IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
I.D. No. 0411008300 WLW
v. : Kent County
AMBROSE L. SYKES,
Defendant.
Submitted: October ll, 2017
Decided: December 7, 2017
ORDER
Upon Defendant’s Amended Second Motion

for Postconviction Relief.
Dem'ed.

John Williams, Esquire and Stephen R. Welch, Jr., Esquire of the Department of
Justice, Dover, Delaware; attorneys for the State.

Herbert W. Mondros, Esquire of Margolis Edelstein, Wilmington, Delaware and

Samuel J.B. Angell, Esquire of the Federal Community Defender Offlce,
Philadelphia, Pennsylvania; attorneys for the Defendant.

WITHAM, R.J.

State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

Bef`ore the Court is the Petitioner, Ambrose L. Sykes’, Amended Second
Motion for Postconviction Relief. Sykes raises a number of grounds for relief from
his 2006 conviction for Murder in the First Degree, Rape in the First Degree, and
other related offenses, and relief from this Court’s subsequent imposition of a life
sentence. The majority of Sykes’ claims for relief are based on allegations of
ineffective assistance of postconviction counsel against Sykes’ two postconviction
attomeys, Patrick Collins and Albert J. Roop, V (hereinafter, “Rule 61 Counsel”).

Afcer careful consideration of the parties’ filings and review of recent Delaware
precedent, the Court concludes that Sykes’ Amended Second Motion for
Postconviction Relief must be summarily DENIED pursuant to Superior Court
Criminal Rule 61(d)(2).

FACTUAL AND PROCEDURAL BACKGROUNDl

The facts of this case have been thoroughly set forth on a variety of occasions
by this Court, as Well as the Delaware Supreme Court.2 The following is the
statement of facts contained in the Delaware Supreme Court’s opinion on direct
appeal and its opinion affirming this Court’s denial of postconviction relief:

On November 8, 2004, sixty-eight-year-old Virginia Trimnell Was
scheduled to fly from Washington, D.C. to Detroit to visit her daughter.

 

l The facts are taken from the record, the Delaware Supreme Court’s opinion in Sykes’ direct
appeal, Sykes v. State (Sykes I), 953 A.2d 261 (Del. 2008), this Court’ s postconviction opinion, State
v. Sykes (Sykes II), 2014 WL 619503 (Del. Super. Jan. 21, 2014), and the Delaware Supreme Court’ s
opinion affirming this Court’ s denial of` postconviction relief, Sykes v. State (Sykes III), 147 A.3d 201
(Del. 201 5).

2 Id.

State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7 , 2017

When Trimnell did not arrive as scheduled, her daughter contacted the
Dover Police Department. Officer Jeffrey Gott went to check on
Trimnell. Gott testified that when he arriv[ed] at Trimnell’s apartment,
it was tidy and undisturbed and he observed no signs of forced entry.
He also testified that he saw two shopping bags sitting on the bed.
However, he could not locate Trimnell’s car or purse.

At approximately 3:30 a.m. on November 10, 2004, Dover Police
Sergeant Timothy Mutter saw Trimnell’s car traveling on Kings
Highway in Dover. The driver, later identified as Sykes, got out of the
vehicle, and Mutter asked him for his license and registration Sykes
initially complied but then fled after Mutter asked about Trinmell. The
police could not apprehend Sykes that night.

Police found Sykes’ fingerprints on a shovel and a rubber glove inside
Trimnell’s car. The police also found three gas cans and women’s
clothing that matched what others saw Trimnell wearing on the day she
disappeared In the trunk of the vehicle, police found a large green
suitcase with Trimnell ’ s name and Trimnell ’ s purse inside a green duffel
bag. Police found Trimnell’s body stuffed into the large green suitcase.

An autopsy indicated that Trimnell died by strangulation. A sexual
assault kit detected sperm in Trimnell’s vagina. The autopsy did not,
however, reveal any defense wounds on Trimnell. DNA testing was
conducted Sykes’ saliva reference sample was ultimately determined
to match all sixteen loci from Trimnell’s vaginal swab. Sykes’ DNA
also matched the sperm located on a comforter found in Trimnell’s
trunk.

Police seized a computer during a search of Trimnell’s apartment An
examination of that computer revealed that it had been used to access
pornographic websites on November 7, 2004. Trimnell’s credit cards
had been used to access the website[s]. That computer had not been

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State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

previously used to visit similar websites. Police also seized two
pornographic magazines and four computers from Sykes’ mobile home.
Files on two of those computers contained “similar images of adult
pomography” to those found on Trimnell’s computer. Additionally,
police found a leather bag containing silver dollars in the home of
Sykes’ girlfriend, Jenny St. Jean. Trimnell’s daughter later identified
the bag as Trimnell’s.

Trimnell’s telephone records revealed that a cell phone registered to
Sykes made three calls to her home on the morning of November 7,
2004. Sykes, a night shift restaurant custodian at Dover Downs, did not
work on November 7, 2004. He quit this job on November 8, 2004 due
to alleged transportation problems. Af`ter he quit his job, Dover Downs
security cameras showed him leaving the parking lot on November 8,
2004 in Trimnell’s car.

Police arrested Sykes on November 29, 2004 and the State later indicted
him on two counts of Murder First Degree and other felony and
misdemeanor charges. The State later re-indicted him and added two
counts of Rape First Degree.3

On June 27, 2006, Sykes was convicted on all counts. He was sentenced to
death on September 20, 2006.

On January 24, 2008, after a brief remand to this Court, the Delaware Supreme
Court affirmed Sykes’ conviction and sentence to death.4

On October 24, 2008, Sykes, represented by Rule 61 Counsel, timely filed his
First Motion for Postconviction Relief. On October 19, 2009, Sykes filed an

 

3 Sykes III, 147 A.3d at 206-07 (quoting Sykes I, 953 A.2d at 264-65).
4 Sykes I, 953 A.2d 261 (Del. 2008).

State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

Amended First Motion for Postconviction Relief in which he raised twenty-three
separate claims for relief. Beginning October 10, 201 1 and concluding on November
7, 2012, the Court held an extensive evidentiary hearing over the course of eleven
days.5 Twenty-one witnesses, including trial counsel, testified during the hearing. An
additional three witnesses, who did not testify, were deposed. And, the Court
admitted more than forty exhibits into evidence. Post hearing briefing concluded on
August 12, 2013.

On January 21, 2014, the Court issued its ninety-eight page decision denying
Sykes’ Amended First Motion for Postconviction Relief. The Delaware Supreme
Court affirmed the denial of relief on January 30, 2015.

On January 1 1, 2016, Sykes filed his Second Motion for Postconviction Relief.
Sykes amended the motion on May 10, 2017, after the Court re-sentenced Sykes
pursuant to the Delaware Supreme Court’s decisions in Raufv. State and Powell v.
Delaware.6

On July 7, 2017, the State filed its Answer to Sykes’ Amended Second Motion
for Post-Conviction Relief and Motion for Summary Dismissal pursuant to the
provisions of Delaware Superior Court Criminal Rule 61(d)(5).

On October 10, 2017, Sykes filed a Reply to the State’s Answer.

 

5 The hearing was punctuated by extensions of time, discovery matters, conferences, and
witness scheduling, effecting the available hearing dates.

6 Raufv. State, 145 A.3d 430 (Del. 2016); Powell v. Delaware, 153 A.3d 69 (Del. 2016).

5

State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

THE PARTIES’ CONTENTIONS

According to Sykes, he was deprived of his constitutional rights at his capital
trial and his right to effective assistance of postconviction counsel under Guy v. State,
82 A.3d 710 (Del. 2013), in his First Amended Rule 61 proceeding. Specifically,
Sykes pleads the following:

First, Sykes contends that Rule 61 Counsel were ineffective for failing to
properly appeal all of the twenty-three issues considered by this Court in Sykes’
Amended First Motion for Postconviction Relief. Apparently, Rule 61 Counsel

abandoned certain issues on appeal due to space constraints7 Sykes claims Rule 61

 

7 Sykes identified sixteen claims of ineffective assistance of trial counsel that Rule 61
Counsel failed to raise on appeal. The claims include that: (1) trial counsel failed to meet with Sykes
for sixteen months, until shortly before trial; (2) trial counsel failed to interview Jenny St. Jean; (3)
trial counsel failed to investigate and present information regarding St. Jean’s mental health and
anger problems; (4) trial counsel failed to investigate and present information regarding St. Jean’s
history of assaults; (5) trial counsel failed to investigate and present information regarding St. Jean’ s
criminal history involving abuse of the elderly; (6) trial counsel failed to investigate and present
information regarding St. Jean’s former live-in paramour, Mike McClements; (7) trial counsel failed
to investigate and present information regarding St. Jean’s use of Sykes’ computer to access
pornographic sites; (8) trial counsel failed to investigate and present testimony from Douglas Dyer,
Carla Randall, and J ames Thomas; (9) trial counsel failed to properly investigate the rape charges
against Sykes; (10) trial counsel failed to retain, consult, and call as a witness at trial an expert
forensic pathologist; (11) it was improper for trial counsel’s opening statement to include an
unauthorized admission of guilt to burglary; (12) trial counsel failed to challenge suitcase drag mark
testimony; (13) trial counsel failed to object to the State’s improper remarks during the guilt phase
of Sykes’ trial, where the State argued multiple facts not in evidence; (14) trial counsel failed to
object to the inclusion in evidence of an electronic key card reader, steak knife, lockbox and two
photos of a handgun, gruesome photos, and pornographic magazines; (15) trial counsel failed to
request a D.R.E. 609 instruction as to Jenny St. Jean; and (16) trial counsel failed to object to the
Court’s reasonable doubt instruction at Sykes’ trial.

6

State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

Counsel’s decision Was improper and could have been prevented.8

Second, Sykes contends that Rule 61 Counsel failed to present relevant
testimony from Andrew Lash, an expert in computer forensics. According to Sykes,
Rule 61 Counsel never elicited testimony, found in Mr. Lash’s report, that
demonstrates that only one of the search terms - “bigbutts” - is found on both
Trimnell and Sykes’ computers, but was never typed the same way on the Trimnell
computer as it was in various forms on Sykes’ computer. Moreover, there are
apparently several search terms that appear only on the Trimnell computer but not on
Sykes’ computer. For instance, Sykes alleges that “phat+asses” appears on the
Trimnell computer but never appears on Sykes’ computer. Sykes believes these
differences demonstrate that it was less likely that he was the person who typed the
terms into the Trimnell computer.

Third, Sykes contends that Rule 61 Counsel failed to elicit testimony from
witnesses who could have testified that Sykes had a relationship with the victim.
According to Sykes, Douglas Dyer and Carla Randall could have testified that, on
separate occasions, they both saw Sykes in a car matching the description of
Trimnell’s car weeks before her body was found. This information was not presented
during the evidentiary hearing for Sykes’ Amended First Motion for Postconviction

Relief because Rule 61 Counsel failed to call Ms. Randall as a witness and counsel

 

8 Sykes faults Rule 61 Counsel for filing a page extension motion too early in the appeal
process. Sykes contends that if Rule 61 Counsel had waited to file the motion, they Would have had
a better understanding of how long the brief needed to be. Sykes also faults Rule 61 Counsel for
failing to adequately explain why such additional space was needed.

7

State v. Ambrose L. Sykes
I.D. No. 04110()8300 WLW
December 7, 2017

never asked Mr. Dyer about seeing Sykes in a white car that matched the description
of Trimnell’s vehicle. Rule 61 Counsel also apparently failed to call J ames Thomas
as a witness at the evidentiary hearing for Sykes’ Amended First Motion for
Postconviction Relief. Mr. Thomas would have testified that he was driving with
Sykes near Trimnell’s apartment, in another car, a week or two before the victim
disappeared Evidently, a white woman in a big white car drove past them; Mr.
Thomas thinks it was a Buick LeSabre. Mr. Thomas claims that he could tell from
the way Sykes and the woman looked at each other, that they knew one another.
Sykes contends that this evidence would have countered the State’ s argument, and the
Court’s finding, that there was no evidence that Trimnell and Sykes knew each other.
Moreover, the evidence would have cast significant doubt on the State’s theory that
this was a random, violent act, and put the case in a much different light. Therefore,
Sykes contends that Rule 61 Counsel were ineffective under Guy v. State for failing
to present key witnesses and failing to ask pertinent questions of the witnesses they
did present.

Fourth, Sykes contends that Rule 61 Counsel failed to appropriately consult
with their expert forensic pathologist, Jonathan Arden, M.D. Apparently Rule 61
Counsel failed to obtain available testimony from Dr. Arden that challenged the
State’s assertion that Trimnell did not consent to sexual contact with Sykes. If Rule
61 Counsel had asked Dr. Arden, he would have explained: (1) that there were no
injuries diagnostic or suggestive of forced, non-consensual penetration; and (2) that

such testimony could have been given at the time of trial by a qualified expert. Sykes

State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

believes that if this testimony was presented at trial there would have been a
reasonable probability of a different outcome as to the rape conviction(s), and the
burglary conviction that relied on the rape conviction. Therefore, Sykes claims that
he was prejudiced

Fifth, Sykes submits that the cumulative effect of the errors set forth in his
Amended Second Motion for Postconviction Relief entitle him to relief in the form
of a new trial.

In response to Sykes’ Amended Second Motion for Postconviction Relief the
State alleges the following:

First, the State contends that Sykes’ motion must be summarily dismissed
pursuant to Superior Court Criminal Rule 61(i). The State does not believe that
Sykes qualifies for either exception under Rule 61(d)(2).

Second, assuming that Sykes can satisfy the procedural requirements of Rule
61, the State contends that Guy v. State does not provide Sykes relief because Sykes
relies upon dicta that has never been expressly affirmed9 Moreover, the State alleges
that, in light of the substantial amendment of Rule 61 on June 4, 2014, Guy is no
longer applicable because the amended rule did not specifically provide defendants

with a right to effective assistance of postconviction counsel.10

 

9 The State also contends that Coles v. State, supports the State’s contention that Guy does
not provide Sykes the right to effective postconviction counsel. Coles v. State, 2017 WL 3259697
(Del. July 31, 2017).

10 On June 4, 2014, the Superior Court amended several subsections of Rule 61. Rule
61(i)(2)(i) was amended to provide that “[n]o second or subsequent motion is permitted under this
Rule unless that second or subsequent motion satisfies the pleading requirements of subparagraphs

9

State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

DISCUSSION

The Delaware Supreme Court recently reiterated in Durham v. State that,
before reaching the merits of a Motion for Postconviction Relief, this Court must
consider the procedural requirements of Rule 61 .“ As this is Sykes’ second motion
for postconviction relief under Rule 61, it is a successive motion and Sykes must
show that either (1) “new evidence exists that creates a strong inference that the
movant is actually innocent in fact of the acts underlying the charges of which he was
convicted” or (2) “a new rule of constitutional law, made applicable to cases on
collateral review by the United States Supreme Court or the Delaware Supreme Court,
applies to the movant’s case and renders the conviction . . . invalid.”12 If Sykes
cannot satisfy the exceptions to the procedural bar set forth by Rule 61 (d)(2), then his
motion must be denied without consideration of the merits.13

Sykes contends that the following constitutes “new evidence” that creates a

 

(2)(i) or (2)(ii) of subdivision (d) of this rule.” Rule 61 (d)(2) provides that a “second or subsequent
motion under this rule shall be summarily dismissed, unless the movant was convicted ajer a trial
and” the motion either pleads that new evidence exists of the movant’s innocence in fact or that a
new retroactive rule of constitutional law render the movant’s conviction invalid Super. Ct. Crim.
R. 61(d)(2) (2014) (emphasis added).

ll See Durham v. State, 2017 WL 5450746, at *1 (Del. Nov. 13, 2017) (citing Younger v.
State, 580 A.2d 552, 554 (Del. 1990)).

12 Super. Ct. Crim. R. 61 (d)(2)(i-ii).

13 See Durham, 2017 WL 5450746 at *2 (holding that “even if [the petitioner] did not have
a prior opportunity to raise his ineffective assistance of postconviction claims, and even if, under
Guy v. State, he raised the claims in a timely fashion, [the petitioner] was still required to satisfy the
requirements of Rule 61(d)(2) to avoid the summary dismissal of his second postconviction
motion.”).

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State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

strong inference of actual innocence:

(1) Mr. Lash’ s discovery that a specific pornographic search term - “bigbutts” -
was typed differently on Trimnell’s computer than it was on Sykes’ computer. And,
several of the pornographic search terms that appeared on Trimnell’s computer did
not appear on Sykes’ computer.

(2) Never elicited testimony from Mr. Dyer and Ms. Randall that they observed
Sykes driving in a car similar to Trimnell’s car, weeks before her body was found

(3) Never elicited testimony from Mr. Thomas that he was driving with Sykes
near Trimnell’s apartment, in another car, a week or two before the victim
disappeared, when Mr. Thomas observed a white woman in a big white car drive past
them. Mr. Thomas claims that he could tell from the way Sykes and the woman
looked at each other, that they knew one another.

(4) Dr. Arden’s testimony that there were no injuries on Trimnell, diagnostic
or suggestive, of forced, non-consensual penetration, and that such testimony could
have been given at the time of trial by a qualified expert.

Af`ter an extensive review of state and federal precedent, the Court finds that
it is necessary to discuss what constitutes “new evidence” that creates a strong
inference of actual innocence. The Court has previously applied two similar
standards. On one hand, in State v. Fogg, the Court defined “new evidence” as,

“evidence that was not available at the time of trial but has since been discovered.”14

 

14 State v. Fogg, 2016 WL 6556430, at *2 (Del. Super. Nov. 4, 2016) (citing State v. Wright,
2006 WL 1685821, at *1 (Del. Super. Mar. 29, 2006)).

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State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

The Court adopted this definition from State v. Wright, defining “new evidence” in
the context of Superior Court Criminal Rule 33.15 On the other hand, the Court in
State v. Phlipot adopted the federal standard for defining “new evidence.”16
Although the standard is similar to that applied in Fogg, the Court finds that the
federal standard is relevant for two reasons: (1) federal courts have more thoroughly
defined “new evidence”; and (2) federal courts have applied “new evidence” in the
context of demonstrating the “actual innocence” of a petitioning prisoner. The Court
recognizes that the federal standard is an equitable exception, rather than a procedural
rule for postconviction relief, used to overcome the Antiterrorism and Effective Death
Penalty Act’s (“AEDPA”) limitations period for the filing of a habeas petition by
state petitioners.17 Nonetheless, the federal standard is helpful under these
circumstances, as the Court has found little guidance for interpreting the precise
meaning of new evidence in relation to a claim of actual innocence pursuant to Rule
61(d)(2)(ii).

The district court in Phlipot v. Johnson, 2015 WL 1906127, at *4 (D. Del.
2015), provides that a claim of actual innocence requires the petitioner to:

“persuad[e] the [court] that, in light of the new evidence, no juror acting
reasonably, would have voted to find him guilty beyond a reasonable
doubt.”18 An actual innocence claim must be based on “new reliable

 

15 Id.

16 State v. Phlipot, 2017 WL 2266836, at *3 (Del. Super. May 24, 2017).
17 Ia'.

18 McQuiggin v. Perkins, 133 S.Ct. 1924, 1928 (2013)).

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State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

evidence - whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence [ ] that was not
presented a trial.”19 In the Third Circuit, evidence is “new” for the
purposes of the Schlup standard only if it was not available at the time
of trial and could not have been discovered earlier through the exercise
of due diligence,20 except in situations where that evidence was not
discovered due to the ineffective assistance of trial counse1.21 In turn,
when determining if a petitioner’ s new evidence shows it is “more likely
than not that no reasonable juror would have convicted him,” a court
must consider “all the evidence, old and new, incriminating and
exculpatory, without regard to whether it would necessarily be admitted
under rules of admissibility that would govern at trial.”22 Finally, a court
“may consider how the timing of the submission [of actual innocence]
and the likely credibility of the affiant[] bear on the probable reliability
of that evidence.”23

In light of this standard, even if the Court assumes that all of Sykes’ purported
new evidence was not presented to the jury, Sykes has failed to show that it is more
likely than not that no reasonable juror would have found him guilty of the Rape and
Murder of Trimnell. The Court relies upon the overwhelming evidence already

identified in this case. For instance, even if witnesses had seen Sykes driving

 

19 Schlup v. Delo, 513 U.S. 298, 324 (1995).

20 The circuits addressing the issue are split over what constitutes “new” evidence for Schlup
purposes. The Eight Circuit’ s interpretation of “new” evidence corresponds with the Third Circuit’ s,
whereas the Seventh and the Ninth Circuits do not require the exercise of due diligence, and view
“new” evidence as evidence that was not “presented” at trial. See Kia'd v. Norman, 651 F.3d 947, 953
(8th Cir. 2011) (collecting cases).

21 See HOuCk v. Stickman, 625 F.3d 88, 93-94 (3d Cir. 2010).
22 House v. Bell, 547 U.S. 518, 538 (2006).
23 Schlup, 513 U.S. at 332; see also McQuiggin, 133 S.Ct. at 1935.

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State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

Trimnell’s vehicle previously, that fact does little to explain why he was driving her
vehicle while her dead body was bound and stuffed into a suitcase in the trunk. Thus,
it is not unreasonable for a juror to find Sykes guilty of Trimnell’s Murder. In
addition, even if Sykes knew Trimnell socially, the Court finds that it is too large a
step to presume, based on Dyer, Randall, and Thomas’ limited testimony, that Sykes
had a prior sexual relationship with Trimnell. As Sykes has not presented more
definite evidence of such a relationship, it would not be unreasonable for a juror to
find Sykes guilty of Rape as well. Moreover, Dr. Arden’s testimony does not alter
this holding because there was ample other evidence to establish the lack of
Trimnell’s consent. The Court identified the following evidence in Sykes II:

the presence of [Sykes’] semen in the victim; the reddening of her
vaginal area; . . . the fact that the victim was strangled to death; the
injuries inflicted upon the victim in regards to the trauma and
hemorrhages to her head and scalp; and the fact that the victim’s body
was naked from the waist down.24

As it is not unreasonable for a juror to find these facts sufficient to convict Sykes of
Rape, Sykes has failed to meet his burden to demonstrate actual innocence. Finally,
the Court finds that the evidence regarding pornographic search terms is insignificant
Again, considering the overwhelming evidence presented against Sykes, it would not

be unreasonable for a juror to convict Sykes of the crimes charged

 

24 Sykes II, 2014 WL 619503, at *36 (The Court also held that a lack of prior relationship
between the victim and Sykes was si gnificant. That fact is still si gnificant, although the Court would
now clarify that Sykes has presented some minimal evidence of a prior social relationship.
Therefore, the Court would specify that it is significant that there is no evidence that Sykes and the
victim had a prior sexual relationship.).

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State v. Ambrose L. Sykes
I.D. No. 0411008300 WLW
December 7, 2017

CONCLUSION
ln sum, Sykes’ Amended Second Motion for Postconviction Relief is DENIED
because Sykes failed to satisfy the requirements of Rule 61(d)(2) to avoid the

summary dismissal of his motion,

 

IT IS SO ORDERED.
Hon."william L. witham, Jr.
Resident Judge
WLW/dmh

oc: Prothonotary

cc: Herbert W. Mondros, Esquire
Samuel J.B. Angell, Esquire
John Williams, Esquire
Stephen R. Welch, Jr., Esquire

15

