J-S52039-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                  Appellee                :
                                          :
                    v.                    :
                                          :
DERRICK E. SPIVEY,                        :
                                          :
                  Appellant               :    No. 3105 EDA 2015

               Appeal from the PCRA Order September 14, 2015
             in the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003401-2009

BEFORE:      FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED NOVEMBER 01, 2016

      Derrick E. Spivey (Appellant) appeals from the September 14, 2015

order which dismissed without a hearing his petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm in

part, reverse in part, and remand for further proceedings consistent with this

memorandum.

      On December 6, 2010, following a jury trial, Appellant was convicted

of, inter alia, first-degree murder for the death of Marvin Hudson, and was

sentenced to life imprisonment. This Court affirmed Appellant’s judgment of

sentence, and our Supreme Court denied Appellant’s petition for allowance

of appeal.   Commonwealth v. Spivey, 55 A.3d 122 (Pa. Super. 2012)

(unpublished memorandum), appeal denied, 377 EAL 2012 (Pa. December

19, 2012).


*Retired Senior Judge assigned to the Superior Court.
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        Appellant, through privately-retained counsel, timely filed a PCRA

petition on December 16, 2013, and a supplement thereto on February 17,

2015.     The PCRA court issued notice of its intent to dismiss the petition

without a hearing on August 4, 2015. Appellant filed no response, and the

PCRA court dismissed the petition by order of September 14, 2015.

Appellant timely filed a notice of appeal, and both Appellant and the PCRA

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

        Appellant states four questions for our review, which we have re-

numbered for ease of disposition:

        I.    Was trial counsel ineffective because he failed to object to
        the introduction of testimony from a medical examiner who did
        not perform the autopsy and who testified as a replacement for
        the medical examiner who did perform the autopsy?

        II.   Was trial counsel ineffective because he failed to object to
        the court’s instructions on “demeanor evidence”?

        III. Was trial counsel ineffective because he failed to object to
        the court’s final charge in which it defined first degree murder as
        not requiring “planning or previous thought or any particular
        length of time”?

        IV.   Was trial counsel ineffective for failing to move for a
        mistrial when the Commonwealth made it clear that not only
        Karefe Cover identified Appellant as the shooter but that
        Rahman (“Rocky”) Isaac also identified him as the shooter?


Appellant’s Brief at 4 (unnecessary capitalization and PCRA court answers

omitted).

        We begin with the applicable legal principles.



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             Our standard of review of a trial court order granting or
      denying relief under the PCRA requires us to determine whether
      the decision of the PCRA court is supported by the evidence of
      record and is free of legal error. The PCRA court’s findings will
      not be disturbed unless there is no support for the findings in the
      certified record.

Commonwealth v. Perez, 103 A.3d 344, 347 (Pa. Super. 2014) (internal

citation and quotation marks omitted).

      Appellant presents claims of ineffective assistance of counsel.

            [I]n order to obtain relief based on [an ineffective
            assistance of counsel] claim, a petitioner must
            establish: (1) the underlying claim has arguable
            merit; (2) no reasonable basis existed for counsel’s
            actions or failure to act; and (3) petitioner suffered
            prejudice as a result of counsel’s error such that
            there is a reasonable probability that the result of
            the proceeding would have been different absent
            such error.

      Trial counsel is presumed to be effective, and a PCRA petitioner
      bears the burden of pleading and proving each of the three
      factors by a preponderance of the evidence.

Commonwealth v. Steckley, 128 A.3d 826, 831 (Pa. Super. 2015)

(internal citations omitted).

      With his first claim, Appellant asserts that counsel was ineffective in

not objecting when Dr. Lieberman, a medical examiner other than the one

who performed the autopsy of Marvin Hudson, testified at trial as to Mr.

Hudson’s cause of death. Appellant’s Brief at 18-20. Appellant claims that,

because Dr. Lieberman testified as to the conclusions and opinions of Dr.




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Preston, the doctor who had performed the autopsy, Appellant’s Sixth

Amendment right to confront Dr. Preston was violated. Id. at 20-25.

      “Experts may offer testimony based on the reports of others.           In

homicide cases, pathologists may base their opinions on facts from autopsy

reports prepared by others.” Commonwealth v. Mitchell, 570 A.2d 532,

534 (Pa. Super. 1990) (cited with approval in Commonwealth v. Fletcher,

896 A.2d 508, 510 (Pa. 2006)).

      The PCRA court offered the following explanation for its rejection of

Appellant’s claim.

             Dr. Lieberman testified that in preparation for [Appellant’s]
      trial, he reviewed Dr. Preston’s notes, report, and photographs
      from the autopsy of the decedent.          He also conducted an
      independent observation of the clothing the decedent was
      wearing at the time of the shooting. Based on his review, Dr.
      Lieberman rendered his own independent expert opinion as to
      the cause and manner of the decedent’s death. He was then
      cross-examined as to his expert opinion. Since Dr. Lieberman
      came to an independent opinion and was cross-examined as to
      his opinion, [Appellant’s] claim is without merit.

Trial Court Opinion, 12/22/2015, at 5 (citation omitted).

      We find this Court’s decision in Commonwealth v. Buford, 101 A.3d
1182 (Pa. Super. 2014), a case also involving Dr. Lieberman testifying with

the use of another doctor’s autopsy report, instructive. In that case, Buford

made the same argument as Appellant:

      Herein, Dr. Lieberman was called at trial as an expert in forensic
      pathology. He was called as a witness due to the fact that Dr.
      Hunt, the medical examiner who performed the autopsy was no
      longer employed by the Medical Examiner’s Office in Philadelphia


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      and it was claimed that [Dr. Hunt] was not available to testify.
      Dr. Lieberman testified that he reviewed the file. Dr. Lieberman
      apparently agreed with the findings contained in Dr. Hunt’s
      report.
                                    ***

      Dr. Lieberman’s testimony was essentially hearsay.             The
      admission of inadmissible hearsay must always equate with the
      denial of the right of confrontation. The fact that Dr. Lieberman
      was qualified and testified as an expert in forensic pathology
      does not cure the denial of [Buford’s] right to confront Dr. Hunt.

Id. at 1197–98. This Court rejected Buford’s claim based upon the following

analysis of the trial court in that case:

      [Buford] challenges the testimony of Dr. Lieberman because he
      did not conduct the actual autopsy. The autopsy was conducted
      by former Medical Examiner, Dr. Hunt, who by the time of trial
      was with the Riverside, California Medical Examiner’s Office. Dr.
      Lieberman, who at the time of trial was a Philadelphia Medical
      Examiner for 22 years, testified that prior to his testimony he
      reviewed Dr. Hunt’s complete report, the photographs taken
      during the autopsy, the actual clothing worn by the decedent
      and other documents contained in the Medical Examiner’s file.
      Contrary to [Buford’s] assertion, the record is clear that Dr.
      Lieberman did not simply recite the opinion of Dr. Hunt. His
      testimony was based upon his own conclusions after his own
      independent review of the file. …

Id. at 1198 (citations omitted).

      Because Buford is not materially distinguishable from the instant

case, we conclude that the trial court properly held that Appellant’s claim

lacked merit. Further, even if some of Dr. Lieberman’s testimony (i.e., his

recitation   of   some   of   Dr.   Preston’s   findings   and   conclusions)   was

inadmissible hearsay, Appellant fails to convince us that any prejudice

resulted.    Appellant claims that it was “highly prejudicial” because “the


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Commonwealth failed to prove an element of the crime of murder with valid

evidence.”   Appellant’s Brief at 27.    However, (1) the cause and fact of

Hudson’s death was not disputed at trial, and (2) Dr. Lieberman’s testimony

of his independent observations, sans reference to Dr. Preston’s opinions,

was sufficient to establish that Hudson was dead, and that he died of a

gunshot wound. Accordingly, Appellant cannot establish that the outcome of

the proceeding would have been different if the trial court excluded all

references to the opinions of Dr. Preston stated in the autopsy report.

Appellant’s second issue warrants no relief from this Court.

      With his next two issues, Appellant claims that trial counsel was

ineffective in failing to object to two of the trial court’s jury instructions. In

considering these claims, we bear in mind that

      [w]hen evaluating the propriety of jury instructions, this Court
      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(quoting Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super.

2007)).

      First, Appellant contends that counsel should have objected to the trial

court’s jury instruction regarding credibility determinations. Appellant’s Brief


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at 28-34. In so doing, Appellant points to select portions of the following

instruction:

             Credibility, we talked about that. I think I described that
      for you in great detail yesterday.[1] You may say how am I
      qualified to make credibility determinations? Because that’s
      [what] your job is. You do it every day in your life and that’s
      how you got so far in life to be sitting before me today. Co-
      workers, children, friends, spouses, they come to you and tell
      you a story about how something happened. You have to
      decide, [do I] believe this person or not? Would I rely on what
      this person is telling me in making an important decision. How
      do you do that? You look them in the eye when they speak to
      you. You look at their body language, their demeanor, you
      study all that. You listen to their words. Do their words sound
      reasonable, rational, plausible or do they sound ridiculous to
      you. Or maybe their words sound not right, so they you talk to
      other people involved in the incident and get their version. And
      then in the end you make a credibility determination. So each
      and every one of you do that everyday in your life. They are the
      same skills you are called upon to use today.

N.T., 12/1/2010, at 25-26.

      Appellant states that the trial court “invited the jury to make credibility

findings which could easily have led to a conviction based on looking the

witness ‘in the eye,’ studying the ‘body language’ of the witness and his or

her ‘demeanor.’” Id. at 28. Appellant argues that because “[n]o standards

were given the jury on how to make these determinations or on how to

make such judgments,” id., he was deprived of due process based upon

unconstitutionally vague instructions. Id. at 34.



1
  The trial court addressed many of these concepts regarding credibility
determinations with the prospective jurors prior to jury selection. N.T.,
11/30/2010, at 23-24.

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         We are utterly unpersuaded by Appellant’s argument. The instruction

as a whole merely advises the jury to use familiar techniques to judge

whether a declarant is being truthful; it does not order them to perform

some new, undefined form of evaluating of a speaker to discern truthfulness.

Further, Appellant’s bald speculation that the jury could have convicted him

based upon this instruction falls far short of establishing that he suffered

prejudice.     Commonwealth v. Pursell, 724 A.2d 293, 311 (Pa. 1999)

(“Claims of ineffective assistance of counsel that are based on speculation

and conjecture do not adequately establish the degree of prejudice

necessary; namely, that there is a reasonable probability that, but for

counsel’s     errors,   the   outcome   of   the   proceeding   would      have   been

different.”). The issue is meritless.

         Appellant also takes issue with counsel’s failure to object to the trial

court’s defining “first degree murder as not requiring planning or previous

thought or any particular length of time.’”           Appellant’s Brief at 35-43.

Appellant contends that the trial court’s instruction “collapsed all of the

elements of first[-]degree murder into the concept of specific intent to kill”

by stating that the intent to kill is “all that is necessary” for a conviction. Id.

at 36.

         The trial court’s instruction was as follows, in relevant part:

              … Before defining each of these crimes, I will tell you
         about malice which is an element of murder….



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             A person who kills must act with malice to be guilty of any
     degree of murder. The word malice as I am using it has a
     special legal meaning. It does not mean simply hatred, spite or
     ill will. Malice is a shorthand way of referring to any -- in our
     case, two different mental states that the law regards as being
     bad enough to make a killing murder. The type of malice differs
     for each degree of murder. Thus for murder of the first degree,
     a killing is with malice if the perpetrator acts with first an intent
     to kill. Or as I will explain later in my definition of first-degree
     murder, the killing is willful, deliberate and premeditated.

                                      ***

           First-degree murder. The defendant has been charged
     with the offense of first-degree murder. First-degree murder is a
     murder in which the perpetrator has the specific intent to kill.
     To find the defendant guilty of this offense, you must find that
     the following three elements have been proven beyond a
     reasonable doubt. First, that Marvin Hudson is dead. Second,
     that the defendant … killed him.

           … And third, that the defendant did so with the specific
     intent to kill and with malice.

            A person has the specific intent to kill if he has a fully
     formed intent to kill and is conscious of his own intention. As my
     earlier definition of malice indicates, a killing by a person who
     has the specific intent to kill is a killing with malice. Stated
     differently, a killing is with specific intent to kill if it is willful,
     deliberate and premeditated. The specific intent to kill including
     the premeditation needed for first-degree murder does not
     require planning or previous thought of any particular length of
     time. It can occur quickly. All that is necessary is that there be
     time enough so that the defendant can and does fully form an
     intent to kill and is conscious of that intention. When deciding
     whether the defendant had the specific intent to kill, you should
     consider all the evidence regarding his words and conduct and
     the attending circumstances that may show his state of mind.

N.T., 12/3/2010, at 137-38, 143-44.




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      The trial court’s instruction accurately states the law.        See, e.g.,

Commonwealth v. Cruz, 919 A.2d 279, 281 (Pa. Super. 2007) (“A

defendant is guilty of first[-]degree murder when, with the specific intent to

kill, he causes the death of another person.”). Moreover, it tracks exactly

the language of the suggested standard jury instructions, which are as

follows in pertinent part.

             2.    Before defining each of these crimes, I will tell you
      about malice, which is an element of murder but not of
      manslaughter. A person who kills must act with malice to be
      guilty of any degree of murder. The word “malice,” as I am
      using it, has a special legal meaning. It does not mean simply
      hatred, spite, or ill-will. Malice is a shorthand way of referring to
      any of three different mental states that the law regards as
      being bad enough to make a killing murder. The type of malice
      differs for each degree of murder.

             3.      Thus, for murder of the first degree, a killing is with
      malice if the perpetrator acts with first, an intent to kill, or as I
      will explain later in my definition of first-degree murder, the
      killing is willful, deliberate, and premeditated.

                                      ***

             1.   The defendant has been charged with the offense of
      first-degree murder. First-degree murder is a murder in which
      the perpetrator has the specific intent to kill. To find the
      defendant guilty of this offense, you must find that the following
      three elements have been proven beyond a reasonable doubt:

                  First, that [name of victim] is dead;

                  Second, that the defendant killed [him] [her]; and

                  Third, that the defendant did so with the specific
                  intent to kill and with malice.




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             2.     A person has the specific intent to kill if he or she
      has a fully formed intent to kill and is conscious of his or her own
      intention. As my earlier definition of malice indicates, a killing
      by a person who has the specific intent to kill is a killing with
      malice [provided that it is also without [circumstances reducing
      the killing to voluntary manslaughter] [or] [any lawful
      justification or excuse]].

              [3.    Stated differently, a killing is with specific intent to
      kill if it is [willful, deliberate, and premeditated] [by means of
      poison] [by lying in wait].]

              [4.   The    specific  intent    to  kill [including  the
      premeditation] needed for first-degree murder does not require
      planning or previous thought or any particular length of time. It
      can occur quickly. All that is necessary is that there be time
      enough so that the defendant can and does fully form an intent
      to kill and is conscious of that intention.]

Pa. S.S.J.I. (Crim) §§ 15.2501A, 15.2505A (brackets in original).

      Accordingly, Appellant’s counsel was not ineffective in failing to object

to the   trial court’s instructions on malice and first-degree murder.

Commonwealth v. Trivigno, 750 A.2d 243, 252-53 (Pa. 2000) (holding

that even if standard suggested jury instruction were later to be found

improper, counsel could be deemed ineffective in failing to anticipate the

change in the law).

      Finally,   Appellant   claims   that   trial   counsel   rendered   ineffective

assistance in failing to move for a mistrial during the Commonwealth’s

examination of police detective James Pitts.

      We begin by noting that “[m]istrials should be granted only when an

incident is of such a nature that its unavoidable effect is to deprive appellant



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of a fair trial.”   Commonwealth v. Johnson, 815 A.2d 563, 576 (Pa.

2002).

      In the instant case, Detective Pitts testified about his investigation into

the shooting death of Marvin Hudson, including his interview of Karefe

Cover, who identified Appellant as Hudson’s shooter and who testified to that

identification at Appellant’s trial.   In addition, Detective Pitts offered the

following testimony after relating that Rahman “Rocky” Isaac also came in

for an interview after Detective Pitts interviewed Mr. Cover:

      Q.   Now, when did you get an arrest warrant then for
      [Appellant]?

      A.    It was shortly after the second interview, but I have to
      look at the actual date on it.

                                       ***

            THE COURT:         Which second interview?

            A.     I’m sorry. I’m talking about two witnesses. The
            interview of Mr. Isaac, that would be the second
            identifier[]. We need two identifiers in order to get a
            warrant.

            [Appellant’s counsel]:     Objection.

            THE COURT:         Sustained.

N.T., 12/2/2010, at 38-39.

      Appellant contends that trial counsel was ineffective in failing to move

for a mistrial after the trial court sustained his objection to the inadmissible

hearsay testimony that Mr. Isaac also identified Appellant as the shooter.



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Appellant’s Brief at 10-12. He further claims that he was prejudiced because

Mr. Cover’s identification testimony had been impeached earlier in the trial,

and “[a]bsent the fortification and bolstering occasioned by the Isaac

identification, Karefe Cover’s identification was woefully insufficient to

support the conviction.” Id. at 17.

     The PCRA court opined that trial counsel’s “[m]oving for a mistrial

would have been fruitless.”   PCRA Court Opinion, 12/22/2015, at 9 n.3. 2

The court explained: “Here, Detective Pitts’ testimony was not so prejudicial

as to warrant the extreme remedy of a mistrial, and the [trial c]ourt

instructed the jury that they are to disregard any testimony from the witness

after an objection is sustained.” Id. Further, the PCRA court stated, “given

the ample evidence the Commonwealth presented permitting the jury to

conclude [Appellant] was the individual who shot the decedent, [Appellant]

is unable to show prejudice based on Detective Pitts’ isolated and ambiguous

reference to the need for ‘two identifiers’ to obtain an arrest warrant.” Id.

at 10.   Thus, the PCRA court concluded that Appellant was unable to




2
  The lower court’s indication that it would have denied a motion for a
mistrial had counsel made one does not necessarily defeat Appellant’s ability
to establish prejudice. See Commonwealth v. Hanible, 30 A.3d 426, 443
(Pa. 2011) (“To establish prejudice, the petitioner must show that there is a
reasonable probability that the trial court would have granted a motion … or
that counsel would have been successful had he raised such issue on
direct appeal.” (emphasis added; internal quotation marks and citation
omitted)).

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establish that the claim has arguable merit or that he suffered prejudice as a

result of counsel’s failure to seek a mistrial.

      We disagree with the PCRA court’s conclusions.       The statements of

Detective Pitts are not ambiguous: he clearly indicated that the reason they

arrested Appellant is because both Mr. Cover and Mr. Isaac identified

Appellant as the man who shot Marvin Hudson.          Nor was this the only

suggestion the jury heard that more than one person identified Appellant:

the Commonwealth in its opening to the jury used the plural in discussing

Appellant’s identifiers.   N.T., 12/1/2010, at 34 (“[Mr. Cover] then told the

police that when they came out as they were getting in the car they started

to hear the shots and looked up, they saw [Appellant]. They knew him as

D. … And they said all we know is D start[ed] shooting at us.”) (emphasis

added).    Furthermore, the trial court’s instruction to the jury to ignore

answers when objections are sustained was given as a general instruction

before any witness testified, N.T., 12/1/2010, at 27-28, not as a curative

instruction following its sustaining of the objection to Detective Pitts’

statement that Mr. Issac was the second person to identify Appellant as the

shooter.

      Furthermore, contrary to the PCRA court’s determination, our review

of the record reveals that the Commonwealth’s identification evidence was

far from abundant.     The Commonwealth did offer much evidence to prove

that Marvin Hudson was murdered while sitting in a vehicle by a shooter who


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stood on the opposite side of the street.    However, the only evidence the

Commonwealth proffered to tie Appellant to the murder was the testimony

of Mr. Cover, who testified, consistent with his statement to the police, that

Appellant was the shooter. Mr. Cover indicated that he had known Appellant

for a couple of years as a person who hung out on Wister Street, but he had

never spoken to him or had any problems with him.        N.T., 12/1/2010, at

116-17. Mr. Cover repeatedly stated, on both direct and cross examination,

that the reason that he knew Appellant was the person who shot Hudson is

because Appellant has a green goblin tattoo on his neck and Mr. Cover saw

that tattoo on the shooter. Id. at 115, 121, 159-60. He was adamant that

the person who shot Marvin Hudson had a green goblin tattoo. Id. at 183.

During Mr. Cover’s testimony, Appellant was asked to unbutton his shirt and

show his neck, and the record reflects that Appellant complied. Id. at 159.

While no one stated for the record exactly what Appellant’s compliance

revealed, it is implicit from the further proceedings that Appellant does not

have a tattoo on his neck meeting Mr. Cover’s description.

      The Commonwealth confirmed that Mr. Cover never mentioned the

tattoo when he identified Appellant to police, and that the photo of Appellant

Mr. Cover selected for police as that of the shooter did not display a tattoo.

Id. at 174-75. The Commonwealth also introduced evidence that Mr. Cover

may have had a motive to sabotage his identification of Appellant.     Id. at

180. Nonetheless, the Commonwealth’s only evidence identifying Appellant


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as the man who murdered Marvin Hudson clearly and repeatedly had been

called into doubt.

      On this evidence, we hold that there is arguable merit to Appellant’s

claim that counsel was ineffective for failing to seek a mistrial after Detective

Pitts stated that a second person identified Appellant as Marvin Hudson’s

shooter. “[W]hen an arguable claim of ineffective assistance of counsel has

been made, and there has been no evidentiary hearing in the [PCRA court]

to permit the defendant to develop evidence on the record to support the

claim, and to provide the Commonwealth an opportunity to rebut the claim,

this Court will remand for such a hearing.” Commonwealth v. Walls, 993
A.2d 289, 296–97 (Pa. Super. 2010).

      Accordingly, we reverse the PCRA court’s order to the extent that it

dismissed Appellant’s claim regarding Detective Pitts’ statement and we

remand for a hearing on that claim alone.             We affirm the dismissal of

Appellant’s other claims.

      Order affirmed in part and reversed in part.           Case remanded for

further   proceedings   consistent   with     this   memorandum.     Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 11/1/2016




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