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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CURTIS JOHN MULHERN, :
:
Appellant : No. 1546 MDA 2016
Appeal from the Judgment of Sentence September 1, 2016
in the Court of Common Pleas of Lackawanna County,
Criminal Division, No(s): CP-35-CR-0002478-2015
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017
Curtis John Mulhern (“Mulhern”) appeals from the judgment of
sentence imposed following his convictions of firearms not to be carried
without a license and criminal attempt to commit illegal sale or transfer of a
firearm. See 18 Pa.C.S.A. §§ 6106(a)(1), 901. We affirm.
The trial court set forth the relevant underlying facts as follows:
On August 31, 2015[,] [Mulhern] went to the home of Vincent
Hutchinson [(“Hutchinson”)], which is located in the city of
Scranton. He inquired about trading his .32 caliber handgun for
three (3) bricks of heroin. (N.T. 4/13/16 at pg. 36-37). Taking
the witness stand, [] Hutchinson stated that at the time he was
approached by [Mulhern], he was working as confidential
informant for the Lackawanna County Drug Task Force. []
Hutchinson stated he had been working with county detectives
for two (2) years. (N.T. 4/13/16 at pg. 33). [] Hutchinson
testified that he had two prior criminal convictions[:] a
conviction for receiving stolen property from 2008 and a
conviction for drug paraphernalia from 2013. (N.T. 4/13/16 at
pg. 31). He testified he was paid fifty dollars ($50) in
compensation for his work as a CI in [Mulhern’s] case[;] in the
past[,] however[,] he received a reduction of charges. (N.T.
4/13/16 at pg. 33). [] Hutchinson stated that he had been a
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drug addict for seventeen (17) years and credited the detectives
with saving his life and helping him get into AA and rehab. (N.T.
4/13/16 at pg. 35).
[] Hutchinson testified he contacted Dunmore Detective Corey
[Condrad (“Detective Condrad”)] and told him about [Mulhern’s]
inquiry. (N.T. 4/13/16 at pg. 37). [Hutchinson] testified he met
with Detective [Condrad] at the Dunmore Police Station, and he
was “consensualized” to facilitate a recorded phone call between
he and [Mulhern]. (N.T. 4/13/16 at pg. 37-38). [Hutchinson]
was searched upon arrival at the Dunmore Police Station, as per
department protocol, with no contraband found. (N.T. 4/13/16
at pg. 39-40).
At that point[,] a phone call was placed and recorded between []
Hutchinson and [Mulhern]. (N.T. 4/13/16 at pg. 41). The police
were able to intercept and record the following conversation
between the two:
[Detective Condrad]: This is [Detective Condrad] with the
Dunmore Police Department. Certification number A-4912.
This phone call is in reference to case number 15-1291T.
Intercept number 57C-15-210. The CI will be placing a
phone call to [] Mulhern at phone number (410) 336-
[****]. The time now is approximately 1225 hours. The
date [is] August 31st, 2015.
[Mulhern]: Hello?
[Hutchinson]: Yo, Curt.
[Mulhern]: Yo.
[Hutchinson]: Alright, listen. Can you talk or no? You
good?
[Mulhern]: Yeah.
[Hutchinson]: Alright. Listen. I’m with my boy now. But
due [sic], he does not wanna come in there. So, this is
what we’re gonna do. So, I made it a lot easier for the both
of you guys. The both of you guys are fucking nuts.
Alright. I’m coming back down [to] the house. We’ll walk
like two blocks down the street. I’ll get the, you know, the
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three you want, the three things. The bricks. And then
fucking I’ll jump in the car with him and then you go one
way fucking and then I’ll jump in the car with him and go
the other way with the gun so this way everybody’s happy.
So []is that, is that?
[Mulhern]: So, wait. What again?
[Hutchinson]: I’m gonna meet you at the house. You know
what I mean? So everything is good. We’ll put the fucking,
the gun in the backpack so this way we look like college
kids. We’ll walk down a couple of blocks. He’ll pull up
cause he doesn’t wanna pull in there cause it’s hot down
there. It’s like there’s cops. You know? A black guy in that
neighborhood. And then I’ll just–he’ll just hand [m]e the
three bricks. He’ll see me put it in your hand and then
fucking I’ll hop in the car with you with the gun.
[Mulhern]: Alright just come-alright just come here then.
[Hutchinson]: Alright. I’ll be right there in about-give me
like five, ten minutes and then we'll go and get it done.
Alright?
[Mulhern]: Alright.
[Hutchinson]: Yo. Do you have that point still for me so I
can get high with ya?
[Mulhern]: Yeah.
[Hutchinson]: Alright. You’re my man, brother. Later, love
ya.
[Mulhern]: Alright. Bye.
[Hutchinson]: Alright. Bye.
Commonwealth Exhib[i]t #3.
Following the telephone call, Detective [Condrad] dropped []
Hutchinson off a few blocks from his house to facilitate a
meeting with [Mulhern]. (N.T. 4/13/16 at pg. 44). []
Hutchinson walked from the detective’s car to [Mulhern’s] house.
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(N.T. at pg. 44). He stated he and [Mulhern] walked five or six
blocks before being arrested by Detectives [Condrad] and
[Harold] Zech, as well as other members of the Drug Task Force.
(N.T. 4/13/16 at pg. 45). [Mulhern] was placed into a different
patrol car than [] Hutchinson. (N.T. 4/13/16 at 45). []
Hutchinson stated that he was driven to a spot few blocks away,
searched again, and paid fifty dollars ($50) for his work and
released. (N.T. 4/13/16 at pg. 46).
Next, Detective [] [Condrad] took the stand. (N.T. 4/13/16 at
pg. 68). Detective [Condrad] stated that on August 31, 2015, []
Hutchinson made contact with him and advised [that Mulhern]
wished to trade his .32 caliber handgun for three (3) bricks of
heroin. (N.T. 4/13/16 at pg. 72). Detective [Condrad] stated
that he then picked up [] Hutchinson and brought him to the
Dunmore Police Station, where he searched [] Hutchinson. (N.T.
4/13/16 at pg. 72). In addition, he received permission from []
Hutchinson to intercept and record a conversation between the
[Hutchinson] and [Mulhern]. (N.T. 4/13/16 at pg. 72). He then
recorded a phone call between the two men, wherein [Mulhern]
confirmed he still wished to trade his gun for heroin. (N.T.
4/13/16 at pg. 75). Detective [Condrad] instructed [] Hutchinson
to have [Mulhern] carry the gun in a backpack while they walked
to the meet location for the safety of bystanders and all those
involved. (N.T. 4/13/16 at pg. 75). Detective [Condrad] then
transported [] Hutchinson back to his neighborhood so he could
meet with [Mulhern]. (N.T. 4/13/16 at pg. 76).
At that point, a perimeter was set up by the arrest team. (N.T.
4/13/16 at pg. 76). While walking from [his] home to the meet
location, [] Hutchinson was carrying an audio transmitter which
allowed the detectives to listen to the conversation between
[Mulhern] and [] Hutchinson. (N.T. 4/13/16 at pg. 76-77). A
couple of blocks from [Mulhern’s] house, the officers arrested
[Mulhern] and [] Hutchinson. (N.T. 4/13/16 at pg. 77). A .32
caliber Thames Arm Revolver and five (5) rounds of ammunition
were located in the backpack [Mulhern] was carrying. (N.T.
4/13/16 at pg. 77). Detective [Condrad] stated [] Hutchinson
was released from custody a couple of blocks from the point of
arrest and paid fifty dollars ($50). (N.T. 4/13/16 at pg. 83).
After being taken into custody and transported back to the
Dunmore Police Station, Officer Richardson of the Dunmore
Police Department checked the database to confirm that
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[Mulhern] did not have a license to carry a concealed firearm.
(N.T. 4/13/16 at pg. 84).
Detective Tom Davis was the next witness to testify. (N.T.
4/13/16 at pg. 89). He testified that he test[-]fired the .32
caliber Thames Arm Revolver on April 11, 2016. (N.T. 4/13/16
at pg. 91-92). He performed a physical inspection of the
firearm, dry fired the gun, and then shot two (2) of the
recovered rounds of ammunition into a target. (N.T. 4/13/16 at
pg. 93-94). His inspection revealed that the .32 caliber Thames
Firearm was fully operational. (N.T. 4/13/16 at pg. 96).
[Mulhern] then testified as a witness in his own defense. (N.T.
4/13/16 at pg. 109). He testified it was [] Hutchinson who
solicited him to sell his gun in exchange for heroin, that it was []
Hutchinson who set up the deal between an alleged drug dealer
and [Mulhern] to trade the gun, and that it was [] Hutchinson
who pushed for the deal to happen. (N.T. 4/13/16 at pg. 114-
120). He testified that at one point he exclaimed “F this, I’m not
doing this,” and turned around to walk away. (N.T. 4/13/16 at
pg. 122). He testified as he had turned and walked in the
opposite direction, [] Hutchinson stated “You have to or he said
he’s going to kill my daughter, Dude.” (N.T. 4/13/16 at pg.
122). [Mulhern] claims that he changed direction and resumed
the plan to sell the gun out of fear for the safety of []
Hutchinson’s daughter. (N.T. 4/13/16 at pg. 123). He further
testified at the time of his arrest he saw [] Hutchinson’s
daughter in the back of one of the patrol cars on the scene of the
arrest. (N.T. 4/13/16 at pg. 124).
In rebuttal, the Commonwealth recalled Detective [Condrad] to
the stand. (N.T. 4/13/16 at pg. 129). He testified [that
Mulhern] and [] Hutchinson were kept under constant
surveillance. (N.T. 4/13/16 at pg. 130). He testified [Mulhern]
never deviated his course or turned around or attempted to walk
in another direction. (N.T. 4/13/16 at pg. 130). Finally, he
testified that neither [] Hutchinson’s daughter nor any other
female was on the scene at the time of [Mulhern’s] arrest. (N.T.
4/13/16 at pg. 130).
Trial Court Opinion, 1/27/17, at 2-7.
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Following a jury trial, Mulhern was found guilty of the above-
mentioned crimes. The trial court sentenced Mulhern to an aggregate prison
term of twenty to forty months, followed by one year of probation. Mulhern
filed a pro se Notice of Appeal. This Court subsequently ordered the trial
court to hold a Grazier1 hearing to determine whether Mulhern wished to
proceed pro se on appeal. The trial court held a Grazier hearing on
November 4, 2016, after which it appointed Mulhern counsel for his appeal.
Thereafter, on December 7, 2016, the trial court ordered Mulhern to file a
Pa.R.A.P. 1925(b) concise statement within twenty-one days. Mulhern filed
a Rule 1925(b) Concise Statement on December 30, 2016,2 and the trial
court issued an Opinion.
On appeal, Mulhern raises the following questions for our review:
1. Did [Mulhern] sustain his burden of proof on the defense of
entrapment such that his convictions should be overturned
and all charges dismissed?
2. Did the trial court abuse[] its discretion or err as a matter of
law by precluding [Mulhern] from examining the confidential
informant, [] Hutchinson, on the nature of his prior criminal
offenses[,] and the victims thereof[,] where the
Commonwealth had opened the door to such examination?
Brief for Appellant at 5.
Prior to addressing Mulhern’s claims, we must determine whether he
1 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
2 While the Concise Statement was dated December 28, 2016, it was
docketed on December 30, 2016.
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properly preserved them for our review. It is well-settled that when a trial
court orders an appellant to file a Rule 1925(b) concise statement, he must
comply to preserve his claims on appeal. See Commonwealth v. Lord,
719 A.2d 306, 309 (Pa. 1998). Where “an appellant in a criminal case was
ordered to file a [s]tatement and fails to do so, such that the appellate court
is convinced that counsel has been per se ineffective, the appellate court
shall remand for the filing of a [s]tatement nunc pro tunc and for the
preparation and filing of an opinion by the judge.” Pa.R.A.P. 1925(c)(3).
However, “[w]hen counsel has filed an untimely Rule 1925(b) statement and
the trial court has addressed those issues[,] we need not remand and may
address the merits of the issues presented.” Commonwealth v.
Thompson, 39 A.3d 335, 340 (Pa. Super. 2012).
Here, on December 7, 2016, the trial court ordered Mulhern to file a
Rule 1925(b) concise statement within twenty-one days. Mulhern’s counsel
was per se ineffective for filing the Concise Statement on December 30,
2016. However, because the trial court addressed the claims in Mulhern’s
Concise Statement in its Opinion, we will address the merits of Mulhern’s
issues. See id.
In his first claim, Mulhern contends that his convictions should be
overturned because he established his entrapment defense as a matter of
law. Brief for Appellant at 13, 22. Mulhern argues that he was induced by
Hutchinson’s incessant requests to sell a firearm for heroin they could
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mutually use. Id. at 14. Mulhern asserts that Hutchinson solicited drugs
from him and suggested the sale of a firearm to a collector known to
Hutchinson so that they could obtain heroin. Id. at 18-19; see also id. at
18 (wherein Mulhern points out that he and Hutchinson were heroin addicts,
friends, and neighbors). Mulhern claims that he was illegally induced to
leave his home with the firearm by Hutchinson and Detective Condrad. Id.
at 19-20, 21; see also id. at 16-18 (noting that appeals to friendship
between a confidential informant and defendant demonstrated methods of
persuasion which create a substantial risk that a defendant would purchase
drugs as a favor to the informant).
The Crimes Code defines the defense of entrapment, in relevant part,
as follows:
(a) General rule.--A public law enforcement official or a person
acting in cooperation with such an official perpetrates an
entrapment if for the purpose of obtaining evidence of the
commission of an offense, he induces or encourages another
person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce
the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which
create a substantial risk that such an offense will be
committed by persons other than those who are ready to
commit it.
(b) Burden of proof.--Except as provided in subsection (c) of
this section, a person prosecuted for an offense shall be
acquitted if he proves by a preponderance of evidence that his
conduct occurred in response to an entrapment.
18 Pa.C.S.A. § 313.
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Pennsylvania courts apply an “objective” test for entrapment[.]
…
[T]he test for entrapment has shifted in emphasis from a
consideration of a particular defendant’s readiness to commit
crime, a subjective test, to an evaluation of the police conduct,
an objective test, to determine whether there is a substantial
risk that the offense will be committed by those innocently
disposed. To determine whether an entrapment has been
perpetrated in any particular case, therefore, the inquiry will
focus on the conduct of the police and will not be concerned with
the defendant’s prior criminal activity or other indicia of a
predisposition to commit crime.
… [T]he objective approach conceives the entrapment defense
as aimed at deterring police wrongdoing. The defense provides
a sanction for overzealous and reprehensible police behavior
comparable to the exclusionary rule. The focus of the defense is
on what the police do and not on what kind of person the
particular defendant is—whether he is innocent or predisposed to
crime.
In their zeal to enforce the law, government agents may not
originate a criminal design, implant in an innocent person’s mind
the disposition to commit a criminal act and then induce
commission of the crime so that the government may prosecute.
Where police do no more than afford appellant an opportunity to
commit an illegal act, their actions are not considered sufficiently
outrageous police conduct to support an entrapment defense.
Thus, the availability of the entrapment defense under the
statute does not preclude the police from acting so as to detect
those engaging in criminal conduct and ready and willing to
commit further crimes should the occasion arise. Such indeed is
their obligation.
… [T]he determination of whether police conduct constitutes
entrapment is for the jury, unless the evidence of police conduct
clearly establishes entrapment as a matter of law.... Thus, after
the defense of entrapment has been properly raised, the trial
court should determine the question as a matter of law wherever
there is no dispute as to the operative facts relating to the
defense.
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Importantly, the court may also consider, based upon the
operative facts, whether it can reject an entrapment defense as
a matter of law.
Operative facts are …[t]hose that are necessary for [a]ppellant
to prove by a preponderance of the evidence that he was
entrapped. Under the objective test for entrapment, these
would be facts that go to the course of conduct of a government
officer or agent that would fall below standards to which
common feelings respond, for the proper use of government
power.
Commonwealth v. Marion, 981 A.2d 230, 238–39 (Pa. Super. 2009)
(citations, quotation marks, and some paragraph breaks omitted).
Upon review of the record and testimony, the operative facts as to
whether Mulhern and Hutchinson are friends, and who initiated the sale of
the firearm, are in dispute. Compare N.T., 4/13/16, at 35-37 (wherein
Hutchinson testified that Mulhern repeatedly came to his house to talk, and
that on the day in question, Mulhern came to his house to inquire whether
Hutchinson knew anyone who would trade three bricks of heroin for a
firearm), with id. at 114-16 (wherein Mulhern testified that Hutchinson
would always come to his house, and that Hutchinson solicited Mulhern
about selling his firearm for heroin). Thus, the trial court submitted the
entrapment defense for consideration to the jury for it to resolve the
disputed facts and weigh the relationship in light of all the communications
and contacts. See Commonwealth v. Mance, 619 A.2d 1378, 1381 (Pa.
Super. 1993) (holding that the entrapment defense was properly submitted
to jury where operative facts as to whether the defendant was induced into
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participating in the scheme were disputed). After an instruction on the
entrapment defense, the jury rejected the entrapment defense and
convicted Mulhern on the charged firearm offenses. See Commonwealth
v. Talbert, 129 A.3d 536, 543 (Pa. Super. 2015) (noting that the fact-finder
was free to believe all, part, or none of the evidence presented at trial).
Moreover, contrary to Mulhern’s assertions, the actions taken by
Hutchinson and the police did not establish entrapment as a matter of law.
See Commonwealth v. Weiskerger, 554 A.2d 10, 14 (Pa. 1989) (noting
that to prevail on an entrapment defense as a matter of law, the defendant
must prove that the evidence of entrapment was so overwhelming that there
could be no other conclusion). Here, there was no evidence that Hutchinson
was manipulative, attempted to overcome Mulhern’s will, or made false
representations to Mulhern. Indeed, Mulhern testified that he had been
using opiate drugs for two years and had used drugs the day before he was
arrested. N.T., 4/13/16, at 112-13. Moreover, Mulhern had ample
opportunity to not participate in the drug scheme, to notify authorities, or
just to sever his relationship with Hutchinson. Mulhern declined to do so.
Given these facts, we conclude the police simply gave Mulhern an
opportunity to trade his firearm for heroin, and the evidence was not
sufficiently outrageous to support an entrapment defense as a matter of law.
See Marion, 981 A.2d at 241 (noting that even where the informant used
his friendship with appellant to induce the sale of drugs, the case is entirely
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devoid of any further egregious conduct to constitute entrapment as a
matter of law as police did not induce the crime, but merely afforded the
appellant an opportunity to sell drugs); Commonwealth v. Zingarelli, 839
A.2d 1064, 1075 (Pa. Super. 2003) (concluding that the police’s conduct in
providing an opportunity without attempting to overcome appellant’s reason
does not rise to level of outrageousness necessary to find entrapment as
matter of law). Accordingly, Mulhern’s first claim is without merit.
In his second claim, Mulhern contends that the trial court abused its
discretion by precluding him from examining Hutchinson, a paid informant,
on the nature and victims of his prior criminal offenses during cross-
examination. Brief for Appellant at 22, 25-26. Mulhern argues that this
evidence was relevant and probative as Hutchinson had portrayed himself as
an individual who was saved by detectives from his drug addiction, and thus
vouched for his own credibility and character. Id. at 22. Mulhern asserts
that attacking Hutchinson’s credibility was central to his entrapment
defense. Id. at 22, 25.
The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding
the admission of evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Commonwealth v. Akrie, 159 A.3d 982, 986–87 (Pa. Super. 2017)
(citation omitted).
The trial court addressed Mulhern’s claim as follows:
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[Mulhern argues that] the [trial c]ourt abused its discretion or
erred as a matter of law by precluding [Mulhern] from examining
the confidential informant, [] Hutchinson, on the nature of his
prior criminal offenses and his victims, alleging the
Commonwealth had opened the door to such examination. The
Commonwealth introduced evidence that [] Hutchinson had two
prior criminal convictions[:] a conviction for receiving stolen
property from 2008 and a conviction for drug paraphernalia from
2013. (N.T. 4/13/16 at pg. 31). On cross-examination, defense
counsel wanted to ask [] Hutchinson who the victim of his
conviction for receiving stolen property was. The
Commonwealth objected and th[e trial c]ourt sustained the
objection. (N.T. 4/13/16 at pg. 49-56). Under the Pennsylvania
Rules of Evidence a prior conviction is per se admissible for the
purpose of attacking credibility if the conviction “involved
dishonesty or false statement.” Pa.R.E. [] 609(a). The only
exception to this rule is where “a period of more than ten years
has elapsed since the date of the conviction or of the release of
the witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the
interests of justice, that the probative value of the conviction
supported by the specific facts and circumstances substantially
outweighs its prejudicial effect.” Pa.R.E. [] 609(b). Here, the
Commonwealth concedes [] Hutchinson’s conviction for receiving
stolen property can be properly admitted as evidence of crimen
falsi. However, the court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence. Pa.R.E. 403. Whether the identification of
the victim [of] [] Hutchinson’s crime is admissible is a question
of relevancy. As such, th[e trial c]ourt determined that the
introduction of [] Hutchinson’s crimen falsi was properly limited
in scope to the date and type of offense and the introduction of
any other information would tend to confuse the issues at hand
and mislead the jury. Therefore, the evidence was inadmissible
and this issue is without merit and should be denied.
Trial Court Opinion, 1/27/17, at 8-9.
We agree with the sound reasoning of the trial court, and conclude
that it did not abuse its discretion in denying Mulhern’s request. See id.;
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see also Commonwealth v. Baez, 720 A.2d 711, 724-25 (Pa. 1998)
(concluding that the trial court did not abuse its discretion in limiting
evidence regarding an eyewitness’s abuse of cocaine, as such evidence
“would have served to unduly distract the attention of the jury from the
main inquiry[,] and required the ascertainment of an unnecessary quantity
of subordinate facts[.]” (quotation marks omitted)); Akrie, 159 A.3d at 988
(noting that “trial judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on such cross-examination
based on concerns about, among other things, harassment, and prejudice,
confusion of the issues, the witness’ safety, or interrogation that is repetitive
or only marginally relevant....”) (citation omitted)).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2017
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Com. v. Mulhern, C.
Combined Opinion