In the Interest of: M.H., a Minor Appeal of: M.H. ( 2017 )

J-S64018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.H., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.H.
No. 342 MDA 2017
Appeal from the Order Entered January 4, 2017
In the Court of Common Pleas of Dauphin County
Juvenile Division at No(s): CP-22-JV-0000267-2016
BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 20, 2017
Appellant, M.H., a minor, appeals from the dispositional order 1 entered
on January 4, 2017, after he was adjudicated delinquent on October 25,
2016, for the crimes of riot, simple assault, and disorderly conduct.2 After
careful review, we affirm.
The juvenile court set forth the relevant factual background in this
matter as follows:
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* Former Justice specially assigned to the Superior Court.
1 Although Appellant styles his appeal as being from the February 1, 2017
order denying his post-disposition motion, the appealable order is the
January 4, 2017 dispositional order, which is the equivalent of the judgment
of sentence in a criminal matter. In re J.D., 798 A.2d 210, 211 n.1 (Pa.
Super. 2002). We have corrected the caption accordingly.
2 18 Pa.C.S. §§ 5501(1), 2701(a)(1), and 5503(a)(1), respectively.
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The instant case involves two (2) separate fights that
occurred after school on March 10, 2016. Portions of both fights
were recorded on bystanders’ cell phone[s] and were admitted
at trial as Commonwealth’s Exhibits 2 (first fight) and 7 (second
fight). The first fight occurred on Orchard Drive approximately
half-way between North Harrisburg and Sixth Streets. The
second fight occurred on Lincoln Street near Daron Alley.
The Commonwealth presented testimony from [“T.M.,” a
juvenile], who sustained head injuries as a result of the fights.
T.M. testified that he was walking home from school on March
10, 2016 when he came across other juveniles fighting and tried
to break it up when someone swung at him. (Notes of
Testimony, Adjudication Hearing 10/25/16 (“N.T.”) at 12.) After
becoming involved in the fight, T.M. testified that he was holding
Appellant, who was on top of him, and trying to stand up, but
other people were fighting around him. (N.T. at 16). T.M. was
trying to protect himself when he was picked up and fell down
again. (Id.) According to T.M., approximately forty (40) people
were in the general vicinity of the first fight. (N.T. at 18). The
fight was eventually broken up by some of the by-standers, and
no one was injured. (Id.)
As for the second fight, T.M. testified that he continued to
walk home when he was approached by Appellant and his two
brothers. (N.T. at 19). T.M. testified that he and Appellant were
fighting one-on-one in the beginning, and then when T.M. got on
top of Appellant, he was “swooped” by Appellant’s brothers.
(N.T. at 23). Thereafter, T.M. blacked out and he “came to” on
the floor in his friend’s home. (N.T. at 24). As a result of the
fight, T.M. sustained a wound to his head as depicted in
Commonwealth’s Exhibit 4.
Appellant also testified during the adjudication hearing. He
stated that he was walking home from school with a group of
people when all of a sudden someone next to him threw a punch
at him. (N.T. at 61). It was a closed fist punch to the left cheek.
(Id.) Appellant backed up and saw T.M. throwing his hands up,
and then T.M. grabbed him. (N.T. at 62). Appellant testified that
he felt that he was “swooped” by T.M. and was not trying to fight
him at that time. (N.T. at 63). According to Appellant, the first
fight was broken up by Appellant’s friend [R]. (Id.).
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After the first fight was broken up, Appellant testified that
T.M. continued to walk behind him cracking jokes and saying
things to him. (N.T. at 64-65). Appellant then saw his brothers
walking towards him, and he and T.M. began to fight one-on-
one. (N.T. at 64-65). Appellant did not call them or send for
them, however, he testified that he heard someone went to get
them. (Id.) Appellant stated that he “grabbed T.M.’s head and he
fell on his head and I just held on there” which caused T.M.’s
head injury. (Id.) Thereafter, Appellant stood up and saw that
there were other people fighting around him. (N.T. at 66).
The Commonwealth also presented testimony from Officer
Dory Thompson (hereinafter “Officer Thompson”) of the Steelton
Borough Police Department. Officer Thompson testified that the
police department received several calls of fights breaking out
after school let out throughout the Borough on March 10, 2016.
(N.T. at 33). The first 911 call came in at approximately 3:00
P.M. wherein the caller advised that there was a fight occurring
at the intersection of Lincoln and Bailey Streets. (N.T. at 34-35).
The fight had already disbursed when she arrived, but she made
contact with the caller who advised that one of the juveniles
involved in the fight left with a head injury. (N.T. at 35).
At approximately 3:30 P.M., Officer Thompson was
dispatched for another call for a fight at the intersection of North
Second and Pine Streets. (N.T. at 35-36). Upon her arrival, she
observed a group of juvenile males on the porch of 109 Second
Street, and a gold vehicle parked across the street with T.M. in
the passenger seat. (N.T. at 37). The males were later identified
as Appellant and his brothers, [J.Z.H. and W.H.] (N.T. at 39).
Officer Thompson then made contact with T.M. and called for an
ambulance to attend to his head injury. (Id.) When questioned
about his injury, T.M. “pointed to the group of males that -
juvenile males that were standing on the porch across the street
and he said that they had jumped him on Lincoln.” (N.T. at 37).
Due to concerns for her safety, as well as the safety of the
public, Officer Thompson requested back-up assistance as there
were four (4) other groups of five (5) to six (6) individuals
congregating in the area. (N.T. at 38). Approximately four (4)
other townships responded to the call - Lower Swatara, Swatara,
Highspire, and Royalton. (Id.)
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Thereafter, Officer Thompson made contact with … T.M.’s
mother, who became agitated and started to walk towards the
juvenile males on the porch. (N.T. at 39). Officer Thompson
stopped her and advised her not to make contact. (Id.) Next,
Officer Thompson made contact with … Appellant’s mother, who
advised her that Appellant was jumped first by T.M. (N.T. at 41).
However, [Appellant’s Mother] was not present during the fight,
and the only information she had was provided to her by
Appellant. (Id.) [Appellant’s Mother] provided Officer Thompson
with a video of the first fight that was entered into evidence as
Commonwealth’s Exhibit 2. (N.T. at 42).
[Appellant’s Mother] testified on behalf of Appellant, her
son. She testified that she had received some telephone calls at
work telling her about the fights. (N.T. at 54). Based on
information that she received, [Appellant’s Mother] placed a 911
call on her way home from work that someone was attempting
to kick in her door with a gun. (N.T. at 54-55). When she arrived
home, [Appellant’s Mother] ran straight to the front door [which]
looked as though it had been kicked out and would not close.
(N.T. at 56). Thereafter, [Appellant’s Mother] had a conversation
with Officer Thompson based on the information she received
through telephone calls earlier, and had not yet had a chance to
speak with Appellant. (N.T. at 57). As previously stated,
[Appellant’s Mother] did not personally witness any of the events
that occurred on March 10, 2016. (N.T. at 58).
Appellant resides near the intersection of Pine and North
Second Streets. On cross-examination, he testified that to get
home from school he typically walks west on Orchard Drive,
turns right travelling north on North Harrisburg Street, and then
left on to Pine Street until he reaches his home. (N.T. at 69-70).
Appellant testified that he was travelling that route on March 10,
2016 when T.M. was following him. (N.T. at 70). On rebuttal,
Officer Thompson testified that he would have had to travel a
different route in order to be present at the second fight. (N.T.
at 73). The second fight occurred near the intersection of Lincoln
and Daron Alley, which is approximately two (2) to three (3)
blocks north of where Appellant resides. Therefore, Appellant
would have had to travel approximately three (3) blocks past the
direction of his home, and another block down, in order to be
present for the second fight. (N.T. at 74).
Juvenile Court Opinion, 4/7/17, at 3-7.
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As noted above, Appellant was adjudicated delinquent on October 25,
2016, for the crimes of riot, simple assault, and disorderly conduct. A
dispositional order was entered on January 4, 2017, and Appellant was
placed on formal probation with school-based supervision, ordered to
complete twenty-five hours of community service, write an essay on conflict
resolution, and attend and comply with cyber school regulations. N.T.,
Disposition, 1/4/17, at 5-6; Juvenile Court Opinion, 4/7/17, at 1-2.
Appellant filed a post-dispositional motion on January 17, 2017. The
juvenile court denied Appellant’s motion on February 1, 2017, and Appellant
filed his notice of appeal on February 16, 2017. Both Appellant and the
juvenile court have complied with Pa.R.A.P. 1925.
Before we address the merits of Appellant’s appeal, we must
determine if this matter is properly before our Court. A notice of appeal
must be filed within thirty days of the entry of the order being appealed.
Pa.R.A.P. 903(a). Pursuant to the Pennsylvania Rules of Juvenile Court
Procedure, a party may file a post-dispositional motion within ten days from
the entry of the order. Pa.R.J.C.P. 620(A). If a timely post-dispositional
motion is filed, the appeal period is tolled, and the party has thirty days from
the entry of the order disposing of the post-dispositional motion in which to
file a timely appeal. Pa.R.J.C.P. 620(B). Because Appellant’s dispositional
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order was entered on January 4, 2017, he had until January 17, 2017, in
which to file a post-dispositional motion.3
When this matter was appealed to this Court, neither the juvenile
court docket nor the certified record reflected the filing of a post-
dispositional motion. Accordingly, Appellant’s February 16, 2017 notice of
appeal appeared untimely having been filed more than thirty days from the
entry of the January 4, 2017 dispositional order. On March 28, 2017, this
Court directed Appellant to show cause why this appeal should not be
quashed as untimely, and on March 31, 2017, we directed the juvenile court
to ensure the accuracy of the juvenile court docket. Appellant responded
that he had filed a post-dispositional motion on January 17, 2017, and the
juvenile court supported Appellant’s assertion. The juvenile court responded
that Appellant had filed a post-dispositional motion, but the motion had been
filed at a docket number associated with a separate case involving Appellant.
Juvenile Court Opinion, 4/7/17, at 2. The juvenile court explained:
The Post-Dispositional Motion was filed to Docket Number 239-
JV-2015 (which was one of [Appellant’s] previous cases).
However, because [the juvenile court] was served with a copy of
the motion, the incorrect number was not recognized, and it was
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3 The tenth day after the entry of the dispositional order fell on Saturday,
January 14, 2017; Monday, January 16, 2017, was Dr. Martin Luther King Jr.
Day. Thus, Appellant had until Tuesday, January 17, 2017, to file a timely
post-dispositional motion. See 1 Pa.C.S. § 1908 (stating that, for
computations of time, whenever the last day of any such period shall fall on
Saturday or Sunday, or a legal holiday, such day shall be omitted from the
computation). Pa.R.A.P. 107; Pa.R.A.P. 903, note.
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disposed of accordingly. On March 28, 2017, the Superior Court
issued a rule upon Appellant to show cause why this appeal
should not be quashed as untimely as the Post-Dispositional
Motion was not docketed to Docket Number 267-JV-2016.
Counsel for Appellant filed a response attaching a copy of the
filed Post-Dispositional Motion (with the wrong docket number).
Thereafter, the Superior Court directed this Court to docket the
Post-Dispositional Motion within fourteen (14) days of the March
31, 2017 Order. It was at this time that this Court realized that
the Post-Dispositional Motion was filed to the wrong docket, and
notified counsel for Appellant to file a praceipe requesting the
Post-Dispositional Motion to be docketed to the correct docket
number.
Juvenile Court Opinion, 4/7/17, at 2, n.4. Although it appears that counsel
has yet to praecipe to have the post-dispositional motion docketed at the
correct docket number, we will consider as done that which should have
been done. We decline to delay the disposition of this appeal and remand to
allow Appellant to complete the ministerial task of filing the aforementioned
praecipe. Accord Commonwealth v. Allen, 420 A.2d 653, 654 n.3 (Pa.
Super. 1980) (deeming “done that which ought to have been done,” and
reaching the merits of an appeal where trial court’s order had not been
entered on the docket); see also Pa.R.A.P. 105(a) (permitting this court to
disregard the strict requirements of the appellate rules in order to expedite a
decision). We are, therefore, satisfied that the January 17, 2017 post-
dispositional motion was timely, it tolled the appeal period, and as a result,
Appellant’s appeal was timely.
On appeal, Appellant raises the following issues for this Court’s
consideration:
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1. Whether the evidence presented at trial was insufficient to
sustain the ajudication [sic] of deliquency [sic] for riot and
disorderly conduct?
2. Did the trial court erred [sic] when it denied [Appellant’s]
motion for a new ajudication [sic] hearing based on the
ajudication [sic] of delinquency was [sic] against the weight of
the evidence?
3. Did the trial court err when it overruled [Appellant’s] objection
to [the] Commonwealth’s introduction of [Appellant’s] pre-arrest
silence?
Appellant’s Brief at 8 (full capitalization and underscoring omitted).
In his first issue on appeal, Appellant challenges the sufficiency of the
evidence underlying his adjudications. When examining a challenge to the
sufficiency of the evidence supporting an adjudication of delinquency, this
Court employs a well-settled standard of review:
When a juvenile is charged with an act that would constitute a
crime if committed by an adult, the Commonwealth must
establish the elements of the crime by proof beyond a
reasonable doubt. When considering a challenge to the
sufficiency of the evidence following an adjudication of
delinquency, we must review the entire record and view the
evidence in the light most favorable to the Commonwealth. In
determining whether the Commonwealth presented sufficient
evidence to meet its burden of proof, the test to be applied is
whether, viewing the evidence in the light most favorable to the
Commonwealth and drawing all reasonable inferences therefrom,
there is sufficient evidence to find every element of the crime
charged. The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by wholly
circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not be absolutely incompatible with a defendant’s
innocence. Questions of doubt are for the hearing judge, unless
the evidence is so weak that, as a matter of law, no probability
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of fact can be drawn from the combined circumstances
established by the Commonwealth.
In Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super. 2016) (citations
omitted). The finder of fact is free to believe some, all, or none of the
evidence presented. Id.
Appellant avers that the Commonwealth failed to produce sufficient
evidence to establish disorderly conduct. Disorderly conduct is defined as
follows:
(a) Offense defined.--A person is guilty of disorderly conduct
if, with intent to cause public inconvenience, annoyance or
alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent
or tumultuous behavior[.]
18 Pa.C.S. § 5503(a)(1).
In the record certified to this Court on appeal, there are video
recordings that reveal Appellant engaging in two fights with T.M. N.T.,
10/25/16, at 13-14, 22-23. Additionally, Appellant admitted to participating
in these fights. Id. at 63, 65. Accordingly, there is sufficient evidence to
establish the elements of disorderly conduct.
Appellant also argues that the evidence was insufficient to establish
the crime of riot. Riot is defined as follows:
A person is guilty of riot, a felony of the third degree, if he
participates with two or more others in a course of disorderly
conduct:
(1) with intent to commit or facilitate the commission
of a felony or misdemeanor[.]
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18 Pa.C.S. § 5501(1).
“The essential element of a riot is group action.” Commonwealth v.
Crawford, 483 A.2d 916, 918 (Pa. Super. 1984) (citing Commonwealth v.
McGavin, 451 A.2d 773, 775 n.4 (Pa. Super. 1982)). As discussed above,
Appellant engaged in fights with T.M., and this behavior constituted
disorderly conduct. The record further reveals that in Appellant’s second
fight with T.M., Appellant’s two brothers joined Appellant in the assault4 on
T.M. N.T., 10/25/16, at 13-27. Thus, Appellant and his brothers
commenced in a “group action” with the intent to fight with and cause bodily
injury to T.M., and this concerted assault and disorderly conduct resulted in
injuries to T.M. We discern no error of law in the juvenile court’s conclusion
that the evidence was sufficient to satisfy the elements of riot.
In Appellant’s second issue, he argues that the adjudication of
delinquency was against the weight of the evidence. We begin our
discussion of this issue with our well-settled standard of review:
We may only reverse the juvenile court’s adjudication of
delinquency if it is so contrary to the evidence as to shock one’s
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4 As discussed above, Appellant was also adjudicated delinquent of simple
assault. “A person is guilty of assault if he … attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another[.]” 18
Pa.C.S. § 2701(a)(1). Simple assault committed during a fight or scuffle
entered into by mutual consent, as is the case here, is graded as a
misdemeanor of the third degree. 18 Pa.C.S. § 2701(b)(1). Appellant does
not challenge the sufficiency of the evidence related to the adjudication for
simple assault.
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sense of justice. Moreover, where the court has ruled on the
weight claim below, an appellate court’s role is not to consider
the underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited to
whether the juvenile court palpably abused its discretion in
ruling on the weight claim.
In re J.M., 89 A.3d 688, 692 (Pa. Super. 2014) (citation omitted). “Hence,
a juvenile court’s denial of a weight claim is the least assailable of its rulings.
Conflicts in the evidence and contradictions in the testimony of any
witnesses are for the fact finder to resolve.” Id. (citation omitted).
After review, we conclude that there was no abuse of discretion in the
juvenile court’s conclusion. The record reveals that Appellant and T.M.
engaged in two fights on March 10, 2016, and both instances were captured
in video recordings. N.T., 10/25/16, at 13-14, 22-23. The video of the
second fight reflects that while Appellant and T.M. were fighting, two
additional people joined Appellant in assaulting T.M. Id. at 11, 22-23.
These individuals were Appellant’s brothers. Id. at 11. There is no dispute
that Appellant was involved in the fight, that the fights occurred on a public
street, that T.M. sustained bodily injury, or that Appellant was aided in his
assault on T.M. by his two brothers. We conclude that the juvenile court did
not abuse its discretion in denying Appellant’s motion for a new hearing.
Accordingly, Appellant is entitled to no relief.
In his final issue on appeal, Appellant argues that the juvenile court
erred when it overruled Appellant’s objection to the introduction of
Appellant’s pre-arrest silence. We disagree.
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Appellant correctly points out that the Commonwealth cannot use a
non-testifying defendant’s pre-arrest silence to support its contention that
the defendant is guilty because such use infringes on a defendant’s right to
be free from self-incrimination. Appellant’s Brief at 20 (citing
Commonwealth v. Molina, 33 A.3d 51, 62 (Pa. Super. 2011)). The
testimony at issue occurred during the Commonwealth’s questioning of
Police Officer Dory Thompson. At the adjudication hearing, the following
exchange took place on the record:
[Deputy District Attorney] Q: Were you able to identify who was
across the street at that time?
[Police Officer Dory Thompson] A: I was, yes.
Q: And who was standing there?
A: [Appellant and his two brothers].
Q: Did you approach them regarding this case?
A: I did, yes. And also present with them was their mother ….
Q: What happened at that point?
A: The juvenile males, [Appellant and his brothers], were - -
[Counsel for Appellant]: Objection. Judge, this calls for
whether or not he’s going to make statements before the
defense has an opportunity to present its case. So, you know,
basically whether he remains silent or didn’t or whatever his
comments were I ask that they not get into that during the
Commonwealth’s case in chief.
THE COURT: This would be whose statements?
[Counsel for Appellant]: I think they’re going to - - the
officer is going to testify as to what [Appellant] might have said
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or didn’t say. And I would suggest that he has - - they can’t
introduce his right to remain silent even at the day of the
incident.
THE COURT: Well, except those are statements,
adverse statements by your client. Whether they come in
is something that - - he may decide whether he’s going to
testify or not but there’s no basis to object to them
coming in at this point - -
[Counsel for Appellant]: All right.
THE COURT: -- I believe. So I’m going to overrule the
objection.
[Counsel for Appellant]: Okay.
THE COURT: And you may proceed
[Deputy District Attorney]:
Q: What happens after you approach the juveniles on the porch?
How does your investigation continue at this point?
A: I attempted to get their side of the story and ask, you know,
why they were standing there, what happened, and not one of
them would answer my questions.
N.T., 10/25/16, at 39-41 (emphasis added).
It appears that there was some confusion regarding what Appellant’s
counsel was objecting to and upon what objection the juvenile court was
ruling. The juvenile court addressed this issue as follows:
During the adjudication hearing, the objection was not
specific. It appears that Appellant’s attorney was unsure whether
Appellant made a statement or remained silent. This Court was
made to believe that Appellant made statements adverse to his
interest, which would be admissible as a hearsay exception to
the Pennsylvania Rules of Evidence. However, when it became
obvious that there was no statement made, that Appellant
apparently did not say anything at all, counsel failed to renew
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the objection. Therefore, this Court finds that the objection was
defective, and failed to give notice to the Court as to a specific
objection. Moreover, when it became obvious that no statements
were made, counsel for Appellant failed to preserve the issue.
Accordingly, the Court did not commit reversible error and the
alleged pre-arrest silence did not play a role in the Court’s
decision.
Juvenile Court Opinion, 4/7/17, at 14. We agree with the juvenile court’s
assessment. “In order to preserve an issue for review, a party must make a
timely and specific objection.” Commonwealth v. Duffy, 832 A.2d 1132,
1136 (Pa. Super. 2003); Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
The notes of testimony reveal that the juvenile court was under the
impression that Officer Thompson was being asked about a statement
Appellant had made, and Appellant’s counsel’s objection did not clarify the
issue. Moreover, when Officer Thompson stated that Appellant gave no
statement, and the grounds for an objection regarding pre-arrest silence
manifested, Appellant’s counsel failed to object on this proper basis. For
these reasons, we agree with the juvenile court that Appellant failed to make
a timely and specific objection, and therefore, this objection to the mention
of pre-arrest silence was waived. Duffy, 832 A.2d at 1136.
Assuming arguendo, that Appellant’s counsel had lodged a proper
objection and that the juvenile court erred in ruling that Officer Thompson’s
testimony was admissible, any error was harmless. “Harmless error exists if
... the properly admitted and uncontradicted evidence of guilt was so
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overwhelming and the prejudicial effect of the error so insignificant by
comparison that the error could not have contributed to the verdict.”
Commonwealth v. Mitchell, 135 A.3d 1097, 1106 (Pa. Super. 2016). As
set forth above, Appellant engaged in a fight with T.M. on a public street,
caused bodily injury to T.M., and Appellant’s brothers joined Appellant in his
assault on T.M. Moreover, there was recorded video evidence of the assault
on T.M. Thus, the properly admitted evidence was overwhelming.
Therefore, even if Appellant had objected and preserved this issue regarding
pre-arrest silence, we would conclude that any error was harmless.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the January 4, 2017 dispositional order.
Order affirmed.
Judge Panella joins this Memorandum.
Justice Fitzgerald notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2017
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