J-S30012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    DANNY SWIFT,

                             Appellant                No. 1165 WDA 2017


         Appeal from the Judgment of Sentence Entered August 3, 2017
                  In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0003503-2016


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 14, 2018

        Appellant, Danny Swift, appeals from the judgment of sentence of, inter

alia, an aggregate term of ten to twenty months’ imprisonment, imposed after

he was convicted of multiple counts of animal fighting and related offenses.

We affirm.

        The trial court summarized the procedural history and factual

background of this case as follows:
        On June 22, 2017, following a four-day jury trial, Appellant … was
        convicted of three counts of Animal Fighting,1 one count of
        Possession of Animal Fighting Paraphernalia,2 and one count of
        Possessing Instruments of Crime.3         The [c]ourt convicted
        Appellant of seven counts of Cruelty to Animals, a summary
        offense.4 On August 3, 2017, Appellant was sentenced to an
        aggregate [term] of … 10 … months to … 20 … months of
        incarceration followed by 8 years of probation….

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S30012-18


        1   18 Pa.C.S.[] § 5511(h.1).
        2   18 Pa.C.S.[] § 5511(h.2).
        3   18 Pa.C.S.[] § 907(a).
        4   18 Pa.C.S.[] § 5511(c)(1).

     The [c]ourt imposed a total fine of $50.00 for the summary
     offenses…. The [c]ourt directed Appellant to pay restitution in the
     amount of $54,692.63.

     On August 3, 2017, Philip B. Friedman, Esq., entered an
     appearance on behalf of Appellant.            On August 8, 2017,
     Appellant’s trial and sentencing counsel, Anthony H. Rodrigues,
     Esq., timely filed a [n]otice of [a]ppeal.5 On August 11, 2017, the
     [c]ourt entered a [Pa.R.A.P.] 1925(b) [o]rder directing Appellant
     to file a [s]tatement of [m]atters [c]omplained of on [a]ppeal in
     21 days. On September 20, 2017, Attorney Rodrigues filed a
     [m]otion to [w]ithdraw as [c]ounsel. On September 29, 2017, the
     Superior Court excused Attorney Rodrigues from his
     representation of Appellant, and recognized Attorney Friedman as
     counsel of record. As no [Rule] 1925(b) [s]tatement had been
     filed, on October 6, 2017[,] the [c]ourt issued a brief [Rule]
     1925(a) [o]pinion. On October 9, 2017, Appellant filed a motion
     for additional time within which to file a [Rule] 1925(b) statement.
     The basis for the motion was Appellant’s counsel did not receive
     the [c]ourt’s [Rule] 1925(b) [o]rder[,] and transcription of trial
     proceedings was completed on October 9, 2017.                   The
     Commonwealth did not oppose the request. In the interests of
     judicial economy, on October 9, 2017[,] the [c]ourt rescinded the
     original [Rule] 1925(a) [o]pinion and directed Appellant to file a
     [Rule] 1925(b) [s]tatement by October 30, 2017.
        5   No post-sentence motion was filed.

     On October 27, 2017, Appellant filed a [Rule] 1925(b) statement.

                                        ***

     The facts relevant to this appeal are summarized as follows. On
     August 1, 2016 at approximately 8:30 p.m., the City of Erie Police
     were dispatched to Appellant’s residence at 1047 West 28th Street,
     Erie, Pennsylvania[,] on the report a dog fight was in progress.
     Upon arrival, the police heard the sounds of dogs[’] growling and
     crying. They observed two female pit bulls covered in blood and
     fighting in Appellant’s back yard. An officer immediately called for

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     backup.    The animal enforcement officer of the Erie Police
     Department, and animal safety representatives from the A.N.N.A.
     Shelter and the Humane Society of Northwestern Pennsylvania
     were also called to the scene.

     In addition to the two fighting dogs, the police found numerous
     other dogs in Appellant’s back yard that evening. Each dog
     required veterinary care. The dogs were removed for their safety
     and transported for immediate veterinary attention. Appellant
     permitted certain police officers and other responders to enter the
     residence. Several more dogs were found inside.6 The police
     obtained a warrant to search Appellant’s residence.
        6 There was a discrepancy in the … testimony as to whether
        seven dogs or five dogs were found inside Appellant’s
        residence that evening.

     The following day, on August 2, 2016, the police executed the
     search warrant. The police were accompanied by others including
     Lisa Stiles, Chief Investigating Officer of the Erie County Humane
     Society. [Officer] Stiles was the Humane Society representative
     who assisted the police at Appellant’s residence the previous
     evening. During the search, animal fighting paraphernalia was
     seized and photographs were taken. The police and [Officer]
     Stiles removed the dogs found inside the residence[,] which had
     been left behind the night before. Appellant was arrested and
     subsequently charged with three counts of [a]nimal [f]ighting
     (Counts One-Three), one count each of [p]ossession of [a]nimal
     [f]ighting [p]araphernalia (Count Four)[,] … [p]ossessing
     [i]nstruments of [c]rime (Count Five), and fourteen counts of
     [c]ruelty to [a]nimals (Counts Six-Nineteen).

     Among the witnesses who testified at trial on behalf of the
     Commonwealth was [Officer] Stiles. [Officer] Stiles testified
     concerning her role on behalf of the Erie County Humane Society
     in responding to the dispatch to Appellant’s residence on August
     1, 2016[,] and in executing the search warrant and removing
     animals from the residence the following day. [Officer] Stiles also
     assisted in photographing the interior and exterior of Appellant’s
     residence, and the dogs found on the property.

     On direct[-]examination, [Officer] Stiles, inter alia, testified she
     recognized one of the dogs removed from Appellant’s residence
     on August 2, 2016, “Bella[,”] as a dog she saw at Appellant’s
     residence during her visits there in 2009 and 2010.


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     During cross[-]examination, Appellant’s counsel elicited extensive
     testimony from [Officer] Stiles about her visits to Appellant’s
     residence prior to the subject incident. This included testimony
     about the witness’s prior encounters with the pit bull, “Bella[.”]

     In particular, Appellant’s counsel elicited the following testimony
     from [Officer] Stiles during cross[-]examination. Prior to August
     … 2016, [Officer] Stiles went to Appellant’s residence
     approximately four times when Appellant was home. [Officer]
     Stiles did not enter Appellant’s residence on those occasions.
     [Officer] Stiles observed Appellant’s dogs in his back yard in 2015.
     [Officer] Stiles went to Appellant’s residence “a couple additional
     times” when Appellant was not home and simply knocked on his
     door. At no time prior to August of 2016 did [Officer] Stiles issue
     a citation to Appellant, seize one of his dogs, observe a dog that
     was injured, or make out a report of dog[]fighting. When [Officer]
     Stiles observed Bella at Appellant’s residence in 2009 and 2010,
     Bella had no scars. When [Officer] Stiles saw Appellant’s dogs in
     his back yard in 2015, she had no concerns about Appellant’s care
     of the dogs.

     Appellant’s counsel additionally delved into the matter as follows:

        Q: Now you’re here today and all these injuries and all these
        bruises, right?

        A: Correct.

        Q: But last year you had no complaints whatsoever?

        A: I -- correct.

        Q: One year before his arrest you had no complaints and
        you had been to his house, been in his back yard, right?

        A: Well, we had received complaints, that’s why we were
        there, but I did not find violations, if that’s what you’re
        asking.

        Q: Right.

        A: Okay.

        Q: Exactly.

        A: Just wanted to clarify.

     [N.T. Trial, 6/21/2017, at] 60-61.

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      In follow-up to [Officer] Stiles’[s] testimony during cross[-
      ]examination, during [redirect-]examination the Commonwealth
      questioned [Officer] Stiles about the prior complaints lodged with
      the Humane Society. During this line of questioning, [Officer]
      Stiles only identified prior complaints. No testimony was elicited
      from [Officer] Stiles about the truth or merits of any prior
      complaint. Appellant’s counsel objected to this testimony on the
      basis of hearsay.      The [c]ourt overruled the objection and
      determined the testimony was not hearsay evidence.

      During [recross-]examination, Appellant’s counsel asked [Officer]
      Stiles about the merits of the prior complaints and the outcomes
      of any investigations concerning them.        Appellant’s counsel
      established that a number of prior complaints were not
      investigated because they did not involve allegations of animal
      cruelty.    Other complaints were not investigated because
      Appellant was not home when a Humane Society representative
      visited the residence. Of the complaints that were investigated,
      Appellant’s counsel successfully demonstrated that no complaint
      resulted in a citation or “ticket[.”]

Trial Court Opinion (TCO), 12/18/2017, at 1-6 (some internal citations to

record omitted; emphasis in original).

      As mentioned above, Appellant filed a timely notice of appeal, and

subsequently complied with the trial court’s instruction to file a Rule 1925(b)

concise statement. On appeal, Appellant raises a single issue for our review:
      Whether the trial court erred in admitting evidence of prior
      anonymous complaints filed against [Appellant] for similar
      conduct[.]

Appellant’s Brief at 4 (unnecessary emphasis and capitalization omitted).

      Specifically, Appellant claims that the trial court should not have

permitted Officer Stiles to testify about the previous complaints she received

pertaining to Appellant and his dogs. Id. at 9, 17-18. According to Appellant,

the complaints were clearly hearsay, as the Commonwealth introduced them

for “the sole purpose of proving the truth of the matter asserted.” Id. at 19.

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He contends that Officer Stiles’s testimony regarding the complaints “painted

[him] as an abuser of dogs[,]” and “the Commonwealth used the hearsay

evidence to attempt to prove a pattern of abuse so as to negate [his] position

that the circumstances were isolated and unintentional.” Id. at 19-20.

      At the outset, we acknowledge:
      The standard of review employed when faced with a challenge to
      the trial court’s decision as to whether or not to admit evidence is
      well settled. Questions concerning the admissibility of evidence
      lie within the sound discretion of the trial court, and a reviewing
      court will not reverse the trial court’s decision absent a clear abuse
      of discretion. Abuse of discretion is not merely an error of
      judgment, but rather where the judgment is manifestly
      unreasonable or where the law is not applied or where the record
      shows that the action is a result of partiality, prejudice, bias or ill
      will.

Commonwealth v. Bishop, 936 A.2d 1136, 1143 (Pa. Super. 2007) (internal

citations omitted). In addition, “[h]earsay is defined as a statement other

than one made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted.” Id. (citing Pa.R.E.

801(c)).

      Here, the trial court gave the following explanation as to why it

permitted Officer Stiles to testify regarding the prior complaints she received:
      The limited testimony of [Officer] Stiles on [redirect-]examination
      about prior complaints lodged against Appellant did not constitute
      hearsay. The testimony was not offered to prove the truth or
      merits of any prior complaints. The Commonwealth elicited brief
      testimony about prior complaints in response to cross[-
      ]examination by Appellant’s counsel which attempted to establish
      the absence of prior complaints about Appellant and his dogs. As
      Appellant’s counsel “opened the door” to this line of questioning,
      it was proper. At no time did the Commonwealth question
      [Officer] Stiles about the truth of the allegations of the prior

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     complaints. The [c]ourt correctly determined this testimony did
     not constitute inadmissible hearsay.

TCO at 8. We agree.

     As mentioned above, on cross-examination, Officer Stiles testified:
     [Appellant’s attorney:] Now you’re here today and all these
     injuries and all these bruises, right?

     [Officer Stiles:] Correct.

     [Appellant’s attorney:] But last year you had no complaints
     whatsoever?

     [Officer Stiles:] I -- correct.

     [Appellant’s attorney:] One year before his arrest you had no
     complaints and you had been to his house, been in his back yard,
     right?

     [Officer Stiles:] Well, we had received complaints, that’s why we
     were there, but I did not find violations, if that’s what you’re
     asking.

     [Appellant’s attorney:] Right.

     [Officer Stiles:] Okay.

     [Appellant’s attorney:] Exactly.

     [Officer Stiles:] Just wanted to clarify.

N.T. Trial, 6/21/2017, at 60-61.

     Subsequently, on redirect-examination, Officer Stiles stated:
     [The Commonwealth:] Okay.          Now, let’s go through the
     complaints lodged or that you were called to [Appellant’s]
     residence. Let’s go through those.

     [Officer Stiles:] Okay. Should I give the date and what the
     complaint was lodged to our office?

     [The Commonwealth:] Yes. I want you to go through what your
     notes are that you memorialized as part of your job in being an
     investigator.




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       [Officer Stiles:] Correct. Complaint came in on November 24th,
       2009. The complaint stated that --

          [Appellant’s attorney:] Objection, hearsay, Judge.[1]

          [The court:] Overruled. Go ahead.

       [The Commonwealth:] Go ahead.

       [Officer Stiles:] The complaint stated that there were four to --
       seven to ten pit bulls at the location claiming that four to six of
       them at one time were kept in a pen out back without shelter, that
       there was a tarp across the top of it, that some dogs were tied in
       the pen, that some dogs are limping and may need vet care, and
       supposedly a male at the residence will pick up and throw the dogs
       by their collars.

       [The Commonwealth:] All right. Next?

       [Officer Stiles:] Next complaint was in February -- on February
       5th, 2010, claiming that there were ten-plus pit bulls on the
       property. This is all at 1047 West 28th Street as well, the same
       residence we seized the dogs from on August 2nd.

       [The Commonwealth:] All right.

       [Officer Stiles:] That six of the dogs -- claimed that six of the dogs
       in the back yard on thick tow chains that rubbed their necks raw,
       not enough dog houses for the number of dogs that are back
       there, pups in a pen in the back yard, and the dogs can reach each
       other and fight, and the area smells of feces.

       [The Commonwealth:] Next?

       [Officer Stiles:] May 21st, 2010. I received a complaint saying
       that there are too many dogs on the property and that they bark.

       [The Commonwealth:] All right.


____________________________________________


1 Prior to this objection, Appellant had already lodged a hearsay objection to
Officer Stiles’s testimony regarding the prior complaints, which the trial court
overruled. N.T. Trial, 6/21/2017, at 74 (“Your Honor, I’m going to object to
hearsay, that the complaints if she’s going to say what someone told her out
of court offered to prove the truth of the matter asserted, then that would not
be appropriate. That person should come in and testify.”).

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     [Officer Stiles:] June 3rd, 2010, the complaint was five pit bull
     dogs that won’t stop barking.

     [The Commonwealth:] Go ahead.

     [Officer Stiles:] September 6th, 2011, that there were four dogs
     on the property, supposedly one dog had bleeding around its face,
     chained in the back yard on thick tow chains, the dog houses need
     repaired, there was no water, and claiming that the owner was
     only there one time a week.

     [The Commonwealth:] Next?

     [Officer Stiles:] March 25th, 2013, a pit bull mix, one dog left
     inside a parked vehicle daily in a parking lot behind the Girard
     Pharmacy located at 83 Main Street in Girard.

     [The Commonwealth:] Okay.

     [Officer Stiles:] July 2nd, 2015. The complaint was supposedly a
     dog without shelter and a dog crying behind a shed, just one dog.

     [The Commonwealth:] Okay.

     [Officer Stiles:] July 21st, 2015. [O]ne pit bull dog outside, didn’t
     know if the dog had access to shelter, food, or water, supposedly
     that it’s tied outside 24/7. There is a male heard screaming at the
     dog to shut up and then he hears a chain rattling and the dog
     yelping and screaming.

     February 2nd -- I'm sorry, my apologies. February 12th, 2016,
     regarding two pit -- two pit bull puppies and two pit bull dogs,
     supposedly two dogs chained outside, the pups are in and out of
     the dog house without food and water and they are barking.

     And then May 31st of 2016. Eight pit bull dogs, supposedly no
     one around for at least 48 hours, one pup had its head stuck in
     the fencing in the back yard for at least ten minutes and is
     bleeding, no food and water, and the stench of feces is
     overwhelming.

Id. at 76-79.

     We discern no abuse of discretion by the trial court. The record shows

that Officer Stiles simply identified complaints made against Appellant since



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2009, in order to clarify that there had been concerns and complaints about

Appellant’s dogs prior to the incident in question. We view this testimony as

a fair response to defense counsel’s question about prior complaints on cross-

examination, and his insinuation that none existed.           As the trial court

emphasizes, “[t]he Commonwealth did not question [Officer] Stiles about the

merits of any complaints or the outcomes of any resulting investigation(s).

No prior mistreatment was ever established or testified to on [redirect-

]examination.” TCO at 7; see also Commonwealth’s Brief at 5 (“Because

defense counsel cross[-]examined Officer Stiles at length about complaints

lodged with the Humane Society, and emphasized [that] there existed no

complaints only in the year prior to [Appellant’s] arrest, it was proper to

redirect the jury to the fact that there had been numerous complaints in which

the Humane Society responded to [Appellant’s] residence since 2009, seven

years before his arrest.”).2       Thus, we agree that Officer Stiles’s testimony

about the prior complaints was not hearsay, as the complaints were not

offered to prove the truth of the matter asserted.

       Nevertheless, even if Officer Stiles’s testimony was hearsay and should

not have been admitted, we conclude such error was harmless. “[H]armless

error is a technique of appellate review designed to advance judicial economy

____________________________________________


2  We note our disagreement with Appellant’s assertion that “the
Commonwealth does not dispute that the statements violated the [h]earsay
[r]ule.” Appellant’s Reply Brief at 1. The Commonwealth indeed argues that
the complaints were not offered for the truth of the matter asserted. See
Commonwealth’s Brief at 1, 2-3, 5-6.

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by obviating the necessity for a retrial where the appellate court is convinced

that a trial error was harmless beyond a reasonable doubt.” Commonwealth

v. Sloan, 67 A.3d 808, 812 n.4 (Pa. Super. 2013) (citation omitted; brackets

in original).

      Here, the trial court ascertained that no prejudice could have resulted

from its ruling, as “[d]uring [recross-]examination, Appellant’s counsel

established that, as to the limited number of prior complaints investigated,

none were found to have any merit.”           TCO at 8.      Thus, “[n]o prior

mistreatment of Appellant’s dogs was established through [Officer] Stiles’[s]

testimony.” Id. Indeed, our review of the transcript shows that, on recross-

examination, Officer Stiles testified that she never found any of the complaints

to be true, and never issued Appellant a citation because of a complaint. See

N.T. Trial, 6/21/2017, at 81-83.

      In addition, we are persuaded by the Commonwealth’s argument that

“[t]he evidence proving [Appellant] guilty of the crimes charged was

overwhelming.”    Commonwealth’s Brief at 7.        It outlined the extensive

evidence supporting Appellant’s guilt as follows:

      The first Erie Police Officer responding to the scene on a call of
      dog fighting was Cheryl Frey. She described for the jury her
      eyewitness account of watching one of [Appellant’s] pit bills [sic]
      attacking another. She described the chains used to secure the
      dogs in [Appellant’s] yard. She described wounds and abscesses
      on other dogs, the conditions of the yard, and [Appellant’s]
      responses to the police presence on his property. Ruth Thompson,
      director of A.N.N.A. Shelter for unwanted or stray animals,
      testified as to the fresh wounds and older wounds found on the
      dogs removed from [Appellant’s] home. She also described the


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     living conditions for the dogs within [Appellant’s] house, including
     crates for housing which were too small for the dogs, urine and
     feces everywhere and, a wooden-slatted treadmill with a strap to
     keep the dog secure.          She opined the circumstances of
     [Appellant’s] ownership of the fourteen pit bulls at his residence
     was not consistent with a person raising the animals as pets. Dr.
     Jessica Bahl, veterinarian, testified she examined the seven dogs
     seized and in the care of the A.N.N.A. Shelter. The doctor
     described bite wounds, fresh scarring, older scarring, massive
     infection and cancer present in the dogs she examined, much of
     which had been unattended to for more than a few days. Dr[.]
     Jennifer Weaver, veterinarian, testified she examined the seven
     dogs seized and in the care of the Humane Society. She similarly
     described scabbing, hair loss, lacerations, multiple scars on the
     face, neck, and front limbs, some more than two months old.
     Finally, she described the dogs as being aggressive and having
     large defined muscles.       [Appellant’s] neighbor, Alyce Cruz,
     testified she witnessed [Appellant] on a number of occasions bring
     one dog at a time to a position under a tree branch and stand by
     as the dog jumped and bit onto a rope hanging from the tree,
     similar to the device introduced as Commonwealth’s Exhibits 15A
     and 21. The dog would continue biting the device and hanging
     mid-air for twenty minutes or more at a time. Another of
     [Appellant’s] neighbors, Dina Moore, also witnessed [Appellant’s]
     dogs hanging by their teeth from a device similar to that displayed
     in Exhibit 21.

     The jury also heard from Erie County Detective Anne Styn, who
     was qualified as an expert in computer forensics. Detective Styn
     opined her examination of numerous posts to a website in which
     the parties discussed many aspects of dog fighting, were in fact
     made by [Appellant.]

                                     ***

     [Appellant’s] consciousness of guilt was revealed when Detective
     Styn testified that all of the … posts made by [Appellant] in the
     months and years prior to his arrest, were deleted within days of
     [Appellant’s] arrest, and the only person who could have done so
     was one who knew the password of the person who made the
     original posts. That was no one other than [Appellant].

     Humane Society Officer Stiles also read to the jury (from power
     point   display)    numerous    posts    of   [Appellant’s],   aka
     “swiftnhbfighter[.”] … [Officer] Stiles described at length, along


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       with photographic displays, the conditions of [Appellant’s] dogs
       and home when on the premises pursuant to the search warrant.

       The Commonwealth’s final witness was Deborah Jugan, whose
       testimony was received as an expert in animal fighting. Ms. Jugan
       concluded within a reasonable degree of certainty [Appellant] was
       a dog fighter on the day of his arrest. She based that opinion on
       the evidence, ultimately received by the jury, as follows: the
       language and terms used by [Appellant] in the chat room postings
       as being identical to individuals involved in dog fighting, training,
       and breeding for that purpose[;] the circumstances under which
       the dogs [were] fighting in [Appellant’s] backyard when Erie Police
       arrived on the scene[;] the significance of [Appellant’s] having
       (and then removing) a wooden treadmill in his home[;] the
       significance of devices [Appellant] possessed such as a flirt
       pole/spring pole [and] tow chains[; and] why the nylon collars
       found with the dogs are indicative of dog fighting.

Commonwealth’s Brief at 7-10 (internal citations omitted).3        To the extent

Appellant is concerned Officer Stiles’s testimony indicated that he intentionally

mistreated the dogs and portrayed him as “an abuser of dogs[,]” see

Appellant’s Brief at 19-20, any such prejudice is de minimis considering all of

the other evidence introduced by the Commonwealth. Accordingly, we would

deem harmless any error by the trial court in allowing Officer Stiles to testify

about the prior complaints. No relief is due.

       Judgment of sentence affirmed.



____________________________________________


3  In his reply brief, Appellant does not dispute this summary of the
Commonwealth’s evidence, but instead argues that he produced evidence
supporting his position that “some of the dogs had sustained injuries but not
during dog[]fighting or training for dog[]fighting.” Appellant’s Reply Brief at
4; see also Appellant’s Brief at 10 (“There was no direct evidence presented
that [Appellant] engaged in dog fighting activities at the residence.
Furthermore, the paraphernalia was subject to conflicting expert
interpretation.”).

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J-S30012-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2018




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