J. S37045/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
KEVIN ESTERLY,                             :          No. 153 EDA 2019
                                           :
                          Appellant        :


      Appeal from the Judgment of Sentence Entered December 10, 2018,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0001792-2018


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 23, 2019

        Kevin Esterly appeals from the December 10, 2018 judgment of

sentence entered in the Court of Common Pleas of Lehigh County after he

entered an open guilty plea to one count of corruption of minors.1 The trial

court imposed a term of imprisonment of 2½ to 5 years. We affirm.

        Appellant agreed with the following factual basis for the plea:

              [On February 9, 2018, M.L., the victim’s mother,]
              reported that [the victim, born in December of 2001]
              had been signed out of school . . . earlier that day on




1   18 Pa.C.S.A. § 6301(a)(1)(i).

       We note that the record reflects that in exchange for appellant’s guilty
plea, the Commonwealth withdrew the charges of interference with custody
of children, 18 Pa.C.S.A. § 2904 (graded as a third-degree felony); and felony
concealment of whereabouts of children, 18 Pa.C.S.A. § 2909 (graded as a
third-degree felony).
J. S37045/19


           the 9th by [appellant] who at the time I believe was
           45 years old[2] and was not authorized to do that.

           On February 15th at 21:30 hours Allentown Police
           responded to [M.L.’s]      residence.   While there[,
           appellant] and his wife Stacey were there. Both
           [appellant] and Stacey were advised by Allentown
           Police to stay away from the residence and to have no
           contact with [the victim].

           On February 20th of 2018[, the victim] was
           interviewed forensically and during that interview
           disclosed that [appellant] had signed her out of school
           five to six times without her mother’s knowledge or
           consent.

           Police were able to check the school records and the
           records revealed that from November of 2017 to
           February of 2018[, appellant] had signed [the victim]
           out of school ten times without permission from her
           mother.

           On March 5th of 2018 about 6:30 in the evening[,
           M.L.] reported that [the victim] was missing. She said
           that she had last seen [the victim] that morning
           around 7 o’clock, when she had dropped her off
           around the area of 15th and Allen for the school bus.
           [M.L.] reported that based on history she believed
           [the victim] to be with [appellant].

           She also indicated that some money and jewelry were
           taken from her residence. She believed that [the
           victim] had taken those items.

           Allentown Police made contact with [appellant’s] wife,
           Stacey Esterly. Ms. Esterly reported that she last saw
           [appellant] about 6:00 a.m. on the morning of
           March 5th.




2We note that the record reflects that appellant was born in December of
1972. At all times relevant to the factual basis of the plea, appellant was
45 years old and the victim was 16 years old.


                                    -2-
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          She indicated that $4,000 in their joint bank account
          had been withdrawn and that [appellant’s] car was
          missing.

          On March 6th the police were able to confirm that
          [appellant] did in fact withdraw $4,000 from their joint
          account at the Lehigh Valley Educator’s credit union
          on Hamilton Boulevard.

          Police were also able to confirm that no student saw
          [the victim] leave the school bus on the morning of
          the 5th.

          On March 7th Stacey Esterly contacted Allentown
          Police to inform them that she had been calling
          various airlines asking if her husband had purchased
          any tickets. She was informed that on March 5th
          [appellant] had purchased a one way ticket from
          Philadelphia to Cancun, Mexico.

          Allentown Police contacted Homeland Security with
          this information and Homeland Security was able to
          determine flight information for both [appellant and
          the victim], determined that they both purchased
          tickets on flights from Philadelphia to Cancun, Mexico.

          Video surveillance from the hospital or from the
          airports [was] able to confirm that they were traveling
          together in Philadelphia and at Dallas/Forth Worth
          Airports, which was a stop on the way to Cancun.

          At this point, . . . the initial complaint was filed and all
          efforts were made focusing on finding [the victim] and
          [appellant] in Mexico.

          At this time police were doing everything they could .
          . . to try to locate [the victim] and [appellant]. They
          were checking e-mails, Snapchat logs, Netflix
          downloads.

          Homeland Security had, in fact, reached out to
          authorities in Mexico and on March 15th Mexican
          authorities issued an AMBER Alert.



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          On March 16th a local cab driver in Mexico called in to
          claim to have driven both [the victim] and [appellant]
          to an apartment complex near Cancun.

          On March 17th Homeland Security and Mexican police
          set up surveillance in the area described by the cab
          driver and around 11:45 they entered the residence
          and they recovered both [the victim] and [appellant].

          While there Homeland Security had occasion to speak
          with [the victim]. [She] talked to Homeland Security.
          She indicated that she had always planned on leaving
          home. She told them that she had purchased the
          plane tickets for herself on her own.

          She said that when [appellant] found out            he
          purchased tickets for himself to accompany her.

          She said that she came up with all the travel plans by
          herself. That on the morning of the 5th that instead
          of going to school she met [appellant] at the
          McDonald’s parking lot and he . . . drove them to the
          Philadelphia Airport.

          She said that she had pre-booked a hotel with a
          prepaid card and they stayed for a week at a hotel in
          Cancun.

          She indicated that she left her cell phone in Allentown
          and brought a laptop with her. She indicated that
          before she took her laptop she wiped it, prior to
          leaving Allentown.

          She said she knew the authorities were looking for her
          and once they were in Mexico[, she] and [appellant]
          moved their location around and, in fact, created
          aliases by the name of Jamie Cruz and Calvin Cruz.

          When asked about their history[, the victim] said she
          has known [appellant] since she was nine years old.
          She had known him from church.

          She indicated that she had a poor relationship with
          her mother. She viewed [appellant] as a father figure


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          to her. She said she spent a lot of time at the Esterly’s
          home because she did not want to be with her mother.
          She emphatically denied any kind of sexual
          relationship with [appellant].

          Homeland Security took [the victim] on a plane and
          flew her to the Philadelphia Airport where she was met
          by Detectives from Allentown Police.

          While she was with Allentown Police she reiterated
          again what she told Homeland Security. Again she
          said she was planning to go to Mexico anyway; that
          [appellant] came along. Again, she denied any type
          of sexual relationship.

          She inquired where Allentown Police were taking her.
          They told her she was going to be returned to her
          mother’s house. [The victim] became very upset,
          indicated that she wasn’t going home.

          The Allentown Police drove her to her mother’s house
          at which point she again indicated that she didn’t want
          to go and at one point indicated that she would rather
          be dead.

          At that point, when she said that, Allentown Police
          took her to St. Luke’s because there was a concern
          that she might be a danger to herself.

          Ultimately Children and Youth became involved and
          [the victim] was placed in a location that we are not
          going to disclose and she is currently there. Although
          we know from the media reports that at that location
          she did ultimately leave at one point in time on her
          own and was returned there.

          Meanwhile, [appellant] was taken by Homeland
          Security to Miami, Florida and while he was there he
          waived extradition to Pennsylvania.

          On March 24th Detective Hackman of [the] Allentown
          Police and Detective Ressler of [the district attorney’s]
          office picked [appellant] up in Miami and flew him
          back to Pennsylvania.


                                    -5-
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          Once back in Pennsylvania Detective Hackman
          brought [appellant] to headquarters and spent a
          number of hours speaking with him.

          [Appellant] indicated that he knew [the victim] from
          church. He indicated that he didn’t really get close
          with her until the summer of 2017.

          He indicated that [M.L.] was having trouble controlling
          [the victim’s] behavior. That [the victim] told him
          that her mother was physically abusive to her.

          [The victim] began spending a lot of time at the
          Esterly residence in the summer of 2017.       He
          acknowledged that in February of 2018 Allentown
          Police told him not to have any contact with [the
          victim].

          [Appellant] acknowledged that he took [the victim]
          out of school. He said he did it to help her get things
          like her driver’s permit.

          [Appellant] said that he spoke to [the victim] on
          March 4th, that she told him she was leaving.
          [Appellant] acknowledged that he decided to go with
          her and met her at McDonald’s on the morning of
          the 5th, drove her down to Philadelphia and flew with
          her to Dallas and eventually to Mexico where they got
          a hotel. [Appellant] denied any type of sexual contact
          with [the victim].

          He acknowledged that he took $4,000 from his
          account at the Credit Union but indicated that it was
          his money. And [the Commonwealth] did, in fact,
          confirm that it was a joint account.

          He acknowledged that in Mexico he and [the victim]
          got aliases, moved around to avoid detection, and that
          while in Mexico he made no effort to inform anybody
          about [the victim’s] location or even if she was okay.

          On March 28th Detective Murray from Allentown Police
          again went to visit and speak with [the victim]. Again,


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          she reiterated that she was planning to go to Mexico
          on her own, that she told [appellant] about it, and that
          she said she was going anyway at which point he said
          he would go with her. Again, she denied any type of
          sexual relationship.

          She said that she put [appellant] on her emergency
          contact at school because she believed her mother
          didn’t care about her. She said he took her out of
          school for things like her driver’s permit, doctor’s
          appointments and soccer.

          On April 2nd we spoke to [M.L.]. She told us that they
          have known [appellant] since [the victim] was eight
          years old and that she knew him through church.

          She indicated that she noticed [the victim] getting
          closer to [appellant] in the past few months and that
          he would come to the house to pick [the victim] up.

          She indicated that [the victim] had recently begun to
          talk back to her. [M.L.] acknowledged that when [the
          victim] would talk back to her she would sometimes
          physically discipline [the victim] for talking back.

          She indicated that she never gave permission for
          [appellant] to sign [the victim] out of school and that
          she had told [appellant] that she did not want [him]
          to see [the victim] any more.

          Again, she said she dropped [the victim] off for school
          -- or for the bus at the bus stop on March 5th and [the
          victim] never came back from school.

          To date, . . . I don’t believe, since [the victim] has left,
          [M.L.] has had a chance to see [the victim] yet and I
          could only describe her mood as heartbroken about
          that.

          I know the Court’s expressed questions about the
          nature of the relationship between [appellant] and
          [the victim].




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            All I can say is that [the victim] has denied any type
            of sexual relationship numerous times. [Appellant]
            has denied it. And while we certainly have our beliefs
            and suspicions we have no direct or forensic evidence
            to say otherwise.

Notes of testimony, 11/1/18 at 4-14.       Following imposition of sentence,

appellant filed a timely motion for reconsideration of sentence. The trial court

denied the motion. Appellant filed a timely notice of appeal. The trial court

ordered appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied. Subsequently, the

trial court filed its Rule 1925(a) opinion wherein it relied on its January 2,

2019 opinion that set forth its reasons for denying appellant’s motion for

reconsideration of sentence.

      Appellant raises the following issue for our review:

            Did the lower court abuse its discretion by imposing
            an unreasonable and excessive statutory maximum
            sentence for a Level 2 misdemeanor offense of
            corruption of minors by: (1) speculating that
            [appellant’s] relationship with the 16-year-old
            [victim] was a sexual one and then using such a
            “finding” to enhance the sentence; (2) relying on
            insufficient, unproven reasons for exceeding all
            guideline ranges; (3) ignoring substantial mitigating
            evidence; (4) failing to consider [appellant’s]
            rehabilitative needs; and (5) showing a biased
            determination to impose the maximum sentence
            possible?

Appellant’s brief at 4.

      Appellant challenges the discretionary aspects of his sentence.

            [T]he proper standard of review when considering
            whether   to   affirm  the    sentencing court’s


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            determination is an abuse of discretion. . . . [A]n
            abuse of discretion is more than a mere error of
            judgment; thus, a sentencing court will not have
            abused its discretion unless the record discloses that
            the judgment exercised was manifestly unreasonable,
            or the result of partiality, prejudice, bias or ill-will. In
            more expansive terms, our Court recently offered: An
            abuse of discretion may not be found merely because
            an appellate court might have reached a different
            conclusion, but requires a result of manifest
            unreasonableness, or partiality, prejudice, bias, or
            ill-will, or such lack of support so as to be clearly
            erroneous.

            The rationale behind such broad discretion and the
            concomitantly deferential standard of appellate review
            is that the sentencing court is in the best position to
            determine the proper penalty for a particular offense
            based upon an evaluation of the individual
            circumstances before it.

Commonwealth v. Moury, 992 A.2d 162, 169-170 (Pa.Super. 2010)

(citation omitted; brackets in original).

            Challenges to the discretionary aspects of sentencing
            do not entitle an appellant to review as of right.
            Commonwealth v. Sierra, [752 A.2d 910, 912
            (Pa.Super. 2000)].      An appellant challenging the
            discretionary aspects of his sentence must invoke this
            Court’s jurisdiction by satisfying a four-part test:

                  [W]e conduct a four-part analysis to
                  determine: (1) whether appellant has
                  filed a timely notice of appeal, see
                  Pa.R.A.P. 902 and 903; (2) whether the
                  issue   was    properly   preserved     at
                  sentencing or in a motion to reconsider
                  and modify sentence, see Pa.R.Crim.P.
                  [720]; (3) whether appellant’s brief has a
                  fatal defect, Pa.R.A.P. 2119(f); and
                  (4) whether there is a substantial
                  question that the sentence appealed from



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                  is not appropriate under the Sentencing
                  Code, 42 Pa.C.S.A. § 9781(b).

Moury, 992 A.2d at 170 (citation omitted; brackets in original).

      Here, appellant filed a timely notice of appeal, properly preserved his

sentencing challenge in a post-sentence motion seeking reconsideration of

sentence, and included in his brief the requisite Rule 2119(f) statement.

Consequently, we must now determine whether appellant raises a substantial

question.

      We determine whether an appellant raises a substantial question on a

case-by-case basis.     Commonwealth v. Swope, 123 A.3d 333, 338

(Pa.Super. 2015) (citation omitted). “A substantial question exists only when

an 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.” Id. (citation omitted).

            In determining whether a substantial question exists,
            this Court does not examine the merits of whether the
            sentence is actually excessive. Rather, we look to
            whether the appellant has forwarded a plausible
            argument that the sentence, when it is within the
            guideline    ranges,     is  clearly   unreasonable.
            Concomitantly,       the     substantial     question
            determination does not require the court to decide the
            merits of whether the sentence is clearly
            unreasonable.

Id. at 340 (citation omitted).




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      Appellant claims that the trial court abused its discretion when it

imposed an excessive sentence (1) after speculating that appellant’s

relationship with the victim was sexual; (2) after considering factors that have

no record support; particularly, the victim’s vulnerability and appellant’s lack

of remorse; (3) by ignoring mitigating evidence; (4) by failing to consider

appellant’s rehabilitative needs and the protection of the public; and (5) by

demonstrating bias against appellant.     Appellant’s claims raise substantial

questions.   See, e.g., Commonwealth v. Simpson, 829 A.2d 334, 338

(Pa.Super. 2003) (finding that “a claim that the sentence is excessive because

the trial court relied on impermissible factors raises a substantial question”);

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.Super. 2014) (finding a

substantial question was presented by an excessiveness claim combined with

allegations that the trial court failed to consider mitigating factors);

Commonwealth v. Downing, 990 A.2d 788, 793 (Pa.Super. 2010) (holding

that a claim that the trial court failed to consider defendant’s rehabilitative

needs and the protection of society in fashioning sentence raises a substantial

question); and Commonwealth v. Corley, 31 A.3d 293, 297 (Pa.Super.

2011) (finding that an allegation of bias in sentencing implicates the

fundamental norms underlying sentencing and, therefore, raises a substantial

question).

      Appellant’s first, second, and fifth claims are interrelated.    In those

claims, appellant contends that the trial court considered impermissible



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factors in the absence of record support and that those impermissible

considerations resulted in bias against appellant at sentencing. As this court

has stated, a “guilty plea does not prevent the sentencing court from making

reasonable inferences based on [record] facts.” Commonwealth v. Druce,

796 A.2d 321, 336 (Pa.Super. 2002).

      Appellant first claims that the trial court “speculated [that the victim and

appellant] had a sexual relationship and made that specific finding despite the

lack of any record evidence to support such a conclusion.” (Appellant’s brief

at 18.) At the sentencing hearing, the trial court stated that it believed that

there was enough circumstantial evidence for it to find that appellant and the

victim shared a sexual relationship. (Notes of testimony, 12/10/18 at 29.)

The conclusion was reasonable in light of the record.

      Although appellant focuses on the fact that he and the victim denied a

sexual relationship, the trial court heard testimony from appellant’s wife who

stated that she was not comfortable with the relationship that appellant had

with the victim and that it got “very weird.” (Id. at 13.) Appellant’s wife

further testified that it “broke [her] heart” when she learned that appellant

had been renting an apartment without her knowledge which explained to her

why appellant always wanted to leave the marital residence. (Id.) Appellant

admitted to secretly renting the apartment and being there with the victim.

(Id. at 38.) Although appellant described himself as a “father figure” to the

victim, he acknowledged that he shared a secret life with her in which he



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signed her out of school, provided her with alcohol, took her out of the country,

eluded law enforcement in an effort to remain with her, and stayed with her

in a hotel room. (Id. at 35, 38-39.)

      At the sentencing hearing, the trial court admitted into evidence eight

photographs that were taken from appellant’s phone that depict appellant and

the victim in Mexico. (Id. at Commonwealth Exhibits 1-8). Our review of the

photographs, as well as the transcripts of the guilty plea hearing and the

sentencing hearing, compels the conclusion that the trial court reasonably

inferred that appellant and the victim shared a sexual relationship.

      Appellant next complains that the trial court impermissibly considered

factors that have no record support; specifically, the victim’s vulnerability.

The record reflects that the trial court imposed a sentence outside of the

guidelines range because, among other things, the “victim was particularly

vulnerable due to her age.” (Id. at 43.) In his brief, appellant attempts to

convince this court that the victim was a cunning 16-year-old girl who

masterminded a plan to run away to Mexico and that the 45-year-old appellant

merely tagged along. The United States Supreme Court has recognized “three

key differences” between minors and adults in the context of juvenile

punishment in Graham v. Florida, 560 U.S. 48 (2010). Although the case

before us does not concern juvenile punishment, we nevertheless find the “key

differences” instructive. The High Court recognized that compared to adults,

minors (1) have a “lack of maturity and an underdeveloped sense of



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responsibility”; (2) are more vulnerable and susceptible to negative

influences; and (3) have an underdeveloped character. Id. at 68. These

“key differences” compel the conclusion that the trial court did not abuse its

discretion in determining that the 16-year-old victim in this case was

“particularly vulnerable due to her age.” (Notes of testimony, 12/10/18 at

43.)

       Appellant next claims that the trial court failed to provide additional

details as to why appellant’s offense gravity score was an “inadequate

measure of the seriousness of the crime.”      (Appellant’s brief at 22.)   The

record belies this claim. The trial court explained

            [appellant], this is more than just a mistake. Every
            day in court we accept circumstantial evidence as
            proof of certain things. There is an enormous amount
            of circumstantial evidence and direct evidence against
            you.

            You asked me to make some unreasonable leaps
            about what was happening with your relationship with
            [the victim] that I’m not willing to make.

            If you were a father figure to her one of the things you
            could have done was just let her go and then call the
            authorities. Get out of the airport, right? That was
            one of the choices.

            APPELLANT: Yeah.

            THE COURT: Why you didn’t make that choice is
            because during these years as your contact with [the
            victim] increased, and increased, and increased, and
            your deceptions became more and more and the time
            you spent with her got greater and greater, you
            became obsessed and you didn’t want her to go
            without you.


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            You needed to be with her. That’s why you left your
            family. That’s why you destroyed two families. Two
            families.

            You were repeatedly told to stay away from her and
            you didn’t. You just made criminal choices that
            expose you to the [maximum] sentence.

Notes of testimony, 12/10/18 at 42-43. Clearly, appellant’s claim that the

trial court failed to provide additional details as to the insufficiency of

appellant’s offense gravity score relative to the seriousness of the crime lacks

record support.

      Appellant’s final claim with respect to his contention that the trial court

relied on insufficient or unproven reasons for exceeding the guidelines range

is that the trial court abused its discretion when it concluded that appellant

lacked remorse because appellant         “expressed remorse and accepted

responsibility for what he admitted he did.” (Appellant’s brief at 22.) The trial

court, however, concluded that appellant showed little remorse and failed to

accept full responsibility. (Notes of testimony, 12/10/18 at 42-43.)

            In considering whether a sentence was manifestly
            excessive the appellate court must give great weight
            to the sentencing judge’s discretion, as he or she is in
            the best position to measure various factors such as
            the nature of the crime, the defendant’s character,
            and the defendant’s display of remorse, defiance or
            indifference.

Commonwealth v. Ellis, 700 A.2d 948, 959 (Pa.Super. 1997) (citation

omitted). Here, the trial court was in the best position to evaluate appellant’s

demeanor and display of remorse. We will not interfere with that evaluation.


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      Our review of the record demonstrates that appellant’s claim that the

trial court considered impermissible factors in the absence of record support

in and of itself lacks record support. Therefore, because appellant’s claim of

bias is dependent on a finding that the trial court considered impermissible

factors, the bias claim equally fails.

      In his third claim, appellant contends that the trial court did not consider

mitigating evidence. The record belies this claim. At the sentencing hearing,

appellant’s counsel informed the trial court of the mitigating evidence in

appellant’s favor. (Notes of testimony, 12/10/18 at 22-24.) Additionally, the

trial court had the benefit of a pre-sentence investigation (“PSI”) report.

“[W]here the sentencing judge had the benefit of a [PSI] report, it will be

presumed that he or she was aware of the relevant information regarding the

defendant’s character and weighed those considerations along with mitigating

statutory factors.”     Commonwealth v. Clarke, 70 A.3d 1281, 1287

(Pa.Super. 2013), appeal denied, 85 A.3d 481 (Pa. 2014), quoting

Commonwealth v. Bricker, 41 A.3d 872, 876 n.9 (Pa.Super. 2012)

(quotation and quotation marks omitted); Commonwealth v. Devers, 546

A.2d 12, 18 (Pa. 1988) (“It would be foolish, indeed, to take the position that

if a court is in possession of the facts, it will fail to apply them to the case at

hand”). Therefore, this claim lacks merit.

      In his final claim, appellant advances a boilerplate allegation that the

trial court failed to consider his rehabilitative needs and the fact that he is not



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a danger to the community. (Appellant’s brief at 25-26.) Appellant’s specific

claim, however, is that the trial court improperly denied his request for a

county sentence so he could participate in work-release and make amends to

his children by financially supporting them. (Id.) Appellant claims, without

citation to authority, that a “defendant’s rehabilitation includes trying to make

amends for his wrongdoing.” (Id. at 26.) The record reflects that the trial

court listened to appellant’s argument advocating for a county sentence.

(Notes of testimony, 12/10/18 at 33-34.) The fact that the trial court rejected

the request, however, does not lead to the conclusion that the trial court failed

to consider the request. Therefore, this claim warrants no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/23/19




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