J-S81043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

WARREN F. ARSAD, III

                            Appellant              No. 1914 EDA 2015


          Appeal from the Judgment of Sentence December 14, 2012
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0205171-2005


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED NOVEMBER 15, 2016

       Appellant Warren F. Arstad, III, appeals nunc pro tunc from the

judgment of sentence entered in the Court of Common Pleas of Philadelphia

County on December 14, 2012, at which time he received an aggregate

sentence of six (6) years to twelve (12) years in prison following his

convictions of various firearms offenses and a possession of marijuana

charge.1 We affirm.

       The trial court set forth the relevant procedural history and facts

herein as follows:

             This case was assigned to the Honorable John J. Poserina,
       Jr., who commenced a bench trial on April 14, 2009 after
____________________________________________


*
 Former Justice specially assigned to the Superior Court.
1
 18 Pa.C.S.A. §§ 6106(A)(1), 6108, 6110.2(A), and 35 Pa.C.S.A. § 780-
113(a)(31), respectively.
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     [Appellant] waived his right to a jury trial. On April 15, 2009,
     Judge Poserina declared a mistrial due to [Appellant’s] jury
     demand. However, before declaring a mistrial, Judge Poserina
     denied [Appellant’s] May 16, 2008 and March 12, 2009 motions
     for relief under Rule 600.1
            After the mistrial was declared, this case was listed for a
     jury trial before the Honorable Genece E. Brinkley, who denied
     [Appellant’s] June 3, 2010 Rule 600 motion on June 14, 2010.
     After numerous trial listings and continuances, this case was
     assigned to this court on September 14, 2010. [Appellant’s] jury
     trial commenced on February 15, 2011, and on February 18,
     2011, he was convicted on charges of carrying a firearm without
     a license in violation of Section 6106, carrying a firearm on
     public property or streets of Philadelphia in violation of Section
     6108, possessing a firearm with an altered manufacturer
     number, and possession of marijuana. [Appellant] was
     sentenced to six (6) to twelve (12) years in a state correctional
     institution on December 14, 2012. [Appellant] filed a post-
     sentence motion, which was denied by operation of law on May
     29, 2013. However, he did not file a notice of appeal.
            [Appellant] filed a pro se petition for relief under the Post
     Conviction Relief Act on August 12, 2013. After the appointment
     of counsel, an amended PCRA petition, seeking reinstatement of
     [Appellant’s] appellate rights, was filed on February 12, 2015.
     On May 22, 2015, this court reinstated [Appellant’s] appellate
     rights nunc pro tunc, and granted him leave to file a direct
     appeal before the Superior Court. On June 19, 2015, [Appellant]
     filed a notice of appeal. On June 22, 2015, this court ordered
     [Appellant] to file a statement of matters complained of on
     appeal, which he filed on July 13, 2015.
            In accordance with the Superior Court's August 26, 2015
     Order, on September 18, 2015, this court conducted a Grazier
     hearing wherein [Appellant] withdrew his request to proceed pro
     se.

                       STATEMENT OF FACTS

           At trial evidence was presented which, when viewed in the
     light most favorable to the Commonwealth as the verdict winner,
     established the following. On December 31, 2004, around 9:00
     p.m., Philadelphia Police Sergeant Shawn Wilson, was off duty
     and driving to a family gathering with his two minor children, a
     twelve (12) year old and a seven (7) year old. As he drove
     southbound on the 5800 block of North Park Avenue, Sergeant

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     Wilson observed [Appellant] walking eastbound toward his
     vehicle. [Appellant] pulled out a silver colored gun from his coat
     pocket and pointed it toward Sergeant Wilson's vehicle and said:
     "Boom, boom, boom." In response, Sergeant Wilson instructed
     his children to put their heads down, and he sped past
     [Appellant] who continued saying: "boom, boom, boom" as he
     pointed the gun at other vehicles driving behind Sergeant
     Wilson. Sergeant Wilson called 911 from his cell phone and
     described the perpetrator as a "[b]lack male wearing black
     clothing, dark clothing." He also provided the location where this
     incident was occurring. Sergeant Wilson stopped his vehicle
     about one-half block up the street near the intersection of Park
     Avenue and Grange Street, and [Appellant] ran toward him with
     the gun still in his hand. To protect himself and his children,
     Sergeant Wilson turned onto Grange Street. N.T. 02/16/11, pp.
     22-89.
           At that point, Officers William Matthieu and Michael
     Zimmerman (now Sergeant) responded and met Sergeant
     Wilson on Grange Street. Sergeant Wilson identified himself as
     an off-duty police officer and pointed Officers Matthieu and
     Zimmerman toward the direction where he last saw [Appellant]
     on 5800 North Park Avenue. Observing a man wearing "a black
     jacket, blue jeans, and black boots," Officers Matthieu and
     Zimmerman ran toward the 5800 block of North Park Avenue
     and began yelling: "Stop, police" when they were about twenty
     (20) to twenty-five (25) feet away from [Appellant], who
     disregarded the order and continued to walk northbound on Park
     Avenue. A pursuit ensued and Officer Mathieu observed
     [Appellant] reach into his right coat pocket, pull out a gun and
     drop it on the ground as he continued to walk away. Officers
     Mathieu and Zimmerman pursued [Appellant] until they reached
     him on the 5800 block of North Park Avenue, where he was
     arrested despite his defiance toward police. N.T. 02/16/11, pp.
     22-89, 90-169.
           During the arrest, police frisked [Appellant] and recovered
     seven (7) live rounds of .25 caliber ammunition wrapped in
     tissue found inside his left jacket pocket. Officer Mathieu
     observed the dropped gun on a patch of grass about two (2) to
     three (3) feet away from [Appellant]. Officer Mathieu retrieved
     the gun, a silver MP Raven .25 caliber firearm with brown grips
     that had the manufacturer's serial number scratched off. In
     making the gun safe, Officer Mathieu retrieved one (1) live round
     of .25 caliber ammunition from the chamber and six (6) live
     rounds of .25 caliber ammunition from the magazine. In total,

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     police officers recovered fourteen (14) live rounds of .25 caliber
     ammunition from [Appellant’s] person and from his gun.
            [Appellant] was transported to the 35th Police District,
     where Officers Dawn Wright and Gibson conducted a more
     extensive search of [Appellant] and recovered four small Ziploc
     bags     containing    marijuana.    [Appellant’s]   biographical
     information listed him as being 5'9" tall and weighing 150
     pounds. He was wearing a blue down jacket, a white shirt, blue
     jeans, and black boots at that time. N.T. 02/16/11, pp. 22-89,
     90-176, 180.
            At trial, there was a stipulation between the
     Commonwealth and [Appellant] that the serial number on the
     firearm was removed by abrasions and that it was chemically
     restored by the firearms examiner. The parties further stipulated
     that [Appellant] did not have a valid license to carry a firearm
     under Section 6109 of the Crimes Code, 18 Pa. C.S. §6109, or a
     valid sportsman's firearm permit under Section 6106(c) of the
     Crimes Code, 18 Pa. C.S. §6106(c). N.T. 02/16/11, pp. 22-89,
     90-169, 181-182.
     ___
     1
       It should be noted that this case was before the Honorable
     Genece E. Brinkley before assignment to Judge Poserina for trial.
     Judge Brinkley heard [Appellant’s] December 11, 2006 Rule 600
     motion and denied same on March 20, 2007.

     On May 22, 2015, the trial court ordered that Appellant’s right to file a

direct appeal was reinstated nunc pro tunc, and on June 19, 2015, Appellant

filed his notice of appeal.   On June 22, 2015, the trial court directed

Appellant to file a concise statement of matters complained of on appeal.

On July 13, 2015, Appellant filed his Statement of Matters Complained of on

Appeal Pursuant to Pa.R.A.P. 1925(b) wherein he asserted the trial court had

erred in failing to grant his “Rule 600 and speedy trial motion” and

challenged the sufficiency and weight of the evidence to sustain his

convictions. In his brief, Appellant presents the following two questions for

our review:


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       1.     Were the inconsistencies in the testimony of the police
       officers significant enough to warrant overturning the verdict as
       being against the weight of the evidence?

       2.      Did the Commonwealth’s failure to bring the Appellant to
       trial for over seven years violate his right to a speedy trial?

Brief of Appellant at 7.2

       Initially, Appellant argues the verdict was against the weight of the

evidence due to numerous “key inconsistences” in the testimony of police

officers involved in the matter.           Brief of Appellant at 11.   Specifically,

Appellant maintains the officers’ testimony concerning the perpetrator’s

clothing was unclear and in some instances contradicted statements included

in their written reports. Id. at 12-13.

       A challenge to the weight of the evidence is distinct from a
       challenge to the sufficiency of the evidence in that the former
       concedes that the Commonwealth has produced sufficient
       evidence of each element of the crime, “but questions which
       evidence is to be believed.” Commonwealth v. Charlton, 902
       A.2d 554, 561 (Pa.Super. 2006), appeal denied, 590 Pa. 655,
       911 A.2d 933 (2006). “A new trial should not be granted
       because of a mere conflict in the testimony or because the judge
       on the same facts would have arrived at a different conclusion.”
       Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055
       (2013). “Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.” Id. (citation omitted). “It
____________________________________________


2
  In an order filed on September 18, 2015, the trial court indicated that in
accordance with this Court’s Per Curiam Order of November 17, 2015, it had
conducted a hearing pursuant to Commonwealth v. Grazier, 713 A.2d 81
(Pa. 1998) at which time Appellant withdrew his request to proceed pro se
and, therefore, counsel would continue to represent Appellant on direct
appeal.



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     has often been stated that a new trial should be awarded when
     the jury's verdict is so contrary to the evidence as to shock one's
     sense of justice and the award of a new trial is imperative so
     that right may be given another opportunity to prevail.” Id.
          The Supreme Court has provided the following guidance for
     an appellate court's review of the record when the appellant
     challenges the weight of the evidence:

          In reviewing the entire record to determine the
          propriety of a new trial, an appellate court must first
          determine whether the trial judge's reasons and factual
          basis can be supported. Unless there are facts and
          inferences of record that disclose a palpable abuse of
          discretion, the trial judge's reasons should prevail. It is
          not the place of an appellate court to invade the trial
          judge's discretion any more than a trial judge may
          invade the province of a jury, unless both or either
          have palpably abused their function.

          To determine whether a trial court's decision
          constituted a palpable abuse of discretion, an appellate
          court must examine the record and assess the weight
          of the evidence; not however, as the trial judge, to
          determine whether the preponderance of the evidence
          opposes the verdict, but rather to determine whether
          the court below in so finding plainly exceeded the limits
          of judicial discretion and invaded the exclusive domain
          of the jury. Where the record adequately supports the
          trial court, the trial court has acted within the limits of
          its judicial discretion. Id. at 1056.


Interest of J.B., 2016 WL 4547955 at *10-11 (Pa.Super. Sept. 1, 2016).

     In addition, “[a] weight of the evidence claim must be preserved either

in a post-sentence motion, by a written motion before sentencing, or orally

prior to sentencing. Failure to properly preserve the claim will result in

waiver, even if the trial court addresses the issue in its opinion.”




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Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa.Super. 2013) (citing

Pa.R.Crim.P. 607) (other citations omitted).

      In the matter sub judice, Appellant properly preserved this claim when

he raised a challenge to the weight of the evidence in a timely filed post-

sentence motion on December 21, 2012. Notwithstanding, upon our review

of the record and the trial court’s opinion, we conclude the trial court did not

palpably abuse its discretion in reaching its decision. See Interest of J.B,

supra.

      Significantly, police officers collectively stated they maintained a clear

view of Appellant and that he possessed and discarded the firearm prior to

his arrest. As the trial court stated, the jury as factfinder heard the minor

inconsistencies in the officers’ accounts of Appellant’s arrest and description

of his attire. The jury was free to resolve any conflicting evidence in a light

most favorable to the Commonwealth, and its verdict evinces it did so. Trial

Court Opinion, filed 3/24/16, at 9. The trial court stressed:

      The evidence presented at trial showed that Sergeant Wilson
      observed [Appellant] pull out a gun, point it at his vehicle and
      other vehicles, and say:        Boom, boom, boom.”         When
      responding officers arrived on the scene, they were immediately
      informed of the perpetrator’s location and began to pursue
      [Appellant].    There is no evidence that they lost sight of
      [Appellant] even when he attempted to walk away from the
      scene. Indeed, police observed [Appellant] drop the gun and
      continue to walk northbound before they were able to catch up
      with him. When police reached [Appellant], they arrested him.
      Certainly, this evidence shows that police observed [Appellant]
      engaging in criminal activity and arrested him after engaging a
      foot pursuit. Consequently, there is no merit to [Appellant’s]
      argument.

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J-S81043-16



Id. at 10.

      The jury considered the evidence and determined that the officers

testified credibly. “This Court cannot substitute its judgment for that of the

jury on issues of credibility.” Commonwealth v. DeJesus, 580 Pa. 303,

311, 860 A.2d 102, 107 (2004). In addition, the trial court which observed

the witnesses as they testified throughout trial held the jury's verdict was

not contrary to the evidence and did not shock its sense of justice. Based

upon the record before us, we find no abuse in the trial court's exercise of

discretion in this regard. Commonwealth v. Brown, 71 A.3d 1009, 1014

(Pa.Super. 2013).

      Appellant next asserts the trial court erred in failing to grant his

“pretrial motion” to dismiss under Pa.R.Crim.P. 600. Specifically, Appellant

contends that under Rule 600, the Commonwealth is required to commence

a defendant’s trial within 365 days of the filing of a criminal complaint.

However, Appellant asserts that in the case sub judice, Appellant was

arrested on December 31, 2004, and his trial did not commence until

February 15, 2011, over seven years later; therefore, the charges should

have been dismissed because the Commonwealth failed to meet its burden

of demonstrating that the delays were excludable. Brief for Appellant at 11,

14. Our scope and standard of review for such a claim is well-settled:

            In evaluating Rule [600] issues, our standard of review of
      a trial court’s decision is whether the trial court abused its
      discretion. Judicial discretion requires action in conformity with

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      law, upon facts and circumstances judicially before the court,
      after hearing and due consideration. An abuse of discretion is
      not merely an error of judgment, but if in reaching a conclusion
      the law is overridden or misapplied or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill will, as shown by the evidence or the record, discretion
      is abused.

Commonwealth        v.   Hunt,     858   A.2d   1234,   1238   (Pa.Super.   2004)

(quotations, quotation marks, and citations omitted).

             Additionally, when considering the trial court’s ruling, this
      Court is not permitted to ignore the dual purpose behind Rule
      600. Rule 600 serves two equally important functions: (1) the
      protection of the accused’s speedy trial rights, and (2) the
      protection of society. In determining whether an accused’s right
      to a speedy trial has been violated, consideration must be given
      to society’s right to effective prosecution of criminal cases, both
      to restrain those guilty of crime and to deter those
      contemplating it. However, the administrative mandate of Rule
      600 was not designed to insulate the criminally accused from
      good faith prosecution delayed through no fault of the
      Commonwealth.
             So long as there has been no misconduct on the part of
      the Commonwealth in an effort to evade the fundamental speedy
      trial rights of an accused, Rule 600 must be construed in a
      manner consistent with society’s right to punish and deter crime.
      In considering these matters . . . courts must carefully factor
      into the ultimate equation not only the prerogatives of the
      individual accused, but the collective right of the community to
      vigorous law enforcement as well.

Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa.Super. 2007) (en

banc) (quotation omitted).

      Rule 600(A)(2)(a) requires that trial commence within 365 days of the

filing of the written complaint.

      The mechanical run date is the date by which the trial must
      commence under Rule 600. It is calculated by adding 365 days
      (the time for commencing trial under Rule 600) to the date on

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     which the criminal complaint is filed. ... [T]he mechanical run
     date can be modified or extended by adding to the date any
     periods of time in which delay is caused by the defendant. Once
     the mechanical run date is modified accordingly, it then becomes
     an adjusted run date. If the defendant's trial commences prior
     to the adjusted run date, we need go no further.

Ramos, 936 A.2d at 1102 (internal citation, brackets and footnote omitted).

In addition, Pa.R.Crim.P. 600(D)(1) provides that a new run period will

commence when “a trial court has granted a new trial and no appeal has

been perfected.”

     Before we consider the merits of this issue, we must first determine

whether Appellant has preserved it for our review. To preserve a claim for

relief under Rule 600, an appellant must file and serve upon the

Commonwealth a written motion requesting such relief. Commonwealth v.

Brock, 619 Pa. 278, 285, 61 A.3d 1015, 1019 (2013). In determining that

an oral motion to dismiss was insufficient, our Supreme Court in Brock

reasoned as follows:

     In [Commonwealth v.] Drake, [489 Pa. 541, 414 A.2d 1023
     (1980)], the defendant made an oral motion for dismissal
     pursuant to former Pa.R.Crim.P. 1100, now Rule 600. The trial
     court denied the motion on the merits. On appeal, the Superior
     Court affirmed, but concluded the defendant had waived his Rule
     1100 claim by failing to file a written application to dismiss.
     Upon further appeal, this Court affirmed the Superior Court's
     decision, explaining that Rule 1100(g):

          requires a copy of an application to dismiss the charges
          be served upon the attorney for the Commonwealth.
          This clearly indicates the Rule mandates a written
          application. The same purposes of providing the trial
          courts with specific facts and issues for determination
          and providing certainty in the record on appeal which

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          were advanced by our ruling in Commonwealth v.
          Blair, [460 Pa. 31, 331 A.2d 213 (1975) ], will be
          served by enforcement of the written application
          requirement under Rule 1100(f).
      Id. at 544, 414 A.2d at 1024–25 (footnotes omitted).

Commonwealth v. Brock, 619 Pa. 278, 283–84, 61 A.3d 1015, 1017–18

(2013) (footnote omitted).

      A review of the certified record herein reveals only a pro se

correspondence filed with the Honorable Genece E. Brinkley on June 3,

2010, wherein Appellant stated that because the Honorable John J. Poserina

had declared a mistrial on April 15, 2009, his trial should have commenced

by April 15, 2010, under Rule 600.            Appellant still was represented by

counsel at that time, and no counseled motion raising a challenge under

Rule 600 had been filed; therefore, Appellant’s pro se filing constitutes a

legal nullity, as it is well-settled that no defendant has a right to hybrid

representation.   Commonwealth v. Padilla, 62 Pa. 449, 485, 80 A.3d

1238, 1259 (Pa. 2013); Pa.R.Crim.P. 120(a)(4) (stating “[a]n attorney who

has   been   retained   or   appointed   by    the   court   shall   continue   such

representation through direct appeal or until granted leave to withdraw by

the court…”). As a result of Appellant’s failure properly to present his motion

for relief pursuant to Rule 600 before the trial court, it appears he has

waived this claim on appeal.

      Notwithstanding, the certified record contains an order entered on

March 20, 2007, wherein the trial court indicates that “after consideration of


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J-S81043-16


the 1013 Motion and 600A2 Motion presented by the attorney for the

[Appellant],” such motions were denied. However, nowhere does the order

indicate whether the referenced, counselled motion had been in writing and

properly filed and none appears in the certified record before us.       In

addition, in an order entered on June 14, 2010, the trial court stated the

following:

            AND NOW, this 14th day of June, 2010, it is hereby
      ORDERED that [Appellant’s] request for release under Rule
      600(g) is DENIED. Judge Poserina ruled on this motion on April
      15, 2009, and the time elapsed from April 15, 2009 to present is
      excludable time based upon three separate changes of defense
      back-up counsel or extendable based upon the [c]ourt’s
      calendar.
                                   ****
      In light of the foregoing, even were this Court to give credence to

Appellant’s written pro se Rule 600 motion or assume, arguendo, the

aforesaid motions to dismiss were in writing and properly served upon the

attorney for the Commonwealth, not set forth orally at a hearing, we would

apply Pa.R.A.P. 2119(a) to find waiver for Appellant’s failure to develop a

meaningful argument with citation to relevant, legal authority on this claim

in his appellate brief. See Commonwealth v. Heilman, 867 A.2d 542, 546

(Pa.Super. 2005) (recognizing that failure to include “such discussion and

citation of authorities as are deemed pertinent” may result in waiver of

claim); Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa.Super.

2004)(declining to review claim where brief contains limited explanation and

development of argument). Appellant merely lists docket entries with some


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footnotes thereto in the “Statement of the Case” portion of his brief and

makes   bald   assertions   in   the    Argument    section   thereof   that   the

Commonwealth failed to meet its burden of proving the delays were

excludable; therefore, he concludes his right under both the Pennsylvania

and federal constitutions to a speedy trial was violated under the “technical

mandates of Rule 600.” Brief for Appellant at 15.

           The Rules of Appellate Procedure state unequivocally that
     each question an appellant raises is to be supported by
     discussion and analysis of pertinent authority Appellate
     arguments which fail to adhere to these rules may be considered
     waived, and arguments which are not appropriately developed
     are waived. Arguments not appropriately developed include
     those where the party has failed to cite any authority in support
     of a contention. This Court will not act as counsel and will not
     develop arguments on behalf of an appellant. [M]ere issue
     spotting without analysis or legal citation to support an assertion
     precludes our appellate review of [a] matter.


Coulter v. Ramsden, 94 A.3d 1080, 1088–89 (Pa.Super. 2014), appeal

denied, ___ Pa. ____, 110 A.3d 998 (2014) (Table) (internal citations and

quotation marks omitted). Therefore, we find Appellant waived this claim for

lack of development.   Umbelina v. Adams, 34 A.3d 151, 161 (Pa.Super.

2011), appeal denied, 47 A.3d 848 (Pa. 2012). See also Commonwealth

v. Williams, 732 A.2d 1167, 1175 (Pa. 1999) (noting that relief is




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J-S81043-16


unavailable based upon undeveloped claims for which insufficient argument
                             3
is presented on appeal).

       For all of the the foregoing reasons, we affirm.4

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/2016




____________________________________________


3
  Had Appellant properly preserved this issue and developed an argument in
support of it, the trial court determined application of Rule 600 to the instant
case was straightforward. We find no error in the trial court’s analysis and,
therefore, we would conclude the trial court did not abuse its discretion in
denying Appellant’s motion to dismiss under Rule 600. See Trial Court
Opinion, filed 3/24/16 at 11-15. See Commonwealth v. Ramos, 936 A.2d
at 1103 (“We add the amount of excludable time, if any, to the mechanical
run date to arrive at an adjusted run date.”) (citation omitted)).
4
 An appellate court may affirm the trial court on any basis if the ultimate
decision is correct.   Commonwealth v. Reese, 31 A.3d 708, 727
(Pa.Super. 2011) (en banc).



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