J. S20026/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   v.                    :
                                         :
TARIK BAGLEY,                            :          No. 2419 EDA 2016
                                         :
                        Appellant        :


                 Appeal from the PCRA Order, June 30, 2016,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0000553-2011
                           CP-51-CR-0009928-2010


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 16, 2017

      Tarik Bagley appeals from the order entered in the Court of Common

Pleas of Philadelphia County that dismissed his first petition filed pursuant to

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         We

affirm.

      The PCRA court set forth the following:

                  On January 14, 2013, after arrest and
            consolidation of the above matters, [appellant]
            appeared before this Court and elected to be tried by
            jury. On January 22, 2013, the jury returned guilty
            verdicts of First-Degree Murder, Firearms Not to be
            Carried Without a License (three counts), Carrying
            Firearms in Public in Philadelphia (three counts), and
            Possession of an Instrument of Crime (“PIC”) (three
            counts), Conspiracy (two counts), and Reckless
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          Endangerment of Another Person (“REAP”)[1] (two
          counts).

                 On March 11, 2013, in CP-51-CR-0009928-
          2010, this Court imposed consecutive sentences of
          two to four years [of] imprisonment for Firearms Not
          to be Carried Without a License and one to two years
          [of] imprisonment for two counts of REAP. In CP-51-
          CR-0000553-2011,         this   Court   imposed   the
          mandatory sentence of life imprisonment without
          parole for First-Degree Murder, and a concurrent
          term of one to two years [of] imprisonment for
          Firearms Not to be Carried Without a License, to be
          served consecutively to the penalty in CP-51-CR-
          0009928-2010, for a total sentence of three to six
          years      plus     life      imprisonment    without
          parole.[Footnote 1]

                [Footnote 1]     This Court imposed no
                further penalty for each of the remaining
                offenses.

                On March 15, 2013, [appellant] filed a timely
          Notice of Appeal. On April 30, 2014, the Superior
          Court affirmed [appellant’s] Judgment of Sentence.
          On August 25, 2014, the Supreme Court denied
          Allowance of Appeal.

                 On August 5, 2015, [appellant] filed a timely
          pro se [PCRA] petition. On November 23, 2015,
          [appellant], through counsel, filed an amended PCRA
          petition. On January 22, 2016, the Commonwealth
          filed a Motion to Dismiss. On March 3, 2016, this
          Court granted [appellant] an evidentiary hearing
          limited to the issue of trial counsel’s ineffectiveness
          for failing to call potential defense witnesses. On
          May 16, 2016, this Court presided over a bifurcated
          evidentiary hearing that was completed on May 25,
          2016.



1
   18 Pa.C.S.A. §§ 2502(a), 6106(a)(1), 6108, 907, 903, and 2705,
respectively.


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          ....
                 On direct appeal, the Superior Court adopted
          this Court’s statement of the facts and recited them
          as follows:

                       On March 7[], 2010, at around
                 12:28 a.m., police officers, in response
                 to a radio call, arrived at 19th Street and
                 Snyder Avenue in Philadelphia and found
                 a man, later identified as Azzim Dukes,
                 lying on the ground bleeding from the
                 head.    Azzim Dukes was pronounced
                 dead at the scene from a single gunshot
                 wound to the head at 12:33 a.m.

                       Lee Parker, a friend of Dukes, gave
                 a statement to police indicating that a
                 few weeks before his death, Dukes was
                 having a problem with individuals from
                 the area of 18th and Cleveland Streets.
                 While speaking with Dukes and Parker,
                 [appellant] pulled a black automatic
                 handgun out of his waist and placed it in
                 his pocket. After this incident, Parker
                 and     Dukes      discussed     shooting
                 [appellant] in retaliation, and Dukes
                 obtained a .380-caliber handgun.

                       On March 7[], 2010, Dukes was
                 with a group of friends at his friend’s
                 home on 16th and Mifflin Streets. At
                 around midnight, Daud Riley, aware that
                 [appellant] was in the neighborhood and
                 looking for him, asked Dukes to walk him
                 home because he was afraid. When they
                 were walking in the area of 19th Street
                 and Snyder Avenue, [appellant] pulled
                 up in his car and got out. Riley ran when
                 he saw [appellant] pull out a firearm and
                 start shooting. Riley heard about three
                 gunshots.

                      Officers found Dukes lying on the
                 northwest corner of the intersection of


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               19th Street and Snyder Avenue with a
               fully loaded .380-caliber handgun about
               two and a half feet from him. Officers
               also recovered one .45-caliber fired
               cartridge case from the curb line of the
               1900-block of Snyder Avenue, one bullet
               specimen from the Southeast corner of
               the intersection, and a live .45-caliber
               cartridge on Snyder Avenue just west of
               19th Street.     According to Firearms
               Identification Expert Officer Gregory
               Welsh, a bullet recovered from Dukes
               and the bullet fragment recovered from
               the crime scene had been fired from the
               same firearm, but not the .380-caliber
               handgun recovered from the scene.

                      That    same    day,   at   around
               6:00 p.m., about sixty to one hundred
               individuals from the neighborhood held a
               vigil for Dukes in the area of 19th Street
               and Snyder Avenue.           According to
               Sabrina Johnson, at around 6:30 p.m.,
               [appellant] and his brother Malik Johnson
               drove up to the vigil in a green mini-van.
               From the van, [appellant] shot about five
               times into the crowd of people attending
               the vigil. []No one was harmed.[]

                     Later     that     evening,   Sabrina
               Johnson, along with her sister and two
               children, were walking in the area of
               16[th]    and     Mifflin   Streets   when
               [appellant] and his brother Malik Johnson
               drove    up    in    a    green   mini-van.
               [Appellant] asked Sabrina Johnson about
               an individual she did not know and pulled
               out a silver and black automatic
               handgun. As Sabrina Johnson began to
               run away from [appellant,] she heard
               gun shots.         Police Officer Joseph
               Cosgrove, who had been at 16th and
               McKean Streets, responded to the scene
               within a minute after he heard gunshots.


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               Sabrina    Johnson     directed Officer
               Cosgrove to South 18th Street, where
               she believed [appellant] lived.

                     Officers   recovered    surveillance
               video from the 1600 block of Mifflin
               Street that confirmed Sabrina Johnson’s
               account of the shooting.       The video
               showed [appellant] on the night of the
               shooting at 7:51 p.m. exit a mini-van
               with a firearm and talk to Sabrina
               Johnson. The video also showed Sabrina
               Johnson and her sister react in a startled
               manner to an occurrence off the camera.

                      That same night, at around
               8:30 p.m. at South 18[th] Street,
               officers pulled over a green mini-van
               meeting the description of the one
               involved in the murder and later
               shootings.         [Appellant’s] mother,
               Jean[a]tta Bagley, was driving the
               mini-van and Deana Parks was a
               passenger. The mini-van had a bullet
               hole in the driver’s side rear window.
               Jean[a]tta Bagley gave officers consent
               to search her home, located at South
               18th Street, where officers recovered
               thirty-six live .45-caliber rounds, nine
               live .32-caliber rounds, and forty-three
               live .22-caliber rounds.

                      After the shooting at the vigil,
               officers recovered two nine-millimeter
               fired cartridge casings and a bullet jacket
               fragment from the area of 19[th] Street
               and Snyder Avenue. From the area of
               16[th] and Mifflin Streets, officers
               recovered three nine-millimeter fired
               cartridge casings and two .380-caliber
               cartridge casings.       All seven fired
               cartridge casings, the two recovered
               from 19[th] Street and Snyder Avenue
               after the shooting at the vigil and the


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                   five recovered from 16th and Mifflin
                   Streets, were fired from the same
                   firearm.

                         On March 16, 2010, the day before
                   the preliminary hearing in this matter,
                   [appellant] called Christine Leeper,
                   Sabrina Johnson’s mother, and offered
                   her $2,000 if she and Ms. Johnson did
                   not appear in court the next day.

PCRA court opinion, 7/1/16 at 1-4.

      Appellant raises the following issues for our review:

            I.     Were [a]ppellant’s Sixth Amendment rights
                   under the U.S. Constitution and his rights
                   under Article I sec. 9 of the Pennsylvania
                   Constitution violated when counsel ineffectively
                   simultaneously argued inconsistent alternative
                   defenses to the jury?

            II.    Were [a]ppellant’s Sixth and Fourteenth
                   Amendment rights under the U.S. Constitution
                   and his rights under Article 1 sec., 9 of the
                   Pennsylvania    Constitution   violated  when
                   counsel ineffectively failed to call witnesses
                   Bernice Akanno and Jeanatta Bagley?

            III.   Were [a]ppellant’s Sixth Amendment rights
                   under the U.S. Constitution and his rights
                   under Article 1 sec. 9 of the Pennsylvania
                   Constitution violated when counsel ineffectively
                   failed to preserve, obtain and present [defense
                   witness] Ronald Johnson’s phone records which
                   would have corroborated [a]ppellant’s alibi?

            IV.    Did the Cumulative Effect of Ineffective
                   Assistance deny [a]ppellant his constitutional
                   rights under the Sixth and Fourteenth
                   Amendments?

Appellant’s brief at 3.



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      We limit our review of a PCRA court’s decision to examining whether

the record supports the PCRA court’s findings of fact and whether its

conclusions of law are free from legal error.         Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015) (citations omitted). We view the PCRA court’s

findings and the evidence of record in a light most favorable to the prevailing

party. Id.

      To be entitled to PCRA relief, the defendant bears the burden of

establishing, by a preponderance of the evidence, that his conviction or

sentence resulted from one or more of the circumstances enumerated in

42 Pa.C.S.A. § 9543(a)(2), which include ineffectiveness of counsel that “so

undermined the truth-determining process that no reliable adjudication of

guilt or innocence could have taken place.”           42 Pa.C.S.A. § 9543(a)(2)(i)

and (ii); see also Mason, 130 A.3d at 618 (citations omitted).

      Here,    appellant’s   claims   assert   that   his   trial   counsel   provided

ineffective assistance.

              Counsel is presumed effective, and in order to
              overcome that presumption a PCRA petitioner must
              plead and prove that: (1) the legal claim underlying
              the ineffectiveness claim has arguable merit;
              (2) counsel’s action or       inaction    lacked any
              reasonable basis designed to effectuate petitioner’s
              interest; and (3) counsel’s action or inaction resulted
              in prejudice to petitioner. With regard to reasonable
              basis, the PCRA court does not question whether
              there were other more logical courses of action
              which counsel could have pursued; rather, [the
              court] must examine whether counsel’s decisions
              had any reasonable basis.         Where matters of
              strategy and tactics are concerned, [a] finding that a


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               chosen strategy lacked a reasonable basis is not
               warranted unless it can be concluded that an
               alternative not chosen offered a potential for success
               substantially greater than the course actually
               pursued.    To demonstrate prejudice, a petitioner
               must show that there is a reasonable probability
               that, but for counsel’s actions or inactions, the result
               of the proceeding would have been different. Failure
               to establish any prong of the [] test will defeat an
               ineffectiveness claim.

Mason, 130 A.3d at 618 (internal quotation marks and citations omitted).

      Appellant first complains that trial counsel was ineffective because he

argued inconsistent alternative defenses to the jury; specifically, that trial

counsel presented an alibi defense, as well as self-defense.                     The record

belies appellant’s claim.

      In his brief, appellant claims that during trial counsel’s opening

statement, he “‘set up’ a self-defense claim” and “never once referred to

[appellant] having an alibi.”        (Appellant’s brief at 19.)         Appellant further

complains that during the trial, trial counsel “continued to develop evidence

to    establish     self-defense,”     specifically     citing     to    trial      counsel’s

cross-examinations of Daud Riley and Officer Melissa Jones. (Id.) Appellant

also complains that during closing statements, trial counsel argued facts

relevant to self-defense. (Id. at 22.) Despite these claims, our review of

the   record    supports    the   PCRA    court’s     conclusion    that    trial    counsel

“unequivocally proffered an alibi defense, and not a theory of self-defense.”

(PCRA court opinion, 7/1/16 at 5.) Our review of the record also supports

the PCRA court’s conclusion that although trial counsel proceeded with an


                                         -8-
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alibi defense, his theory of the case was that because the victim was part of

an ongoing dispute involving numerous individuals and because the victim

was armed and holding a gun when his body was found, the unknown

person who shot and killed the victim likely did so in self-defense. (Id. at

5-8.) The record reflects that trial counsel introduced that theory, as well as

the alibi defense, in his opening statement, as follows:

                   Now, some of the things that I would like you
            to keep an open mind about in this case the district
            attorney already talked to you about. One of which
            is [the victim] wasn’t just at the scene of the murder
            where he was killed. No one disputes he was killed.
            He’s there with a gun. That [witness] Daud Riley
            isn’t just somebody who happened to be there. He’s
            not only [the victim’s] friend. He’s a convicted felon.
            He’s got other things in his background that I want
            you to consider. And I’m not going to get into the
            credibility of all the witnesses because you’re going
            to judge that and we’re going to talk about that at
            the end of this case. Certain things about people’s
            criminal backgrounds are going to come out.
            Motives and biases and opportunities to lie or
            fabricate. We will get into that. But I want you to
            think about that.

                  I also want you to think about the fact that this
            neighborhood issue didn’t just go one way. That
            there were two sides to this issue. There are many
            explanations for why [the victim] was shot. They
            don’t all lead back to [appellant]. You’re going to
            hear certain evidence from [appellant], and I’m not
            going to get into all of that right now. But you will
            hear evidence from our side as to his whereabouts
            and what happened to him and his family. You will
            hear evidence that his mini-van was shot at.

Notes of testimony, 1/14/13, Volume I at 41-43.




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      As for trial counsel’s cross-examination of Daud Riley, the record

reflects that although Mr. Riley gave a statement to police that he was with

the victim at the time appellant confronted them with a firearm, Mr. Riley

retracted his statement and testified on direct and cross-examinations that

he was not with the victim on the night of the murder; that he did not know

the victim; that he did not remember making contrary statements to the

police; and that the police obtained a statement from someone else and

forced Riley to sign that statement.          (Notes of testimony, 1/15/13 at

39-91.)     The record of Mr. Riley’s testimony, therefore, belies appellant’s

claim that cross-examination advanced the inconsistent defense theories of

alibi and self-defense.

      With respect to Officer Jones’s testimony, appellant complains that

trial counsel “intentionally elicited testimony that [the victim] had been

found with his hands outside his pockets and his right hand just to the left of

where the un-fired weapon had been found.”           (Appellant’s brief at 19.)

Appellant fails to explain how testimony regarding the circumstances

surrounding the position of the victim’s body at the time it was discovered

supports his ineffective assistance of counsel claim based on inconsistent

defenses.

      Finally, with respect to trial counsel’s closing argument, again, the

record demonstrates that trial counsel presented an alibi defense and




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incorporated his theory that the unknown assailant who killed the victim did

so in self-defense, as follows:

                  And you heard where [appellant] was. You
            heard his uncle come up here and say where he was.
            From before midnight to after.             And the
            Commonwealth cross-examined him extensively on
            that about the details of it. About where they went.
            About who they were with. He didn’t waiver [sic].
            He didn’t shake on it. He said where [appellant]
            was. He said [appellant’s] mother knew where he
            was, where they were.

                  And what did the government use to rebut
            that? Nothing. Did they bring somebody in to refute
            it? To say that the car was never there? Didn’t
            show up where Johnson was going to Bernice’s
            house? No. . . .

            ....

                  When [the victim] rolls up strapped with a
            .380 Cobra in his right hand locked and loaded and
            ready to go with gunpowder residue already in the
            barrel. Not murder of the first degree. Can’t prove
            anybody had an intent to kill him. Not murder of the
            third degree. Can’t prove anybody had an intent to
            severely inure [sic] him. And they definitely can’t
            prove whoever it was was [appellant].

            ....

                  In summary, you take four things away from
            this. [Appellant] did not shoot [the victim]. [The
            victim] showed up at 19th and Snyder with a loaded
            gun.      And whoever encountered him, the
            government cannot prove to you that person acted
            with an intent to kill him and did not act defending
            themselves.

Notes of testimony, 1/18/13 at 27, 35, 50.




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      The record clearly supports the trial court’s conclusion that trial

counsel did not present inconsistent defenses. As such, appellant has failed

to demonstrate that this claim has arguable merit, and consequently, it

necessarily fails.

      Appellant next complains that trial counsel was ineffective for failing to

interview and call Bernice Akanno and Jeanatta Bagley to testify as defense

witnesses at trial. To prevail on a claim of trial counsel’s ineffectiveness for

failure to call a witness, the petitioner must show:      (1) that the witness

existed; (2) that the witness was available; (3) that counsel was informed of

the existence of the witness or should have known of the witness’s

existence; (4) that the witness was prepared to cooperate and would have

testified on the petitioner’s behalf; and (5) that the absence of the testimony

prejudiced the petitioner. Commonwealth v. Fletcher, 750 A.2d 261, 275

(Pa. 2000).     Trial counsel will not be found ineffective for failing to

investigate or call a witness unless there is some showing by the petitioner

that the witness’s testimony would have been helpful to the defense.

Commonwealth v. Auker, 681 A.2d 1305, 1319 (Pa. 1996).

      At the outset, we note that both Ms. Akanno and Ms. Bagley testified

at the PCRA evidentiary hearing, and no issues exist as to either witness’s

existence or availability at time of trial.

      With respect to Ms. Akanno, appellant argues in his brief that this

potential witness testified “credibly” at the evidentiary hearing and he goes



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on to attack trial counsel’s credibility.    (Appellant’s brief at 31-37.)   Our

standard of review, however, is to examine, in the light most favorable to

the Commonwealth as the prevailing party, whether the record supports the

PCRA court’s findings of fact and whether its conclusions of law are free from

legal error. Mason, 130 at 617 (citations omitted). Therefore, we decline

appellant’s invitation to assess the credibility of the witnesses who testified

at the evidentiary hearing.

      That being said, during the evidentiary hearing, trial counsel testified

as to why he did not call Ms. Akanno as a witness, as follows:

            I believe what I asked her was whether or not she
            could corroborate or substantiate what Mr. Johnson
            was telling me, which was that he was with
            [appellant] until about 1 o’clock in the morning and
            that then [appellant] left Mr. Johnson’s presence,
            and that Mr. Johnson and Ms. Akanno drove to drop
            off Mr. Johnson together; and my recollection is that
            Ms. Akanno could not do that. That she -- for one
            reason or another there were details about what she
            remembered or what she was able to testify to that
            did not match what Mr. Johnson was saying in terms
            of time or location or where she was or what she
            could say [appellant] did or didn’t do when he left
            the residence or what time that was.

                  In addition, she may have said something
            about drinking that day and being sleepy and that
            was about the substance of my conversation with
            her, and based on that I elected not to call her as a
            witness because I felt that it would not corroborate
            Mr. Johnson, and in fact could hurt the alibi that
            [appellant] wanted to present.

            ....




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            I do recollect that what she said did not match with
            what Mr. Johnson was telling me, and it also didn’t
            match with what [appellant] had told me, and so I
            do remember that because it did not square with
            what the defense was going to be, I was not going to
            present her[].

Notes of testimony, 5/25/16 at 20-21, 23-24. This testimony, viewed in the

light most favorable to the Commonwealth, supports the PCRA court’s

conclusion that Ms. Akanno’s testimony would not have been helpful to

appellant because it conflicted with what appellant had told trial counsel, it

would not have corroborated Ronald Johnson’s testimony, and it conflicted

with appellant’s alibi defense.     Therefore, trial counsel had a reasonable

basis for not calling Ms. Akanno to testify at trial.

      With respect to Jeanatta Bagley, trial counsel testified that he did not

call her to testify that she drove a green minivan much like the green

minivan appellant drove because he opted to call Ada Bagley to testify that

Ada Bagley was a passenger in Jeanatta Bagley’s green minivan when the

vigil shooting occurred.     (Notes of testimony, 5/25/16 at 28-29.)         Trial

counsel   testified   that   he   decided   to   call   Ada   Bagley   instead   of

Jeanatta Bagley to testify that Jeanatta Bagley was driving a green minivan

that night because he believed “Ada Bagley would make a better

presentation to the jury” and that Jeanatta Bagley’s proposed testimony

regarding the timeline and location of the vigil shooting would have

conflicted with Ada Bagley’s testimony. (Id. at 33.) Trial counsel testified




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that he “elected as a matter of trial strategy to not have [his] own witnesses

contradict each other but to present [appellant’s] best case forward.” (Id.)

         Appellant   nevertheless     contends      that   “it    was      not   objectively

reasonable for counsel to simply pretend that these inconsistencies didn’t

exist.    Rather than burying his head in the sand and simply ignoring the

evidence      of   inconsistencies,   he     should   have       instead    played    those

inconsistencies up.        When presented with lemons, make lemonade.”

(Appellant’s brief at 44.)       Appellant’s argument is fruitless.               Appellant

entirely fails to demonstrate that the absence of Jeanatta Bagley’s testimony

prejudiced appellant and that trial counsel’s decision to forego calling her as

a witness lacked any reasonable basis designed to effectuate appellant’s

interest.2

         Appellant next complains that trial counsel was ineffective for “fail[ing]

to preserve, obtain and present Ronald Johnson’s phone records which would

have corroborated appellant’s alibi.” (Appellant’s brief at 45.) The record

again belies appellant’s claim.

         At trial, Ronald Johnson testified that he did not have any telephone

records to support his claim that he telephoned appellant at 11:55 p.m. on

the night of the victim’s murder; that he no longer had the telephone he


2
  We note that throughout appellant’s brief, appellant repeatedly misstates
the second prong of Commonwealth v. (Michael) Pierce, 786 A.2d 203
(Pa. 2001), and its progeny to require that trial counsel’s strategy be
“objectively reasonable,” as opposed to “lack[ing] a reasonable basis.” See
Mason, 130 A.2d at 617.


                                           - 15 -
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used to place the call; that he did not remember that particular telephone

number; and that he never received telephone bills for that telephone.

(Notes of testimony, 1/17/13 at 161-164.)        Counsel cannot be deemed

ineffective for failing to “preserve, obtain and present” Ronald Johnson’s

telephone records when Ronald Johnson testified that he did not have those

records and that he did not have any memory of any fact that could have led

to their discovery.

      Appellant finally complains that “the cumulative effect of ineffective

assistance denied appellant his constitutional rights[].” (Appellant’s brief at

46 (capitalization omitted).)   Simply stated, because appellant’s claims of

ineffectiveness entirely lack merit, no “cumulative effect of ineffective

assistance” can exist. Stated differently, and in the words of our supreme

court, “no number of failed ineffectiveness claims may collectively warrant

relief if they fail to do so individually.” Commonwealth v. Reid, 99 A.3d

470, 520 (Pa. 2014) (citation omitted).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2017




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