J-S22020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

AARON B. LACKEY

                            Appellant                 No. 1470 MDA 2016


                   Appeal from the PCRA Order June 23, 2016
                In the Court of Common Pleas of Dauphin County
               Criminal Division at No(s): CP-22-CR-0002529-2011


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

MEMORANDUM BY MOULTON, J.:                       FILED SEPTEMBER 21, 2017

       Aaron B. Lackey appeals from the June 23, 2016 order entered in the

Dauphin County Court of Common Pleas dismissing his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm.

       On direct appeal, we previously set forth the trial court’s detailed

discussion of the relevant factual history, which we adopt and incorporate

herein. See Commonwealth v. Lackey, No. 1356 MDA 2012, unpublished

mem. at 1-9 (Pa.Super. filed Sept. 25, 2013). At trial, Lackey testified that

while he shot the homicide victim, he did so in self-defense. See id. at 8.


____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
J-S22020-17



       The PCRA court summarized the procedural history of this matter as

follows:

                On September 20, 2007, [Lackey] was arrested and
            charged with Criminal Homicide, Possession of Firearm
            Prohibited, Firearms Not to be Carried Without a License,
            and Conspiracy - Criminal Homicide.[1]     After a jury trial
            held from May 7, 2012, through May 11, 2012, [Lackey]
            was found guilty on one count of first degree murder[2] and
            one count of Firearms Not to be Carried Without a License.
            The charge of Possession of a Firearm Prohibited was nolle
            prossed, and the charge of Conspiracy - Criminal Homicide
            was withdrawn pursuant to Pa.R.Crim.P 561(B). On May
            11, 2012, [Lackey] was sentenced to life imprisonment
            without the possibility of parole on the Criminal Homicide
            charge, and incarceration at a State Correctional Facility
            for a period of not less than forty-two (42) months nor
            more than eighty-four (84) months on the Firearms Not to
            be Carried Without a License charge to run concurrently
            with the Criminal Homicide sentence. Additionally,
            [Lackey] was assessed a five thousand dollar ($5,000) fine
            on the firearms charge and ordered to pay restitution in
            the amount of $5,047.00 and costs of prosecution. [Lackey
            filed a motion to modify sentence, which the trial court
            granted on July 19, 2012, reducing the fine imposed to
            $1,000.]

               [Lackey] appealed to       the  Superior   Court of
            Pennsylvania on [July] 25, 2012. On September 25, 2013,
            the Superior Court affirmed in part, reversed in part
            (vacating as to the fine imposed for Carrying a Firearm
            Without a License) and remanded for resentencing on the
            matter of fines imposed.      The judgment relating to
            incarceration was left undisturbed. [On December 30,
            2013, the trial court entered an amended sentencing
____________________________________________


       1
         18 Pa.C.S.        §§    2501(a),      6105(a)(1),   6106(a)(1),   and   903,
respectively.
       2
           18 Pa.C.S. § 2502(a).



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         order, vacating the fine and leaving all other aspects of
         Lackey’s May 11, 2012 sentence the same. On April 2,
         2014, the Supreme Court denied Lackey’s petition for
         allowance of appeal].

             On December 4, 2014, the Dauphin County Clerk of
         Courts received a pro se Motion for Post-Conviction
         Collateral Relief. On December 10, 2014, this Court
         appointed William M. Shreve, [E]squire, as PCRA
         [C]ounsel. On May 12, 2015, PCRA Counsel filed a Motion
         to Withdraw his PCRA representation averring that
         [Lackey]’s claims lack merit. Attached to Counsel’s Motion
         was the statutorily required Turner/Finley “No-Merit”
         letter.2
               2
                 Commonwealth v. Turner, 544 A.2d 927
               (Pa. 1988), Commonwealth v. Finley, 550
               A.2d 213 (Pa.Super. 1988).

Memorandum Order, 10/6/15, at 1-2 (“PCRA Ct. Order”).

      On June 8, 2015, Lackey filed a motion for extension of time to file a

response to counsel’s motion to withdraw as well as a motion for leave to file

an amended PCRA petition.       On June 15, 2015, the PCRA court denied

Lackey’s motion for extension of time as premature, noting that it had not

yet reviewed Lackey’s PCRA petition nor disposed of counsel’s motion to

withdraw. The PCRA court also stated that notice pursuant to Pennsylvania

Rule of Criminal Procedure 907 had not been issued.

      On October 6, 2015, the PCRA court issued a memorandum opinion

and order granting Lackey’s counsel’s motion to withdraw, notifying Lackey

of its intent to dismiss his petition within 20 days, and advising Lackey that

he could respond to the court’s order in that time. On October 22, 2015,

Lackey filed a motion for extension of time to file a response to his counsel’s



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motion to withdraw. On October 30, 2015, the PCRA court granted Lackey’s

motion, treating it as a motion for extension of time to file a response to the

court’s October 6, 2015 order, and ordering Lackey to file a response within

90 days. On February 1, 2016, Lackey filed a “Motion for amended [PCRA]

petition; Memorandum of law; Response to motion of intent to dismiss.” On

June 23, 2016, the PCRA court issued a final order dismissing Lackey’s PCRA

petition. Lackey thereafter timely filed a notice of appeal.

      Lackey raises the following issues on appeal:

         1. Was trial counsel ineffective for failing to subject the
         [C]ommonwealth case to meaning full [sic] adversarial
         testing, object to prosecutorial misconduct, adequately
         cross examine witnesses?

         2. Was P.C.R.A. Counsel, William Shreve, delinquent in
         withholding information and refusing to utilize said
         information given him by Mr. Lackey to amend his
         (Lackey’s) P.C.R.A?

         3. Was Mr. Lackey denied the right of meaningful appeal
         and collateral review through the denial of a complete and
         accurate depiction of what transpired in the lower court[?]

         4. Did the       [C]ommonwealth        withhold    potentially
         exculpatory evidence?

         5. Did the prosecutor knowingly utilize testimony known to
         be inaccurate/false/untrue before the fact finder and not
         correct it?

         6. Did Lackey fail to illuminate [his] issues in the record?

Lackey’s Br. at 7-8 (PCRA court answers omitted) (some alterations in

original).

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

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evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

I.    Ineffective Assistance of Counsel

      We first examine Lackey’s claims that trial counsel was ineffective.

When analyzing claims for ineffective assistance of counsel, we begin with

the presumption that counsel was effective. Commonwealth v. Spotz, 18

A.3d 244, 259-60 (Pa. 2011). “[T]he defendant bears the burden of proving

ineffectiveness.”   Commonwealth v. Ligons, 971 A.2d 1125, 1137 (Pa.

2009).     To overcome the presumption of effectiveness, a PCRA petitioner

must demonstrate that: “(1) his underlying claim is of arguable merit; (2)

counsel had no reasonable basis for his action or inaction; and (3) the

petitioner suffered actual prejudice as a result. If a petitioner fails to prove

any of these prongs, his claim fails.”   Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014) (internal quotation and citation omitted).              “To

demonstrate prejudice, the petitioner must show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceedings would have been different.         A reasonable probability is a

probability that is sufficient to undermine confidence in the outcome of the

proceeding.” Id. at 312 (internal quotations and alteration omitted).

      A.     Failure to Subject Case to Meaningful Adversarial Testing




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       Lackey first claims that counsel was ineffective for failing to subject

the Commonwealth’s case to meaningful adversarial testing. 3                  Lackey

asserts numerous ways in which trial counsel erred, including that counsel:

failed to rebut testimony regarding the location from which Lackey arrived at

the scene; failed to impeach the testimony of a witness who claimed that

Lackey shot the victim on orders from an individual named January Jones

because the victim was selling drugs in a certain area Jones controlled with

the testimony of another witness who claimed that Jones did not control that

area; failed to question witnesses as to the lack of conspiracy charges
____________________________________________


       3
         Lackey’s use of the phrase “meaningful adversarial testing”
implicates the standard for ineffective assistance of counsel articulated by
the United States Supreme Court in United States v. Cronic, 466 U.S. 648
(1984), which does not require a showing of prejudice. The Pennsylvania
Supreme Court has explained:

               In Cronic, . . . the United States Supreme Court held
           that in limited circumstances, such as where there has
           been a complete denial of counsel at a critical stage of the
           trial, no specific showing of prejudice is necessary because
           errors of that magnitude “are so likely to prejudice the
           accused that the cost of litigating their effect in a particular
           case is unjustified.” Cronic, 466 U.S. at 658 . . . . This
           principle is grounded in the Sixth Amendment to the
           United States Constitution, which requires defense counsel
           to function as an advocate for the accused and subject the
           prosecution’s case to “meaningful adversarial testing,”
           thereby promoting the search for truth that ensures a fair
           trial. Id. at 656 . . . .

Commonwealth v. Williams, 9 A.3d 613, 618-19 (Pa. 2010) (emphasis
added). However, because trial counsel’s actions, as articulated by Lackey,
do not fall within the ambit of Cronic, see id. at 619, we analyze his claim
using the three-part test for ineffectiveness outlined above.



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regarding the incident; failed to elicit testimony that an individual named

“Goddi/Gotti” was identified as two separate people; failed to establish that

Alcohol, Tobacco, Firearms and Explosives (“ATF”) Agent Ryan Kovach’s

testimony was inconsistent with his preliminary hearing testimony; and

failed to question why the ATF “lost” or “destroyed” Lackey’s clothing prior to

trial.4 Lackey’s Br. at 11-17.

       We conclude that Lackey fails to show that there is a reasonable

probability that, but for trial counsel’s errors, the outcome of his trial would

have been different. Lackey testified that he shot the victim. Although he

claimed that he did so in self-defense, the jury was free to disbelieve that

testimony.     Lackey now maintains that counsel should have done more at

trial. However, his bald claims of ineffectiveness, some of which argue that

counsel should have done more with the evidence already presented to the

jury, fail to demonstrate that any alleged error prejudiced him. Accordingly,

we agree with the PCRA court’s determination that this claim lacks merit.

       B.     Failing to Object to Prosecutorial Misconduct



____________________________________________


       4
         Lackey further argues that the evidence at trial supported his claim
of self-defense and that there was no evidence that supported the
Commonwealth theory that he fired at the victim first. Lackey’s Br. at 15.
Insufficient evidence, however, is not a cognizable claim under the PCRA.
See Commonwealth v. Price, 876 A.2d 988, 995 (Pa.Super. 2005)
(finding that direct challenge to sufficiency of the evidence is not cognizable
claim under the PCRA).



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        Lackey next claims that trial counsel was ineffective for failing to

object to prosecutorial misconduct.            Lackey avers that the Commonwealth

knowingly presented false evidence.             Lackey appears to contend that the

Commonwealth presented Dawayne Chism’s testimony that he saw Lackey

and another individual between 11:00 p.m. and 11:30 p.m. on the night of

the murder, even though the Commonwealth allegedly knew that other

evidence, including phone records and the trial testimony of other witnesses,

contradicted Chism’s testimony.5          In his brief, rather than establishing the

falsity of the evidence presented by the Commonwealth, Lackey merely

attacks its credibility. Lackey essentially asks this Court to reassess witness

credibility, which we cannot do. Commonwealth v. Gibbs, 981 A.2d 274,

282 (Pa.Super. 2009); see also Commonwealth v. Lee, 956 A.2d 1024,

1029 (Pa.Super. 2008) (“[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.”) (quotation omitted).                 Because Lackey has not

demonstrated the Commonwealth presented false evidence, his underlying

claim       lacks   merit.   Accordingly,      we   agree    with   the   PCRA   court’s

determination that Lackey’s claim of ineffective assistance of counsel based

on a failure to object to prosecutorial misconduct lacks merit.
____________________________________________


        5
         Chism did not specify what time his encounter with Lackey occurred,
testifying only that it was “[l]ike not yet like 12 [midnight,]” N.T., 5/8/12,
at 251, and that it was between one and two hours and “closer to like an
hour and a half” before he heard gunshots outside of his house, id. at 252.



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       C.     Failure to Cross-examine Witnesses

       Lackey next claims that trial counsel was ineffective for failing to

adequately cross-examine witnesses.              Lackey’s claim hinges on his trial

counsel’s alleged failure to cross-examine witnesses Dawayne Chism,

Detective John O’Connor, and Siam Yeiser.6

       Lackey admits that his trial counsel cross-examined Chism. Lackey’s

Br. at 30; see also N.T., 5/8/12, at 259-279. He argues, however, that his

counsel failed to impeach Chism “as to the contradiction between his

testimony and the phone records available in discovery and presented during

[trial].”   Lackey’s Br. at 32.       Lackey appears to contend that the phone

records would have shown that Lackey was in a different location at the time

that Chism testified that he saw Lackey. However, Lackey fails to show that,

but for trial counsel’s failure to cross-examine on this topic, the outcome of

Lackey’s trial would have been different, particularly in light of Lackey’s

admissions that he was present at the scene of the crime and that he shot

the victim.

       Next, Lackey contends that counsel “declined to cross examine

Detective [] O’Connor . . . on the contents of a deceased witness[’s]

(Geneva Yeiser) statement included in discovery.” Id. at 33. Lackey alleges

____________________________________________


       6
        Lackey’s claims regarding trial counsel’s failure to impeach Siam
Yeiser appear in a separate section of Lackey’s brief. See Lackey’s Br. at
13-14.



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J-S22020-17


that, in her statement, Geneva Yeiser claimed that she saw someone other

than Lackey commit the crime, and that counsel should have questioned

Detective O’Connor about Geneva Yeiser’s statement.               Lackey, however,

testified that he shot the victim in self-defense.          Accordingly, he fails to

explain how he was prejudiced by trial counsel’s failure to cross-examine

Detective O’Connor regarding the statement, and thus, has failed to

establish that counsel was ineffective.        See Commonwealth v. Treiber,

121 A.3d 435, 457 (Pa. 2015) (declining to deem counsel’s performance

constitutionally deficient where PCRA petitioner failed to explain how he was

prejudiced   specifically   by   counsel’s   failure   to   cross-examine   witness

regarding crimen falsi).

      Finally, Lackey claims that trial counsel

         failed to impeach [Siam] Y[e]iser using Chism’s testimony,
         and the questions of why the charges of [c]onspiracy to
         the incident were never lodged, being that the state’s case
         was hinged on this conspiracy involving January Jones
         (J.J.), Anige Ali (Ali), Aaron Lackey, Terrell Spradley and
         someone identified as “Goddi” or “Gotti[.]”

Lackey’s Br. at 14. The record shows that trial counsel conducted a lengthy

cross-examination of Siam Yeiser on the first day of trial. N.T., 5/8/12, at

45-77, 79.     Lackey claims that:       (1) Siam Yeiser testified that Jones

“employ[ed] Mr. Lackey to harm the [victim] in order to remove him” from a

drug-selling territory; and (2) Chism testified that Jones did not control such

a territory and that Chism himself sold drugs in that area without objection

from any individual allegedly involved in the murder. Lackey’s Br. at 13-14.


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He claims counsel’s cross-examination of Siam Yeiser should have included

questioning regarding Chism’s testimony. We conclude that Lackey has not

demonstrated that he was prejudiced by trial counsel’s failure to cross-

examine Yeiser using Chism’s testimony. Lackey fails to show that, but for

trial counsel’s error, the outcome of Lackey’s trial would have been different,

especially because Lackey admitted that he shot the victim and because the

jury heard the testimony from both Yeiser and Chism.          Accordingly, we

agree with the PCRA’s determination that Lackey’s claim of ineffective

assistance of counsel based on a failure to cross-examine witnesses lacks

merit.

II.      Lack of Complete Trial Transcripts

         Lackey next claims that he has been denied meaningful appellate and

collateral review because he has not been given complete transcripts of his

trial.       Lackey claims that the transcripts he has been provided7 do not

include the opening and closing statements.8       He contends the opening

____________________________________________


         7
        The record contains at least three orders granting Lackey’s requests
for trial and sentencing transcripts. See Orders, 8/24/12, 9/5/12, and
12/31/14. In the orders, the trial and PCRA courts ordered that transcripts
be provided to trial counsel, appellate counsel, and PCRA counsel,
respectively. The PCRA court denied Lackey’s December 4, 2015 pro se
motion for transcripts, and thereafter denied Lackey’s July 25, 2016 “order
for transcript” filed with his notice of appeal for this instant matter.
         8
        Our review of the trial transcript in the certified record reveals that
the parties’ opening and closing statements were not transcribed. See N.T.,
5/7/12, at 18; N.T., 5/10/12, at 687.



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statements included the “reading of an unsworn statement given by Geneva

Yeiser.” Lackey’s Br. at 38.

       Our Supreme Court has stated:

               To ensure the right of a criminal defendant to
           meaningful appellate review, we require “that he or she be
           furnished a full transcript or other equivalent picture of the
           trial proceedings.” Commonwealth v. Albrecht, 554 Pa.
           31, 720 A.2d 693, 701 (1998) (quoting Commonwealth
           v. Shields, 477 Pa. 105, 383 A.2d 844, 846 (1978)).
           Nevertheless, “[t]o be entitled to relief due to the
           incompleteness of the trial record the defendant must
           make some potentially meritorious challenge which cannot
           be adequately reviewed due to the deficiency in the
           transcript.” Id.

Commonwealth v. Marinelli, 910 A.2d 672, 688 (Pa. 2006).                    Lackey

argues that he would have used Geneva Yeiser’s statement to support his

claim that trial counsel failed to cross-examine Detective O’Connor as well as

to argue a claim of “cumulative effect of ineffective assistance of counsel and

prosecutorial misconduct.” Lackey’s Br. at 38.

       Despite the incomplete transcript, we are able to adequately review

Lackey’s claims.      As stated above, Lackey’s claim regarding trial counsel’s

alleged failure to cross-examine Detective O’Connor fails because Lackey did

not demonstrate prejudice.9 We are able to make this determination without

reviewing the opening statement, which allegedly included Geneva Yeiser’s
____________________________________________


       9
       In his brief, Lackey contends only that Geneva Yeiser “claims in her
statement to have seen someone other than Mr. Lackey and Mr. Randolph
commit the crime[.]” Lackey’s Br. at 39.




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statement.       Accordingly, because Lackey fails to make a potentially

meritorious challenge10 which cannot be adequately reviewed due to the

deficiencies in the trial transcripts, his claim must fail.

III. Commonwealth’s Alleged Withholding of Exculpatory Evidence

       Lackey next argues that the Commonwealth withheld exculpatory

evidence for years, in the form of the clothing he wore the night of the

murder, “then destroyed it at the onset of a case in which that evidence

would have proven crucial.” Lackey’s Br. at 17. Lackey’s claim sounds in a

Brady11 violation.       The Pennsylvania Supreme Court has stated:       “To

establish a Brady violation, an appellant must prove three elements:      [1]

the evidence [at issue] was favorable to the accused, either because it is

exculpatory or because it impeaches; [2] the evidence was suppressed by

the prosecution, either willfully or inadvertently; and [3] prejudice ensued.”

Commonwealth v. Paddy, 15 A.3d 431, 450 (Pa. 2011) (internal quotation

omitted; alterations in original).

       At trial, Agent Kovach testified that he took possession of a bag

containing clothing from Lori Allen’s house to test whether the clothing had

gunshot residue on it. N.T., 5/9/12, at 458. Agent Kovach further testified
____________________________________________


       10
          Lackey also states that the record is missing testimony from Lori
Allen and Detective O’Connor. Lackey’s Br. at 39. However, Lackey does
not explain what potentially meritorious challenges cannot be reviewed due
to the alleged absence of this testimony.
       11
            Brady v. Maryland, 373 U.S. 83 (1963).



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that no testing was subsequently performed, and that the clothing was

“probably” destroyed “right before the time [Lackey] was arrested.” Id. at

459.    Lackey, however, does not allege that the clothing would have

constituted exculpatory or impeachment evidence and does not explain how

he was prejudiced by the alleged destruction of the evidence. Accordingly,

this claim fails.

IV.    Commonwealth’s       Alleged     Failure              to       Correct
       Inaccurate/False/Untrue Testimony

       Lackey next claims that the Commonwealth used testimony “known to

be inaccurate/false/untrue” at trial and then failed to correct such testimony.

This is identical to the substantive claim underlying Lackey’s claim of trial

counsel’s ineffectiveness for failing to object to prosecutorial misconduct,

which we have already concluded lacks merit. Accordingly, we conclude that

this claim lacks merit.

V.     Remaining Issues

       We conclude that Lackey has waived his second and sixth issues –

whether PCRA counsel was delinquent in withholding information and

refusing to use information given to him by Lackey to amend Lackey’s

petition and whether Lackey “fail[ed] to illuminate [his] issues” – because he

fails to develop these claims in the argument section of his brief.       See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an

appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

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fashion capable of review, that claim is waived.”). Further, although Lackey

devotes a substantial portion of his brief to discussing trial counsel’s alleged

failure to call certain witnesses, see Lackey’s Br. 18-24, this claim is waived

because Lackey did not include it in his statement of questions involved.

See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in

the statement of questions involved or is fairly suggested thereby.”).12

       Order affirmed.

____________________________________________


       12
         Even if Lackey had not waived this claim, we would find it meritless.
Courts apply the following standard to determine whether counsel was
ineffective for failing to call witnesses:

                To establish that counsel was ineffective for failing to
            call a witness, Appellant must demonstrate that: (1) the
            witness existed; (2) the witness was available to testify for
            the defense; (3) counsel knew of, or should have known
            of, the existence of the witness; (4) the witness was
            willing to testify for the defense; and (5) the absence of
            the testimony of the witness was so prejudicial as to have
            denied the defendant a fair trial.

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007). Lackey
identifies three witnesses that he claims trial counsel failed to call: Anije Ali,
Christopher Sciarra, and Michelle Brown. With regard to Sciarra and Brown,
Lackey fails to demonstrate that either of these witnesses was available or
willing to testify for the defense. Lackey avers that Ali was available and
willing to testify on Lackey’s behalf and that he would have testified “to the
falsity of allegations made as to a drug organization involving the employees
of the ‘Sharper Image Barbershop,’ meeting and plots to murder as
purported by . . . Siam Yeiser.” Lackey’s Br. at 20. Lackey alleges that the
absence of Ali’s testimony allowed Yeiser’s testimony and “the prosecutor’s
allegations made thereby, to go unrefuted.” Id. 20-21. We conclude that
the failure to call Ali was not so prejudicial as to have denied Lackey a fair
trial.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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