Com. v. Wright, T.

J-S68005-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

TORRENCE WRIGHT,

Appellant No. 1924 EDA 2013

Appeal from the Judgment of Sentence entered June 25, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0000774-2012

BEFORE: ALLEN, JENKINS, and MUSMANNO, JJ.

MEMORANDUM BY ALLEN, J.: FILED NOVEMBER 14, 2014

Torrence Wright (“Appellant”) appeals from the judgment of sentence

entered after a jury found him guilty of possession of an instrument of crime

and the trial court found him guilty of persons not to possess a firearm.1

The trial court summarized the pertinent facts as follows:

Early in the evening of August 30, 2011, Tyreek Coleman
had a fight with an individual in an alleyway in the back of the
1400 block of Stevens Street in Philadelphia, Pa. Mr. Coleman
told [Appellant] about the fight.

Later that evening, Mr. Coleman and [Appellant] met on
the 1400 block of Stevens Street. After hanging out on Stevens
Street with [Appellant], Mr. Coleman left [Appellant] and walked
down Stevens Street past a few houses. Mr. Coleman started to
talk to his friends and smoke a cigarette. Mr. Coleman heard
____________________________________________

1
18 Pa.C.S.A. § 907 and 18 Pa.C.S.A. § 6105.
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gunshots and started to run away. Mr. Coleman, however, was
shot in the leg as he was running away.

Mr. Coleman did not know who shot him. Francis
Donnelly, however, observed the shooting from his home. Mr.
Donnelly, who lives on the 1400 block of Stevens Street,
observed a heavyset black man holding a revolver and firing
backwards at another shooter. Mr. Donnelly also observed Mr.
Coleman getting shot.

Police Officer[s] Daniel Loesch, Sean King, and Crawford –
who were on marked police bicycles, immediately responded to a
radio call of shots fired on the 1400 block of Stevens Street.
Officer Loesch approached the 1400 block of Stevens Street on
his bicycle and observed a blue Oldsmobile speed backwards the
wrong way down Stevens Street and then turn northbound on
Large Street. As the car was headed towards Officer Loesch,
Officer Loesch observed that the driver of the car was a heavyset
black male wearing a black T-shirt. Officer Loesch attempted to
stop the car, but the driver of the car swerved around Officer
Loesch and continued to drive.

Officer Loesch sent out another radio call with a description
of the car, and a part of the license plate number. Officer King
responded to the radio call from Officer Loesch.

Officer King traveled to the 6200 block of Souder Street
and observed the vehicle that Officer Loesch had described.
Officer King then observed the driver stop the vehicle in the
middle of Souder Street. Officer King observed a heavyset black
male get out of the driver’s side of the vehicle and discard a
black handgun under a parked vehicle. The black male then
returned to his vehicle and continued driving on Souder Street.

Officer King pursued the vehicle to Roosevelt Boulevard
while giving directions over the police radio. Officer Pasquarella,
who was in a police car, was able to stop the vehicle on
Roosevelt Avenue. Officer Loesch then identified [Appellant] as
the driver of the vehicle that he observed on Stevens Street and
Large Street. Officer Pasquarella arrested [Appellant].

Officer King then returned to the 6200 block of Souder
Street, where [Appellant] had discarded the gun, to hold the

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scene for Northeast Detectives to investigate. The scene was
unattended for about five minutes.

Detective Casee arrived at the scene of the shooting on
the 1400 block of Stevens Street and recovered twelve fired
cartridge casings from the street and two different vehicles
parked on the street. He then went to the 6200 block of Souder
Street and obtained the gun from under the car.

The parties stipulated to the testimony of Officer Wilford, a
ballistician, who examined the firearm that Detective Casee
recovered. Officer Wilford concluded that the firearm was an
operable Revolver 38 Special with a maximum capacity for five
bullets.

Officer Wilford also tested the twelve recovered fired
cartridge casings found on 1600 Stevens Street or in cars parked
on 1600 Stevens Street. Officer Wilford concluded that five of
the fired cartridge casings came from a second firearm, which
was not a revolver.

Finally, the parties stipulated that [Appellant] did not have
a license or permit to carry a gun in Philadelphia on the date of
the offense and in fact, had a prior felony conviction which made
him ineligible to carry a firearm.

Trial Court Opinion, 1/30/14, at 1-4 (citations to notes of testimony

omitted).

On August 31, 2011, the Commonwealth filed a criminal complaint

charging Appellant with the aforementioned crimes. On March 24, 2012,

Appellant filed a Pa.R.Crim.P. Rule 600 motion to dismiss the charges

against him, which the trial court denied. Following a bifurcated trial that

commenced on January 25, 2013, the jury found Appellant guilty of

possession of an instrument of crime, and not guilty of attempted murder,

conspiracy, aggravated assault, and simple assault; the trial court found

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Appellant guilty of possession of a firearm by a prohibited person. On May

9, 2013, the trial court sentenced Appellant to 4½ to 10 years of

imprisonment for possession of a firearm by a prohibited person, to be

followed by 5 years of probation for possession of an instrument of crime.

Appellant filed a motion for reconsideration on May 14, 2013, which the trial

court granted in part, and entered an amended sentencing order on June 25,

2013, removing the condition that the sentence was to run consecutive to a

sentence imposed by another judge in a separate proceeding. Appellant

filed a notice of appeal on July 1, 2013. Both Appellant and the trial court

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

Appellant presents the following issues for our review:

1. Did the [trial] court err in denying [Appellant’s] motion to
dismiss pursuant to Rule 600 where the critical period of
delay at issue, while designated a “joint continuance,” was
in no way the fault of [Appellant] and the time therefore
should not have been ruled excludable?

2. Was the evidence insufficient to support a guilty verdict for
possession of an instrument of crime where the jury
acquitted [Appellant] of all remaining charges and
therefore could not infer that [Appellant] intended to
employ the gun for criminal purposes?

3. Did the [trial court] abuse its discretion in sentencing
[Appellant] in the aggravated range of the sentencing
guidelines by improperly emphasizing [Appellant’s] prior
contacts with the criminal justice system and the need to
“protect the public,” while not giving proper weight to
[Appellant’s] family support and acceptance of
responsibility, resulting in a manifestly excessive sentence
for the crime of gun possession?

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Appellant’s Brief at 4.

In his first issue, Appellant asserts that the trial court erred in denying

his motion to dismiss pursuant to Rule 600(G) for failure to commence trial

within 365 days of the filing of the complaint. Appellant’s Brief at 10-12.

Specifically, Appellant argues that the trial court erred in attributing the 48

day delay between December 2, 2011 and January 19, 2012 to a “joint”

delay for which both Appellant and the Commonwealth were responsible.

Id. Appellant maintains that no fault for the delay can be attributed to him,

that the delay was attributable to the Commonwealth, and that the delay

should not have been ruled excludable. Id. Appellant asserts that because

of the delay, his trial commenced more than 365 days after the filing of the

complaint, and therefore the charges against him should have been

dismissed pursuant to Rule 600. Id.

Rule 600 was designed “to prevent unnecessary prosecutorial delay in

bringing a defendant to trial.” Commonwealth v. Brock, 61 A.3d 1015,

1021 (Pa. 2013). “In evaluating Rule 600 issues, our standard of review of

a trial court’s decision is whether the trial court abused its discretion.”

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

banc), appeal denied, 875 A.2d 1073 (Pa. 2005) (citations and internal

quotations omitted). “The proper scope of review … is limited to the

evidence on the record of the Rule 600 evidentiary hearing, and the findings

of the trial court. An appellate court must view the facts in the light most

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favorable to the prevailing party.” Id. at 1238-39 (internal citations and

quotation marks omitted). Importantly, a court will grant a motion to

dismiss on Rule 600 grounds only if a defendant has a valid Rule 600 claim

at the time the motion is filed. Id. at 1243.

Rule 600 provides, in pertinent part:

(A) …

(3) Trial in a court case in which a written complaint is
filed against the defendant, when the defendant is at
liberty on bail, shall commence no later than 365
days from the date on which the complaint is
filed.

***
(C) In determining the period for commencement of trial,
there shall be excluded therefrom:

(1) the period of time between the filing of the written
complaint and the defendant's arrest, provided that
the defendant could not be apprehended because his
or her whereabouts were unknown and could not be
determined by due diligence;

***
(G) For defendants on bail after the expiration of 365
days, at any time before trial, the defendant or the
defendant's attorney may apply to the court for an
order dismissing the charges with prejudice on the
ground that this rule has been violated. A copy of
such motion shall be served upon the attorney for
the Commonwealth, who shall also have the right to
be heard thereon.

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If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were beyond the
control of the Commonwealth, the motion to dismiss shall be
denied and the case shall be listed for trial on a date certain. ...
If, at any time, it is determined that the Commonwealth did not
exercise due diligence, the court shall dismiss the charges and
discharge the defendant.

Pa.R.Crim.P. 600 (emphasis added).2

In the present case, Rule 600 required the Commonwealth to bring a

defendant to trial within 365 days of the filing of the criminal complaint.

See Pa.R.Crim.P., Rule 600(A)(3). Rule 600, however, specifically

contemplates that certain periods of time shall be excluded in calculating

compliance. In the context of Rule 600, “excludable time” is differentiated

from “excusable delay” as follows:

‘Excludable time’ is defined in Rule 600(C) as the period of time
between the filing of the written complaint and the defendant’s
arrest, … any period of time for which the defendant expressly
waives Rule 600; and/or such period of delay at any stage of the
proceedings as results from: (a) the unavailability of the
defendant or the defendant’s attorney; (b) any continuance
granted at the request of the defendant or the defendant’s
attorney. ‘Excusable delay’ is not expressly defined in Rule 600,
but the legal construct takes into account delays which occur as
a result of circumstances beyond the Commonwealth’s control
and despite its due diligence.

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2
Prior Rule 600 was rescinded on October 1, 2012, and a revised Rule 600
was made effective on July 1, 2013. See 42 Pa.B. 6622. Since “Prior Rule
600” was in effect at the time of the trial court’s decision on Appellant’s Rule
600 motion, our analysis will focus on that version of the Rule.

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Commonwealth v. Brown, M., 875 A.2d 1128, 1135 (Pa. Super. 2005),

appeal denied, 891 A.2d 729 (Pa. 2005) (quoting Commonwealth v. Hunt,

858 A.2d 1234, 1241 (Pa. Super. 2004) (en banc), appeal denied, 875 A.2d

1073 (Pa. 2005).

To summarize, the courts of this Commonwealth employ
three steps ... in determining whether Rule 600 requires
dismissal of charges against a defendant. First, Rule 600(A)
provides the mechanical run date. Second, we determine
whether any excludable time exists pursuant to Rule 600(C).
We add the amount of excludable time, if any, to the mechanical
run date to arrive at an adjusted run date.

If the trial takes place after the adjusted run date, we
apply the due diligence analysis set forth in Rule 600( [D] ). As
we have explained, Rule 600[ ] encompasses a wide variety of
circumstances under which a period of delay was outside the
control of the Commonwealth and not the result of the
Commonwealth's lack of diligence. Any such period of delay
results in an extension of the run date. Addition of any Rule
600[ ] extensions to the adjusted run date produces the final
Rule 600 run date. If the Commonwealth does not bring the
defendant to trial on or before the final run date, the trial court
must dismiss the charges.

Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013)

(citations omitted). “Due diligence is a fact-specific concept that must be

determined on a case-by-case basis. Due diligence does not require perfect

vigilance and punctilious care, but rather a showing by the Commonwealth

that a reasonable effort has been put forth.” Commonwealth v. Brown,

875 A.2d 1128, 1138 (Pa. Super. 2005) (citations and internal quotations

omitted).

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Here, the mechanical run date was on or about August 29, 2012 – 365

days after the complaint against Appellant was filed. See Pa.R.Crim.P.

600(A)(3). However, the trial did not commence until January 25, 2013,

well after the expiration of the 365 day period. Appellant does not dispute

any delay except for the 48 days between December 2, 2011 and January

19, 2012. The trial court concluded that this 48 day delay was attributable

to both Appellant and the Commonwealth. The trial court explained:

At the first date for the preliminary hearing, [on December
2, 2011], both parties requested the continuance. The
Commonwealth requested a continuance because its eyewitness
failed to appear, and the Public Defender requested a
continuance because, at that time, he learned that his office had
represented the eyewitness in another matter and thus, the
Public Defender had a conflict representing [Appellant] in this
matter. Since the joint request is excludable time, the trial court
properly denied the Motion to dismiss pursuant to Rule 600.

Trial Court Opinion, 1/30/14, at 5-6.

We agree with the trial court’s assessment. We find no merit to

Appellant’s argument that he was prepared to proceed at the December 2,

2011 hearing and that the delay is solely attributable to the Commonwealth.

At the December 2, 2011 proceeding, Appellant’s counsel from the Office of

the Public Defender, requested a withdrawal because of a conflict of interest

that precluded the Public Defender’s office from representing Appellant.

That same day, the trial court entered an order granting the public

defender’s motion to withdraw and ordered new counsel to be appointed to

represent Appellant. Trial Court Order, 12/2/11. Given the December 2,

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2011 request by Appellant’s counsel to withdraw from representation, the

ensuing delay in the progression of Appellant’s case was attributable, in part,

to Appellant, who, without representation, was unprepared to proceed.

Appellant’s argument that he was prepared to proceed and that the delay

was attributable solely to the Commonwealth is unavailing.

In his second issue, Appellant argues that the evidence was insufficient

to sustain his conviction for possession of an instrument of crime.

Appellant’s Brief at 12-14. Appellant argues that because the jury acquitted

him of all the other charges (i.e., attempted murder, conspiracy, aggravated

assault, and simple assault), the jury could not infer that he had any intent

to employ the firearm for a criminal purpose. Id.

In Commonwealth v. Moore, --- A.3d ----, 2014 WL 5485706 (Pa.,

October 30, 2014), our Supreme Court recently addressed “whether a

conviction for possession of an instrument of crime (“PIC”) may be sustained

when a defendant has been otherwise acquitted of related offenses involving

the use of that instrument of crime [such as] a firearm.” Moore, at 1. The

High Court unequivocally held that “a defendant’s conviction for PIC may

indeed stand under such circumstances.” Id. In reaching this

determination, the Supreme Court reiterated “the long standing principles

that juries may issue inconsistent verdicts and that reviewing courts may not

draw factual inferences in relation to the evidence from a jury's decision to

acquit a defendant of a certain offense.” Id., at 7. The Supreme Court

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observed that “although [the defendant’s] murder and attempted murder

acquittals may be logically inconsistent with [the defendant’s] PIC

conviction, in light of our enduring acceptance of inconsistent verdicts in

Pennsylvania, we conclude that the acquittals are not grounds for reversal of

[the defendant’s] PIC conviction.” Id., at 8. Given this decision, Appellant’s

argument regarding his conviction for possession of an instrument of crime

is without merit.

In his third issue, Appellant argues that the trial court abused its

discretion when it imposed a sentence in the aggravated range of the

sentencing guidelines. Appellant’s Brief at 14-15. A challenge to the

discretionary aspects of a sentence is not appealable as of right. Rather,

Appellant must petition for allowance of appeal pursuant to 42 Pa.C.S.A. §

9781. Commonwealth v. Hanson, 856 A.2d 1254, 1257 (Pa. Super.

2004).

Before we reach the merits of this [issue], we must engage
in a four part analysis to determine: (1) whether the appeal is
timely; (2) whether Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the reasons
relied upon for allowance of appeal with respect to the
discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code. The third and fourth of
these requirements arise because Appellant's attack on his
sentence is not an appeal as of right. Rather, he must petition
this Court, in his concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. Finally, if the appeal satisfies each of these
four requirements, we will then proceed to decide the
substantive merits of the case.

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Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citations

omitted).

Appellant has preserved his claim by filing a post-sentence motion and

timely notice of appeal. Appellant has additionally included in his brief a

concise statement pursuant to Pa.R.A.P. 2119(f). See Appellant’s Brief at 9.

Therefore, we proceed to determine whether Appellant has raised a

substantial question for our review.

Appellant argues that the trial court abused its discretion when it

imposed a sentence for possession of a firearm by a prohibited person in the

aggravated range of the sentencing guidelines, and in so doing,

overemphasized the seriousness of the crime while failing to give proper

consideration to the mitigating factors. Appellant’s Brief at 9, 14-15.

Accordingly, Appellant asserts that the sentence was excessive. Such a

claim presents a substantial question for our review. See Commonwealth

v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (claim that the sentencing

court focused on the seriousness of the crimes charged, that the sentencing

scheme was contrary to the norms underlying the sentencing process and

that his sentence was manifestly excessive and unduly harsh);

Commonwealth v. Lewis, 45 A.3d 405, 411 (Pa. Super. 2012) (“allegation

that the sentencing court focused exclusively on the seriousness of the crime

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raises at least a plausible argument that the sentencing court did not follow

the requirements of section 9721”).

Our standard of review in sentencing matters is well settled:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009).

42 Pa.C.S.A. § 9721(b) states:

[T]he sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on
the community, and the rehabilitative needs of the defendant.

42 Pa.C.S.A. § 9721(b).

Section 9781(c) specifically defines three instances in which the

appellate courts should vacate a sentence and remand: (1) the sentencing

court applied the guidelines erroneously; (2) the sentence falls within the

guidelines, but is “clearly unreasonable” based on the circumstances of the

case; and (3) the sentence falls outside of the guidelines and is

“unreasonable.” 42 Pa.C.S. § 9781(c). Commonwealth v. Bricker, 41

A.3d 872, 875-76 (Pa. Super. 2012) (citations omitted). “[T]he term

‘unreasonable’ generally means a decision that is either irrational or not

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guided by sound judgment. [A] sentence can be defined as unreasonable

either upon review of the four elements contained in § 9781(d) or if the

sentencing court failed to take into account the factors outlined in 42

Pa.C.S.A. § 9721(b).” Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.

Super. 2011), quoting Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).

Pursuant to 42 Pa.C.S.A. § 9871, we must have regard for the

following statutory factors in our review of the certified record: (1) the

nature and circumstances of the offense and the history and characteristics

of the defendant, (2) the opportunity of the sentencing court to observe the

defendant, including any presentence investigation, (3) the findings upon

which the sentence was based, and (4) the guidelines promulgated by the

commission. 42 Pa.C.S.A. § 9871(d)(1)-(4). Additionally, when evaluating

a challenge to the discretionary aspects of sentence, it is important to

remember that the sentencing guidelines are purely advisory in nature.

Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007); see also

Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007) (“the [sentencing]

guidelines merely inform the sentencing decision”).

Here, the guidelines recommended a standard range of sentence of 36

to 48 months for possession of a firearm by a prohibited person, +/- 12

months in the mitigated and aggravated ranges. N.T., 5/9/13, at 18. Thus,

Appellant’s sentence of 54 to 120 months fell within the aggravated range of

the guidelines. At the sentencing hearing, the trial court noted that it had

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reviewed the pre-sentence investigation report. Id., at 18. The trial court

then heard from Appellant’s counsel, who emphasized Appellant’s age,

family circumstances, educational background, his acceptance of

responsibility, and the fact that he was acquitted by a jury of the other

charges against him. Id. at 20-27. Additionally, the trial court heard from

Appellant’s parents, as well as Appellant himself, who expressed remorse for

his actions, and emphasized his efforts to rehabilitate himself. Id. at 35-45.

The trial court then provided the reasons for its sentence on the record as

follows:

I am very concerned about your pattern of criminal
activity. You started out back in August of 2006 on the juvenile
side. You were sentenced to probation. Then you committed –
while you were on probation ... two and a half months later, you
committed another crime. The juvenile judge sent you to St.
Gabe’s. You were at St. Gabes for over a year. You then had
aftercare for about a year. And then three months later you’re
back committing crimes. And I’m not even taking into
consideration your arrests.

[On] February 15th 2009 ... you committed a PWID. Five
months later you committed a VUFA offense, a K & I, and
resisting arrest. And another three or four months later you also
pled guilty to charges that you committed on those dates of theft
by unlawful taking, VUFA, and receiving stolen property. You
then served a sentence. You were released in January of 2011
and less than seven months later you committed this crime.

Since 2006 when you haven’t been incarcerated you’ve
been committing crimes. And I am only considering here the
charges for which you either pled guilty or you were found guilty
of. I’m not even taking in consideration arrests. You have an
incredibly long history of criminal activity.
...

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You are a threat to the community. I need to do this to
protect the public. I am doing this because of the gravity of the
offense. And I’m also doing this because of rehabilitative
needs. You have been in and out of the system for an
incredibly long time. And there has been an effort to
rehabilitate yourself. You do need the tools to rehabilitate
yourself. You have yet to take advantage of those tools, which
is really unfortunate because you come from a good family.
You have a lot going for you of your stepmother, your
stepfather. You know you’re fortunate you have stable men in
your life, but you’ve been too immature for whatever reason to
follow their paths.

Id. at 55-57.

We conclude that the trial court in this case, after considering the pre-

sentence investigation report and the guidelines, placed adequate reasons

on the record for its sentencing decision. The trial court appropriately took

into account the requisite sentencing factors, including the severity and

impact of the crime, Appellant’s age and physical and mental health, his

expressions of remorse, his criminal history, and his rehabilitative potential

to conclude that a sentence of 4½ to 10 years was warranted. We decline to

find Appellant’s sentence clearly unreasonable. Accordingly, Appellant is not

entitled to relief.

Judgment of sentence affirmed.

Judge Musmanno joins the memorandum.

Judge Jenkins concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/14/2014

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