State v. Kotomski , 2016 Ohio 4731 ( 2016 )

[Cite as State v. Kotomski, 2016-Ohio-4731.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2015-A-0047
- vs - :
TERESA KOTOMSKI, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2014
CR 00153.
Judgment: Affirmed.
Mike DeWine, Ohio Attorney General, State Office Tower, 30 East Broad Street, 16th
Floor, Columbus, OH 43215, and Paul L. Scarsella, Special Assistant Prosecutor, Ohio
Attorney General’s Office, 150 E. Gay Street, 16th Floor, Columbus, OH 43215 (For
Plaintiff-Appellee).
Paul H. Hentemann, 38052 Euclid Avenue, #103, Willoughby, OH 44094, and Mary
Jane Trapp, Thrasher, Dinsmore & Dolan, L.P.A., 1400 West Sixth Street, Suite 400,
Cleveland, OH 44113 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Teresa Kotomski, appeals her conviction for Murder,
following a trial to the court in the Ashtabula County Court of Common Pleas. The
issues to be determined by this court are whether a murder conviction is supported by
the weight and sufficiency of the evidence when the defendant’s husband is shown to
have died from antifreeze ingestion in a timeframe when the parties had been fighting
and spent the day together, and whether reversal for an inconsistent verdict is
warranted when the defendant is convicted of Murder based on poisoning the victim
with antifreeze but is acquitted of Contaminating a Substance for Human Consumption.
For the following reasons, we affirm the judgment of the court below.
{¶2} On March 26, 2014, the Ashtabula County Grand Jury issued an
Indictment, charging Kotomski with one count of Murder, an unclassified felony, in
violation of R.C. 2903.02(A); and one count of Contaminating a Substance for Human
Consumption, a felony of the first degree, in violation of R.C. 2927.24(B)(1) and (E)(1).
{¶3} On March 25, 2015, the State filed a Motion for Similar Acts, asserting
that, pursuant to allegations by Teresa’s ex-husband, in 1980, Teresa had poisoned him
and his dog. The court did not allow this evidence to be admitted at trial.
{¶4} A trial before the judge was held on July 27 and 28, 2015. The following
pertinent testimony and evidence were presented.
{¶5} On August 13, 2009, around 9:20 a.m., 911 dispatcher Lonna Arcaro
received a call, with no response from the caller. She dialed the caller back and spoke
to Teresa Kotomski, who explained that she needed an ambulance to respond to her
home on Hammond Corner in Pierpont, stating “it’s my husband.”
{¶6} Pierpoint Fire Department EMTs, Chad Carter and Norm Woodard, arrived
at the residence, where other responders were treating Raymond Kotomski, and
preparing to take him to the ambulance. Raymond was unresponsive and Woodard
observed that he was “gasping for breath, and he had a lot of foam around his mouth.”
Carter spoke to Teresa, who was at the scene. Teresa stated that she and Raymond,
her husband, “had been arguing,” she left the residence, and Raymond “contacted her
and said that he drank something sweet.” She also stated that he was an alcoholic.
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Carter observed that the inside of the home was very clean and he did not notice any
beer bottles or other items Raymond might have ingested lying around, aside from
some soda cans on the counter.
{¶7} Teresa rode in the ambulance to the hospital. According to Woodard, she
was “distraught” and said that she and Raymond had been fighting “two days ago”
about his drinking and she left. She expressed a belief that his present condition was
from alcohol.
{¶8} Teresa also told Ed Giblin, a Pierpont Fire Department paramedic, that
Raymond “drank something that was sweet” which “dried his mouth out” and told her
“she would be sorry.” Teresa told Giblin that Raymond “went out to the garage” and
took something like kerosene or gasoline.
{¶9} Upon his arrival at the hospital, Raymond was evaluated by Dr. Marian
Barnett-Rico. She was informed that he had a history of alcohol use, but tests showed
no alcohol in his system. Raymond was quickly intubated to help with his breathing,
and Teresa informed her that “he didn’t want * * * any prolonged * * * mechanical
ventilation.” Dr. Barnett-Rico explained that they had to determine what was wrong
before deciding whether he would be on a ventilator for an extended period of time.
Teresa said that he had been threatening to kill himself but she did not think he would.
Dr. Barnett-Rico decided to transfer Raymond to Hamot Medical Center, aware that he
may have ingested antifreeze based on information she received from Teresa and the
acidic levels of his blood.
{¶10} At Hamot, Dr. Elizabeth Gall noted that Raymond needed to be tested for
a toxic ingestion. Teresa also informed her that he mentioned drinking “something
sweet.” This, combined with the physical presentation of Raymond, led her to believe
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he may have ingested antifreeze. The test for ethylene glycol (found in antifreeze) was
positive.
{¶11} According to Dr. Gall, Teresa indicated she had been arguing with
Raymond, and that she had been with him on the 11th when he was fine. Teresa stated
that he had not mentioned being suicidal.
{¶12} Dr. Gall described the effects of ingesting antifreeze. From 30 minutes to
12 hours afterward, a person has neurological symptoms, acting intoxicated. From 12
to 24 hours, the person may have breathing and heart rhythm issues. From 24 hours
to 72 hours a person will begin to have renal failure and acidosis. When Raymond
arrived, he was in the late stages. She explained that the antifreeze could have been
consumed approximately 24 to 48 hours before she saw Raymond.
{¶13} Although Raymond was treated for ingestion of ethylene glycol, he did not
regain consciousness and the neurologist believed his prognosis was “grim.” Life
support was ceased on the third day after he was hospitalized and Raymond died on
August 16. Dr. Gall’s death summary indicated that the principal diagnosis was acidosis
and ethylene glycol toxicity.
{¶14} Kim Flickinger, Raymond’s daughter, went to see him when he was
hospitalized, but explained that she was not involved in the decision to terminate life
support, made by Teresa. Teresa stated “you don’t know what I went through for the
last 4 years.” Flickinger requested to have the body turned over to her, which Teresa
allowed on the conditions that she “had to have him cremated and that [Teresa] wanted
to make sure [Kim] wouldn’t be the beneficiary.”
{¶15} The following testimony and investigation established the events leading
up to Raymond’s illness and death:
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{¶16} Special Agent Robert McBride of the FBI spoke with Teresa about the
events in the days preceding Raymond’s death. Teresa indicated that she had moved
out of her home with Raymond and into an apartment on August 8, 2009. She was
having arguments with Raymond regarding their grandchildren. According to Special
Agent Lance Fragomeli of the FBI, Teresa indicated that Raymond favored one of the
grandchildren, and that Raymond was generally angry and “at times was verbally and
emotionally abusive.”
{¶17} Laura McCoy described that she rented an apartment to Teresa, with a
move-in date of August 1 set. Although Teresa paid August rent, McCoy “never saw
any evidence that she ever moved into the apartment.” On August 7, Teresa said there
was a flea problem. The apartment was rented to another tenant on August 22.
{¶18} On August 8, pursuant to the testimony of Joanne Gurowski, Raymond’s
niece, he visited her home in Pennsylvania to collect firewood. On that date, Raymond,
who she described as “a happy, jovial person,” was acting normally, spent time with her,
and joked around with family members. Daniel Gurowski, Joanne’s husband, noted that
Raymond had lunch with them, and acted normally. They spoke about a television
show and watched TV together.
{¶19} According to Special Agent McBride, Teresa indicated that she, Raymond,
and the grandchildren “took a day trip” on August 11, eating, getting ice cream, and
feeding fish. This trip began at around 10 a.m. and concluded at 5 or 6 p.m. After
arriving at their residence, the two discussed reconciling, argued, and she went to her
apartment. She was to return to the home to see Raymond that evening, but after a
subsequent argument over the telephone, she did not do so.
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{¶20} According to Mark Kollar, a Special Agent Supervisor for the Ohio Bureau
of Criminal Investigation, on August 11, there were short calls between Raymond and
Teresa between 9 and 10:20 a.m. The next call did not take place until 6:42 p.m. on
that date, consistent with Teresa’s statement that they spent the day together.
Raymond made several short calls to Teresa between that time and 8 p.m., when
Teresa called him back and the calls were longer. Several calls took place between the
two, continuing until after midnight. Kollar characterized these as a “substantial amount
of calls.”
{¶21} Phyllis Allen, Teresa’s friend, had a phone conversation with Raymond
before he became sick, with him being upset because Teresa left him. On August 11,
she received a voicemail message, in which he apologized. She described him as
sounding like he had been drinking, which she had known him to do. This voicemail
message was presented as evidence. Subsequent testimony regarding cell phone
records demonstrated that the call occurred at 10:17 p.m.
{¶22} Beginning at around 9:30 a.m. on the 12th, phone records indicated that
Teresa made several calls to Raymond, ending with a 1:45 p.m. call and resuming at
9:24 p.m. Teresa also called several times on the morning of the 13th.
{¶23} Teresa told Agent McBride that she visited Raymond on the morning of
the 12th, staying a few hours. According to Agent Fragomeli, Teresa went to the house
to do some laundry. When she arrived he was ill, had labored breathing, complained of
pain in his stomach, had thrown up, and was “moaning.” She wanted him to seek
medical assistance, but he refused. She indicated that he told her he drank something
sweet, which she assumed was Dr. Pepper. She called various times that night but did
not receive a response. Kollar noted that the records demonstrated Teresa’s statement
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that she was at the residence at 11 a.m. on the 12th to do laundry for a few hours was
inconsistent, since there were phone calls between the two during that time.
{¶24} On the 13th, Teresa had her mother check on Raymond, who discovered
him unresponsive, and Teresa called 911. McBride noted that Teresa made a comment
about Raymond “potentially killing himself,” but he did not have “the stomach for it.”
{¶25} An investigation started after Raymond’s death, with a search of his home
conducted. Detective Sean Ward of the Ashtabula County Sheriff’s Office took various
photographs of the home. An opened jug of antifreeze was located in the garage.
Although some used cans were tested for traces of antifreeze, the results were
negative.
{¶26} Kollar testified that a wiretap was performed on Teresa’s phones in 2012.
Several excerpts of phone calls from the wiretaps were played before the court. In one
conversation, she talks about the investigation and whether the State has proof. Teresa
stated, “Well if they had it they would have gotten me before don’t you think?” In a
conversation with another individual, she explained that she has to “stand [her] guns,”
and notes “that’s my story three years ago and that’s my story now,” referring to it as
being “my truth,” but denying responsibility for the murder.
{¶27} Detective George Cleveland of the Ashtabula County Sheriff’s Office
noted that, although a bittering agent is now generally added to antifreeze to prevent
consumption, this was not required in Ohio in 2009. Tests confirmed that there was no
bittering agent in the antifreeze found at the Kotomskis’ home. No DNA or fingerprints
of Raymond or anyone else were found on the bottle. His investigation showed no
evidence to support a finding that Raymond committed suicide.
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{¶28} Dr. Eric Vey, a forensic pathologist, performed an autopsy, finding the
cause of death to be complications of ethylene glycol toxicity and the manner of death
undetermined. He described a similar timeline of ethylene glycol poisoning as Dr. Gall,
and agreed that the antifreeze could have been consumed one to three days before
Raymond’s hospitalization. Dr. Vey noted that 3.3 ounces of antifreeze can be lethal.
{¶29} Dr. Joseph Felo of the Cuyahoga County Medical Examiner’s Office
testified for the defense. He explained that, given Raymond’s size, being around 250
pounds, it would take more ethylene glycol to poison him than a smaller individual. Dr.
Felo agreed that it would be logical for a person to seek medical attention after
exhibiting symptoms from a poisoning. Dr. Felo found that Raymond “likely did not
ingest a large dose at one time, because people who do will have a short survival period
between time of ingestion and time of death,” with elevated levels of ethylene glycol.
Dr. Felo agreed that the level of ethylene glycol found in Raymond’s blood may have
been lower if some of it had metabolized when the blood sample was taken.
{¶30} On July 30, 2015, the trial court found Teresa guilty of Murder as charged
in the indictment and acquitted her of Contaminating a Substance for Human
Consumption. This was memorialized in a Judgment Entry on that date.
{¶31} On the same date, Teresa was sentenced to an indefinite term of 15 years
to life imprisonment. A Judgment Entry of Sentence was filed on August 4, 2015.
{¶32} Teresa timely appeals and raises the following assignments of error:
{¶33} “[1.] The trial court erred to the prejudice of the defendant-appellant in
denying her Crim.R. 29(A) motion for acquittal because the state failed to present
sufficient evidence to establish the element necessary to support a conviction of murder
beyond a reasonable doubt in violation of R.C. 2903.02(A).
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{¶34} “[2.] The trial court erred as a matter of law and fact to the prejudice of the
defendant-appella[nt] in finding sufficient evidence to convict her of murder in violation
of R.C. 2903.02(A) by means of antifreeze poisoning, while finding insufficient evidence
to convict her of contaminating a substance for human consumption inasmuch as these
findings are inherently inconsistent.
{¶35} “[3.] The trial court’s verdict finding the defendant-appellant guilty of
murder is against the manifest weight of the evidence.”
{¶36} In her first assignment of error, Teresa argues that the court erred in
denying her Crim.R. 29(A) motion for acquittal since there was insufficient evidence to
support a Murder conviction.
{¶37} In reviewing the sufficiency of the evidence, an appellate court must
“examine the evidence admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the defendant’s guilt beyond a reasonable doubt.”
State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979). “The relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.” Id. “In essence, sufficiency
is a test of adequacy.” State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541(1997).
{¶38} To convict Teresa of Murder, the State had to prove, beyond a reasonable
doubt, that she “purposely cause[d] the death of another.” R.C. 2903.02(A).
{¶39} Teresa argues that there was insufficient evidence for a Murder
conviction, given the lack of evidence that she caused Raymond to ingest antifreeze.
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She asserts that the circumstantial evidence of phone calls between the two, her
interactions with Raymond on the dates leading up to his death, and her statements
regarding taking him off of the ventilator are insufficient to sustain a conviction.
{¶40} We find that the evidence was sufficient to maintain the conviction. There
was evidence to support a conclusion that Teresa had access to Raymond and the
home and had been having a conflict with him in the days leading up to his poisoning.
The State’s timeline of her interactions with him, including their time spent together on
August 11, matches the timeframe in which he would have been poisoned, based on
the symptoms he exhibited. He also showed signs of poisoning in the voicemail he left
that evening at 10:17 p.m. Teresa’s statement regarding Raymond’s desire not to be
supported by a ventilator is also noteworthy, as it was made before doctors had even
discovered what may be causing his symptoms/unresponsiveness. This evidence
shows reason and access to commit the murder.
{¶41} Teresa takes issue with the trial court’s conclusion that she stated
Raymond did not want to be on an artificial breathing device for a long period of time,
arguing that it is contradicted by Dr. Gall’s testimony that she was unaware of
discussions regarding removal of Raymond from life support. It is unclear why Teresa
cites this testimony. The trial court’s finding is supported by the testimony of Dr.
Barnett-Rico. She testified that when she intubated Raymond, Teresa indicated that he
did not want prolonged mechanical ventilation, and Dr. Barnett-Rico explained that they
were not yet aware at the time if Raymond’s illness could be remedied. This discussion
took place within a short time after Raymond’s arrival at the emergency room. Dr.
Barnett-Rico found Teresa’s statement to be “unusual” and “a little out of the blue,”
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given those circumstances. The court’s conclusion on this issue, then, was supported
by sufficient evidence.
{¶42} Given these facts, there was sufficient evidence to support Teresa’s
convictions. See State v. McFeeture, 2015-Ohio-1814, 36 N.E.3d 689, ¶ 45 (8th Dist.)
(the victim’s death from chronic intoxication of antifreeze, “coupled with testimony about
the troubled relationship between [the victim and defendant]” and the “opportunity” for
the defendant to contaminate a beverage the victim regularly consumed, provided
sufficient evidence to support the conviction).
{¶43} The first assignment of error is without merit.
{¶44} In her second assignment of error, Teresa argues that the court erred by
finding sufficient evidence to convict her of Murder through the use of antifreeze but not
finding sufficient evidence to convict her of Contaminating a Substance for Human
Consumption. Teresa contends that it was inherently inconsistent to find that she
caused Raymond to ingest antifreeze but did not place it in something he would ingest.
{¶45} Pursuant to R.C. 2927.24(B)(1), Contaminating a Substance for Human
Consumption is committed when a person “[k]nowingly mingle[s] a poison, hazardous
chemical, * * * or other harmful substance with a food, drink, nonprescription drug,
prescription drug, or pharmaceutical product, * * * if the person knows or has reason to
know that the food, drink, nonprescription drug, prescription drug, pharmaceutical
product, or water may be ingested or used by another person.”
{¶46} As an initial matter, this court has held that “[i]nconsistent verdicts do not
provide a basis for a new trial. In fact, the Ohio Supreme Court has long held that
inconsistent verdicts on different counts in a multi-count indictment provide no basis for
retrial.” State v. Barringer, 11th Dist. Portage No. 2004-P-0083, 2006-Ohio-2649, ¶ 53;
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State v. Fernandez, 11th Dist. Lake No. 2001-L-162, 2002-Ohio-7140, ¶ 61.
“[I]nconsistency in a verdict does not arise out of inconsistent responses to different
counts, but only arises out of inconsistent responses to the same count.” State v.
Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), paragraph one of the syllabus;
State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 81.
{¶47} Teresa argues that the foregoing case law is inapplicable when a case is
tried to the bench, since the concerns raised in a jury trial do not apply, such as
unanimity among juries. U.S. v. Maybury, 274 F.2d 899, 903 (2d Cir.1960).
{¶48} The decision in Maybury is not binding on this court and this argument has
been rejected in Ohio, where the inconsistency principle outlined above has been
applied in both jury trials and bench trials. State v. Smith, 8th Dist. Cuyahoga No.
81344, 2003-Ohio-3215, ¶ 31 (an inconsistent verdict in a bench trial was permitted to
stand, as “it is not necessary to fashion a higher standard for judges” than juries); State
v. Henderson, 1st Dist. Hamilton No. C-130541, 2014-Ohio-3829, ¶ 25.
{¶49} Regardless, the trial court’s verdicts were not inconsistent. The court’s
judgment entry, providing reasoning for its decision, aids in this determination. The
court stated in its judgment that the State did not show “what the defendant mingled a
harmful substance with, that is, food, drink * * [or] drug.” In other words, the State failed
to prove in exactly what substance the antifreeze was placed. This prevented a
conviction on this charge only, since the court did not find that the State failed to prove
that Teresa poisoned Raymond with antifreeze by some method, just that it did not
show which substance in particular was poisoned. Whether it was necessary to prove
which substance was poisoned to obtain a conviction on this charge is irrelevant.
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{¶50} Teresa also contends that an exception to the rule of inconsistent verdicts
applies, that verdicts involving “interlocking charges” allow for reversal. State v. Kelley,
109 So.3d 316, 317-318 (Fla.App.2013). Again, however, given the elements of the
crime and the court’s explanation for its verdict, it did not need to find that the antifreeze
was in any substance, or in a specific substance, in order to convict Teresa of Murder.
{¶51} The second assignment of error is without merit.
{¶52} In her third assignment of error, Teresa makes several arguments related
to the facts of this matter in support of her contention that her conviction was against the
manifest weight of the evidence.
{¶53} Manifest weight of the evidence “addresses the evidence’s effect of
inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, citing Thompkins, 78 Ohio St.3d at 386-387, 678 N.E.2d 541. “In other
words, a reviewing court asks whose evidence is more persuasive -- the state’s or the
defendant’s?” Id. An appellate court considering whether a verdict is against the
manifest weight of the evidence must consider all the evidence in the record, the
reasonable inferences, the credibility of the witnesses, and whether, “in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that the conviction must be reversed and a new trial ordered.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717(1st Dist.1983).
{¶54} Teresa points out various alleged flaws in the State’s evidence. As an
initial matter, it is important to emphasize that, while each individual piece of evidence
alone may not prove Teresa’s guilt, the combination of this evidence is what supports
the Murder conviction. This applies to the argument that the timeline does not prove
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that Teresa committed the murder but Raymond could have ingested the antifreeze
after she left on the 11th. The timeline clearly shows that the antifreeze was ingested
sometime on the evening of the 11th. The continued communication by Teresa and
Raymond, the arguments between the two, and Teresa’s inconsistent statements serve
to bolster the finding that she was responsible for Raymond’s poisoning. The fact that
Teresa did not seek help on the 12th when she saw Raymond was very ill, and that she
made an immediate and unusual request to prevent supportive breathing machines,
while possibly explained by Teresa’s arguments if viewed separately, again weigh
against her when viewed in the context of the totality of the evidence.
{¶55} Teresa also argues that Raymond’s potential suicide provides reasonable
doubt, noting that the evidence presented does not contradict this possibility.
Considering the evidence against suicide in its totality, this possibility does not render
the conviction against the manifest weight of the evidence. While it may be speculation
that a person would be unlikely to commit suicide by consuming antifreeze, it is clear
that it causes a long and likely painful death. Further, Teresa made inconsistent
statements about her belief that Raymond may have been suicidal, a contention which
is not supported by anyone other than the defendant. This is also contradicted by
testimony of relatives that Raymond had been acting normally just a few days prior to
the poisoning, giving no indication that he was suicidal. This is further supported by the
fact that several investigators reported no signs whatsoever that Raymond had
committed suicide. It is unusual that there was no evidence that he voluntarily
consumed antifreeze, such as his fingerprints or DNA on the open antifreeze bottle or
cans with antifreeze remnants. It seems unlikely that Raymond would cover up his own
suicide, while such is not the case for Teresa.
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{¶56} For these reasons, Teresa’s conviction is not against the manifest weight
of the evidence. See State v. Auerswald, 9th Dist. Medina No. 11CA0053-M, 2013-
Ohio-742, ¶ 46 (where there were inconsistencies in the defendant’s statement,
evidence that contradicted a finding of suicide, ongoing marital discord, and testimony
that antifreeze found in the marital residence did not contain a bittering agent, a
conviction for Murder was not against the weight of the evidence).
{¶57} The third assignment of error is without merit.
{¶58} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, finding Teresa guilty of Murder, is affirmed. Costs to be taxed against
appellant.
CYNTHIA WESTCOTT RICE, P.J.
COLLEEN MARY O’TOOLE, J.
concur.
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