J -S82006-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                      1   IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                      v.

KAIN HUMPERDINCK FIGUEREO

                            Appellant                      No. 282 MDA 2016


           Appeal from the Judgment of Sentence January 14, 2016
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0001323-2011
                              CP-40-CR-0001419-2012

BEFORE:     OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                    FILED MARCH 20, 2017

        Kain Humperdinck Figuereo appeals from the judgment of sentence

entered January 14, 2016, in the Luzerne County Court of Common Pleas.

On October 16, 2015, the       trial court, sitting without   a   jury, found Figuereo

guilty but mentally ill of one count each of false alarm to an agency of public

safety, false reports (reported offense did not occur), simple assault, and

criminal mischief (damage to property).1 The court imposed an aggregate

sentence of 17 to 28 months' incarceration.           The sole issue on appeal is      a


challenge to the discretionary aspects of sentencing.               After   a   thorough


*   Retired Senior Judge assigned to the Superior Court.

1     18   Pa.C.S.   §§    4905(a), 4906(b)(1),       2701(a)(3), and 3304(a)(5),
respectively.
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review of the submissions by the parties, the certified record, and relevant

law, we affirm the judgment of sentence.

        The facts and procedural history are summarized as follows.       Figuereo

was charged at two criminal dockets for two separate incidents.         Both cases

were tried together on October 16, 2015.2 With respect to Docket No. CP-

40-CR-0001419-2012 ("Docket No. 1419"), we note that on October 22,

2011, the victim, Pamela Bromiley,3 was at her home, located on Hollywood

Boulevard, Hazle Township, Pennsylvania, when she noticed her neighbor,

Figuereo, across the street.     She observed Figuereo pacing back and forth,

and then run down the street after       a   car that was occupied by Bromiley's

son and his girlfriend.    At the time, Bromiley was in her driveway and she

saw Figuereo turn around and run onto her property.            Bromiley got in her

own car because she now saw Figuereo wielding          a   large kitchen knife. She

testified:

        [Figuereo] ran up to the side of the car and started pounding on
        the window of the car. Umm, he was yelling, Get out of the car,
        get out of the car, along with a lot of other ... multiple languages.

2
   We have set forth the facts of the two cases in the order they were
presented at trial.

      We note that the incidents happened approximately four years before
the trial. The delay was apparently because Figuereo was in and out of
mental health treatment facilities. See N.T., 1/14/2016, at 53.

3 The sentencing transcript spells the victim's last name as "Bromley." See
N.T., 1/14/2016, at 18. For ease of our analysis, we will use the spelling as
found in the trial transcript.


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        And   ... then, he raised his arm, and he had     a   knife, and was   ...
        hitting the window and screaming.

N.T., 10/16/2015, at 13.         Bromiley stated she started to back up when

Figuereo began stabbing the tires and side of the car.           Bromiley's husband

then came out of the home and yelled to Figuereo to get off the property.

As this point, Bromiley was able to drive her car away down the road where

she called 9-1-1. See generally id. at 11-28.

        In his defense, Figuereo provided an assortment of reasons for his

actions on October 22nd which included:       (1) he suffered from hallucinations

as a result of     inadvertently inhaling bath salts the night before, in which he

believed his half -brother's brain was in Bromiley's dog and he wanted to free

the dog by cutting the leash with the knife; (2) Bromiley's son approached

him first in   a   threatening manner and made gestures; and (3) he merely

wanted to talk to Bromiley about the dog and she accelerated the car and

almost ran over his foot so he tried to deflate the tire.             Id. at 40-66.
Figuereo indicated he was not taking his medications at the time, which

would have helped with his mental health.        Id. at   66.4 At the conclusion of

the Docket No. 1419 trial, the court found Figuereo guilty but mentally ill of

simple assault and criminal mischief.




4     On cross-examination, Figuereo stated that even though he was
hallucinating, it had no effect on his memory as to what happened that day.
Id. at 77.


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        Next, with regard to Docket No. CP-40-CR-0001323-2011 ("Docket

No. 1323"), we note       that on February 25, 2011, Figuereo made several

phone calls to the Hazleton police department, claiming           a   bomb was located

in an   apartment at 1015 Lincoln Street. Id. at 105-106.5 Police responded

to the scene, evacuated the area and searched the apartment as well as an

adjacent apartment.       No explosives or anything resembling a bomb were

found in the area. Figuereo was taken into custody and admitted he lived in

the apartment at issue.

        Figuereo claimed he again had hallucinated on the day of the incident

due to bath salts.      He heard about a Libyan           revolution on the radio and

thought his neighbor had packed       a   bomb in   a   container. He also thought his

hair conditioner might be      a   bomb.    Lastly, Figuereo stated his brain was

damaged due to taking bad medicine for long periods of time.               Id. at 121-
138.     At the conclusion of the Docket No. 1323 trial, the court found

Figuereo guilty but mentally ill of false alarm and false reports.

        On January 14, 2016, the court found a deadly weapon enhancement

applied to the matter and sentenced Figuereo to the following: (1)           a   term of

ten to 20 months' incarceration for the simple assault charge; (2)                    a


consecutive term of 90 days' incarceration for the criminal mischief offense;

and (3)    a   consecutive term of four to eight months' imprisonment for the


5
     Figuereo identified himself to the dispatcher.


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false alarm conviction, followed by three years' probation.6'           7       Figuereo did

not file post -sentence motions, but did file this direct appeal.8'         9



        In his sole issue on appeal, Figuereo claims he is entitled to                a   new

sentencing       hearing   because the   trial    court abused    its       discretion     by

sentencing him in the aggravated              range of the sentencing guidelines

"without properly considering his mental health issues and other mitigating

factors[,] and for relying on factors already set forth          in   the Guidelines."

Figuereo's Brief at 6.

        As presented, Figuereo's issue challenges the discretionary aspects of

his sentence.      See Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super.

2002) (explaining argument that sentence is manifestly excessive challenges

discretionary aspects of sentencing).            "A challenge to the discretionary

aspects of    a   sentence must be considered         a   petition for permission to

6
  The false reports crime merged with the false alarm charge for sentencing
purposes.

     Applying the deadly weapon enhancement to the simple assault
conviction, the standard range was six to seven months (plus or minus three
months for the aggravated/mitigated range). Moreover, the standard range
for false alarm was restorative sanctions to one month (plus or minus three
months for the aggravated/mitigated range).

8 Trial counsel filed a petition to withdraw, which was granted on February
29, 2016. New counsel was appointed to represent Figuereo on appeal.

9     On March 1, 2016, the   trial court ordered Figuereo to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Figuereo filed a concise statement two days later. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2016.


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appeal,    as        the    right   to       pursue     such   a    claim       is     not   absolute."

Commonwealth v. Hoch, 936 A.2d 515, 518                            (Pa. Super. 2007) (citations

and quotation marks omitted). To reach the merits of                        a   discretionary issue,

this Court must determine:

        (1) whether appellant has filed a timely notice of appeal; (2)
        whether the issue was properly preserved at sentencing or in a
        motion to reconsider and modify sentence; (3) whether
        appellant's brief has a fatal defect; and (4) whether there is a
        substantial question that the sentence appealed from is not
        appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220                                      (Pa.    Super. 2011)

(footnotes omitted).

        Here,    Figuereo filed          a   timely notice of appeal and included the

requisite statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.

Moreover,       at    the    January         14,   2016,   proceeding,          Figuereo's counsel

challenged the Commonwealth's request to impose                                 a    sentence in the

aggravated range. See N.T., 1/14/2016, at 48-50 (general challenge asking

court to consider certain mitigating factors).1° Therefore, we may proceed

to determine whether Figuereo has presented                    a   substantial question that the

sentence appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Edwards,                      71 A.3d 323, 330 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013).




10
     We note Figuereo did not file any post -sentence motions.



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        With respect to whether an issue presents          a   substantial question, we

are guided by the following:

        The determination of what constitutes a substantial question
        must be evaluated on a case -by -case basis.              See
        Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
        (Pa. Super. 2007). "A substantial question exits only when the
        appellant advances a colorable argument that the sentencing
        judge's actions were either: (1) inconsistent with a specific
        provision of the Sentencing Code; or (2) contrary to the
        fundamental norms which underlie the sentencing process."
        Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932,
        2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
        quotation marks omitted).

Edwards,     71 A.3d at 330       (citation omitted).    Furthermore, this Court has

previously "held that      a   substantial question     is raised   where an appellant

alleges the sentencing court erred by imposing an aggravated                     range

sentence         without       consideration      of    mitigating      circumstances."

Commonwealth v. Bowen,              55 A.3d 1254, 1263 (Pa. Super. 2012), appeal

denied, 64 A.3d 630 (Pa. 2013).11

        Figuereo specifically states:     "[I]t   appears that the trial court took no

consideration of his mental illness, and instead relied solely upon the

testimony of the victim."          Figuereo's Brief at 8 (record citation omitted).

Figuereo concludes that his aggregate sentence "for misdemeanor offenses

with no prior record[] amounts to an abuse of discretion and the sentence            is



11 See also Commonwealth v. Lawrence, 960 A.2d 473, 478 (Pa. Super.
2008) (substantial question presented with respect to "a claim that the
sentencing court imposed an unreasonable sentence by sentencing outside
the guidelines") (citation omitted), appeal denied, 980 A.2d 606 (Pa. 2009).


                                           -7
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manifestly excessive and contrary to the fundamental norms which underlie

the Sentencing Code."              Id. at   9.       To the extent     that Figuereo's argument

amounts to       a    claim that the trial court erred by imposing an aggravated

range sentence without consideration of mitigating circumstances, we find

he has raised a substantial question and will proceed to an examination of

his argument on appea1.12

        The standard of review for               a   claim challenging     a   discretionary aspect

of sentencing        is   well -established:

              Sentencing is a matter vested in the sound discretion of
        the judge, and will not be disturbed on appeal absent a manifest
        abuse of discretion. 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. Sheller, 961 A.2d 187, 190                            (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

        Moreover, pursuant to 42 Pa.C.S.                  §   9721(b), "the court shall follow the

general principle that the sentence imposed should call for confinement that

12
     We note that part of Figuereo's argument, in which he alleges the court
relied on factors already set forth in the sentencing guidelines or double
counted those factors, is waived because he did not raise it at sentencing or
in a post -sentence motion. See Commonwealth v. Malovich, 903 A.2d
1247, 1251 (Pa. Super. 2006) ("To preserve an attack on the discretionary
aspects of sentence, an appellant must raise his issues at sentencing or in a
post -sentence motion. Issues not presented to the sentencing court are
waived and cannot be raised for the first time on appeal.") (citations
omitted); see also Pa.R.A.P. 302(a).


                                                     -8
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is   consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant." 42 Pa.C.S.        §   9721(b). Additionally,

"the court shall make as part of the record, and disclose       in open   court at the

time of sentencing,      a   statement of the reason or reasons for the sentence

imposed."         Id.    The record    in   toto "must reflect the [trial] court's

consideration of the facts of the crime and character of the offender."

Commonwealth v. Crump, 995 A.2d 1280, 1283               (Pa. Super. 2010), appeal

denied, 13 A.3d 475 (Pa. 2010).13 "In particular, the court should refer to

the defendant's prior criminal record, his age, personal characteristics and

his potential for rehabilitation."    Commonwealth v. Griffin, 804 A.2d         1, 10

(Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert denied,

545 U.S. 1148 (2005).

          Turning to the present matter, the court indicated that it had reviewed

the presentence investigation report ("PSI").            See Trial Court Opinion,

8/3/2016, at 2; N.T., 1/14/2016, at         18.14 Figuereo had a prior record score




13    A   trial court "need not undertake    lengthy discourse for its reasons for
                                             a
imposing      a   sentence or specifically reference the statute in question[.]"
Crump, 995 A.2d at 1283.

14  We note the PSI was not included the certified record. Nevertheless,
"where the sentencing court had the benefit of a presentence investigation
report ('PSI'), we can assume the sentencing court was aware of relevant
information regarding the defendant's character and weighed those
considerations along with mitigating statutory factors." Commonwealth v.
(Footnote Continued Next Page)

                                            -9
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of zero and an offense gravity score ("OGS") of              3   for the false alarm charge,

an OGS of      1   for the false reports charge, and an OGS of              3   for the simple

assault charge. See Commonwealth's Sentencing Memorandum, 1/12/2016,

Commonwealth Exhibit 1.

        At the sentencing proceeding, the court heard from Ronald Thomas

Colbert,   a   mental health professional with Correct Care Solutions at Luzerne

County Correctional Facility, who has been providing counseling services to

Figuereo since 2012.           Colbert testified Figuereo "is on Invega Sustenna,

which is an injectable antipsychotic which            is   injected once    a   month and he

has additional oral medications also Invega, also antipsychotic medications

on a    daily basis."      N.T., 1/14/2016, at 5.                Colbert stated he sees      a


"significant reduction    in   [Figuereo's] delu[s]ional thinking" when Figuereo            is

on the medication and           "[h]e   is   much more reality based, much more

oriented to everything around him and we see an elimination of any further

psychotic symptoms primarily auditory."               Id. at      6.   Lastly, Colbert stated

that he believed Figuereo could be             a   productive member of society if he

(Footnote Continued)

Moury, 992 A.2d 162, 171 (Pa. Super. 2010), quoting Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988) (internal quotations omitted). "The
sentencing judge can satisfy the requirement that reasons for imposing
sentence be placed on the record by indicating that he or she has been
informed by the pre -sentencing report; thus properly considering and
weighing all relevant factors." Commonwealth v. Ventura, 975 A.2d
1128, 1135 (Pa. Super. 2009) (citation omitted), appeal denied, 987 A.2d
161 (Pa. 2009).




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continued to take the medication but he would still need some additional

support like ongoing mental health treatment services.           Id. at 7-8.
        The court also noted that    a   report by Dr. Richard Fischbein had been

submitted to the court in December of 2012, which indicated Figuereo

suffered from     a   schizoaffective disorder.   Id. at   10.     Moreover, another

report, in May of 2015 from the Pennsylvania Department of Human

Services, noted Figuereo still had the schizoaffective disorder as well as         a


history of hypertension, hyperlipidemia, and primary support problems. Id.

at   11.1-5

        The court then heard from Bromiley, who testified about the effect of

the assault on her:

               There was life before Kain Figuereo and there's life after.
        The two are not the same and never will be.         In the year
        following the attack, I became increasingly withdrawn and
        fearful. I would awaken in the middle of the night due to some
        terrible thing had fallen on a loved one. Fortunately, my family
        was tolerant of my continuing phone calls to check up on them.

              By June, when I didn't want to leave my house even to
        walk to the end of our driveway to our mailbox, I realized I
        needed help and began treatment.

               I was diagnosed with post -traumatic stress disorder and
         placed on medications. I have continued with therapy over the
         course of more than three years during which time I have used
         several medications that caused multiple life altering side effects
         adding to the residual psychological effect of the attack itself.



15  Figuereo also made several statements to the court regarding his
medication. Id. at 13-14.
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               Part of the inability I experienced in being able to heal
         from this experience was a lack of resolution. I have not been
         able to begin a healing process because the case has persisted
         for over four years.       From the first local hearing at the
         Magistrate's quarters when I became violently ill upon seeing
         Figuereo to the array of symptoms I suffered from his
         conviction.

               I live with the health effects of anxiety caused by the
         actions of his poor choices. Following the attack in the 2011,
         2012 school year along, I missed 14 days of work. I've missed
         multiple days of work every year since then due to doctor's
         appointments, anxiety and effects of medication. My family has
         also suffered emotionally seeing how this has affected me, as
         well as living in fear and frustration themselves whenever he is
         nearby.

                Immediately after the attack, we placed our home of 18
         years on the market for six months, during which time it did not
         sell. We are now forced once again to give up our home while
         he will be returning to his. Our home will remain on the market
         until it sells even at a financial loss because I will never be at
         ease with Figuereo living across the street from me. I will not be
         able to go home once he returns. We are currently struggling
         with where we will go, what we will do and how we will leave
         upon his release.

               In addition, I have    given up professional and social
         opportunities out of fear    to go out at night.    This was
         exacerbated when Figuereo     was released for home visits and
         when he was exited from      Clark Summit Hospital during the
         winter of 2014.

Id. at   19-21.16

         The trial court heard from Figuereo,      who alleged that Bromiley

suffered from extreme paranoia and "used her car as          a   weapon" against


16
     Bromiley gave additional testimony regarding the effect of Figuereo's
actions on her and her family's life. Id. at 21-24.


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him.    Id. at   31.    He also claimed Bromiley was   romantically obsessed with

him.    Id. at 41.
        At the conclusion of the hearing, the court set forth its rationale for the

sentence:

               As we noted, I had the opportunity to be a part of this case
        for many years now. I've had the opportunity to listen to Mr.
        Figuereo in times of treatment while he was at Clark Summit and
        medication; times of nontreatment when he was released from
        Clark Summit. I heard the violation of his bail in this matter. I
        will note that I revoked his bail.

              Mr.      Figuereo   more than one occasion went to
                                  on
        Norristown for treatment to be restored to competency. I have
        seen him, through his medication highs and lows, and quite
        frankly, he has been consistent with his medication for the first
        time in a long time most recently.

              What is most concerning today is that he is consistent with
        his oral medication and his injections, yet he made statements
        that cause me grave concern for the community where he lives,
        specifically that Ms. Brom[i]ley has a romantic obsession with
        him.



              Okay. I know you believe she does, sir, but this is with
        you taking all of your coeds and being in the best place that
        you've been in a while and you're making statements that cause
        me to be so concerned for this community, your neighborhood.

              I will note that there was a recommendation of the
        prosecution in this matter for a sentence in the aggravated
        range and a recommendation of the victim. I will note that
        [Figuereo] did not plead guilty in this case and went to a trial
        where testimony was specifically provided to the Court and
        [Figuereo] was found guilty.

              I will note that there's little remorse being shown by Mr.
        Figuereo today. And I understand previously with medication
        lapse and competency, but at no time today did Mr. Figuereo

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      apologize to his neighbors, instead he attacked his neighbors,
      saying they're obsessed with him. That they did it. He called
      them paranoid. That causes me extreme concern.

            I will note that we know Mr. Figuereo has mental health
      issues. We will note what happened throughout the course of
      those, but he lives by himself in a residence across the street
      from the people today he called paranoid and romantically
      obsessed with him.

             I will note that I have concerns ... as to him being a danger
      to society and a danger to the community. I will note that he
      failed while on bail because I heard the testimony and found him
      guilty while he was released on bail and today he tells me that
      Ms. Brom[i]ley followed him to Wal-Mart and was basically
      stalking him when I already heard the testimony and reviewed
      that matter and found that he had violated the terms and
      conditions of his bail, noting at that time he was not medicated.

             I find that the guideline sentences are too lenient and
      clearly not appropriate in this case. I'm concerned with the fact
      that he possessed a weapon at the time of this offense of the
      simple assault and that he attempted and threatened to injure
      the victim. I will note that her testimony today is clear that it
      was an infliction of extreme mental cruelty to her which she
      suffers from until this day.

Id. at 50-53.
      In the Rule 1925(a) opinion, the trial court further explained its

rationale for   a   departure from the guidelines:

            [Figuereo]'s claim is belied by the record, which reveals
      that the Court gave consideration to the factors listed in 42
      Pa.C.S. § 9721(b) and stated the reasoning for the sentencing of
      [Figuereo] in the aggravated range. Specifically the sentencing
      court considered the PSI and the sentencing guidelines which
      prescribed a standard sentence and noted it for the record. The
      Court also considered facts underlying the offense including the
      impact that the assault had on the victim and the gravity of the
      offense as it related to her continuing to be fearful, of leaving
      her home and difficulty sleeping at night.


                                         - 14 -
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              The Court considered all the aforementioned factors, and
        determined that a standard range sentence would be
        inconsistent with the gravity of the offense. Accordingly, the
        court sentenced [Figuereo] to an aggravated range due in part
        of the determination that [he] continues to be a danger to the
        community.

Trial Court Opinion, 4/3/2016, at 4-5.

        Based upon our standard of review, we conclude the trial court did not

abuse its discretion     in   sentencing        Figuereo in the aggravated          range.

Contrary to Figuereo's argument, it        is   evident from the sentencing hearing

and the Rule 1925(a) opinion that the court did indeed consider the required

factors under Section 9721(b).         Moreover, the court acknowledged its

understanding of the sentencing guidelines, and did articulate                a   sufficient

statement of reasons for sentencing Figuereo          in   the aggravated range.

        Furthermore, the court indicated it had reviewed and relied on the PSI.

See Moury, 992 A.2d at 171. The court also articulated its concern for the

protection of the community, including the victim.               The court emphasized

that even though Figuereo was on medication for his mental health

concerns, he denied any responsibility and placed the blame on the victim

and therefore, he continued to be     a    danger to society. The court provided

further explanation for the sentence imposed               in its Rule   1925(a) opinion,

and these additional comments support its decision.




                                      - 15 -
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        Additionally, we note, and Figuereo concedes,''        a   person who is found

guilty but mentally ill or who pleads guilty but mentally ill "may have any

sentence imposed on him which may lawfully be imposed on any defendant

convicted of the same offense." 42 Pa.C.S.      §   9727. Therefore, his argument

that the court did not consider his mental illness as      a   mitigating factor   is   of

no    merit because the court was not required to do so.              Nevertheless, as

provided above, the record    is   replete with evidence and statements by the

court that it did consider Figuereo's mental state when sentencing him.

Accordingly, Figuereo has not demonstrated the trial court abused its

discretion in imposing his sentence.       Therefore, Figuereo's sole claim on

appeal fails, and we affirm the judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 3/20/2017




17   Figuereo's Brief at 8.


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