Com. v. Diehl, J.

J. S21038/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMON NYHEIM DIEHL, : No. 1653 WDA 2017
:
Appellant :

Appeal from the PCRA Order, October 11, 2017,
in the Court of Common Pleas of Jefferson County
Criminal Division at No. CP-33-CR-0000715-2013

BEFORE: OLSON, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 13, 2018

Jamon Nyheim Diehl appeals from the order of October 11, 2017, of

the Court of Common Pleas of Jefferson County that denied his petition filed

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

9546. Appointed counsel, George N. Daghir, Esq. (“Attorney Daghir”), has

filed a petition to withdraw and brief, pursuant to “Turner/Finley.”1 After

careful review, we grant counsel’s petition to withdraw and affirm the order

denying PCRA relief.

The record reflects that on April 18, 2014, following a jury trial,

appellant was convicted of two counts of aggravated assault, two counts of

simple assault, recklessly endangering another person, and simple

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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assault--mutual consent fight.2 The convictions stemmed from appellant’s

attack of Glenn Teddy Baker, Sr. (“Baker”). Appellant also pled guilty to one

count of aggravated assault and two counts of simple assault in a separate

matter.3

On April 29, 2014, the trial court sentenced appellant to serve an

aggregate term of 14 to 40 years’ imprisonment. On May 1, 2014, appellant

filed a post-sentence motion and sought either reconsideration of his

sentence, judgment of acquittal, or a new trial. On May 1, 2014, the trial

court denied the post-sentence motion. Appellant filed a timely notice of

appeal. On June 30, 2015, this court affirmed the judgment of sentence.

Commonwealth v. Diehl, 122 A.3d 1149 (Pa.Super. 2015) (unpublished

memorandum). Appellant filed a petition for allowance of appeal with the

Supreme Court of Pennsylvania. By order dated December 2, 2015, the

Supreme Court of Pennsylvania denied the petition for allowance of appeal.

Commonwealth v. Diehl, 128 A.3d 219 (Pa. 2015). Appellant did not file

a writ of certiorari with the Supreme Court of the United States.

On December 5, 2016, appellant filed a timely pro se PCRA petition.

Appellant alleged that he was eligible for relief due to constitutional

violations, ineffective assistance of counsel, and the unavailability at trial of

2 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2701(a)(1), 2701(a)(2), 2705,
and 2701(b)(1), respectively.

3 Appellant was sentenced on both cases at the same time.

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exculpatory evidence that has subsequently become available and would

have changed the outcome of the trial. (Motion for post-conviction collateral

relief, 12/5/16 at 2.) By order dated December 22, 2016, the PCRA court

appointed Attorney Daghir to represent appellant on his PCRA petition. On

March 15, 2017, Attorney Daghir filed amendments to the PCRA petition in

which he asserted that appellant received an illegal sentence because of the

ten-year mandatory minimum sentence imposed and that appellant’s trial

counsel was ineffective for not objecting to the ten-year mandatory

minimum sentence and for failing to object to the incorrect offense gravity

score that was used in the pre-sentence investigation report. The PCRA

court scheduled a hearing, which was held on June 13, 2017. On

October 11, 2017, the PCRA court denied the PCRA petition.

Appellant filed a notice of appeal on November 3, 2017. On

November 9, 2017, the PCRA court ordered appellant to file a concise

statement of errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. On November 11, 2017,

Attorney Daghir filed a statement of intent to file a Turner/Finley brief as

he intended to withdraw from representation of appellant in lieu of filing a

statement of errors complained of on appeal. On November 20, 2017, the

PCRA court announced that it would not be filing an opinion pursuant to

Pa.R.A.P. 1925(a). Attorney Daghir has filed a petition to withdraw and

“no-merit” brief in accordance with Turner/Finley.

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Before addressing the merits of appellant’s appeal, we must determine

whether Attorney Daghir has complied with the procedural dictates for PCRA

counsel seeking to withdraw under Turner/Finley and their progeny.

We have explained that:

Counsel petitioning to withdraw from PCRA
representation must proceed ... under
[Commonwealth v.] Turner, [518 Pa. 491, 544
A.2d 927 (1988)], and [Commonwealth v.] Finley,
[379 Pa.Super. 390, 550 A.2d 213 (1988)] and . . .
must review the case zealously. Turner/Finley
counsel must then submit a “no-merit” letter to the
trial court, or brief on appeal to this Court, detailing
the nature and extent of counsel’s diligent review of
the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.

Counsel must also send to the petitioner:
(1) a copy of the “no merit” letter/brief;
(2) a copy of counsel’s petition to
withdraw; and (3) a statement advising
petitioner of the right to proceed pro se
or by new counsel.

***

Where counsel submits a petition and
no—merit letter that . . . satisfy the
technical demands of Turner/Finley, the
court—trial court or this Court—must
then conduct its own review of the merits
of the case. If the court agrees with
counsel that the claims are without
merit, the court will permit counsel to
withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454
(Pa.Super. 2012) (internal citations omitted)
(quoting Commonwealth v. Wrecks, 931 A.2d
717, 721 (Pa.Super. 2007)).

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Commonwealth v. Muzzy, 141 A.3d 509, 510-511 (Pa.Super. 2016)

(brackets in Muzzy).

Here, Attorney Daghir has filed an application to withdraw, asserting

that he has made a conscientious examination of the trial court record and

has determined that the issues appellant wants this court to review lack

merit; he has also filed a brief with this court, setting forth each issue

appellant wishes to have reviewed, and why each is meritless; and he has

forwarded to appellant both a copy of the application to withdraw and the

brief, and has advised appellant that he has the right to proceed pro se,

retain new counsel, or raise any additional points he deems worthy of this

court’s consideration. (Application to withdraw as counsel, 2/2/18 at 1-2.)

Therefore, we determine that Attorney Daghir has complied with the

requirements of Turner/Finley, and we will proceed to an independent

review of the record to decide whether the PCRA petition is, in fact,

meritless.

Attorney Daghir has identified seven issues that appellant wants this

court to review:

1. Was [appellant’s] trial counsel ineffective for
failing to raise at the trial level a ‘Brady [v.
Maryland, 373 U.S. 83 (1963),]’ violation on
the part of the prosecution?

2. Was [appellant’s] appellate counsel ineffective
for failing to raise on direct appeal a ‘Brady’
violation on the part of the prosecution?

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3. Was [appellant’s] trial attorney ineffective for
failing to raise at trial the prosecution[’]s
unconstitutional use at trial of falsifications
contained in the police reports?

4. Was [appellant’s] appellate counsel ineffective
for failing to raise on direct appeal the
prosecution[’]s use at trial of falsifications
contained in the police reports?

5. Was trial counsel ineffective for failing to
object at time of trial to the prosecution[’]s
improper reference, during closing argument to
the jury, to [appellant’s] silence in violation of
his Fifth Amendment right against
self-incrimination?

6. Was an illegal mandatory minimum sentence
imposed by the court in this case in violation of
Alleyne v. United States, 133 S.Ct. 2151
(2013)?

7. Was [appellant’s] trial counsel ineffective for
failing, at time of sentencing, to object to an
improper ‘offense gravity score’ of ‘11’ being
reflected in the pre-sentence investigation
report for the crime of aggravated assault
when the correct ‘offense gravity score’ for
said crime was a ‘10’?

Attorney Daghir’s brief at 14-15.

PCRA petitions are subject to the following standard of review:

“[A]s a general proposition, we review a denial of
PCRA relief to determine whether the findings of the
PCRA court are supported by the record and free of
legal error.” Commonwealth v. Dennis, [], 17
A.3d 297, 301 (Pa. 2011) (citation omitted). A PCRA
court’s credibility findings are to be accorded great
deference, and where supported by the record, such
determinations are binding on a reviewing court. Id.
at 305 (citations omitted). To obtain PCRA relief,
appellant must plead and prove by a preponderance

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of the evidence: (1) his conviction or sentence
resulted from one or more of the errors enumerated
in 42 Pa.C.S. § 9543(a)(2); (2) his claims have not
been previously litigated or waived, id.
§ 9543(a)(3); and (3) “the failure to litigate the
issue prior to or during trial . . . or on direct appeal
could not have been the result of any rational,
strategic or tactical decision by counsel[,]” id.
§ 9543(a)(4). An issue is previously litigated if “the
highest appellate court in which [a]ppellant could
have had review as a matter of right has ruled on
the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
issue is waived if [a]ppellant could have raised it but
failed to do so before trial, at trial, . . . on appeal or
in a prior state postconviction proceeding.” Id.
§ 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

To prevail on a claim alleging counsel’s
ineffectiveness under the PCRA, Appellant must
demonstrate (1) that the underlying claim is of
arguable merit; (2) that counsel’s course of conduct
was without a reasonable basis designed to
effectuate his client’s interest; and (3) that he was
prejudiced by counsel’s ineffectiveness, i.e. there is
a reasonable probability that but for the act or
omission in question the outcome of the proceeding
would have been different. Commonwealth v.
Kimball, 555 Pa. 299, 724 A.2d 326, 333 (1999);
Commonwealth v. Douglas, 537 Pa. 588, 645
A.2d 226, 230 (1994).

Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa. 2001).

I. and II. Claims Related to Brady.

Initially, appellant alleged that his trial and appellate counsel,

Fred D. Hummel, Esq. (“Attorney Hummel”), was ineffective because he

failed to raise the issue of a Brady violation on the part of the

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Commonwealth, relating written statements by the victim, Baker, and the

falsification of police reports. (Attorney Daghir’s brief at 17.)

In Brady, the Supreme Court held that “suppression by the

prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Id., 373 U.S.

at 87.

This court has explained that, “to establish a Brady violation, a

defendant must demonstrate that: (1) the evidence was suppressed by the

Commonwealth, either willfully or inadvertently; (2) the evidence was

favorable to the defendant; and (3) the evidence was material, in that its

omission resulted in prejudice to the defendant.” Commonwealth v.

Haskins, 60 A.3d 538, 547 (Pa.Super. 2012) (citations omitted). The

burden rests with the defendant to “prove by reference to the record, that

evidence was withheld or suppressed by the prosecution.” Id.

One of the issues deals with the statement written by Baker. One

written statement by Baker was dated November 22, 2013 at 8:15 p.m. The

Commonwealth introduced this statement at trial as Exhibit 1-A. (Notes of

testimony, 4/17/14 at 98.) There was a second written statement signed by

Baker that was dated December 3, 2013. The Commonwealth introduced

this statement into evidence at trial as Exhibit 1-B. (Id.) Appellant alleges

that Baker did not write the initial statement that was utilized to give the

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arresting officer probable cause to arrest appellant and which ultimately led

to his conviction. (Attorney Daghir’s brief at 17.) On cross-examination by

Attorney Hummel, Baker testified that he wrote two statements. He testified

that he wrote the first one at the police station. The first statement omitted

information such as that he went to appellant’s apartment and spoke with

him. (Id. at 83-84.) Baker also testified that he wrote the second

statement on December 3, 2013. (Id. at 89.)

Appellant has failed to establish that the Commonwealth suppressed

any evidence with respect to the writing of the statements. On

cross-examination, Attorney Hummel questioned Baker concerning the fact

that two different statements were attributed to him and concerning the

discrepancies between the two statements. Baker maintained that he

authored both of them. (Notes of testimony, 4/17/14 at 82-84, 88-94,

96-97.) Other than appellant’s subjective belief that Baker did not write both

statements, the record does not indicate a violation of Brady.

Attorney Daghir concluded:

These issues lack merit as the alleged Brady
violations involve information that had been
previously provided to the defense by the
prosecution and were used by the defense
repeatedly during cross[-]examination of prosecution
witnesses in an effort to impeach he credibility of
their testimony. Brady requires that the prosecution
suppress the evidence to the prejudice of the
defendant. In this case the opposite occurred. Here
the evidence was provide[d] to the defense and
utilized by the defense to attack the credibility of
prosecution witnesses. Com[monwealth] v.

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Paddy, 15 A.3d 431, 450 (P[a.] 2011). Trial
counsel cannot be held to be ineffective for failing to
pursue a meritless claim. Com[monwealth] v.
Jones, 811 A.2d 994 (P[a.] 2002). For the same
reason appellate counsel would not be ineffective for
failing to raise this claim. And as indicated earlier
[appellant’s] trial attorney could not argue his own
ineffectiveness on a direct appeal.

Attorney Daghir’s brief at 20.

Appellant’s claim was of no merit and, consequently, fails to meet the

first prong necessary to prove ineffective assistance of counsel. See

Kimball. Furthermore, counsel was not ineffective for failing to raise a

Brady claim on appeal. If a petitioner cannot establish that trial counsel

was ineffective, then a derivative claim of appellate counsel ineffectiveness

must also fail. Commonwealth v. Rainey, 928 A.2d at 224.

III. and IV. Falsifications.

The next two issues analyzed by Attorney Daghir address whether

Attorney Hummel was ineffective at trial and on appeal for failing to argue

the Commonwealth’s unconstitutional use at trial of falsifications contained

in police reports. First, Attorney Daghir notes that to the extent these

claims constitute a weight of the evidence claim, they have no merit as this

court already ruled on the weight of the evidence and affirmed the judgment

of sentence on appellant’s direct appeal. A review of this court’s decision

reveals that the issue raised on direct appeal was that the verdict was

against the weight of the evidence because the Commonwealth witnesses

allegedly lied. A review of appellant’s brief on direct appeal indicates that

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while both the direct appeal and the issue raised here have some relation to

the credibility of witnesses, the issue presented here was not previously

litigated on direct appeal.

Appellant asserts that Officer Heath Zeitler, of the Borough of

Punxsutawney Police Department, could not be at the hospital and at the

police station at the same time. If Officer Zeitler did not leave the hospital

until 8:48 p.m., then he could not have been at the police station taking the

statement of Baker at 8:15 p.m. (Attorney Daghir’s brief at 21-22.)

Appellant further asserts that the police officers were able to manipulate and

change the reports on their computer and that falsified reports were utilized

to refresh the recollections of several Commonwealth witnesses, and that

the two written statements by Baker were written by two different people.

(Id. at 22.)

Attorney Daghir notes that the allegation regarding Officer Zeitler’s

being in two places at once is made based on the assumption that

Officer Zeitler was the last officer to leave the hospital at 8:48 p.m.

However, Attorney Daghir reports that the report does not indicate when a

particular officer left. Appellant argues that this timing means that

Officer Zeitler was not present at the time Baker made his written

statements. Baker testified that he did write the statements and was

subjected to cross-examination by Attorney Hummel on this issue. (Id. at

22-23.). Even if this claim has arguable merit, appellant cannot prove that

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he suffered prejudice due to counsel’s ineffectiveness. Bracey, 795 A.2d at

942. Similarly, as Attorney Hummel was not ineffective at trial with respect

to this issue, he was not ineffective for failing to raise it on appeal. Rainey,

928 A.2d at 224.

With respect to the modification of police reports, Attorney Daghir

states that appellant fails to point to any specific instance of where the

police fabricated a report. (Attorney Daghir’s brief at 23.). Also,

Attorney Hummel posed questions to Officer Zeitler on cross-examination

regarding the fact that police officers can modify their reports. (Notes of

testimony, 4/17/14 at 252.) This court agrees with Attorney Daghir that

appellant failed to establish how he was prejudiced by Attorney Hummel’s

action or inaction on this issue, and consequently, did not prove ineffective

assistance of counsel at trial. Bracey, 795 A.2d at 942. Similarly, there

was no ineffectiveness for failing to raise this issue on appeal. Rainey, 928

A.2d at 224.

Attorney Daghir next asserts that with respect to the Commonwealth’s

use of police reports to refresh the recollection of witnesses, appellant’s

claim is without merit based on three instances that occurred at trial.

(Attorney Daghir’s brief at 23-24.) First, the Commonwealth conducted

direct examination of Officer Kevin Porada, of the Borough of Punxsutawney

Police Department. Officer Porada testified that appellant told him at the

police station that he wished the police had shot him. (Notes of testimony,

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4/17/14 at 206.) When the Commonwealth then asked Officer Porada if

appellant stated why he wanted the police to shoot him, Officer Porada said

that he did not recall. (Id.) With the trial court’s permission, the

Commonwealth presented Officer Porada’s supplemental report to

Officer Porada to refresh his recollection. Officer Porada then testified that

appellant told him that he wished the police had shot him because he did not

want to go to prison. (Id. at 207). Rule 612 of the Pennsylvania Rules of

Evidence permits a witness to use a prior writing to refresh his memory for

the purpose of testifying. Pa.R.E. 612. This claim is without arguable merit,

which is the first prong needed to prove ineffective assistance of counsel.

Bracey, 795 A.2d at 942. Attorney Hummel was not ineffective either at

trial or on appeal. See Rainey, 928 A.2d at 224.

Later, the Commonwealth presented Officer Porada with his report to

refresh his recollection when he was asked why appellant said that he had

stabbed someone. After reviewing his report, Officer Porada testified that

appellant told him that two people attacked him. (Id. at 208.) As

Attorney Daghir points out, Officer Porada’s testimony, after his recollection

was refreshed, was not harmful to appellant’s case based on appellant’s

theory that he acted in self-defense. Attorney Hummel would have no

reason to object to this testimony, as appellant suffered no prejudice,

Bracey, 795 A.2d at 942, or to raise it on appeal. See Rainey, 928 A.2d at

224.

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Attorney Daghir cites a third incident at trial, which occurred during

the Commonwealth’s direct examination of Officer Zeitler. Officer Zeitler

was asked what appellant had told him regarding the knifing. The

Commonwealth showed Officer Zeitler a copy of his report. Officer Zeitler

recounted that appellant testified that Baker had come after him with a

knife, the two engaged in a physical altercation, and fell down the stairs.

Officer Zeitler reported that appellant told him that was when Baker received

his stab wounds. (Notes of testimony, 4/17/14 at 224-225.) As

Attorney Daghir states, this testimony was beneficial to appellant and did

not prejudice him in any way, so Attorney Hummel was not ineffective for

failing to object. Bracey, 795 A.2d at 942. Similarly, Attorney Hummel was

not ineffective when he did not raise this issue on appeal. See Rainey, 928

A.2d at 224.

Appellant returns to the written statements by Baker and his belief

that the handwriting indicates that two different people wrote the

statements. However, Baker testified that he wrote both statements.

Attorney Hummel questioned Baker about the statements on

cross-examination and had the two statements published to the jury so that

the jury could see the writings and Judge Baker’s credibility.

(Attorney Daghir’s brief at 26.) Here, Attorney Hummel’s conduct had a

reasonable basis that was designed to promote appellant’s interest, so

appellant failed to meet the second prong necessary to prove ineffective

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assistance of counsel. Bracey, 795 A.2d at 942. Similarly, he was not

ineffective for failing to raise this issue on appeal. See Rainey, 928 A.2d at

224.

V. Fifth Amendment.

Appellant next asserts that Attorney Hummel was ineffective because

he did not object or pursue on appeal where the prosecution violated his

right against self-incrimination under the Fifth Amendment to the United

States Constitution when, in its closing statement, the Commonwealth

referred to the fact that appellant did not talk to the police prior to his

arrest. (Attorney Daghir’s brief at 27.) The Supreme Court of Pennsylvania

has held that “when a criminal defendant waives his right to remain silent

and testifies at his own trial, neither the United States nor the Pennsylvania

Constitution prohibit a prosecutor from impeaching a defendant’s credibility

by referring to his pre-arrest silence.” Commonwealth v. Bolus, 680 A.2d

839, 844 (Pa. 1996). Therefore, the Commonwealth did not violate

appellant’s constitutional rights. Appellant has failed to meet the first prong

to prove counsel ineffectiveness: that the underlying claim is of arguable

merit. Bracey, 795 A.2d at 942. Attorney Hummel was not ineffective at

trial or on appeal. See Rainey, 928 A.2d at 224.

VI. Mandatory Minimum Sentence.

Once Attorney Daghir was appointed to represent appellant, he filed

amendments to the PCRA petition. One of the issues he raised was that

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Attorney Hummel was ineffective because he did not object to the illegal

ten-year mandatory minimum sentencing imposed on appellant by the trial

court for his conviction of aggravated assault. (Amendments to PCRA

petition, 3/15/17 at 1.) The amendment to the petition asserted that the

ten-year sentence imposed for the aggravated assault conviction, pursuant

to the mandatory minimum sentence provisions of 42 Pa.C.S.A. § 9714, was

an illegal sentence based on Alleyne v. United States, 570 U.S. 99 (2013).

In Commonwealth v. Bragg, 133 A.3d 328 (Pa.Super. 2016), this

court held that a mandatory minimum sentence under 42 Pa.C.S.A. § 9714

for a person who had a prior conviction for a crime of violence was

permissible based on Commonwealth v. Reid, 117 A.3d 777 (Pa.Super.

2015). On August 22, 2017, the Supreme Court of Pennsylvania affirmed

this court’s decision in Bragg in a per curiam order. Commonwealth v.

Bragg, 169 A.3d 1024 (Pa. 2017). The PCRA court stated that appellant

was previously convicted of a crime of violence, which ended any question

concerning the legality of the sentence. (See PCRA court opinion, 10/11/17

at 1.) As Attorney Daghir asserts, this claim lacks merit. Once again,

because the underlying claim lacks arguable merit, appellant failed to prove

that Attorney Hummel was ineffective. Bracey, 795 A.2d at 942.

VII. Offense Gravity Score.

In addition, the amendment to the PCRA petition contained an

allegation that Attorney Hummel was ineffective and appellant suffered

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prejudice when Attorney Hummel failed to object at the sentencing hearing

when the offense gravity score contained in the pre-sentence investigation

report was listed as “11” rather than the correct “10.” However,

Attorney Daghir now asserts that because the trial court did not sentence

appellant based on the guideline minimum sentence range for the

aggravated assault conviction, appellant suffered no prejudice. This court

agrees. Appellant did not establish that he met the third element needed to

prove counsel ineffectiveness, that he suffered prejudice. Bracey, 795 A.2d

at 942.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2018

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