J-A09006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                             Appellant

                        v.

    MARK PETER PAZUHANICH

                             Appellee               No. 727 MDA 2016


                 Appeal from the Order Entered April 14, 2016
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000215-2004


BEFORE: SHOGAN, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                          FILED JANUARY 16, 2019

       The Commonwealth appeals from the April 14, 2016, order, entered by

the Luzerne County Court of Common Pleas, granting Mark Peter Pazuhanich’s

motion to enforce plea agreement and ordering, inter alia: (1) the

Commonwealth only was entitled to subject Pazuhanich to the registration,

reporting, and any other provisions of now-repealed Megan’s Law1 in effect at

the time of the agreement, which is a period of ten years; and (2) Pazuhanich

was not subject to the new requirements under Pennsylvania’s Sexual

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-


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1 See 42 Pa.C.S. § 9791-9799.9 (repealed). Effective December 20, 2012,
Megan’s Law was replaced by the Sexual Offenders Registration and
Notification Act (“SORNA”). See 42 Pa.C.S. §§ 9799.10-9799.41 (as amended
2011, Dec. 20, P.L. 446, No. 111, § 12).
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9799.42.     Therefore, the court determined Pazuhanich no longer had any

further obligations or restrictions under Pennsylvania’s Sexual Offender Laws,

and is entitled to be removed from Pennsylvania’s Megan’s Law Registry.

       The trial court set forth the facts and procedural history as follows:

             [In November of 2003, Pazuhanich sexually assaulted his
       daughter. At the time, he was the sitting Monroe County District
       Attorney and was elected to fill a 10-year Monroe County
       judgeship in 2004.] On June 14, 2004, Petitioner Mark Pazuhanich
       … entered into a no contest plea to two counts of [i]ndecent
       [a]ssault, [e]ndangering the [w]elfare of [c]hildren, [c]orruption
       of [m]inors, and [p]ublic [d]runkeness.[2] One of the counts of
       [i]ndecent [a]ssault implicated the Megan’s Law registration and
       reporting requirements. The Court was also made aware that
       [Pazuhanich] would resign from his judge position following
       sentencing.      At sentencing, both [Pazuhanich] and the
       Commonwealth understood that [he] would be subject to Megan’s
       Law registration and reporting for a period of ten years. The Court
       additionally imposed an aggregate period of ten years’ probation,
       and ordered [Pazuhanich] to register pursuant to Megan’s Law for
       ten years. The Court also included several other conditions to
       [Pazuhanich]’s sentence, including no contact with his daughter.
       It was understood by the parties that [Pazuhanich] would be
       subject to a longer period of registration [if] he was found to be a
       sexually violent predator at the Megan’s Law evaluation, which the
       Sexual Assessment Board ultimately did not find to be the case.
       The Commonwealth took no issue with the Sexual Assessment
       Board’s determination.

             In early 2012, [Pazuhanich]’s daughter expressed interest
       in reconnecting with [him], prompting [Pazuhanich] to file a
       Motion to Terminate Probation. A hearing was held on April 25,
       2012, at which time this Court modified its sentencing order to
       allow [Pazuhanich] to have contact with his daughter under
       certain circumstances, and directed that [Pazuhanich]’s probation
       would terminate on December 31, 2012 provided there were no
       probation violations until such time. On December 20, 2012, a
       new version of Megan’s Law became effective, bringing
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2   See 18 Pa.C.S. §§ 3126(a)(1) and (a)(7), 4304(a), 6301(a), and 5505.

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       Pennsylvania into compliance with the federal Sex Offender
       Registration and Notification Act (hereinafter, “SORNA”).
       [Pazuhanich] filed a Motion to Terminate Probation in fall of 2012,
       prior to the enactment of the new version of Megan’s Law. This
       Court entered an Order dated November 28, 2012, granting the
       Motion, and terminating [Pazuhanich]’s probation, effective
       November 30, 2012.

       The new requirements of SORNA would require [Pazuhanich] to
       register as a sex offender and report for his entire lifetime, rather
       than for only a ten year period. Accordingly, in November 2015,
       [Pazuhanich] filed a motion seeking to be excused from the new
       SORNA registration requirements, pursuant to his plea agreement
       of 2004. A hearing was held in front of this Court on February 18,
       2016. On April 14, 2016, this Court granted [Pazuhanich]’s Motion
       to Enforce Plea Agreement, and stated that [Pazuhanich] is not
       subject to the new requirements of SORNA, and since the ten year
       period has expired, [Pazuhanich] is no longer under any
       restrictions under Pennsylvania’s Sexual Offender Laws, and shall
       be removed from the Megan’s Law Registry.

Trial Court Opinion, 6/6/2016, at 1-2. On April 27, 2016, the Commonwealth

filed a notice of appeal.3

       In its brief, the Commonwealth contends the ten-year registration

requirement imposed as a consequence of Pazuhanich’s plea was not a

material element of the plea agreement and was not negotiated in any way

and, therefore, Pazuhanich did not receive any benefit of a bargain that needs

to be enforced.         See Commonwealth’s Brief at 8.          Specifically, the

Commonwealth states:



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3  On May 2, 2016, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth filed a concise statement on May 13, 2016. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on June 6, 2016.

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              In 20[0]4, an Information charging [Pazuhanich] with four
        offenses was filed against [him]. One of the offenses was
        Indecent Assault graded as a misdemeanor of the first degree,
        which would require [Pazuhanich] to register under the then
        applicable Megan’s Law for ten years. [Pazuhanich] pled nolo
        contendre to the entire Information, thus triggering the
        registration requirement.    As part of the nolo plea, the
        Commonwealth agreed to a probationary sentence and
        [Pazuhanich] agreed to resign his judgeship. The registration
        requirement was mentioned, almost in passing, to advise the
        Court and [Pazuhanich] of one of the consequences of his nolo
        plea. Based on the context of the plea and sentence[,] it appears
        the material elements of [Pazuhanich]’s nolo plea were the
        probationary sentence and the resignation of his judgeship.

Id.

        Further, in analyzing Commonwealth v. Hainesworth, 82 A.3d 444

(Pa. Super. 2013), Commonwealth v. Partee, 86 A.3d 245 (Pa. Super.

2014), and Commonwealth v. Nase, 104 A.3d 528 (Pa. Super. 2014) (en

banc), the Commonwealth submits that the distinguishing feature of these

cases

        is the registration and plea to specific charges to obtain, or avoid
        certain registration periods. Without negotiation and discussion
        over various offenses and registration periods, the registration
        period is not a material element of the plea. Merely mentioning a
        registration period during the plea and sentencing hearing does
        not a material element make. If that were the case, then simply
        mentioning the maximum penalties of the offenses being pled to
        would require a maximum jail sentence so the Commonwealth
        could get the benefit of its bargain.

              In this case, the offense which required [Pazuhanich] to
        register was not part of the “plea agreement.” It was not a
        material part of the plea agreement. The Commonwealth did not
        withdraw or nolle prosse an offense with a longer term of
        registration in exchange for the nolo contendere plea to Indecent
        Assault which called for the ten year period of registration.
        [Pazuhanich] was charged with Indecent Assault and he entered

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      a nolo contendere plea to that offense. The registration period
      “was what it was” and if SORNA now requires a longer period of
      registration, [Pazuhanich] is subject to it because he did not
      bargain for a lesser period of registration. Nase requires more
      than just mentioning a registration period. Nase requires that the
      registration be a material element of the plea agreement.

Id. at 10 (citation omitted). The Commonwealth states the present matter is

more akin to Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super. 2004),

stating:

      In Benner, the defendant entered a plea claiming he did so based
      upon representation that the charge he pled guilty to would not
      require registration. However, the record did not contain any such
      representation. Since the record did not support his claims of an
      agreement regarding registration, the Court denied his petition
      excusing him from compliance of Megan’s Law.

            As in Benner, there was no negotiation of the term of
      registration. There is nothing in the record to demonstrate the
      registration period was discussed between the parties. Nor does
      the record reveal a reduction or withdrawal of any charge that
      would have impacted the registration period. The record shows
      the registration period was merely mentioned, simply giving
      notice of its existence. Therefore, it was not a material element
      of the plea.

Id. at 10-11 (citations omitted).

      We begin with the following:

      We have traditionally recognized the trial court’s jurisdiction over
      petitions to enforce plea agreements with respect to the terms of
      sexual offender registration requirements, and by extension, this
      Court’s ability to review the court’s resulting orders.         See
      Commonwealth v. Martinez, 637 Pa. 208, 147 A.3d 517 (Pa.
      2016); Commonwealth v. Hainesworth, 2013 PA Super 318,
      82 A.3d 444 (Pa. Super. 2013) (en banc); Commonwealth v.
      Nase, 2014 PA Super 194, 104 A.3d 528 (Pa. Super. 2014).
      Appellants filed petitions to enforce their plea agreements, and
      the trial court denied these in subsequent orders…. Moreover, we
      may correct an illegal sentence sua sponte so long as we maintain

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J-A09006-17


      jurisdiction over the case. See Commonwealth v. Butler, 2017
      PA Super 344, 173 A.3d 1212, 1214 (Pa. Super. 2017). Thus, we
      find the case is properly before us.

      The law on the enforcement of plea agreements is well
      established. “Although a plea agreement occurs in a criminal
      context, it remains contractual in nature and is to be analyzed
      under contract-law standards.” Commonwealth v. Farabaugh,
      2016 PA Super 63, 136 A.3d 995, 1001 (Pa. Super. 2016) (citation
      omitted). “In determining whether a particular plea agreement
      has been breached, we look to what the parties to this plea
      agreement reasonably understood to be the terms of the
      agreement.” Hainesworth, 82 A.3d at 447 (citation and internal
      quotation marks omitted). When the Commonwealth’s promise or
      agreement provides consideration for the defendant’s acceptance
      of the plea, the Commonwealth must fulfill that promise. See
      Martinez, 147 A.3d at 532.

Commonwealth v. Fernandez, __ A.3d __, __, 2018 PA Super 245, ¶¶ 18-

19 (Pa. Super. Sept. 5, 2018) (en banc).

      A brief recitation of the case law cited by the Commonwealth regarding

the enforcement of Megan’s Law/SORNA with respect to negotiations of plea

agreements is necessary. In Hainesworth, supra, the defendant specifically

entered a negotiated guilty plea to avoid the Megan’s Law registration entirely.

A panel of this Court held because “the parties to this appeal entered into a

plea bargain that contained a negotiated term that [the defendant] did not

have to register as a sex offender,” “it was not error for the trial court to order

specific enforcement of that bargain[.]” Hainesworth, 82 A.3d at 450.

      Subsequently, in Partee, supra, a panel of this Court applied

Hainesworth to a case where the defendant initially pled nolo contendere

pursuant to a plea agreement to indecent assault of a person under the age


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of thirteen,4 corruption of minors, and endangering the welfare of children.

The agreement also provided that certain charges, rape and incest, were

withdrawn. The court sentenced the defendant but he violated his probation,

and the court re-sentenced him in May of 2010 on the indecent assault count.

Thereafter, the Pennsylvania Legislature enacted a new version of Megan’s

Law to comply with the federal SORNA, which took effect on December 20,

2012.     Pennsylvania’s SORNA required, in pertinent part, those individuals

who were convicted of indecent assault of a person under the age of 13 to

register as a sex offender for life.           The defendant then filed a petition for

habeas corpus and/or seeking enforcement of his plea agreement. On appeal,

noting the ten-year registration period was expressly discussed at the

defendant’s plea hearing, the panel determined the plea "was structured so

that [the defendant] would only be subject to a ten-year rather than a lifetime

reporting requirement[.]” Partee, 86 A.3d 249. The Partee Court further

stated:    “Under our reasoning in Hainesworth, [the defendant] arguably

would be entitled to the benefit of that bargain.” Id. Nevertheless, the panel

held that because the defendant had violated his initial plea agreement by

breaching the terms of his probation, his agreement was no longer in effect

and he was “not entitled to specific performance.” Id. at 250.




____________________________________________


4 The crime of indecent assault of a person less than thirteen required a ten-
year registration period.

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       Thereafter, in Nase, supra, an en banc panel of this Court held the

defendant had expressly agreed to plead guilty to unlawful contact with a

minor so as to be subject to the ten-year registration period, and therefore,

the registration consequences were a part of his plea negotiation and to be

specifically enforced. Id. at 535. Furthermore, the defendant was not subject

to the 25-year registration period later established in SORNA.

       In these cases, the courts specifically enforced sexual offender

registration requirements in plea agreements where those registration

requirements were a material term of the plea.5      As indicated above, the

Partee case does have a special nuance where, but for the defendant’s

probation violation, the court would not have applied the new registration

requirements retroactively since he explicitly negotiated the plea agreement’s

10-year registration requirement.6




____________________________________________


5 See also Commonwealth v. Martinez, 147 A.3d 517, 533 (Pa. 2016);
Commonwealth v. Ritz, 153 A.3d 336, 343 (Pa. Super. 2016), appeal
denied, 170 A.3d 995 (Pa. 2017); Commonwealth v. Farabaugh, 136 A.3d
995, 1003 (Pa. Super. 2016).

6  Compare with Commonwealth v. Benner, 853 A.2d 1068 (Pa. Super.
2004) (holding because record at guilty plea and sentencing hearings was
silent as to whether appellant was required to register under Megan’s Law,
post-sentence amendment pursuant to SORNA requiring lifetime registration
applied to the matter, even though registration requirements at time of
sentencing called for ten years).




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       Nevertheless, our review would not be complete without discussing the

impact of the recent decision in Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017), cert. denied, 138 S.Ct. 925 (2018).7 In Muniz, the Pennsylvania

Supreme Court held the registration requirements under SORNA are punitive

in nature, and therefore, the retroactive application of SORNA’s registration

provisions violates the ex post facto clause of the Pennsylvania Constitution.8

Id. at 1218.     As this Court commented, “Muniz was a sea change in the

longstanding law of this Commonwealth as it determined that the registration




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7  “[T]he general rule in Pennsylvania is to apply the law in effect at the time
of the appellate decision.” Commonwealth v. Housman, 986 A.2d 822, 840
(Pa. 2009).

8 Muniz was a plurality decision. Justice Dougherty authored the Opinion
Announcing the Judgment of the Court (“OAJC”), holding: (1) SORNA’s
registration requirements constitute punishment; (2) the retroactive
application of the registration requirements violates the ex post facto clauses
of the United States and Pennsylvania Constitutions; and (3) Pennsylvania’s
ex post facto clause provides greater protection than its federal counterpart.
See Muniz, 164 A.3d at 1193, 1223. Justices Baer and Donahue joined the
OAJC in full. Justice Wecht filed a Concurring Opinion, joined by Justice Todd,
which joined those parts of the OAJC concluding the registration requirements
constitute punishment, and their retroactive application runs afoul of
Pennsylvania’s ex post facto clause. However, he disagreed with the OAJC’s
holding that the Pennsylvania Constitution provides greater protection than
the federal constitution, and, additionally, stated he would decline to address
the federal claim. See id. at 1224. Justice Saylor authored a Dissenting
Opinion in which he concluded SORNA is not punitive. Justice Mundy did not
participate in the decision.




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requirements under SORNA are not civil in nature but a criminal punishment.”

Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa. Super. 2017).9

       Most recently, an en banc panel in Fernandez, supra, readdressed the

issue of whether appellants, who were found to have violated the terms of

their respective probationary sentences, had to comply with the new

registration conditions and terms assigned to their crimes under SORNA, and

as mandated by Partee, in light of the Muniz decision.10 The Fernandez

Court held: “We are constrained to order that under Muniz, the trial court

may not increase [the appellants’] registration requirements under SORNA.

Consequently, we find that Muniz abrogates Partee, and agree with

[a]ppellants that the original periods of sexual offender registration and




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9 Subsequently, in Butler, supra, this Court determined that, because the
Muniz Court held SORNA’s registration requirements are punitive in nature,
and an SVP designation increases the registration period, trial courts could not
apply SORNA’s increased registration requirement for SVPs because the law
as written permits the court, and not a fact-finder, to determine, beyond a
reasonable doubt, that the defendant is an SVP. Butler, 173 A.3d at 1217-
1218, citing Alleyne v. United States, 570 U.S. 99 (2013).

10  The Fernandez decision involved 19 consolidated appeals. Two of the
appellants pled guilty to crimes that, at the time, did not require any period
of registration as sexual offenders. Fernandez, __A.3d __, 2018 PA Super
245, ¶ 4. The remaining appellants accepted plea agreements to crimes that
included ten-year periods of registration as sexual offenders under then-
existing versions of Megan’s Law. Id. at ¶¶ 4-5. In exchange for their guilty
or no-contest pleas, the Commonwealth withdrew several other charged
offenses in each case. Id. at ¶ 5. If the appellants had been convicted of
those withdrawn crimes, they would have been subjected to longer periods of
registration as sexual offenders. Id.

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conditions imposed in each case be reinstated.” Fernandez, __A.3d __, 2018

PA Super 245, ¶ 4. Moreover, the en banc panel stated:

     We find the facts of this case nearly identical to those in Partee.
     Appellants failed to comply with the sentencing requirements of
     their plea bargains, but still attempt to enforce the terms of these
     agreements. However, in Muniz, our Supreme Court held that
     the enhanced registration provisions of SORNA constitute
     punishment, and may not be applied retroactively. Therefore, the
     reclassifications of the Appellants after the effective date of
     SORNA cannot stand.

     To the extent the Commonwealth claims Appellants failed
     to demonstrate their plea agreements precluded lifetime
     registration, Muniz renders such a demonstration
     unnecessary. Following Muniz, SORNA’s sexual offender
     requirements may not be imposed retroactively on any
     defendant, regardless of whether the defendant accepted
     a plea bargain or was convicted at trial. Even offenders who,
     like Appellants, were sentenced before SORNA became law, have
     since violated the terms of their probation, and have been
     resentenced, are not subject to retroactive application of SORNA’s
     requirements.

Fernandez, __A.3d __, 2018 PA Super 245, ¶¶ 23-24 (emphasis added).

     Turning to the present matter, the trial court found the following:

           Here, the Commonwealth and [Pazuhanich] entered into a
     negotiated plea heard at a hearing on Monday, July 12, 2004 in
     front of this Honorable Court. At the guilty plea hearing, the
     Commonwealth did not oppose a probationary sentence.
     Additionally, there was an agreement that [Pazuhanich] would
     resign from his position as judge. Also at the guilty plea and
     sentencing hearing, a ten year registration period was specifically
     stated by the attorney for the Commonwealth, and confirmed by
     [Pazuhanich]’s counsel. There is nothing in the record to suggest
     that either party contemplated that the registration period would
     be longer than ten years. The record supports that at the time of
     the plea agreement, the parties understood that [Pazuhanich]
     would only be subjected to a period of registration longer than ten
     years if he was determined to be a sexually violent predator, which
     he was not.

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              As we heard and reviewed the plea agreement as presented
       on the record, it was clear that the plea agreement provided three
       essential elements: a probationary sentence, a resignation from
       public office, and a ten year registration requirement. As such,
       on July 12, 2004, this Court accepted the plea agreement and
       directed [Pazuhanich] to register with Pennsylvania Megan’s Law
       for a period of ten years.

Trial Court Opinion, 6/6/2016, at 4-5 (record citations omitted).

       As stated above, the Commonwealth argues the ten-year registration

requirement imposed as a consequence of Pazuhanich’s plea was not a

material element of the plea agreement, and therefore, he should not receive

any benefit of a bargain that needs to be enforced. See Commonwealth’s

Brief at 8. We disagree and conclude the decisions in Muniz and particularly

Fernandez are controlling.             Pursuant to Muniz and Fernandez, a

determination of whether the registration requirement was a material element

of Pazuhanich’s plea agreement is of no consequence.            As indicated in

Fernandez, “SORNA’s sexual offender requirements may not be imposed

retroactively on any defendant, regardless of whether the defendant accepted

a plea bargain or was convicted at trial.” Fernandez, __A.3d __, 2018 PA

Super 245, ¶ 24.11        Accordingly, Pazuhanich was not subject to SORNA’s

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11   The Fernandez Court also noted:

       Pennsylvania Legislature has endeavored to solve the issue of how
       to treat these offenders by passing a law to replace the invalidated
       portions of SORNA. See 2018 Pa. Legis. Serv. Act 2018-29 (H.B.
       1952) (approved June 12, 2018) (“Act 29”), amending Title 42



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retroactive registration increases and the trial court did not err in granting his

motion to enforce plea agreement and ordering the Commonwealth was only

entitled to subject Pazuhanich to the registration, reporting, and any other

provisions of the Megan’s Law requirements that were in effect at the time of




____________________________________________


       (Judicial Procedure) of the Pennsylvania Consolidated Statutes.
       Though Act 29 was enacted during the pendency of this appeal, it
       became effective immediately. In relevant part, its purpose is to
       eradicate the unlawful retroactive portions of SORNA proscribed
       in Muniz and instead impose lower periods of registration for
       offenders who committed applicable crimes between April 22,
       1996, and December 20, 2012. See 42 PA.C.S.A. § 9799.52.
       Rather than increasing [a]ppellants’ registration terms, the new
       law effectively places many of the listed crimes back in a ten-year
       registration category. See 42 PA.C.S.A. § 9799.55.

       Nevertheless, this Court rightly noted in Commonwealth v.
       Horning, __ A.3d __, 2018 PA Super 204, 2018 WL 3372367,
       that SORNA also enhanced registration conditions by adding
       requirements such as frequent in-person reporting and the
       publication of an offender’s personal information online. The
       Horning panel aptly identified these additional obligations as
       noncompliant with Muniz. Problematically, though it reduces the
       term of years for which these offenders must register, the new Act
       does not address these additional, more stringent conditions
       required under SORNA from those imposed under the earlier
       versions of Megan’s Law.

Fernandez, __A.3d __, 2018 PA Super 245, ¶¶ 24-26 (footnotes omitted).
Like in Fernandez, “the issue of the possible retroactive application of the
legislature’s new amendments to Appellants is not before us[,]” and we need
not address it further. Id. at ¶ 26.




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the 2004 agreement.12         Therefore, the Commonwealth’s sole argument on

appeal fails.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/16/2019




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12 We “may affirm the lower court on any basis, even one not considered or
presented in the court below.” Commonwealth v. Burns, 988 A.2d 684,
690 n. 6 (Pa. Super. 2009), citing Commonwealth v Torres, 764 A.2d 532,
541-543 (Pa. 2001).

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