

States Constitution counterpart. “The prerequisite for a warrantless search

of a motor vehicle is probable cause to search; no exigency beyond the

inherent mobility of a motor vehicle is required.”            Id. at 138.   Appellant

states that since the vehicle in question was immobile, the rule announced in

Gary does not apply and the police needed a warrant to seize the vehicle.

       Appellant’s argument is misplaced for two reasons.            First, Appellant

fails to recognize the source of police authority to seize the vehicle in

question. Vehicle seizure questions normally arise in the context of traffic

stops, for which there must be, depending on the offense at issue, either

reasonable      suspicion     or    probable     cause   to    effectuate   a   stop.

____________________________________________


2
   The lead opinion is a plurality of three Justices. Now-Chief Justice Saylor
“join[ed] the lead Justices in adopting the federal automobile exception.”
Id. at 138. Thus, Gary is precedential.




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Commonwealth v. Chase, 960 A.2d 108, 111 (Pa. 2008). Here, however,

the seized vehicle was disabled and abandoned.       Police authority to seize

such vehicles without a warrant has been described as “beyond challenge.”

      In the interests of public safety and as part of what the Court
      has called “community caretaking functions,” Cady v.
      Dombrowski, supra, 413 U.S. at 441, 93 S.Ct. at 2528,
      automobiles are frequently taken into police custody. Vehicle
      accidents present one such occasion. To permit the
      uninterrupted flow of traffic and in some circumstances to
      preserve evidence, disabled or damaged vehicles will often be
      removed from the highways or streets at the behest of police
      engaged solely in caretaking and traffic-control activities. Police
      will also frequently remove and impound automobiles which
      violate parking ordinances and which thereby jeopardize both
      the public safety and the efficient movement of vehicular traffic.
      The authority of police to seize and remove from the streets
      vehicles impeding traffic or threatening public safety and
      convenience is beyond challenge.

South Dakota v. Opperman, 428 U.S. 364, 368–69, (1976) (footnote

omitted); Accord Commonwealth v. Hennigan, 753 A.2d 245, 255

(Pa.Super.    2000)   (recognizing   the   “community   caretaking   function”

doctrine). Here, Appellant’s vehicle was jeopardizing public safety and

convenience by blocking a citizen’s driveway.      The police were therefore

permitted to seize and tow the vehicle without prior judicial approval.

      Furthermore, we note that Appellant misapprehends Gary, which

clearly adopted a bright-line rule. Gary extensively traced the development

of the federal automobile exception, and, in so doing, cited several federal

cases which directly contradict Appellant’s claim that a vehicle’s mobility is

material to application of the automobile exception. Under Gary, the police


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would have been permitted to both seize and search the vehicle upon a

finding of probable cause, regardless of the vehicle’s mobility.

       It is thus clear that the justification to conduct such a
       warrantless search does not vanish once the car has been
       immobilized; nor does it depend upon a reviewing court's
       assessment of the likelihood in each particular case that the car
       would have been driven away, or that its contents would have
       been tampered with, during the period required for the police to
       obtain a warrant.

Gary, supra at 110 (quoting Michigan v. Thomas, 458 U.S. 259 (1982)

(per curiam)). Two years later, the High Court reiterated that whether the

vehicle is effectively immobile is irrelevant to the automobile exception.

Florida v. Meyers, 466 U.S. 380 (1984).            Gary adopted the federal

standard and its corresponding body of case law.       Thus, under Gary, the

mobility of the vehicle is irrelevant. We agree with the trial court that there

was probable cause to justify seizing the vehicle, given that it matched the

description of a vehicle driven by a wanted homicide suspect and contained

blood. Thus, a warrantless search would have been permitted.3 No relief is

due.


____________________________________________


3
   Appellant implicitly concedes, by citing to Gary, that its rule would apply
to the search herein. In Commonwealth v. Hudson, 106 A.3d 724
(Pa.Super. 2014), we assumed, without deciding, that the rule of Gary
would apply on direct appeal to a search, such as the one here, conducted
before it was announced. The trial court did not rely on Gary, and we
simply note here in passing that its application would be less favorable, not
more, to Appellant’s position.



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      Appellant’s second appellate claim attacks the weight of the evidence

supporting his convictions. He posits that the evidence “shows that the fatal

wound resulted from misadventure, and the guilty verdicts shocked the

sense of justice.” Appellant’s brief at 17. Our Supreme Court has defined

homicide by misadventure as follows: “Homicide by misadventure, which is

excusable, is defined as: the accidental killing of another, where the slayer is

doing a lawful act, unaccompanied by any criminally careless or reckless

conduct.” Commonwealth v. Charleston, 94 A.3d 1012, 1025 (Pa.Super.

2014) (citations omitted).

      Appellant’s basis for a new trial on these grounds relies on the

testimony of two Commonwealth expert witnesses: Amy Irwin, a DNA

expert, and Dr. Heggere, the pathologist who conducted the autopsy. The

witnesses respectively testified that Appellant’s DNA was not present on the

knife and that the victim had no visible injuries.

      Given the testimony of the two experts, Amy Irwin and Dr.
      Heggere, which discredited [Mr. Miller]’s version of the struggle
      leading to the fatal stab wound and established a basis for
      misadventure leading to that wound, the trial court’s exercise of
      discretion in denying the motion for new trial based on the
      weight of the evidence was manifestly unreasonable.

Appellant’s brief at 19 (citation and quotation marks omitted).

      Our review of a weight claim reviews the exercise of the trial court’s

discretion, not the underlying question of whether the verdict is against the

weight of the evidence. Commonwealth v. Leatherby, 116 A.3d 73, 82



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(Pa.Super.2015) (citing Commonwealth v. Brown, 23 A.3d 544, 558

(Pa.Super. 2011)).      “One of the least assailable reasons for granting or

denying a new trial is the lower court's conviction that the verdict was or

was not against the weight of the evidence and that a new trial should be

granted in the interest of justice.” Id. at 82.

        Herein, the trial court, in rejecting Appellant’s post-trial motion for a

new trial, reviewed the evidence supporting the verdicts and determined

that the verdict was not against the weight of the evidence:

        There was only a single eyewitness to the fatal encounter and
        the jury was free to credit his testimony or not as they saw fit.
        . . . The nature of the verdict is such that the jury obviously
        gave credit to Quinn’s testimony and there was nothing that
        occurred during trial to give this jurist cause to question that
        decision by the fact finder.

Trial Court Opinion, 8/11/15, at 34. We discern no abuse of discretion on

the trial court’s part in reaching this conclusion.       The sole eyewitness

testified unequivocally that Appellant deliberately stabbed the victim in her

back.     The record amply supports the court’s conclusion that the guilty

verdicts were not so contrary as to shock its sense of justice. Since the jury

was free to believe none, all, or part of the evidence presented, it could

reject Mr. Miller’s testimony about choking or striking while crediting the

testimony that he saw Appellant stabbing Ms. Miller, or simply find that the

testified-to blows would leave no visible injuries.       Similarly, the lack of




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Appellant’s DNA on the knife does not compel a different result.4 The trial

judge determined that the facts testified to by the expert witnesses were not

deserving of greater weight than the facts set forth by Mr. Miller. The record

supports the court’s conclusion and we find no abuse of discretion.

       Appellant’s third assignment of error assails the trial court’s decision to

permit the jury access to an expert report during deliberations. Pa.R.Crim.P.

646 sets forth the materials a jury may possess, and grants the trial judge

the leeway to provide “such exhibits as the trial judge deems proper,”

excepting the following items.

       (C) During deliberations, the jury shall not be permitted to have:

              (1) a transcript of any trial testimony;
              (2) a copy of any written or otherwise recorded confession
              by the defendant;
              (3) a copy of the information or indictment; and
              (4) except as provided in paragraph (B), written jury
              instructions.

Pa.R.Crim.P. 646(C).         Since the report in question is not specifically

prohibited by rule, we apply an abuse of discretion standard. “Whether an

exhibit should be allowed to go out with the jury during its deliberation is

within the sound discretion of the trial judge.” Commonwealth v. Barnett,


____________________________________________


4
   Appellant’s weight-of-the-evidence argument regarding the lack of DNA on
the knife is in effect a sufficiency claim. Logically, we can conclude that the
verdict shocks the conscience only if we find the lack of DNA requires a
finding that Appellant did not commit the crime of third-degree homicide.



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50 A.3d 176, 194 (Pa.Super. 2012) (quoting Commonwealth v. Merbah,

411 A.2d 244, 247 (Pa.Super. 1979)).

      The exhibit in question was submitted at trial through Amy Irwin, the

aforementioned Commonwealth expert, who testified that she examined

several items to determine whether the victim’s DNA, Appellant’s DNA, or

both, was present. N.T. Volume IV, 8/29/14, at 83. Pertinent to the claim

on appeal, Ms. Irwin testified that the blood on the knife blade matched only

Ms. Miller’s DNA. Id. at 93. The handle of the knife, described as a black

cord wrapped around the weapon, also contained the victim’s DNA. Id. at

97-98. Ms. Irwin stated that tests for the presence of Y chromosome yielded

no interpretable results since there was an insufficient amount of male DNA

on the handle. Id. at 98. The trial court admitted, without objection, her

expert report. Id. at 99. The exhibit was not published to the jury.

      During closing argument, Appellant’s attorney repeatedly noted that

the victim’s DNA is on the knife, while Appellant’s DNA was not.             N.T.

Volume VII, 9/3/14, at 74 (“If you were accused of holding an instrument,

and your defense is that you didn’t hold it, what are you going to do, come

up and say, I didn’t hold it. . . . I got better, the science says he didn’t touch

it.”); Id. at 80 (“First of all, her DNA is on it. . . . Why isn’t his DNA on the

knife?”); Id. at 91 (“Can you say that [Appellant] held that knife when his

DNA isn’t on it, just because of Quinn[?]).




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     The jury thereafter submitted a question reading, “Lab report DNA on

knife. Defines touch. Skin cells? Sweat?”          Court’s Exhibit A (some

punctuation added).   The trial judge, over Appellant’s objection, permitted

the jury to receive the DNA report.

     The following principles guide our review in determining whether the

trial court abused its discretion. In Commonwealth v. Strong, 836 A.2d

884 (Pa. 2003), our Supreme Court addressed whether the trial court erred

in permitting the jury, during its deliberations, to look at a crime scene

diagram which was used by the parties during trial but never offered or

admitted into evidence.   Id. at 885.     Strong noted that Rule 646 applies

only to exhibits, and, since the judge therein sent an item that was not

moved into evidence, the diagram was not within the purview of the rule.

Strong therefore had to determine whether such errors were subject to

harmless error analysis or were per se prejudicial.        Id. at 888.    In

concluding harmless error applied, the Court observed the following:

     The underlying reason for excluding certain items from the jury's
     deliberations is to prevent placing undue emphasis or credibility
     on the material, and de-emphasizing or discrediting other items
     not in the room with the jury. If there is a likelihood the
     importance of the evidence will be skewed, prejudice may be
     found; if not, there is no prejudice per se and the error is
     harmless.

Id. at 888. Thus, the likelihood that the importance of the evidence would

be skewed was part of the harmless error analysis, not a consideration to be




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made in determining whether the trial court abused its discretion under Rule

646.

       In Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015), our

Supreme Court analyzed whether a judge erred in permitting the jury to

review, during its deliberations, expert reports drafted by experts for both

the prosecution and the defense that were admitted into evidence. Id. at

495. The Court incorporated the above-quoted rationale into the abuse of

discretion analysis:

       We hold that Appellant has failed to demonstrate an abuse of
       discretion. . . . Relating to the medical expert reports, we find
       that they are not specifically precluded from examination during
       deliberations pursuant to Rule 646(C) and that it is unlikely that
       the jury would be skewed by placing undue emphasis on one
       report over the other, considering that the expert medical
       reports from both the prosecution and the defense were
       permitted in the jury room. Because no prejudice arose from
       the jury's examination of the expert reports, Appellant is not
       entitled to relief.

Id. at 497 (citing Strong). Thus, Woodard adopted the harmless error

considerations of Strong, i.e., whether the material will skew the effect of

the evidence in some fashion, in deciding whether the trial court abused its

discretion in permitting the jury to review the material.     Since Woodard

found no abuse of discretion while also noting a lack of prejudice, we view

the inquiries as overlapping.

       In assessing whether a new trial is warranted, we must consider

whether the prejudicial effect of the evidence was severe and readily



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apparent. Barnett, supra at 194. We have noted that a failure to object to

the admission of the evidence and a jury request to view the exhibit are both

factors militating against a finding of prejudice. Id. at 195 (citing cases).

Finally, we are mindful that the comment to the rule cites Commonwealth

v. Pitts, 301 A.2d 646, 650 n. 1 (Pa. 1973). Pitts, a case decided under

the predecessor to Rule 646, found no abuse of discretion in granting the

jury access to a fingerprint chart into the jury room. Pitts observed in dicta

that “it would be a better procedure not to allow exhibits into the jury room

which require expert interpretation.” Id.

      With the foregoing precepts in mind, we now turn to Appellant’s

substantive complaint. He argues that the report skewed the importance of

Ms. Irwin’s testimony in that the DNA report as submitted “show[s] not only

loci and letters and numbers galore to which the expert did not testify, but

also that the matters on which she did testify and opine could not readily be

related to the jury’s question[.]” Appellant’s brief at 21. Appellant avers the

report served to undermine Ms. Irwin’s testimony and opinion, since a

proper examination of the DNA report required interpretation.

      We have reviewed the report and find that Appellant has failed to

demonstrate a likelihood that the jury placed undue emphasis on the

document.   We agree that the report contains several instances of highly-

technical information not testified to by the expert, and understanding those

matters required expert testimony.

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          However, the highly-technical nature of the report demonstrates that

no error occurred. The jury’s question pertained to the knife, and the report

states in plain English that Elizabeth Miller’s blood was on the knife’s handle.

The complained-of additional information in the report, such as the different

genetic loci tested, is not readily understandable and sheds no light on the

case without expert interpretation. We thus reject Appellant’s claim that the

report skewed the importance of Ms. Irwin’s testimony.        If anything, the

inability to understand the exhibit emphasized the importance of the expert’s

testimony. Ms. Irwin clearly testified that Appellant’s DNA was not on the

knife handle, and the jury was well aware of this fact due to the repeated

references during closing argument. This is not a situation where competing

experts offered differing interpretations or opinions, nor does the report

contain any opinion or speculation regarding why Appellant’s DNA did not

appear on the handle.      While we think the better course would have been to

instruct the jury to rely on the testimony of the expert, we find no prejudice

from the jury’s examination of the report and Appellant is not entitled to

relief.

          Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2016




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