J-S19032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    BRIAN FORMAN                               :
                                               :
                       Appellant               :       No. 466 EDA 2017


           Appeal from the Judgment of Sentence January 12, 2017
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0007846-2015


BEFORE:      SHOGAN, J., NICHOLS, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                               FILED AUGUST 16, 2018

       Appellant, Brian Forman, appeals from the judgment of sentence

imposed on January 12, 2017, following his jury conviction of one count each

of aggravated assault and recklessly endangering another person (REAP).1 On

appeal, Appellant challenges the sufficiency and weight of the evidence, and

the denial of his motion for a mistrial. For the reasons discussed below, we

affirm the judgment of sentence.

       We take the underlying facts and procedural history in this matter from

the trial court’s June 28, 2017 opinion and our independent review of the

certified record.


____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a) and 2705, respectively.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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            On May 27, 2015, Appellant became involved in a verbal
     altercation with Alexander Gonzalez Marinucci,[a] in front of the
     family home, a row house on North Lambert Street in Philadelphia.
     At some point Alexander turned away from Appellant, who then
     [punched] him from behind, striking Alexander in the side of the
     face. A fistfight between Appellant and Alexander then ensued.
     [(See N.T. Trial, 9/14/16, at 26-27, 86, 144, 160-61)]. Neighbors
     gathered. [(See id. at 34-35, 91-92)]. Alexander’s mother,
     Theresa Marinucci, exited their home and attempted to stop the
     fight. [(See id. at 27, 87)]. Arnaldo, the oldest brother, also
     exited the home and attempted to broker a [fair, one-on-one]
     fistfight. [(See id. at 28-29, 37, 88, 93, 148-49, 175, 178, 181)].

           [a]
               Because there were three Gonzalez/Marinucci
           brothers involved in these events, [the trial court
           refers] to them by their first names for clarity.

           During the course of the fight, [David Edwards], a man in a
     black hat who accompanied Appellant, also attempted to intervene
     in the fight. [(See id. at 29, 35, 88, 91, 145, 148)]. At some
     point, Alexander threw Appellant over a low fence and to the
     ground. [(See id. at 28, 37, 91, 146)]. Appellant accused
     Arnaldo of having a weapon. [See id. at 29, 38, 40, 93, 96, 184-
     85]. Appellant then left the scene with [Edwards], saying he was
     going to get a gun. [(See id. at 29-30, 40-41, 97, 107, 153-54,
     164)]. The neighbors started yelling that Appellant was going to
     get a gun and urging the Marinucci[]s to get in their house, which
     they did. [(See id. at 30, 151, 154-55, 168, 186)]. In addition to
     Theresa, Alexander and Arnaldo, Antonio Marinucci and Theresa’s
     boyfriend were in the house. [(See id. at 84-85, 166)].

           Shortly thereafter, Appellant and [Edwards] returned and
     Appellant began banging on the Marinucci[s’] front door as he
     attempted to open the security gate. Theresa Marinucci looked
     out through the peep[]hole and saw Appellant and [Edwards].
     [(See id. at 43-44, 100, 105, 107-08, 123)]. She saw the handle
     of a gun in Appellant’s waistband, then saw him point the gun
     toward the house. [(See id. at 45-47, 106, 123)]. Arnaldo also
     saw Appellant reaching under his shirt as though he had a
     weapon. [(See id. at 188-90)]. As Appellant did this, [Edwards],
     who also had a gun, started to back up and run to[wards] the
     middle of the street, walking sideways down the street from the
     house. [(See id. at 127-29, 132-33)]. Theresa then heard two


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      gunshots, followed by three more gunshots. [(See id. at 30-31,
      47)].

            There were two bullet holes in the kitchen window, bullet
      strikes up near the front bedroom window and on a brick wall, and
      in a cabinet and a laundry room door inside the house[. (See id.
      at 52-54, 125, 127; see also N.T. Trial, 9/15/16, at 47-48, 57-
      59)]. Four fired cartridge cases were recovered from the scene.
      All four were fired from the same weapon. [(See N.T. Trial,
      9/15/16, at 49, 58-59, 81, 83)].

             Police responded to the [victims’] calls to 9-1-1. [(See N.T.
      Trial, 9/14/16, at 47, 50)]. A short time later, Appellant and
      [Edwards] were stopped by police.           Appellant was not in
      possession of a weapon. [(See N.T. Trial, 9/15/16, at 24, 33, 37-
      38)]. Theresa was transported to the scene where she identified
      both men.       [(See N.T. Trial, 9/14/16, at 50-51, 89-90)].
      Appellant was charged, [Edwards] was not. [(See N.T. Trial,
      9/15/16, at 112)].

             Several days after the incident, a woman identifying herself
      as Appellant’s wife approached Theresa Marinucci, explained that
      Appellant was just drunk and asked Theresa to drop the charges,
      offering her $300[.00] and other services to do so. [(See N.T.
      Trial, 9/14/16, at 69-72)]. Several days later[,] the woman
      repeated this offer to Theresa. [(See id. at 74-75)].

(Trial Court Opinion, 6/28/17, at 2-3).

      On August 11, 2015, the Commonwealth filed a criminal information

charging Appellant with aggravated assault, REAP, and a variety of weapons

and other offenses. A jury trial took place beginning on September 13, 2016.

On September 16, 2016, the jury convicted Appellant of aggravated assault

and REAP, but acquitted him of the other charges.       On January 11, 2017,

Appellant filed a motion for extraordinary relief seeking a judgment of

acquittal or, in the alternative, a new trial. The trial court denied the motion

on January 12, 2017.

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      On January 12, 2017, following receipt of a pre-sentence investigation

report, the trial court sentenced Appellant to an aggregate term of

incarceration of not less than eight nor more than twenty years. The instant,

timely appeal followed. On January 31, 2017, the trial court directed Appellant

to file a concise statement of errors complained of on appeal. See Pa.R.A.P.

1925(b). Appellant filed a timely Rule 1925(b) statement on February 21,

2017. See id. On June 28, 2017, the trial court issued an opinion. See

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

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

            [1.] Is the evidence sufficient as a matter of law to support
      the conviction for criminal aggravated assault as set forth in 18
      Pa.C.S.A. § 2702(a) graded as a felony of the first degree[?]

             [2.] Is the verdict of guilty with respect to the charge of
      aggravated assault as set forth in 18 Pa. C.S.A. §2702(a), graded
      as a felony of the first degree, against the weight of the evidence
      and so contrary to the evidence that it shock’s one’s sense of
      justice[?]

            [3.] Did the trial court err and/or abuse[] its discretion
      where it denied [Appellant’s] motion for a mistrial based upon a
      police detective’s improper and unwarranted comment upon
      [Appellant’s] post-arrest silence in response to a direct question
      from the assistant district attorney?

(Appellant’s Brief, at 7-9) (subparts omitted).




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       Appellant challenges the sufficiency of the evidence underlying his

conviction for aggravated assault.2            (See id. at 23-31).   Our standard of

review for sufficiency of the evidence claims is well settled:

             We must determine whether the evidence admitted at trial,
       and all reasonable inferences drawn therefrom, when viewed in
       a light most favorable to the Commonwealth as verdict
       winner, support the conviction beyond a reasonable doubt.
       Where there is sufficient evidence to enable the trier of fact to find
       every element of the crime has been established beyond a
       reasonable doubt, the sufficiency of the evidence claim must fail.

             The evidence established at trial need not preclude every
       possibility of innocence and the fact-finder is free to believe all,
       part, or none of the evidence presented. It is not within the
       province of this Court to re-weigh the evidence and substitute our
       judgment for that of the fact-finder. The Commonwealth’s burden
       may be met by wholly circumstantial evidence and any doubt
       about the defendant’s guilt is to be resolved by the fact finder
       unless the evidence is so weak and inconclusive that, as a matter
       of law, no probability of fact can be drawn from the combined
       circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

       The crime of aggravated assault occurs when a person “attempts to

cause serious bodily injury to another, or causes such injury intentionally,

knowingly or recklessly under circumstances manifesting extreme indifference

to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1). An aggravated

assault also takes place when an individual “attempts to cause or intentionally



____________________________________________


2
  Appellant does not challenge the sufficiency of the evidence underlying his
conviction for REAP. (See Appellant’s Brief, at 23-31).

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or knowingly causes bodily injury to another with a deadly weapon[.]” 18

Pa.C.S.A. § 2702(a)(4).

     The Crimes Code defines “[s]erious bodily injury” as “[b]odily injury

which creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.”     18 Pa.C.S.A. § 2301.     “Bodily injury,” is defined as

“[i]mpairment of physical condition or substantial pain.” Id.

     In the context of Section 2702, attempt “is demonstrated by proving

that the accused acted in a manner which constitutes a substantial or

significant step toward perpetrating serious bodily injury upon another along

with the intent to inflict serious bodily injury.” Commonwealth v. Gruf, 822

A.2d 773, 776 (Pa. Super. 2003), appeal denied, 863 A.2d 1143 (Pa. 2004)

(citation omitted).   We can sustain a conviction for aggravated assault

regardless of whether any serious bodily injury actually occurred. See id.

     Additionally, when an assault takes place but the assailant does not

inflict serious bodily injury, “the charge of aggravated assault can be

supported only if the evidence supports a finding that the blow delivered was

accompanied by the intent to inflict serious bodily injury.” Commonwealth

v. Alexander, 383 A.2d 887, 889 (Pa. 1978). The Commonwealth can prove

intent through direct or circumstantial evidence. See id. We can consider

whether the attacker was disproportionately larger or stronger than the

victim; whether the attacker escalated the attack; whether the attacker used


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a weapon to aid in his attack; and any statements made by the attacker. See

id.; see also Commonwealth v. Jackson, 955 A.2d 441, 446 (Pa. Super.

2008), appeal denied, 967 A.2d 958 (Pa. 2009).

      Initially, we note Appellant’s sufficiency claim is less a claim that the

Commonwealth did not make out the elements of the offense than a claim

that the jury should have credited his theory that Edwards was the shooter

and not the testimony of Theresa Marinucci. (See Appellant’s Brief, at 23-

28). However, an argument that the finder of fact should not have credited a

witness’s testimony goes to the weight, not the sufficiency of the evidence.

See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa. Super. 2007)

(claim that jury should not have believed victim’s version of events goes to

weight, not sufficiency of evidence).

      Moreover, as discussed above, the evidence demonstrated that

Appellant got into a fight with Alexander. Appellant, getting the worst of the

fight, left the scene, saying he was going to get a gun. He and Edwards then

returned to the scene, and Appellant began to bang on the Marinuccis’ front

door and attempted to pry open the security gate. Theresa Marinucci saw

Appellant reach for the handle of a gun stored in the waist of his pants. She

then observed Appellant back away from the door, pull the gun, and aim it.

She did not see him shoot, but immediately after he aimed the gun, she heard

five pops. While Theresa Marinucci also saw Edwards with a gun, she did not

see him pull it or aim it and he was backing away from the house and going


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towards the street at the time of the shooting. This evidence was sufficient

to   sustain   Appellant’s   conviction   for   aggravated    assault.   See

Commonwealth v. Hunter, 644 A.2d 763, 764 (Pa. Super. 1994), appeal

denied, 668 A.2d 1125 (Pa. 1995) (holding evidence sufficient to sustain

conviction for aggravated assault where appellant fired gunshots into

residence he knew to be occupied because, “[t]he intent to do serious bodily

harm can be inferred in the act of discharging a firearm into an occupied

home.”).

      Further, Appellant claims, without substantiation, that the jury’s

acquittal of him on the weapons offense must mean that they did not believe

he was the person who shot at the home, otherwise the verdict is inconsistent.

(See Appellant’s Brief, at 28). However, the Pennsylvania Supreme Court has

held that “a mere facial inconsistency in verdicts is not a valid basis upon

which to upset a conviction which is otherwise proper, since consistency in

verdicts is not required.” Commonwealth v. Magliocco, 883 A.2d 479, 492

(Pa. 2005) (citation and footnote omitted); see also Commonwealth v.

Rakowski, 987 A.2d 1215, 1220 (Pa. Super. 2010), appeal denied, 9 A.3d

629 (Pa. 2010) (holding that inconsistent verdict is not basis for reversal).

Accordingly, Appellant’s sufficiency of the evidence claim fails.




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       In his second issue, Appellant challenges the weight of evidence. (See

Appellant’s Brief, at 31-35).3 Our scope and standard of review of a weight of

the evidence claim is as follows:

             The finder of fact is the exclusive judge of the weight of the
       evidence as the fact finder is free to believe all, part, or none of
       the evidence presented and determines the credibility of the
       witnesses.

              As an appellate court, we cannot substitute our judgment
       for that of the finder of fact. Therefore, we will reverse a jury’s
       verdict and grant a new trial only where the verdict is so contrary
       to the evidence as to shock one’s sense of justice. A verdict is
       said to be contrary to the evidence such that it shocks one’s sense
       of justice when the figure of Justice totters on her pedestal, or
       when the jury’s verdict, at the time of its rendition, causes the
       trial judge to lose his breath, temporarily, and causes him to
       almost fall from the bench, then it is truly shocking to the judicial
       conscience.

              Furthermore, where the trial court has ruled on the weight
       claim below, an appellate court’s role is not to consider the
       underlying question of whether the verdict is against the weight
       of the evidence. Rather, appellate review is limited to whether
       the trial court palpably abused its discretion in ruling on the weight
       claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en

banc) (citation and quotation marks omitted). “Thus, the trial court’s denial

of a motion for a new trial based on a weight of the evidence claim is the least

assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-80

(Pa. 2008), cert. denied, 556 U.S. 1106 (2009) (citation omitted).


____________________________________________


3
  Appellant does not challenge the weight of the evidence underlying his
conviction for REAP. (See Appellant’s Brief, at 31-35). Appellant preserved
his weight of the evidence claim by filing a post-trial motion.

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      In its Rule 1925(a) opinion, the trial court stated:

            Although there were inconsistencies in the Marinuccis’
      testimony, they mainly involved issues of who was standing
      where, the order of certain events or the completeness of prior
      statements. The core facts giving rise to the conviction were not
      in material dispute, and the jury reconciled unessential
      discrepancies. The [trial c]ourt’s conscience was in no way
      shocked by the verdict of guilty on the aggravated assault charge,
      which was not at all contrary to the weight of the relevant credible
      evidence.

(Trial Ct. Op., at 8); see Commonwealth v. Griscavage, 517 A.2d 1256,

1259 (Pa. 1986).

      “[I]t is for the fact-finder to make credibility determinations, and the

finder of fact may believe all, part, or none of a witness’s testimony.”

Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa. Super. 2008), appeal

denied, 964 A.2d 894 (Pa. 2009) (citation omitted).          This Court cannot

substitute our judgment for that of the finder of fact. See Commonwealth

v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, 134 S.Ct. 1792

(2014). Here the jury chose to credit the Commonwealth’s theory of the case

and not Appellant’s; the trial court found that this decision did not shock its

conscience; thus, this issue does not merit relief.

      In his third claim, Appellant contends the trial court erred in denying his

motion for a mistrial after a police witness commented on Appellant’s post-

arrest silence. (See Appellant’s Brief, at 36-44). However, Appellant waived

this claim.




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      This Court has stated that, “[i]n order to preserve a claim of

prosecutorial misconduct for appeal, a defendant must make an objection and

move for a mistrial.” Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa.

Super. 2007), appeal denied, 938 A.2d 1052 (Pa. 2007) (citation omitted);

see also Commonwealth v. Manley, 985 A.2d 256, 267 n.8 (Pa. Super.

2009), appeal denied, 996 A.2d 491 (Pa. 2010) (noting that where defendant

objects and trial court sustains objection, failure to request either curative

instruction or mistrial constitutes waiver on appeal).

      During Detective Steve Jefferson’s testimony, the Commonwealth asked

the detective what occurred after the detective took statements from the

victim. Detective Jefferson answered:

      A. After I took the statements from them, they signed the
         photographs. I reviewed all the statements that were taken. I
         believe there was another detective that did interviews, and I
         wanted to speak with [Appellant] to hear his side of the story
         about what happened.

      Q. And did you have an opportunity to do that?

      A. No. [Appellant] did not want to talk to me.

      [Defense Counsel]: Objection.

      THE COURT: Sustained. Let me see counsel at sidebar.

(N.T. Trial, 9/15/16, at 65).    The sidebar discussion was off-the-record.

Following, the discussion, the Commonwealth continued to question the

witness and defense counsel subsequently cross-examined him. (See id. at

66-76).   The Commonwealth then called another witness, and both sides


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questioned him. (See id. at 76-90). The court then broke for lunch. (See

id. at 90-91).

      At that time, a discussion took place on-the-record regarding the nature

of defense counsel’s objection to the question asked of Detective Jefferson;

and whether an instruction to the jury would cure any prejudice. (See id. at

91-94). At no point during this discussion, did defense counsel move for a

mistrial or indicate in any manner that he had moved for a mistrial during the

sidebar conference. (See id.). The trial court never mentioned any motion

for a mistrial and never ruled on any such motion. (See id.).

      Following the lunch recess, the trial court informed counsel that it would

issue an instruction to the jury and both parties agreed to the language of the

instruction. (See id. at 108-09). The trial court then charged the jury as

follow:

            . . . [T]here was testimony from Detective Jefferson that
      [Appellant] chose not to speak to the police. I instruct you that
      [Appellant] and everyone has an absolute right based upon the
      United States and Pennsylvania Constitutions to remain silent.
      You are not to hold that against him in any way. All right.

(Id. at 110). Appellant did not object to the instruction.

      Thus, while Appellant objected and the trial court sustained his

objection, Appellant does not identify the location in the record on appeal

where he moved for a mistrial (and in fact claims it happened dehors the

record), or sought other relief, and our review of the record for this purpose

likewise did not identify any such action. See Pa.R.A.P. 2119(e); (see also


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Appellant’s Brief, at 36-44). Because Appellant did not preserve this issue in

the trial court, he has waived it for purposes of appeal. See Manley, supra

at 267 n.8; Sasse, supra at 1238.

      Moreover, the claim is without merit. The following standards govern

our review of the denial of a motion for mistrial:

            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 serves not only the
         defendant’s interest but, equally important, the public’s
         interest in fair trials designed to end in just judgments.
         Accordingly, the 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 error actually
         occurred, and if so, . . . assess the degree of any resulting
         prejudice. Our review of the resulting order is constrained
         to determining whether the court abused its discretion.
         Judicial discretion requires action in conformity with [the]
         law on facts and circumstances before the trial court after
         hearing and consideration. Consequently, the court abuses
         its discretion if, in resolving the issue for decision, it
         misapplies the law or exercises its discretion in a manner
         lacking reason.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal

denied, 145 A.3d 724 (Pa. 2016) (citation omitted). “A mistrial is an extreme

remedy that is required only where the challenged event deprived the accused

of a fair and impartial trial.” Commonwealth v. Smith, 131 A.3d 467, 475

(Pa. 2015), cert. denied, 137 S.Ct. 46 (2015) (citation omitted). “The trial



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court is in the best position to assess the effect of an allegedly prejudicial

statement on the jury, and as such, the grant or denial of a mistrial will not

be overturned absent an abuse of discretion.” Commonwealth v. Parker,

957 A.2d 311, 319 (Pa. Super. 2008), appeal denied, 966 A.2d 571 (Pa. 2009)

(citation omitted).

      Further, this Court has stated:

      If the Commonwealth mentions a defendant’s post-arrest silence,
      the court might still be able to cure any prejudice through prompt
      and adequate curative instructions.           To evaluate whether
      cautionary instructions can cure a reference to a defendant’s post-
      arrest silence, courts must consider 1) the nature of the reference
      to the defendant's silence; 2) how it was elicited; 3) whether the
      district attorney exploited it; and 4) the promptness and adequacy
      of the cautionary instructions. If the reference to the defendant’s
      post-arrest silence was such that it incurably compromised the
      jury’s objectivity and would deprive the defendant of a fair trial,
      then the court should grant a mistrial.

Commonwealth v. Moury, 992 A.2d 162, 176 (Pa. Super. 2010) (internal

citations, quotation marks, and footnote omitted).

      In this case, Detective Jefferson’s reference to Appellant’s post-arrest

silence was brief and fleeting.   His answer was in response to a series of

questions about the what events took place after Detective Jefferson

interviewed the victim. (See N.T. Trial, 9/15/16, at 650. These questions

were not meant to elicit a response regarding Appellant’s post-arrest silence.

Instead, Detective Jefferson, merely narrated what actions he took on the

evening in question, which including an attempt to interview Appellant;

however, Appellant was unwilling to speak to him. The Commonwealth did


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not exploit Appellant’s post-arrest silence.     It did not continue questioning

Detective Jefferson about the subject. Finally, the trial court gave a complete

curative instruction. “[A] mistrial is not necessary where the [trial court’s]

cautionary instructions are adequate to overcome any possible prejudice.”

Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007), cert. denied, 552

U.S. 1316 (2008) (citation omitted). Further, “[w]hen the trial court provides

cautionary instructions to the jury in the event the defense raises a motion for

a mistrial, [t]he law presumes that the jury will follow the instructions of the

court.” Parker, supra at 319 (citation and internal quotation marks omitted).

Thus, we find that all four factors weigh in favor of finding that the trial court’s

instruction cured any prejudice Appellant may have suffered as a result of

Detective Jefferson’s statement. Therefore, even if Appellant had preserved

the claim, we would conclude that the trial court did not abuse its discretion

in denying Appellant’s motion for mistrial.

        Appellant’s issues are either waived or lack merit. Thus, we affirm the

judgment of sentence.

        Judgment of sentence affirmed.

        Judge Nichols did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2018




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