J-S63045-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                 Appellee                      :
                                               :
                     v.                        :
                                               :
    GARY HARRIS,                               :
                                               :
                 Appellant                     :   No. 65 EDA 2019


      Appeal from the Judgment of Sentence Entered December 19, 2018
               in the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000195-2018

BEFORE:      GANTMAN, P.J.E., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED JANUARY 31, 2020

        Gary Harris (Appellant) appeals from the             December 19, 2018

judgment of sentence entered after a jury found him guilty of possession of

a firearm, possession of a firearm with an altered serial number, and

possession with intent to deliver (PWID) cocaine. Upon review, we affirm.

        We provide the following background.           In September 2017, Officer

Timothy Garron of the City of Chester Police Department was called to

Clover Lane in the City of Chester to aid in the investigation of a suspicious

black sedan.       Police discovered “packaged cocaine for street sales,” “a




____________________________________________




*   Retired Senior Judge assigned to the Superior Court.
J-S63045-19


loaded firearm,” and identification for Appellant in the vehicle. N.T.,

10/11/2018,1 at 62.

       Subsequently, Officer Garron learned through a confidential informant

that a person known as “D”2 was utilizing 1217 Clover Lane to sell narcotics.

Officer Garron began surveilling that block.        Around 1217 Clover Lane,

Officer Garron saw “foot and vehicular traffic” consistent with drug activity,

and “a gentleman matching the description of [Appellant] exiting the house

and meeting with … buyers.” Id. at 70-71.         Officer Garron identified D as

Appellant. Id. at 73. This house became a target of the investigation, and

police conducted both undercover and controlled buys, as well as additional

surveillance, in order to obtain a search warrant.       In addition, a Pontiac

Bonneville registered to Appellant was seen in this area.

       A search warrant was obtained for 1217 Clover Lane.            A team of

officers executed the warrant on December 5, 2017.             Upon entering the

residence, Officer John Benozich saw Appellant, who then ran up the stairs.

Officer Benozich chased Appellant up the stairs and into a bedroom where

Danielle Jones and four children under the age of four were located. Officer

Benozich saw Appellant throw two items.          Id. at 197.   Those items were

____________________________________________
1 In the certified record, this transcript has a date of November 11, 2018.
However, it is evident this transcript is from October 11, 2018, and we will
use that date throughout this memorandum.

2D was described as a skinny black male, between 5’10” and 6’0” tall, with a
beard.


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later identified as baggies with bulk crack cocaine. Id. at 197. Meanwhile,

upon entering the residence, Officer Garron “went to the left and was met by

Quashay” Jones. Id.            Officer Garron detained Quashay Jones for the

officer’s safety.

        Shortly thereafter, Donte Harris entered the residence inquiring about

the children.3 He was also detained and handcuffed.4           After all four adults

were detained, they were given their Miranda5 warnings. Id. at 86-87.

        During the search of the house, police found “six grams of crack

cocaine packaging,” Appellant’s cell phone, and “his AC[C]ESS card or debit

card.” Id. at 95. On top of a kitchen cabinet, police found a “Glock 19 with

an extended magazine that contained 32 live rounds of ammunition.” Id. In

the basement, there were three digital scales and “another 9 millimeter

firearm with an obliterated serial number.” Id. As a result of this search,

Officer Garron arrested Appellant.             Police did not arrest Donte Harris,

Quashay Jones, or Danielle Jones in connection with this search.



____________________________________________
3 Officer Garron described Donte Harris as being 5’6” to 5’8” tall with
dreadlocks and no facial hair. N.T., 10/11/2018, at 87.

4 Throughout the case, it was Appellant’s position that “D” was actually
Donte Harris, not Appellant. Thus, it was Appellant’s argument to the jury
that police should have arrested and charged Donte Harris with these
crimes. See N.T., 10/11/2018, at 40-46 (Appellant’s opening statement);
N.T., 10/12/2018, at 14-18 (Appellant’s closing argument).

5   Miranda v. Arizona, 384 U.S. 436 (1966).



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      On February 7, 2018, a criminal information was filed against

Appellant, charging him with the aforementioned crimes, based upon the

items found pursuant to the search warrant.          A jury trial occurred from

October 10-12, 2018. On October 12, 2018, the jury found Appellant guilty

of the aforementioned charges.      On December 19, 2018, the trial court

sentenced Appellant to an aggregate term of 96 to 192 months of

incarceration. Appellant did not file a post-sentence motion, and he filed a

timely notice of appeal on December 31, 2018. Both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      On appeal, Appellant challenges several evidentiary rulings by the trial

court, which we consider mindful of the following.

      The admission of evidence is committed to the sound discretion
      of the trial court, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support to be clearly
      erroneous.

Commonwealth v. Akrie, 159 A.3d 982, 986-87 (Pa. Super. 2017) (citing

Commonwealth v. Ivy, 146 A.3d 241, 250 (Pa. Super. 2016)).

      We begin with Appellant’s contentions related to the trial court’s ruling

on Appellant’s written motion in limine. See Appellant’s Brief at 16-18. In

doing so, we point out that “[w]hen ruling on a trial court’s decision to grant

or deny a motion in limine, we apply an evidentiary abuse of discretion

standard of review.” Commonwealth v. Hutchison, 164 A.3d 494, 500

(Pa. Super. 2017).


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        By way of background, on September 22, 2018, Appellant filed a

motion in limine on two bases.      First, Appellant requested the trial court

prohibit the Commonwealth from introducing evidence that other “individuals

in the home were screaming in the direction of [Appellant]” after all four

adults were detained. Motion In Limine, 9/22/2018, at ¶ 4 (internal

quotation marks omitted).       Second, Appellant requested the trial court

prohibit “statements from an individual identified as Donte Harris.” Id. at

¶ 7.

        The trial court considered this motion immediately prior to trial on

October 11, 2018. At that time Appellant argued that “anything [the other

individuals were] screaming at [Appellant] … is hearsay.” N.T., 10/11/2018,

at 6.    The trial court stated that police may testify that these individuals

were screaming, but it was unclear as to what exactly “the officer will say as

to what he can identify he actually heard.” Id. at 11. The trial court pointed

out that any actual words “may or may not be admissible.” Id. Thus, the

trial court reserved judgment on this portion of the motion. Id. Appellant

also argued that the trial court should not permit police officers to testify

that Donte Harris said, “I don’t live here” when he entered the house. Id.

The trial court denied that portion of the motion. Id. at 10.

        During trial, the Commonwealth asked Officer Benozich how the “other

two females” reacted to their being detained. Id. at 210. Officer Benozich

responded that “[t]hey were very emotional about items being located in the



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house and immediately started directing, screaming and yelling at the

direction of [Appellant].” Id. at 211. Appellant did not renew his objection at

that time.

      On appeal, Appellant contends “this testimony should have been

stricken.” Appellant’s Brief at 18. Despite the fact the trial court specifically

deferred its ruling on this portion of the motion in limine, Appellant neither

objected to this testimony nor asked for this testimony to be stricken. Thus,

even if this statement were objectionable, Appellant has waived any

challenge to this testimony by failing to object. See Commonwealth v.

Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (stating that a party must

make a timely and specific objection to preserve an issue for appellate

review). Accordingly, Appellant is not entitled to relief on this issue.

      With respect to Donte Harris’s statement, at trial, Officer Garron

testified that immediately upon entering the 1217 Clover Lane, Donte Harris

exclaimed, “I don’t … even live here.” N.T., 10/11/2018, at 88. Even though

the trial court had just denied this portion of the motion in limine, Appellant

again objected to this statement as hearsay. Id. The trial court then

reversed course and sustained the objection. Id. The Commonwealth then

asked, “Were you able to determine whether Donte Harris lived there?” Id.

at 89. Officer Garron responded that Donte Harris “provided an address in

North Carolina.” Id.




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      “[W]here the trial court has sustained the objection, even where a

defendant objects to specific conduct, the failure to request a remedy such

as a mistrial or curative instruction is sufficient to constitute waiver.”

Commonwealth v. Manley, 985 A.2d 256, 267 (Pa. Super. 2009). Here,

Appellant did not request either a mistrial or a curative instruction after the

trial court sustained his objection; thus, he has waived any potential error

related to this testimony.

      We now consider Appellant’s contention that the trial court erred by

permitting testimony about “specific violent crimes in the area of the arrest

that were not alleged to have been committed by Appellant, on the day of

arrest, or even at the location of the arrest.” Appellant’s Brief at 23.

Similarly, we consider Appellant’s argument that the trial court erred by

permitting testimony “concerning an irrelevant and highly prejudicial police

report of a separate incident involving Appellant for which no charges were

filed, no arrests were made and no criminal proceedings ever commenced.”

Appellant’s Brief at 26.     For both issues, Appellant cites to the same

testimony at trial. Id. at 23-25 (citing N.T., 10/11/2018, at 62) and id. at

26-27 (citing N.T., 10/11/2018, at 62).

      By way of background, prior to trial, Appellant made an oral motion in

limine requesting the trial court not permit the Commonwealth to introduce

an incident report from September 15, 2017, regarding a shooting at 1217

Clover Lane. N.T., 10/11/2018, at 12.      The Commonwealth responded that



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it intended to offer this information, as well as other information about

violence in the Clover Lane area, as part of the history of the case. Id. at

13. At that point, the trial court overruled the objection, and told Appellant

to re-raise the objections during the course of trial. Id.

      During Officer Garron’s testimony, the Commonwealth asked about the

“shootings … in the area of 12th and Clover.” N.T., 10/11/2018, at 62.

Appellant objected and requested a sidebar. Id. The Commonwealth

explained that it was going to ask questions about a shooting in the area “a

month before they began an investigation.” Id. at 63.         The trial court

sustained the objection, and no questions about the shooting were asked.

Id.

      On appeal, Appellant complains that he was prejudiced by this

testimony. Appellant’s Brief at 25, 27. However, the trial court sustained

Appellant’s objection, and the testimony about a shooting in the area was

not offered into evidence. Again, “where the trial court has sustained the

objection, even where a defendant objects to specific conduct, the failure to

request a remedy such as a mistrial or curative instruction is sufficient to

constitute waiver.” Manley, 985 A.2d at 267.          Here, Appellant did not

request either a mistrial or a curative instruction; thus, he has waived any

error related to this issue.

      Finally, we consider Appellant’s issue concerning whether the trial

court’s admitting testimony about Appellant’s decision to invoke his Miranda



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rights, its subsequent denial of a mistrial, and its decision to provide a

curative instruction, violated Appellant’s rights under the Fifth Amendment’s

privilege against self-incrimination. Appellant’s Brief at 18-23.

       We provide the following background.            At trial, the Commonwealth

asked Officer Garron why he Mirandized the four adults who were

handcuffed. N.T., 10/11/2018, at 90. Officer Garron responded as follows:

“We give every adult their [sic] Miranda warnings. It’s their [sic] rights. We

let them know, you have the right to remain silent. Some people invoke that

right. [Appellant] invoked that right. Others give up that right and they can

make statements if they want.”6 Id.              Counsel for Appellant immediately

requested a sidebar.

____________________________________________
6 “[A] person must be informed of his or her Miranda rights prior to
custodial interrogation by police.” Commonwealth v. Bess, 789 A.2d 757,
762 (Pa. Super. 2002). “Interrogation means police questioning or conduct
calculated to, expected to, or likely to evoke an admission.” Id. (internal
quotation marks omitted).      “Interrogation occurs when the police should
know that their words or actions are reasonably likely to elicit an
incriminating response, and the circumstances must reflect a measure of
compulsion above and beyond that inherent in custody itself.” Id.

      Here, Appellant and the other adults were clearly in custody, having
been handcuffed for the protection of the officers; however, they were not
under arrest at this juncture. There is nothing in the record to indicate that
police were questioning or intended to question these adults.           Thus,
Miranda warnings were not actually required at this point. Nevertheless,
because they were provided, and the jury was informed as such, we must
evaluate whether the subsequent reference to Appellant’s invocation of
these rights violated the Fifth Amendment. Moreover, in Pennsylvania, we
have concluded that “the timing of the silence, whether it be pre or post-
arrest, or pre or post-Miranda warnings, is not relevant to the question of
whether a prosecutor’s use of the silence as substantive evidence of guilt
(Footnote Continued Next Page)

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      At sidebar, counsel requested a mistrial because Officer Garron

commented on Appellant’s Fifth Amendment right to remain silent. Id. The

trial court overruled the objection, stating that the testimony was not

grounds for a mistrial, and offered to provide a curative instruction

immediately or at a later date. Id. at 91. Counsel for Appellant declined the

trial court’s offer to provide a curative instruction, wishing to “call less

attention to this.” Id. at 92.        The trial court did not provide a curative

instruction at that time. Nevertheless, over the objection of Appellant’s

counsel, the trial court concluded that it would indeed offer a cautionary

instruction as part of its jury charge. The trial court instructed the jury as

follows. “I want to also advise and to instruct that any Defendant, including

[Appellant], when detained by the police when entering a premise has a

constitutional right not to provide a statement. His silence at the scene is

not a suggestion of guilt nor a bad act in itself.” N.T., 10/12/2018, at 65-66.

      On appeal, Appellant argues both that the underlying testimony was so

de minimis that the trial court should not have provided a curative

instruction, see Appellant’s Brief at 22-23, and that the underlying

testimony was so prejudicial that the trial court should have sustained the

objection and granted a mistrial, see id. at 18-21.



(Footnote Continued) _______________________
violates an individual’s right against self-incrimination.” Commonwealth v.
Molina, 104 A.3d 430, 449-50 (Pa. 2014) (Opinion Announcing Judgment of
the Court).


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      Testimony about a defendant’s decision not to speak to authorities is

inherently prejudicial. “The view of [the Pennsylvania Supreme] Court that

there exists a strong disposition on the part of lay jurors to view the exercise

of the Fifth Amendment privilege as an admission of guilt is well

established.” Commonwealth v. Turner, 454 A.2d 537, 539 (Pa. 1982).

Our Supreme Court has stated that

      [w]e would be naive if we failed to recognize that most laymen
      view an assertion of the Fifth Amendment privilege as a badge of
      guilt. It is clear that [t]he privilege against self-incrimination
      would be reduced to a hollow mockery if its exercise could be
      taken as equivalent either to a confession of guilt or a conclusive
      presumption of perjury.

Commonwealth v. Haideman, 296 A.2d 765, 767 (Pa. 1972) (internal

quotation marks and citations omitted).

      “The rule against reference to a defendant’s post-arrest silence clearly

relates to jurors’ inferences from such silence. The rationale is that jurors

expect   an   innocent   person   charged     with   a   crime   to   deny   guilt.”

Commonwealth v. Crews, 640 A.2d 395, 404-05 (Pa. 1994). In fact,

“[t]he prejudice to the defendant resulting from reference to his silence is

substantial.” Turner, 454 A.2d at 539.

      Where, as here, “an improper reference to [a defendant’s] silence was

made, if we also conclude that it is clear that the error did not contribute to

the verdict, the error may be deemed harmless.” Commonwealth v.

Mitchell, 839 A.2d 202, 214-15 (Pa. 2003). Additionally, our courts have




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held that such error can be cured through curative instructions. See

Commonwealth v. DiNicola, 866 A.2d 329, 336-37 (Pa. 2005).

      However, counsel for Appellant declined the trial court’s offer to

provide a curative instruction because counsel wished to call less attention

to the issue, but Appellant now claims on appeal he was prejudiced by

Officer Garron’s testimony. See Appellant’s Brief at 18-21. “When counsel

chooses to refuse appropriate curative instructions for this legitimate tactical

reason, the defense may not plead prejudice on appeal.” Commonwealth

v.   Miller,   481   A.2d   1221,   1223      (Pa.   Super.   1984);   see    also

Commonwealth v. Quartman, 385 A.2d 429, 432 (Pa. Super. 1978) (“In

every case, it is a tactical decision to be made by defense counsel, and the

rendering of an unfavorable verdict should not entitle a defendant, who did

not elect to protect himself to the maximum in his first trial, to an automatic

retrial.”). In other words, if we are to determine that a curative instruction

could allay the prejudice from Officer Garron’s testimony, Appellant may not

plead prejudice on appeal.     Thus, we now determine whether a curative

instruction was adequate in this case.

      [I]n     Pennsylvania    adequate      instructions   under    some
      circumstances may cure error of the nature here complained of.
      Initially, whether the harm can be removed by curative
      instructions will be within the sound discretion of the trial judge
      and his determination will be subject to appellate review. In
      making this decision, the following will be important
      considerations but not necessarily exclusive: (1) the nature of
      the reference, particularly, whether it was a specific comment on
      the accused’s silence at trial or at the time of arrest or whether it
      was … merely a reference to the fact that incriminating evidence


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      of the Commonwealth was undenied or uncontradicted; and (2)
      whether the accused’s silence was exploited by the district
      attorney.

Commonwealth v. Maloney, 365 A.2d 1237, 1241 (Pa. 1976) (plurality).

      In Maloney, a police officer testified that Maloney “refused to give a

statement.”    Id. at 1239.    Maloney’s counsel did not object.       Shortly

thereafter, the Commonwealth asked the officer the following: “Now, you

advised the defendant of his constitutional rights and you took no statement

from him; is that correct?” Id. The officer responded in the affirmative, and

counsel for Maloney objected.     The objection was sustained and counsel

moved for a mistrial.   The trial court denied the mistrial, but granted the

request for a curative instruction. On appeal, Maloney contended that the

curative instruction could not cure the inherent prejudice of the question and

answer. In concluding the trial court did not abuse its discretion in denying a

mistrial, our Supreme Court pointed out that

      while the particular testimony of [the officer] constituted a
      specific reference to silence at a time when Maloney had the
      constitutional right to remain tight-lipped and this could have
      caused an improper inference of guilt, this testimony was not
      objected to. The district attorney’s follow-up question which
      prompted the motion for a mistrial was not an exploitation of
      Maloney’s silence, that is, it did not ask the jury to draw an
      improper inference. Further, the court’s instructions were timely
      and adequate.

Id. at 1241.

      Furthermore, in Commonwealth v. Anderjack, 413 A.2d 693 (Pa.

Super. 1979), on cross-examination by Anderjack’s counsel, an officer



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testified that Anderjack refused to sign a waiver of rights form. Anderjack

objected and requested a mistrial. The trial court denied Anderjack’s motion

for a mistrial and offered a curative instruction. This Court pointed out that

      in deciding whether a cautionary instruction was sufficient, we
      must closely scrutinize the facts of the specific case, with
      particular attention to the following: 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 instruction.

Id. at 698. In Anderjack, this Court considered the following: 1) testimony

that Anderjack refused to sign a waiver of rights form may only “indicate to

the jury that the defendant was uncooperative in some way;” 2) “[t]he

reference was not elicited by the district attorney or by the court but by

[Anderjack’s] counsel;” 3) there was a single reference that was not brought

up again by any party; and 4) “[t]he cautionary instruction was given

promptly, only minutes after the reference.” Id. at 699-700.       In weighing

these factors, this Court concluded that the trial judge did not err in denying

Anderjack’s motion for a mistrial.

      We also find instructive this Court’s decision in Commonwealth v.

Mays, 523 A.2d 357 (Pa. Super. 1987) (abrogated on other grounds). In

Mays, Mays and a cohort broke into the victim’s apartment, and Mays

subsequently ordered his cohort to shoot the victim. Mays was convicted of

second-degree murder and related charges.         At trial, the Commonwealth

called the arresting officer to testify.   “The officer … testified that [Mays]

refused to give a statement after being advised of his Miranda rights.” Id.


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at 358. The Commonwealth requested a sidebar, and “expressed surprise at

the officer’s remarks.” Id.    The trial court struck the testimony from the

record and instructed the jury “to completely disregard whatever that

witness stated on the witness stand.” Id. at 359. On appeal, Mays argued

that his constitutional rights were violated by the officer’s reference to his

post-arrest silence. This Court considered the prejudicial nature of the

officer’s testimony, the Commonwealth’s surprise at the remarks, and the

fact that the Commonwealth did not exploit the situation, in concluding that

Mays was not prejudiced by this testimony.

       With the foregoing in mind, we turn to the instant case, and begin with

“the nature of the reference to defendant’s silence.” Anderjack, 413 A.2d at

698.   Here, the testimony was that Appellant invoked his Miranda rights.

As in Mays, this is a direct reference to Appellant’s exercise of his

constitutional right to remain silent at the time of his arrest, and is precisely

the type of testimony that is prohibited and deemed prejudicial.

       Turning to “how [the testimony] was elicited,” we conclude that

although the Commonwealth was responsible for the testimony, as in Mays,

the testimony did come as a surprise. Anderjack, 413 A.2d at 698. While

the Assistant District Attorney is responsible for asking why the individuals

were Mirandized in the first place, Officer Garron volunteered this irrelevant

and prejudicial information.




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      The third factor to consider is whether the Commonwealth exploited

the reference.   It is clear that the Commonwealth did not.        The record

shows, and Appellant does not dispute, that the Commonwealth did not

bring up this issue again at any point during the trial. Finally, we consider

the promptness of the curative instruction. As set forth supra, the trial court

was willing to give a curative instruction immediately, but Appellant

requested that the trial court not do so.

      Based on the foregoing, we conclude that despite the fact that Officer

Garron directly commented on Appellant’s invocation of his right to remain

silent in response to a question from the Commonwealth, the trial court’s

offer of a curative instruction was sufficient to cure any prejudice in this

case. We observe that “[t]he trial court is in the best position to assess the

effect of an allegedly prejudicial statement on the jury.” Commonwealth v.

Simpson, 754 A.2d 1264, 1272 (Pa. 2000).

      At the time of the prejudicial testimony, the trial judge commented, “I

think it just went right over [jurors’ heads.] I don’t think it has any meaning

whatsoever at this point in time[.]” N.T., 10/11/2018, at 92.        Appellant

essentially agreed with this assessment. Id. Moreover, “[i]t is well settled

that juries are presumed to follow the instructions of a trial court to

disregard inadmissible evidence.” Simpson, 754 A.2d at 1272.         Thus, we

conclude that this quick reference to Appellant’s invocation of his Fifth

Amendment right to remain silent is the type of comment that can be cured



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by a curative instruction. Therefore, the trial court did not err or abuse its

discretion   by   giving   a   curative   instruction.   See   Maloney,   supra;

Anderjack, supra; Mays, supra.

      For all of the foregoing reasons, we affirm Appellant’s judgment of

sentence.

      Judgment of sentence affirmed.

      Judge Murray joins in this memorandum.

      PJE Gantman concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/31/20




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