J-S41044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

MICHAEL DENNIS

                            Appellant                      No. 2961 EDA 2013


              Appeal from the Judgment of Sentence April 1, 2013
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0004749-2011


BEFORE: BOWES, J., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                                  FILED AUGUST 27, 2014

        Appellant, Michael Dennis, appeals from the April 1, 2013 aggregate



found him guilty of six counts of possession with the intent to deliver

(PWID), two counts of criminal use of a communication facility, and one

count    each     of   dealing    in    proceeds   of    unlawful   activities/corrupt

organizations, and criminal conspiracy.1 After careful review, we vacate and




____________________________________________


1
  35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 7512, 5111(a), 911, and
903(a), respectively.
J-S41044-14


remand for resentencing

of sentence.2

       The trial court has summarized the relevant facts and procedural

history as follows.

                    From April of 2011, through May of 2011, the
              Montgomery County Detective Bureau, along with
              the    Tredyffrin   Township    Police   Department,
              conducted a wiretap investigation and utilized video
              surveillance, uncovering a large and sophisticated
              cocaine distribution ring. The drug ring was centrally

              Upper Gulph
              his major role in the drug distribution organization.

                    On January 4, 2013, a hearing on pretrial
              motions filed by Appellant and his two co-
              defendants, Patrick Wedderburn and Karl Myers, was
              conducted. Subsequently, on January 7, 2013, the
              three-defendant jury trial commenced, at the
              conclusion of which Appellant was found guilty of the
              aforementioned charges.

Trial Court Opinion, 1/10/14 at 1-2 (internal citation omitted).

       On March 25, 2013, the Commonwealth filed its notice, pursuant to 18

Pa.C.S.A. § 7508, of intent to seek the mandatory minimum sentence on

each of the six counts of PWID. On April 1, 2013, the trial court sentenced
                                                                          3



____________________________________________


2
                         -defendants, Patrick Wedderburn and Karl Myers,
have appeals pending at 1372 EDA 2013 and 3243 EDA 2013, respectively.
3
  Specifically, the trial court sentenced Appellant as follows. On count 1,
corrupt organizations, 1-2 years; count 3, PWID, 4-8 years concurrent to
(Footnote Continued Next Page)


                                           -2-
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Thereafter, on April 10, 2013, Appellant filed a timely post-sentence motion

to reconsider sentence.          On September 4, 2013, the trial court denied

                     -sentence motion.       On October 3, 2013, Appellant filed a

timely notice of appeal.4

        On appeal, Appellant raises the following issues for our review.

              [1.]     Did the trial court commit legal error when it
                       imposed a mandatory minimum sentence
                       under 18 Pa.C.S.A. § 7508 on [Appellant]
                       where a jury did not make a finding beyond a
                       reasonable doubt regarding the amount of

                       offense(s), and           where   that   statute   is
                       unconstitutional?

              [2.]     Did the trial court commit legal error when it
                       imposed a maximum sentence in excess of ten
                       years under 35 P.S. § 780-115, for PWID
                       cocaine,   where     [Appellant]  was   never
                       convicted of PWID or an equivalent offense
                       _______________________
(Footnote Continued)

count 1; count 5, dealing in proceeds of unlawful activities, 1-2 years
concurrent to count 3; count 6, PWID, 7-14 years consecutive to count 3;
count 7, PWID, 7-14 years consecutive to count 6; count 10 PWID, 7-14
years concurrent to count 3; count 11, criminal use of a communication
facility, 1-2 years concurrent to count 3; count 13, PWID, 7-14 years
concurrent to count 3; count 14, criminal use of a communication facility, 1-
2 years concurrent to count 3; count 16, PWID, 7-14 years concurrent to
count 3; and finally count 17 criminal conspiracy, 6-12 years concurrent to
count 3. On each of the six PWID counts the trial court imposed the
mandatory minimum sentence pursuant to Section 7508. We note that the



instant matte
remand to correct said error.
4
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



                                            -3-
J-S41044-14


                 prior to the commission of the offenses for
                 which he was sentenced in this case in
                 viola
                 Commonwealth v. Camperson, 650 A.2d 65
                 (Pa. Super. 1994)?

          [3.]   Did the trial court abuse its discretion when it

                 after the prosecutor introduced evidence that
                 mail addressed to [Appellant] at a business
                 was recovered from that business along with
                 1.8 kilograms of cocaine despite the fact that
                 said evidence was never disclosed to
                 [Appellant] prior to its introduction into
                 evidence?

          [4.]   Did the trial court abuse its discretion where:

                       (a) it held in abeyance and then denied

                       prejudicial   and   irrelevant   use   of   an

                       PWID,      conspiracy    and   corrupt
                       organization case which stated that
                       [Appellant] and other alleged co-
                       conspirators   were   involved in   an


                       conversation was about a news item
                       which the co-conspirators were in no way
                       involved and where the slide was left up
                                                  ore than 10




                       extended use of that exhibit during
                       closing arguments?

          [5.]   With respect to the sentence imposed upon
                 []Appellant by the trial court, did that court
                 abuse its discretion by imposing an aggregate
                 sentence of not less than 18 years, nor more
                 than 36 years, of incarceration upon the 37

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                 year-old []Appellant who had never           been
                 convicted of a felony offense where:

                          (a) the trial court imposed sentences
                          which are unreasonable under the
                          circumstances of the case and outside
                          the sentencing guidelines; and,

                          (b) the trial court imposed sentences
                          which    are    within   the   sentencing
                          guidelines but the application of the
                          guidelines is clearly unreasonable under
                          the circumstances of the case?

                    -6.

     In his first issue, Appellant asserts that the sentences on counts 3, 6,

7, 10, 13 and 16, imposing a mandatory minimum pursuant to 18 Pa.C.S.A.

§ 7508 for each count of PWID, without submitting the question of the

weight of the cocaine to the jury for a finding of fact, renders his sentence

illegal in accordance with the United States Supreme Court decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013). Id. at 19. Appellant

                             Alleyne, this Court explained that Alleyne holds




                      Id., quoting Commonwealth v. Munday, 78 A.3d

661, 665 (Pa. Super. 2013), citing Alleyne, supra at 2163.            Appellant

further argues that this Court in Commonwealth v. Watley, 81 A.3d 108

(Pa. Super. 2013) (en banc), appeal denied, --- A.3d ---, 1033 MAL 2013

(Pa. 2014)                                  an example of a statute that was


                                      -5-
J-S41044-14


rendered     unconstitutional     by    Alleyne                              -20.

                                       Watley held that Alleyne is retroactively

applicable to cases on direct appeal, [therefore] Alleyne (as interpreted by

this Court in Munday and Watley

Id. at 20. As a result, Appellant argues the sentences on counts 3, 6, 7, 10,

13, and 16, imposed pursuant to Section 7508, are illegal and must be

vacated.5 Id.



Alleyne

convicted on January 7, 2013, and sentenced on April 1, 2013. Appellant

then filed a timely post-sentence motion on April 10, 2013.                While

                   -sentence motion was pending before the trial court, the

United States Supreme Court decided Alleyne on June 17, 2013. The trial

court did not address Alleyne

post-sentence motion.         Accordingly, the first opportunity for Appellant to

____________________________________________


5

also challenges the con
brief, however, reveals that Appellant fails to develop this claim,
constraining his argument to the legality of his sentence imposed.
                       -20. Accordingly, we decline to address
constitutional argument. See Commonwealth v. Antidormi, 84 A.3d 736,
                                              ppellant has cited no legal
authorities nor developed any meaningful analysis, [this Court will] find
[such an] issue waived for                                           see
also Watley, supra




                                           -6-
J-S41044-14


raise a claim that his sentence was illegal pursuant to Alleyne was on direct

appeal.

                                    ssues not raised in the lower court are waived

and cannot be raised for the f

However, this Court has held that a legality of sentence claim is a non-

waivable claim.       Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.

Super. 2013) (stating that challenges to an illegal sentence can never be

waived and may be reviewed sua sponte

Further the Watley



precedent, an Alleyne claim can present a legality of sentence issue, we

                                                          Watley, supra at 118.



sentencing scheme as that raised in Watley

claim is properly before us.6


____________________________________________


6
  The Watley Court was faced with a challenge to 42 Pa.C.S.A. §9712.1,
whereas in the instant matter Appellant challenges the mandatory minimum
applied pursuant to 18 Pa.C.S.A. § 7508. Nevertheless, the Watley Court
noted the effect of Alleyne on mandatory minimum sentencing statutes in
Pennsylvania.

              The Alleyne decision, therefore, renders those
              Pennsylvania     mandatory      minimum    sentencing
              statutes that do not pertain to prior convictions
              constitutionally infirm insofar as they permit a judge
(Footnote Continued Next Page)


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J-S41044-14




to Alleyne. In Alleyne, the Court overruled Harris v. United States, 536



minimum is an element [of the crime] that must be submitted to the

jury    Alleyne, supra at 2155 (emphasis added; internal quotation marks

omitted). As Appellant notes, this Court in Munday faced a similar issue to




holding in Alleyne, and that said factor must be found beyond a reasonable

doubt by a jury.        Munday, supra at 664.     The Munday Court held the



                    The Alleyne majority reasoned that while
             Harris limited Apprendi to facts increasing the
             statutory maximum, the principle applied in
             Apprendi applies with equal force to facts increasing
             the mandatory minimum.         This is because it is
             impossible to dissociate the floor of a sentencing
             range from the penalty affixed to the crime, and it is
             impossible to dispute that facts increasing the legally
             prescribed floor aggravate the punishment. Thus,
             this reality demonstrates that the core crime and the
                       _______________________
(Footnote Continued)


             based on a preponderance of the evidence standard.4
             4
                 See e.g., 42 Pa.C.S. § 9712(c); 42 Pa.C.S.
             § 9712.1(c); 42 Pa.C.S. § 9713(c); 42 Pa.C.S.
             § 9718(c); 42 Pa.C.S. § 9719(b); 18 Pa.C.S.
             § 7508(b); 18 Pa.C.S. § 6317(b).

Watley, supra at 117 (emphasis added).



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J-S41044-14


             fact triggering the mandatory minimum sentence
             together constitute a new, aggravated crime, each
             element of which must be submitted to the jury.

Id.    at   666-667   (internal   citations   and    quotation   marks    omitted).

Accordingly, the Munday

                                                            Alleyne      undeniably

                                                                   nce is under

consideration based upon judicial factfinding of a sentencing factor, that

sentencing factor is, in reality, an element of a distinct and aggravated crime

                                                                         Id. at 666

(internal citations and quotation marks omitted).

       Instantly, Appellant argues the jury did not find beyond a reasonable

doubt that he possessed the necessary amount of drugs pursuant to Section

7508 to impose a mandatory minimum sentence, but rather, the trial court

conc                                                                           -20.



Section 7508, which reads in pertinent part, as follows.

             § 7508.      Drug     trafficking      sentencing    and
             penalties


             (a) General rule.--Notwithstanding any other
             provisions of this or any other act to the contrary,
             the following provisions shall apply:



             (3) A person who is convicted of violating section
             13(a)(14), (30) or (37) of The Controlled Substance,

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J-S41044-14


          Drug, Device and Cosmetic Act where the controlled
          substance is coca leaves or is any salt, compound,
          derivative or preparation of coca leaves or is any
          salt, compound, derivative or preparation which is
          chemically equivalent or identical with any of these
          substances or is any mixture containing any of these
          substances except decocainized coca leaves or
          extracts of coca leaves which (extracts) do not
          contain cocaine or ecgonine shall, upon conviction,
          be sentenced to a mandatory minimum term of
          imprisonment and a fine as set forth in this
          subsection:

                (iii) when the aggregate weight of the
                compound or mixture of the substance
                involved is at least 100 grams; four years in
                prison and a fine of $25,000 or such larger
                amount as is sufficient to exhaust the assets
                utilized in and the proceeds from the illegal
                activity; however, if at the time of sentencing
                the defendant has been convicted of another
                drug trafficking offense: seven years in prison
                and $50,000 or such larger amount as is
                sufficient to exhaust the assets utilized in and
                the proceeds from the illegal activity.



          (b) Proof of sentencing.--Provisions of this section
          shall not be an element of the crime. Notice of the
          applicability of this section to the defendant shall not
          be required prior to conviction, but reasonable notice

          this section shall be provided after conviction and
          before sentencing. The applicability of this section
          shall be determined at sentencing. The court shall
          consider evidence presented at trial, shall afford the
          Commonwealth and the defendant an opportunity to
          present necessary additional evidence and shall
          determine, by a preponderance of the evidence, if
          this section is applicable.

          (c) Mandatory sentencing.--There shall be no
          authority in any court to impose on an offender to

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J-S41044-14


            which this section is applicable a lesser sentence
            than provided for herein or to place the offender on
            probation, parole or work release or to suspend
            sentence. Nothing in this section shall prevent the
            sentencing court from imposing a sentence greater
            than provided herein.         Sentencing guidelines
            promulgated by the Pennsylvania Commission on
            Sentencing shall not supersede the mandatory
            sentences provided herein. Disposition under section
            17 or 18 of The Controlled Substance, Drug, Device
            and Cosmetic Act      shall not be available to a
            defendant to which this section applies.




18 Pa.C.S.A. § 7508.

      The trial court herein, proceeded in sentencing Appellant under the

statute as applicable on the date of sentencing, and concluded on the record

that it found, beyond a reasonable doubt, that Appellant possessed in excess

of 100 grams of cocaine, specifically, 1,800 grams of cocaine, on the dates

pertaining to each of the counts of PWID.       N.T., 4/1/13, at 16.   Now, on

appeal, the trial court, relying on Watley, reasons in its Rule 1925(a)

opinion that based on the conclusions of the jury and the evidence presented

at trial, the jury essentially found beyond a reasonable doubt the elements

necessary to impose the mandatory minimum. Trial Court Opinion, 1/10/14,

at 13. Specifically, the trial court reasoned as follows.

            The conclusions of the jury can be read to include
            that each of the possession with intent to deliver
            charges involved cocaine in the amount of at least a
            quarter-pound, i.e. 125 grams. The testimony was




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J-S41044-14


              testimony of Michael Reynolds told the jury that this
              language refers to $4,600.00 worth of cocaine, which
              is equivalent to four and-a-half ounces or 125
              grams. Additionally, the jury observed the video
              surveillance in which Appellant was seen on multiple
              occasions with a black bag. A similar black bag was
                                                                  ,
              Preston York. According to NMS lab report the black
              bag contained 125 grams of cocaine. Finally, at the
              barbershop itself, over four pounds of cocaine was

              PWID convictions.       Therefore, when the jury
              convicted Appellant of the six PWID charges beyond
              a reasonable doubt it did so based on evidence that
              the cocaine involved was 125 grams or more, the
              facts necessary to subject Appellant to the
              mandatory minimum.

Id. at 13-14.

       Upon review, we cannot ag

jury did not make any findings of fact regarding the amount of cocaine

Appellant possessed as to the six counts of PWID. Rather, defense counsel

stipulated at trial that as to count 16 of PWID, the weight of the drugs

recovered was 1,800 grams of cocaine.7             N.T., 4/1/13, at 4.   On the

____________________________________________


7
  We note that because Appellant conceded the fact required for the
mandatory minimum, any Alleyne error in this case was rendered harmless.
See United States v. Hunt, 656 F.3d 906, 913 (9th Cir. 2011) (stating that
an Apprendi



mandatory minimum was properly imposed at sentencing.             Nevertheless,
be

of sentence and remand for resentencing on all counts.



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J-S41044-14


remaining five counts, no drugs were recovered, depriving Appellant of the

right to have a jury conclude beyond a reasonable doubt that he possessed

in excess of 100 grams of cocaine necessary to impose a mandatory

minimum sentence pursuant to Section 7508(a)(3)(iii). Accordingly, based

on Alleyne



judgment of sentence and remand to the trial court for resentencing.8



presented in his appellate brief.         In both issues Appellant avers the trial

court erred in denying his motion to grant a mistrial.               In reviewing




               Commonwealth v. Johnson, 719 A.2d 778, 787 (Pa. Super.

1998) (en banc) (citations and internal quotation marks omitted), appeal

denied, 739 A.2d 1056 (Pa. 1999).

              In criminal trials, declaration of a mistrial serves to
              eliminate the negative effect wrought upon a
              defendant when prejudicial elements are injected
              into the case or otherwise discovered at trial. By
              nullifying the tainted process of the former trial and
              allowing a new trial to convene, declaration of a
              mistrial

              designed to end in just judgments. Accordingly, the
____________________________________________


8
  In light of our disposition in issue one we need not a
sentencing claims raised in issues two and five.



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J-S41044-14


            trial court is vested with discretion to grant a mistrial
            whenever the alleged prejudicial event may
            reasonably be said to deprive the defendant of a fair
            and impartial trial. In making its determination, the
            court must discern whether misconduct or prejudicial

            degree of any resulting prejud

Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (citation



when an incident is of such a nature that its unavoidable effect is to deprive

                                              See Johnson, supra.

      In issue three, Appellant avers the trial court abused its discretion in

denying his motion for a mistrial when the Commonwealth introduced




                    Id.

      Discovery is governed by Pennsylvania Rule of Criminal Procedure 573.

As the trial court aptly notes, Rule 573(E) sets for the remedy for failure to

comply with the discovery rules.

            Rule 573. Pretrial Discovery and Inspection

            (E) Remedy. If at any time during the course of the
            proceedings it is brought to the attention of the court
            that a party has failed to comply with this rule, the
            court may order such party to permit discovery or
            inspection, may grant a continuance, or may
            prohibit such party from introducing evidence
            not disclosed, other than testimony of the


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J-S41044-14


            defendant, or it may enter such other order as it
            deems just under the circumstances.



Pa.R.Crim.P. 573(E) (emphasis added).

      In the instant matter, the trial court summarized the discovery

violation as follows.

                  On the first day of trial, the Commonwealth
            called Detective Michael Carsello of the Tredyffrin
            Township Police Department to testify about the
            items recovered pursuant to a search warrant
            executed at A & L barber shop on May 18, 2011.

            Commonwealth          elicited    testimony     about
            correspondence from Aetna Health Insurance
            addressed to Appellant. The Commonwealth sought
            to introduce the correspondence as Exhibit C-18. At
            that juncture, defense counsel objected, stating that
            the evidence was not provided in discovery. Th[e
            trial c]ourt reserved ruling on the objection until the
            next break.      In the interim, the Commonwealth
            moved on to the next item found during the search.


            moved into evidence, to the exclusion of Exhibit C-
            18, which would be dealt with at the conclusion of


                  At that juncture, a recess was taken and the
            jury was led out of the courtroom. Defense counsel
            reiterated that he never received the item in
            discovery. The Commonwealth responded that it did
            make the item available to defense counsel by way
            of discovery letters and emails inviting defense
            counsel to view all of the evidence seized during the
            search of the barber shop.       The Commonwealth
            argued that at no time did defense counsel make an
            appointment to view any of the documents or video
            or any of the items seized pursuant to the search,
            therefore, since the Commonwealth made these

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J-S41044-14


            items available to the defense the correspondence
            may be properly admitted into evidence. Defense
            counsel countered that the property receipt from the
            barbershop, Exhibit C-12, does not list the
            correspondence addressed to Appellant from Aetna
            as having been seized during the search.
                                                  umentation of
            apartment lease and pay receipts and inmate letter
            sent from the Department of Corrections to Anthony

            the property receipt there would be no way of
            defense counsel knowing that he should look at the
            exhibit as having anything to do with his client,
            Appellant. Therefore, th[e trial c]ourt did not admit
            Exhibit C-18 into evidence. Th[e trial c]ourt asked
            defense counsel whether he wanted it formally
            stricken in front of the jury.      However, before
            counsel answered that question, counsel requested a
            mistrial, which was denied. It is this denial of the
            mistrial that counsel now appeals. Subsequently,
            counsel did request that the evidence be stricken
            and an instruction be given that the jury may not
            consider such evidence. Th[e trial c]ourt agreed to
            that.

                  The jury was brought back into the courtroom,
            and th[e trial c]ourt instructed the jury that Exhibit
            C-18 is not admissible and will not be admitted into
            evidence. The jury was instructed not to consider it
            and any testimony about it in any way during
            deliberations.

Trial Court Opinion, 1/10/14, at 3-4 (citations to notes of testimony

omitted).

     Therefore, in accordance with Rule 573(E) the trial court properly

excluded the mail from being entered into evidence. Further, the trial court

issued a cautionary instruction to the jury stating the jury was not to

consider the evidence or any testimony regarding it during deliberations.


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J-S41044-14




                      Commonwealth v. Philistin, 53 A.3d 1, 18 (Pa.

Super. 2012), citing Commonwealth v. Miller, 819 A.2d 504, 513 (Pa.

2002) (h

                   cert. denied, 540 U.S. 827 (2003).       Accordingly, we



request for a mistrial. Johnson, supra.

      Finally, in his fourth issue, Appellant avers the trial court erred in



visual aid during closing arguments that contained irrelevant, misleading,

and   highly   inflammatory   and   prejudi



the screen for the jury to view for more than 12 minutes, referenced a

conversation about someone being murdered, and did not relate to any of

the crimes committed by any of the co-defendants. Id. at 28.

      Upon review, we conclude that the trial court did not abuse its



objection, lodged after the jury was excused, was as follows.

           [The Court]:      You want some instruction on the
           murder, is that the issue?

           [Defense Counsel]:
           front of the jury.




                                    - 17 -
J-S41044-14


                   My objection is that it was up there for 12
             minutes. It was comparatively long compared to
             the other - -

             [The Court]:     My question is, do you want an
             instruction on murder? They earlier referred to the

             instruction that one of the slides had the word,
             something about someone being murdered, and I
             can say that has nothing to do with any of the
             participants in this case and leave it at that.

                  But I defer to you.   How much do you want?
             Or nothing?

             [Defense Counsel]:
             bell can be un-rung because it was up there for
             so long.

                   On behalf of my client, to preserve the record,


N.T., 1/10/13, at 8-9 (emphasis added).



solely to the amount of time the slide remained on the screen. On appeal,

Appellant has not set forth any argument or pertinent case law to support

his contention that a mistrial should be granted based on the amount of time

evidence, that was admitted at trial, was displayed to the jury during

closing. Our Supreme Court has held, that we will not consider an argument

where an appellant fails to cite to any legal authority or otherwise develop

the issue.   Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009),

cert.   denied,   Johnson   v.   Pennsylvania,   131   S.   Ct.   250   (2010).




                                    - 18 -
J-S41044-14




defense counsel was afforded an opportunity to have the trial court give the

jury a cautionary instruction on the contents of the slide but declined to



either defendant was in any way involved in a murder, just that they had a



counsel rejected th[e trial c]o

                                                                   Id.



arguments pertaining to the guilt phase of his trial.       However, we are



trial court for resentencing in accordance with Alleyne.

      Judgment of sentence vacated.          Case remanded for resentencing.

Jurisdiction relinquished.

      Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2014




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J-S41044-14




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