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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JORDAN MATLAGA :
:
Appellant : No. 1379 EDA 2020
Appeal from the Judgment of Sentence Entered June 12, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0000937-2019
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 26, 2022
Appellant, Jordan Matlaga, appeals from the June 12, 2020 Judgment of
Sentence entered in the Montgomery County Court of Common Pleas following
his conviction of Indecent Assault of a Person Less Than Thirteen Years of
Age.1 Appellant challenges the trial court’s denial of a prompt complaint jury
instruction, the court’s application of the Tender Years Hearsay Act, 42 Pa.C.S.
5985.1, and various evidentiary rulings. Upon careful review, we affirm.
FACTUAL AND PROCEDURAL HISTORY
A brief recitation of the relevant factual and procedural history follows.
In 2018, then-six-year-old M.L. (“Victim”) attended a sleepover at the home
of her best friend, E.R. (“Friend”). Victim, Friend, and Appellant, who is
Friend’s older brother, were all asleep on an air mattress when Appellant
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1 18 Pa.C.S. § 3126(a)(7).
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sexually assaulted Victim and Victim told him to stop. In its Pa.R.A.P. 1925(a)
Opinion, the trial court aptly described the assault as follows:
[Victim] awoke as [Appellant] digitally fondled her genitalia, and
then took her hand inside of his hand and placed it on his penis.
At trial, [Victim] explained that she had gone to sleep that night
on an air mattress in [Friend]’s living room, alongside [Friend] and
[Appellant], and awoke when she “felt her vagina tickling, and
then looked down, and it was [Appellant]’s hand.” Upon further
inquiry, [Victim] testified that [Appellant]’s hand was under her
nightgown, as well as her underwear,” and demonstrated how
[Appellant] moved his fingers up and down over her vagina, while
saying nothing. [Victim] told [Appellant] to “stop,” and he ignored
her until she told him again to “stop;” at which point he removed
his hand from her underwear. [Victim] explained that [Appellant]
then asked her if she “wanted to see something cool?” to which
she responded “sure,” and [Appellant] took her hand and “put it
in his pants,” on his penis. Even after [Victim] immediately
withdrew her hand from [Appellant]’s pants, and repeatedly told
him that she did not want to “play” the “game” [Appellant] was
pressuring her to, and despite his repeated attempts to sway her,
including his manipulative attempt to characterize the “game” as
one which was only for adults, but that he would make an
exception and “let her play,” [Victim] remained steadfast in her
refusal. [Victim] soon fell back asleep.
The following morning, [Victim] woke alongside [Friend] in her
single bed in the bedroom Friend shared with her mother and
sister, and [Appellant] was not there. [Victim] immediately told
[Friend], whose face dropped (“made a face,”) when she heard
what had happened, but [Victim] withheld the information from
her family for some time until she finally disclosed the assault on
or around November 18, 2018[.]
Trial Ct. Op., filed 11/20/20, at 1-2.
On or around November 18, 2018, during a visit to Victim’s
grandmother’s house, Victim reported the incident her aunt A.L. (“Aunt”), who
is an attending physician at the Children’s Hospital of Philadelphia. Victim was
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upset that she was not able to ride the school bus anymore and told Aunt that
“older mean kids on the bus had falsely accused her and her friend, who was
a boy, of acting inappropriately on the bus.” Id. at 3 (some quotation marks
omitted). Victim proceeded to explain to Aunt that even though she was only
six, she knew what was appropriate and what was inappropriate and explained
to Aunt how Appellant’s behavior at the sleepover was inappropriate. Aunt
informed Victim’s father (“Father”), who spoke with Victim individually, and
then informed Victim’s mother (“Mother”). Victim’s parents reported the
incident to police late that night and Mother spoke with Victim about the
incident the following day.
On November 21, 2018, Mission Kids Child Advocacy Center conducted
a forensic interview of Victim, who once again recounted the sexual assault
incident.
Upon investigation, the Commonwealth charged Appellant with multiple
counts of Indecent Assault. Relevant to this appeal, Appellant filed a pre-trial
Motion Seeking Competency and Taint Determination of Child Witness asking
the court to determine whether Victim was competent to testify, and whether
her memory had been tainted. In turn, the Commonwealth filed a pre-trial
motion seeking to admit the out-of-court statements made by Victim to Aunt,
the Mission Kids forensic interviewer, Father, and Mother under the Tender
Years Hearsay Act.
On October 28, 2019, the trial court held a pre-trial hearing on the
motions. The trial court heard testimony from Aunt, Father, Mother, and
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Victim. At the conclusion of the hearing, the trial court found Victim to be
competent to testify and denied the taint motion. The trial court also granted
the tender years motion.
On November 20, 2019, a three-day jury trial commenced. The
Commonwealth presented testimony from Aunt, Mother, Victim, and Maggie
Sweeney, forensic interviewer from Mission Kids Child Advocacy Center.
Appellant did not testify on his own behalf.
At the conclusion of the trial, prior to jury deliberations, the
Commonwealth withdrew two counts of Indecent Assault. The jury found
Appellant guilty of the remaining charge, Indecent Assault of a Person Less
Than Thirteen Years of Age. On June 12, 2020, the court sentenced Appellant
to a term of nine to twenty-three months’ imprisonment followed by three
years of probation.
Appellant timely appealed. Appellant and the trial court both complied
with Pa.R.A.P. 1925.
ISSUES RAISED ON APPEAL
Appellant raises the following issues for our review:
A. Whether the trial court’s denial of Appellant’s request to
instruct the jury as to M.L.’s failure to make a “prompt
complaint” utilizing Pa. SSJI (Crim), Sec. 4.13A was proper?
B. Whether the trial court properly granted Commonwealth’s
Motion to permit hearsay evidence pursuant to Tender Years
Hearsay Exception (Title 42 Section 5985.1), allowing both the
hearsay witnesses to testify as to [Victim]’s prior statements,
and further by permitting them to testify prior to [Victim].
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C. Whether the trial court erred in finding [Victim] first, competent
to testify, and second, by denying Appellant’s Motion alleging
taint?
D. Whether the trial court erred in failing to grant Appellant’s
motion for Judgment of Acquittal as being against the weight
of the evidence?
Appellant’s Br. at 11.
LEGAL ANALYSIS
Prompt Complaint Jury Instruction
In his first issue, Appellant avers that the trial court abused its discretion
when it denied his request for a prompt complaint jury instruction. Appellant’s
Br. at 25. This Court’s standard of review when considering the denial of jury
instructions is one of deference; we will only reverse a court's decision when
the court abused its discretion or committed an error of law. Commonwealth
v. Cannavo, 199 A.3d 1282, 1286 (Pa. Super. 2018). We must determine
“whether the trial court committed a clear abuse of discretion or an error of
law which controlled the outcome of the case.” Commonwealth v. Brown,
911 A.2d 576, 582-83 (Pa. Super. 2006) (citation omitted). “The trial court
is not required to give every charge that is requested by the parties, and its
refusal to give a requested charge does not require reversal unless the
appellant was prejudiced by that refusal.” Commonwealth v. Williams, 176
A.3d 298, 314 (Pa. Super. 2017) (citation omitted). “A charge is considered
adequate unless the jury was palpably misled by what the trial judge said or
there is an omission which is tantamount to fundamental error. Consequently,
the trial court has wide discretion in fashioning jury instructions.”
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Commonwealth v. Snyder, 251 A.3d 782, 790 (Pa. Super. 2021) (citation
omitted).
This Court has explained that “[t]he premise for the prompt complaint
instruction is that a victim of a sexual assault would reveal at the first available
opportunity that an assault occurred.” Commonwealth v. Sandusky, 77
A.3d 663, 667 (Pa. Super. 2013). The instruction permits a jury to call into
question a complainant's credibility when he or she did not report the assault
at the first available opportunity. Id.
“However, there is no policy in our jurisprudence that the instruction be
given in every case.” Id. Rather, “[t]he propriety of a prompt complaint
instruction is determined on a case-by-case basis pursuant to a subjective
standard based upon the age and condition of the victim.” Commonwealth
v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006). “For instance, where an
assault is of such a nature that the minor victim may not have appreciated
the offensive nature of the conduct, the lack of a prompt complaint would not
necessarily justify an inference of fabrication.” Sandusky, 77 A.3d at 667
(citation and internal quotation marks omitted).
Appellant requested that the trial court issue a prompt complaint jury
instruction because there was a significant time lapse between when the
alleged assault occurred and when Victim “finally told someone other than her
friend[,]” and disclosed the assault to Aunt. Appellant’s Br. at 26. Appellant
argues that there is no physical evidence or corroborating eyewitness
testimony and, thus, the sole basis for Appellant’s conviction is a statement
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by six-year-old Victim that Appellant assaulted her. Id. at 25. Appellant
contends that the trial court’s failure to advise the jury that they could
consider Victim’s lack of prompt complaint in their credibility determination
constitutes reversible error because it has a direct effect on the case’s
outcome. Id. at 20.
In making its decision to deny Appellant’s request for a prompt jury
instruction, the trial court considered Victim’s age, the circumstances
surrounding the assault, and the fact that Victim did promptly inform Friend—
an age-appropriate confidant—that she had been assaulted. The trial court
opined:
[Victim]’s prompt complaint was initially hindered by the
circumstances surrounding her assault, i.e., her age, the time of
her assault, her status as a sleepover guest in [Appellant]’s and
[Friend]’s home. Nonetheless, [Victim] confided in her best friend
at the first possible opportunity, when she woke the following
morning, a few hours after the assault when she was not
constrained by [Appellant]’s presence. Our Courts have
repeatedly recognized that minor victims, such as [Victim], out of
fear, embarrassment, and/or shock, are often reluctant to
immediately report their sexual victimization to parents or
authority figures, and are instead, inclined to confide in their like-
aged relatives and closest confidants. . . . As such, [Appellant]
failed to establish that the Court breached the wide discretion
afforded to it on crafting its charge.
Trial Ct. Op., filed 11/20/20, at 8.
Moreover, the trial court found that Appellant was not prejudiced by the
absence of prompt complaint instruction because the trial court charged the
jury with the suggested standard credibility jury instruction, the jury heard
defense counsel’s “skilled cross-examination of the Commonwealth’s
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witnesses,” and the jury heard defense counsel discuss Victim’s credibility
during opening and closing arguments. Id. at 8-9. The trial court concluded
that all of the above “more than sufficiently defined the issues for the jury.”
Id. at 9.
We agree with the trial court that the omission of the prompt complaint
instruction did not constitute a fundamental error and did not prejudice
Appellant. Accordingly, under the facts and circumstances of this case, the
trial court did not abuse its discretion when it denied Appellant’s request for
the instruction.
Tender Years Hearsay Act
In his second issue, Appellant avers that the trial court erred when it
admitted hearsay statements from Aunt and Mother under the Tender Years
Hearsay Act. Appellant’s Br. at 35.
The “[a]dmission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.
Super. 2015) (en banc) (citations omitted). “Accordingly, a ruling admitting
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. Strafford, 194 A.3d
168, 173 (Pa. Super. 2018) (citation omitted).
The Tender Years Hearsay Act creates an exception to the general rule
against hearsay for a statement made by a child who was twelve years old or
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younger at the time of the statement. 42 Pa.C.S. § 5985.1(a).2 Relevant to
this appeal, a court may admit a child-victim’s out-of-court statement for the
truth of the matter asserted when (1) “the court finds, in an in camera hearing,
that the evidence is relevant and that the time, content[,] and circumstances
of the statement provide sufficient indicia of reliability;” and (2) the child
testifies at the proceeding or is deemed unavailable to testify. Id. at §
5985.1(a)(1)(i)-(ii). “Pursuant to this statute, indicia of reliability
include, inter alia, the spontaneity of the statements, consistency in
repetition, the mental state of the declarant, use of terms unexpected in
children of that age, and the lack of a motive to fabricate.” Commonwealth
v. Strafford, 194 A.3d 168, 173 (Pa. Super. 2018) (citation and internal
quotation marks omitted).
Instantly, pursuant to the Tender Years Hearsay Act, the trial court held
a pre-trial hearing and subsequently found that Victim’s out-of-court
statements to Aunt, Mother, Father, and the forensic interviewer were
relevant and provided sufficient indicia of reliability. See Order, 11/25/19.
Specifically, the trial court found that Victim’s statements were spontaneous,
that the details were consistent, and that Victim lacked a motive to fabricate
a story that had the potential to undermine her friendship with her best friend.
Trial Ct. Op. at 11.
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2 Effective August 30, 2021, the Tender Years Hearsay Act provides an
exception to the general rule against hearsay for a statement made by a child
who is sixteen years old or younger at the time of the statement. See 2021
Pa. Legis. Serv. Act 2021-29 (H.B. 156).
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In his main argument, Appellant asserts that the trial court erred when
it did not require Victim to testify prior to “hearsay witnesses” Aunt and Mother
during the trial.3 Appellant’s Br. at 36-40. Appellant concedes that the
“wording of the statute does not specifically address the order of testimony as
it pertains to the victim and hearsay witnesses[.]” Id. at 37. Nonetheless,
Appellant asserts that because the statute requires Victim to either testify or
be deemed unavailable to testify for the hearsay statements to be admissible,
“it is only logical that the victim would testify prior to the hearsay witnesses.”
Id. at 36. Appellant further argues that the hearsay testimony from Aunt and
Mother inappropriately bolstered Victim’s credibility prior to Victim’s testifying
and before counsel could cross-examine her, and asserts that if the trial court
had followed the “logical” and “proper” witness order that the outcome of the
case would have been different. Id. at 37, 40. This argument is purely
speculative and lacks merit.
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3 Appellant also avers, in a one-sentence argument, that the “hearsay
testimony” was not relevant or reliable. Appellant’s Br. at 40-41. Appellant
fails to cite to the record to identify whose testimony he is challenging and
fails to cite to relevant legal authority to develop his argument. Accordingly,
this argument is waived. See Pa.R.A.P. 2119 (describing argument
requirements); Commonwealth v. Sipps, 225 A.3d 1110, 1116 (Pa. Super.
2019) (explaining that failure to develop an argument and cite to legal
authority will result in waiver). Moreover, for the first time on appeal,
Appellant makes another one-sentence argument that the Tender Years
Hearsay Act is unconstitutional. This argument is, likewise, waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”); Commonwealth. v. Lawrence, 99
A.3d 116, 122 (Pa. Super. 2014) (explaining that a challenge to the
constitutionality of a statute can be waived).
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Appellant provides no legal authority to support his argument. Further,
Appellant concedes that the wording of the statute does not address the order
of testimony. We agree. The Tender Years Hearsay Act simply requires that
the child victim “testifies at the proceeding” without including a requirement
that the child testifies first. See 42 Pa.C.S. § 5985.1(a)(1)(ii)(A). It is
axiomatic that “it is not for the courts to add, by interpretation, to a statute,
a requirement which the legislature did not see fit to include.”
Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011) (citation omitted).
We decline to do so here and, thus, find no error.
Victim’s Competency to Testify
Appellant next challenges the trial court’s determination that Victim was
competent to testify during trial. Appellant’s Br. at 41. Appellant argues that
Victim demonstrated that she had no real concept of time and had inconsistent
recollection and testimony about whether she saw Appellant’s penis. Id. at
43-44. Therefore, Appellant argues, the trial court should have found Victim
incompetent and precluded her testimony. Id. at 46. Appellant is not entitled
to relief.
We review a competency ruling for an abuse of discretion.
Commonwealth v. Delbridge, 855 A.2d 27, 34 n.8 (Pa. 2003). “Most
fundamentally, a trial court's judgment is manifestly unreasonable, and
therefore an abuse of discretion, if it does not find support in the record.”
Commonwealth v. D.J.A., 800 A.2d 965, 970 (Pa. Super. 2002)
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In Pennsylvania, competency is a threshold legal issue to be decided by
the trial court. Commonwealth v. Hutchinson, 25 A.3d 277, 290 (Pa.
2011). Although witnesses are generally presumed to be competent,
Pennsylvania law presently requires that child witnesses be examined for
competency. Id. at 289. See Pa.R.E 601(a). Our Supreme Court has
explained, “[t]he capacity of young children to testify has always been a
concern as their immaturity can impact their ability to meet the minimal legal
requirements of competency.” Delbridge, 855 A.2d at 39.
“[W]here a child under the age of 14 is called to testify as a witness, the
trial court must make an independent determination of competency, which
requires a finding that the witness possess (1) a capacity to communicate,
including both an ability to understand questions and to frame and express
intelligent answers; (2) the mental capacity to observe the actual occurrence
and the capacity of remembering what it is that he or she is called to testify
about; and (3) a consciousness of the duty to speak the truth.”
Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014). “A competency
hearing of a minor witness is directed to the mental capacity of that witness
to perceive the nature of the events about which he or she is called to testify,
to understand questions about that subject matter, to communicate about the
subject at issue, to recall information, to distinguish fact from fantasy, and to
tell the truth.” Hutchinson, 25 A.3d at 290 (citation omitted).
To support its competency determination, the trial court acknowledged
that Victim had difficulty remembering the specific date or time of year that
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Appellant assaulted her but explained that additional testimony from Mother
and Victim provided “ample bases” to conclude that Victim was competent
based on the court’s “analysis of the requisite [competency] factors.” Trial
Ct. Op. at 13.
The trial court placed great weight on Victim’s testimony, explaining that
Victim demonstrated her competency during her testimony, particularly when
she “repeatedly established her ability to discern the truth from a lie, as well
as her comprehension as to the significance of telling the truth.” Id.
Specifically, Victim testified: “if you lie, you’re not telling what really
happened; and if you tell the truth, you’re telling what really did happen.” N.T.
Hearing, 10/29/19, at 118-119. Moreover, Victim was able to give multiple
examples of lies, was able to accurately answer whether a statement was a
truth or a lie, was able to describe that telling a lie is “[a] bad thing[,]” and
testified that if you tell a lie, “[y]ou get a consequence.” Id.
Additionally, the trial court emphasized the Mission Kids interview,
where an interviewer asked if anybody besides Appellant has ever shown
Victim their penis, and Victim corrected the interviewer by clarifying that she
did not see Appellant’s penis but just felt it. Trial Ct. Op. at 16. Finally, the
trial court considered Mother’s testimony that Victim is precocious, has a large
and advanced vocabulary, and is knowledgeable about her own anatomy and
body parts. Id. at 14.
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The trial court analyzed the competency factors and concluded that
Victim was able to communicate, able to accurately recall, and understood her
duty to tell the truth. Id. at 13, 14, 17. Our review of the record supports
the trial courts findings, and we, thus, find no abuse of discretion.
Taint Motion
Appellant next avers that the trial court erred when it denied Appellant’s
taint motion, contending that the repeated questioning of Victim by various
family members and investigative personnel as well as the timing of her
disclosure supported a finding of taint. Appellant’s Br. at 47-50. We conclude
that Appellant has waived this issue.
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Commonwealth v. Martz, 232 A.3d 801, 811 (Pa.
Super. 2020) (citation and bracketed language omitted). See Pa.R.A.P. 2119
(listing argument requirements for appellate briefs). This Court “will not act
as counsel and will not develop arguments on behalf of an appellant.
Moreover, when defects in a brief impede our ability to conduct meaningful
appellate review, we may dismiss the appeal entirely or find certain issues to
be waived.” In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (citation
omitted).
Appellant’s argument in support of this issue is substantially
underdeveloped. In his Brief, Appellant fails to provide any legal framework
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to explain what factors the court should consider in determining whether
Victim’s memory was tainted and fails to cite to any relevant legal authority
to support his arguments. This severely hampers our ability to conduct
meaningful appellate review. We decline to act as counsel and, thus, conclude
that this issue is waived.
Motion for Judgment of Acquittal and Weight of the Evidence
In Appellant’s final issue, he avers that the trial court erred in failing to
grant his “motion for judgment of acquittal as being against the weight of the
evidence.” Appellant’s Br. at 11, 51. As a motion for judgment of acquittal
challenges the sufficiency of the evidence, it is unclear to this Court if
Appellant is raising a challenge to the sufficiency of the evidence or the weight
of the evidence. See Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa.
Super. 2014) (explaining that a motion for judgment of acquittal challenges
the sufficiency of the evidence). In any event, both challenges are waived.
In order to preserve a challenge to the sufficiency of the evidence, an
appellant must specify the “the element or elements upon which the evidence
was insufficient” in his Rule 1925(b) statement or face waiver.
Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020)
(citation omitted). Here, Appellant has failed to do so and, thus, has failed to
preserve a challenge to the sufficiency of the evidence. Moreover, Appellant
failed to preserve a challenge to the weight of the evidence in a motion before
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sentencing or in a post-sentence motion as required by Pa.R.Crim.P. 607. See
Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa. Super. 2020).
Even if Appellant had preserved either challenge, this Court would still
find waiver because Appellant’s three-sentence argument is woefully
underdeveloped. As stated above, it is not the role of this Court to develop
an appellant’s argument where the brief provides mere cursory legal
discussion. Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009).
Accordingly, we find that Appellant has waived both challenges and decline to
address the merits of either.
CONCLUSION
In sum, the trial court properly exercised its discretion in denying
Appellant’s request for a prompt complaint jury instruction, applying the
Tender Years Hearsay Act, and finding that Victim was competent to testify.
In addition, we conclude that Appellant’s challenges to the denial of his taint
motion, the weight of the evidence, and the sufficiency of the evidence are
waived. We, thus, affirm
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2022
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