Com. v. Tyson, J. , 119 A.3d 353 ( 2015 )

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2015 PA Super 138COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JERMEEL OMAR TYSON
Appellee No. 1292 MDA 2013
Appeal from the Order June 18, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005578-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, J., DONOHUE, J., SHOGAN, J., MUNDY, J., OLSON, J.,
and OTT, J.
OPINION BY GANTMAN, P.J.: FILED JUNE 10, 2015
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Berks County Court of Common Pleas, which denied the
Commonwealth’s motion in limine to introduce at trial Appellee Jermeel
Omar Tyson’s prior conviction and granted Appellee’s corresponding motion
in limine to exclude this evidence. We reverse and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows.
On July 31, 2010, G.B. left work because she felt ill after donating plasma.
G.B. asked Appellee, whom she knew casually, to bring her some food.
Appellee arrived at G.B.’s apartment and stayed as she fell asleep. During
the early morning hours of August 1, 2010, G.B. claims she awoke to find
Appellee having vaginal intercourse with her. Appellee told G.B. she had
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taken her pants off for him. G.B. claims she told Appellee to stop, and he
complied. After falling back asleep, G.B. woke again later that night and
went into her kitchen, where she allegedly found Appellee naked. G.B.
claims she told Appellee she did not want to have sex with him and returned
to bed. Shortly thereafter, G.B. claims, she woke up; and Appellee was
again having vaginal intercourse with her. G.B. told Appellee to stop and
asked him what he was doing. Appellee told G.B. her eyes were open the
whole time. G.B. told Appellee to leave her apartment. G.B. then went to a
hospital for treatment.
The Commonwealth charged Appellee with rape, sexual assault,
indecent assault, and aggravated indecent assault. On May 31, 2013, the
Commonwealth filed a motion in limine, which sought to introduce evidence
of Appellee’s 2001 conviction for rape in Delaware, pursuant to Pa.R.E.
404(b).1 The Commonwealth’s motion in limine was premised on two
theories: (1) Appellee’s prior rape conviction is admissible to show his rape
and assault of G.B. was part of a common scheme or plan; and (2) the prior
conviction is admissible to show Appellee did not “mistakenly” conclude G.B.
“consented” to sexual intercourse with him. On June 3, 2013, Appellee filed
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1
On July 16, 2000, Appellee was at a party at the home of T.B. Appellee
was a friend of T.B.’s brother. T.B. drank alcohol at the party and went to
sleep in her bedroom at approximately 5:00 a.m. She later awoke to find
Appellee having vaginal intercourse with her. Appellee pled guilty to rape on
June 11, 2001, and spent five years in prison.
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a motion in limine seeking to preclude his prior rape conviction.
Following a hearing, the trial court denied the Commonwealth’s motion
in limine, granted Appellee’s motion in limine, and on June 18, 2013,
declared Appellee’s prior conviction inadmissible. On July 18, 2013, the
Commonwealth filed a timely notice of appeal.2 By memorandum decision
on April 21, 2014, a panel of this Court (with one dissent) affirmed the trial
court’s order of June 18, 2013. On July 3, 2014, this Court granted the
Commonwealth’s application for en banc reargument and withdrew the prior
memorandum decision.
The Commonwealth raises one issue for en banc review:
DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN
DENYING THE COMMONWEALTH’S MOTION IN LIMINE TO
INTRODUCE EVIDENCE OF [APPELLEE’S] PRIOR CRIME
AND GRANTING [APPELLEE’S] MOTION IN LIMINE, WHERE
SAID EVIDENCE IS ADMISSIBLE PURSUANT TO PA.R.E.
404(B)?
(Commonwealth’s Brief at 4).
In its sole issue, the Commonwealth argues the facts of the present
case and the facts of Appellee’s prior rape conviction demonstrate that
Appellee engaged in a pattern of non-consensual sexual intercourse with
acquaintances who were in an unconscious or diminished state. The
Commonwealth contends that in each case, Appellee deliberately took
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2
The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the court’s
order would substantially handicap the prosecution.
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advantage of the victim’s diminished state and inability to consent. The
Commonwealth highlights numerous similarities between the two incidents:
(1) the victims were the same race and similar in age; (2) both victims were
casually acquainted with Appellee; (3) Appellee’s initial interaction with each
victim was legitimate, where Appellee was invited into the victim’s home;
(4) Appellee had vaginal intercourse with each victim in her bedroom; (5)
both incidents involved vaginal intercourse with an alleged unconscious
victim who woke up in the middle of the act; and (6) in each case, Appellee
knew the victim was in a compromised state. The Commonwealth asserts
the period between the two incidents is only five years, when we exclude the
time Appellee spent in prison on the prior rape conviction, and the passage
of five years’ time is outweighed by the similarities of the two acts. In light
of these similarities, the Commonwealth claims Appellee’s prior conviction is
admissible under the common plan or scheme exception to Rule 404, which
generally prohibits evidence of prior crimes.
The Commonwealth further argues Appellee’s prior conviction is
admissible under the absence of mistake or accident exception, namely, to
show Appellee made no mistake when he assessed G.B.’s ability to consent
to sexual intercourse. The Commonwealth submits Appellee concedes
identity will be a non-issue at trial, so the key issue for the factfinder is
whether G.B. consented. The Commonwealth insists evidence of Appellee’s
prior conviction is necessary to counter Appellee’s consent defense and show
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that, as in the previous case, Appellee knowingly took advantage of an
unconscious victim. For either the common plan or absence of mistake
exceptions, the Commonwealth asserts evidence of Appellee’s prior
conviction would not be unduly prejudicial. The Commonwealth stresses this
highly probative evidence would aid the jury in its determination of
Appellee’s state of mind when he twice initiated vaginal intercourse with
G.B.; whereas the absence of this evidence would leave the jury to rely
solely on G.B.’s testimony regarding the issue of consent. For all of these
reasons, the Commonwealth concludes the trial court abused its discretion
when it excluded evidence of Appellee’s prior conviction. We agree.
“Admission 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. Drumheller, 570 Pa. 117, 135, 808
A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156
L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349,
363, 781 A.2d 110, 117 (2001)); Commonwealth v. Collins, 70 A.3d
1254, 1251 (Pa.Super. 2013). “An abuse of discretion is not merely an error
of judgment, but is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super. 2005), appeal
denied, 593 Pa. 726, 928 A.2d 1289 (2007).
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Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).
Pennsylvania Rule of Evidence 401 provides as follows:
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Pa.R.E. 401. “Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding a material fact.”
Drumheller, supra at 135, 808 A.2d at 904. “All relevant evidence is
admissible, except as otherwise provided by law. Evidence that is not
relevant is not admissible.” Pa.R.E. 402. “The court may exclude relevant
evidence if its probative value is outweighed by a danger of one or more of
the following: unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence.”
Pa.R.E. 403.
Pennsylvania Rule of Evidence 404(b) provides as follows:
Rule 404. Character Evidence; Crimes or Other Acts
* * *
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
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other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person
acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible
for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this
evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.
* * *
Pa.R.E. 404(b)(1)-(2). “[E]vidence of prior crimes is not admissible for the
sole purpose of demonstrating a criminal defendant’s propensity to commit
crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283
(Pa.Super. 2004). Nevertheless, “[e]vidence may be admissible in certain
circumstances where it is relevant for some other legitimate purpose and not
utilized solely to blacken the defendant’s character.” Id. Specifically, other
crimes evidence is admissible if offered for a non-propensity purpose, such
as proof of an actor’s knowledge, plan, motive, identity, or absence of
mistake or accident. Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d
501 (2005). When offered for a legitimate purpose, evidence of prior crimes
is admissible if its probative value outweighs its potential for unfair
prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014),
cert. denied, ___ U.S. ___, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014).
When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine
the details and surrounding circumstances of each criminal
incident to assure that the evidence reveals criminal
conduct which is distinctive and so nearly identical as to
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become the signature of the same perpetrator. Relevant
to such a finding will be the habits or patterns of action or
conduct undertaken by the perpetrator to commit crime,
as well as the time, place, and types of victims typically
chosen by the perpetrator. Given this initial
determination, the court is bound to engage in a careful
balancing test to assure that the common plan evidence is
not too remote in time to be probative. If the evidence
reveals that the details of each criminal incident are nearly
identical, the fact that the incidents are separated by a
lapse of time will not likely prevent the offer of the
evidence unless the time lapse is excessive. Finally, the
trial court must assure that the probative value of the
evidence is not outweighed by its potential prejudicial
impact upon the trier of fact. To do so, the court must
balance the potential prejudicial impact of the evidence
with such factors as the degree of similarity established
between the incidents of criminal conduct, the
Commonwealth’s need to present evidence under the
common plan exception, and the ability of the trial court to
caution the jury concerning the proper use of such
evidence by them in their deliberations.
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007),
appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (quoting Commonwealth
v. Smith, 635 A.2d 1086, 1089 (Pa.Super. 1993)).
Although “remoteness in time is a factor to be considered in
determining the probative value of other crimes evidence under the theory
of common scheme, plan or design, the importance of the time period is
inversely proportional to the similarity of the crimes in question.”
Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010), appeal
denied, 607 Pa. 694, 4 A.3d 157 (2010) (holding evidence of defendant’s
prior sexual assault was admissible under common scheme exception
despite nearly ten-year gap between periods of abuse, where victims were of
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similar age and both were daughters of defendant; defendant initiated
contact with each victim during overnight visit in his apartment; defendant
began sexual abuse by showing victims pornographic movies; and assaults
occurred in bed at night). See also Commonwealth v. Luktisch, 680
A.2d 877 (Pa.Super. 1996) (holding common scheme exception justified
admission of testimony regarding defendant’s previous sexual assaults
despite six-year lapse between periods of abuse, where three victims were
nearly same age, victims were either daughter or step-daughter of
defendant and lived with him when acts occurred; and pattern of
molestation—from improper touching to oral sex to sexual intercourse—was
highly similar with respect to two victims).
Evidence of a prior crime may also be admitted to show a defendant’s
actions were not the result of a mistake or accident, “where the manner and
circumstances of two crimes are remarkably similar.” Commonwealth v.
Kinard, 95 A.3d 279, 294-95 (Pa.Super. 2014). See Commonwealth v.
Sherwood, 603 Pa. 92, 982 A.2d 483 (2009) (holding evidence of
defendant’s prior physical assaults of child was admissible to show absence
of mistake or accident in prosecution for intentional beating death of child);
Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004) (holding
evidence of defendant’s murder of former wife was admissible to show
absence of accident in prosecution for murder of defendant’s second wife,
where both victims were found dead in bathtub or hot tub in highly similar
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circumstances).
Evidence of relevant prior crimes is admissible “if the probative value
of the evidence outweighs its potential for unfair prejudice.” Kinard, supra
at 284. “‘Unfair prejudice’ means a tendency to suggest decision on an
improper basis or to divert the jury’s attention away from its duty of
weighing the evidence impartially.” Commonwealth v. Dillon, 592 Pa.
351, 366, 925 A.2d 131, 141 (2007) (quoting Pa.R.E. 403 comment).
Evidence will not be prohibited merely because it is
harmful to the defendant. This Court has stated that it is
not required to sanitize the trial to eliminate all unpleasant
facts from the jury’s consideration where those facts are
relevant to the issues at hand and form part of the history
and natural development of the events and offenses for
which the defendant is charged. Moreover, we have
upheld the admission of other crimes evidence, when
relevant, even where the details of the other crime were
extremely grotesque and highly prejudicial.
Id. at 367, 925 A.2d at 141. “Additionally, when examining the potential for
undue prejudice, a cautionary jury instruction may ameliorate the prejudicial
effect of the proffered evidence. … Jurors are presumed to follow the trial
court’s instructions.” Hairston, supra at ___, 84 A.3d at 666 (holding
extraneous offense of arson was admissible under Rule 404(b) as res gestae
evidence in prosecution for murder; trial court’s instruction on how arson
evidence should be considered minimized likelihood that arson evidence
would inflame jury or cause it to convict defendant on improper basis).
Instantly, the record reveals the following factual similarities between
the present case and Appellee’s prior rape conviction. In each case,
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Appellee was acquainted with the victim—a black female in her twenties—
and he was an invited guest in the victim’s home. Appellee was aware that
each victim was in a weakened or compromised state. Each victim
ultimately lost consciousness. In each case, the victim awoke in her
bedroom in the early morning hours to find Appellee having vaginal
intercourse with her. The evidence of Appellee’s prior rape passes the basic
relevance threshold, as it tends to increase the probability that Appellee
knowingly had non-consensual sex with G.B. in the present case. See
Drumheller, supra. The relevant details and surrounding circumstances of
each incident further reveal criminal conduct that is sufficiently distinctive to
establish Appellee engaged in a common plan or scheme. See G.D.M., Sr.,
supra. The factual overlap between the two incidents goes beyond the
commission of crimes or conduct “of the same general class.” The evidence
does not merely show Appellee sexually assaulted two different women or
that Appellee’s actions are generically common to many sexual assault
cases. To the contrary, the incidents reflect a clear pattern where Appellee
was legitimately in each victim’s home; Appellee was cognizant of each
victim’s compromised state; and Appellee had vaginal intercourse with each
victim in her bedroom in the middle of the night while the victim was
unconscious.3
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3
To the extent differences exists between the two incidents, these
(Footnote Continued Next Page)
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G.B.’s claim, that she again fell asleep and again awoke to find
Appellee having non-consensual sex with her a second time, only reinforces
the conclusion that Appellee engaged in a common scheme of non-
consensual intercourse with unconscious victims. The evidence of a second
instance of non-consensual sex between Appellee and G.B. tends to show
Appellee saw and seized yet another opportunity to have non-consensual
vaginal intercourse with a female acquaintance whose unconscious state
rendered her unable to consent or to resist verbally or physically.
Additionally, Appellee’s dispute that G.B. was asleep, when Appellee initiated
sexual intercourse with her, is an issue for the factfinder to determine at
trial. The purpose of introducing Appellee’s prior conviction is to aid the jury
in that determination and to counter Appellee’s anticipated defense of
consent. Appellee should not be able to create a “difference” between the
two incidents simply by disputing the Commonwealth’s proffered facts. We
conclude the circumstances of each incident are sufficiently similar to satisfy
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(Footnote Continued)
differences concern details which are not essential to the alleged common
scheme of Appellee. For example, Appellee was in T.B.’s home for a party
because he was friends with T.B.’s brother, whereas G.B. invited Appellee
into her home because she felt weak after donating plasma. The common
scheme, however, does not require the sexual assault of women who
became tired or weak specifically after donating plasma. The salient facts of
each case are that Appellee was allowed into the home of an acquaintance,
and Appellee knew each victim was in a compromised state. After each
victim lost consciousness in the early morning hours, Appellee had vaginal
intercourse with each victim in essentially the same manner. The common
scheme exception does not require that the two scenarios be identical in
every respect.
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the common plan or scheme exception to Rule 404.
We further conclude the evidence of Appellee’s prior rape conviction is
not too remote in time to negate its probative value. The Commonwealth is
correct to state that Appellee’s time spent in prison must be excluded in the
calculation of how much time has elapsed since the prior crime. See
Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994) (excluding
defendant’s period of incarceration from relevant time period for remoteness
analysis, where eight years separated commission of crimes in question);
Commonwealth v. Brien, 836 A.2d 966 (Pa.Super. 2003), appeal denied,
577 Pa. 695, 836 A.2d 966 (2004) (holding defendant’s prior ten-year old
convictions were not too remote in time, and defendant was paroled five
years before the current offense). Appellee committed the prior offense ten
years before the current incident, but Appellee was incarcerated for five of
those years for the prior offense. Therefore, the relevant look-back period is
five years for purposes of the remoteness analysis. See id. This Court has
held evidence admissible under the common scheme exception in the
context of even longer time lapses. See Aikens, supra (holding ten-year
lapse was not excessive); Luktisch, supra (holding six-year lapse was not
excessive). Additionally, the similarities of the two incidents render the five-
year time gap even less important. See Aikens, supra. The record does
not support a finding of an excessive lapse of time between the incidents,
which is, in any case, only one factor in the common scheme analysis, but
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not the dispositive factor.
Additionally, the probative value of Appellee’s prior conviction
outweighs its potential for unfair prejudice. The prior conviction should not
be shielded from the factfinder merely because it is harmful to Appellee; the
question is whether evidence of Appellee’s prior conviction would be unduly
prejudicial. See Dillon, supra. The substantial similarity between the two
incidents gives the evidence of Appellee’s previous crime considerable
probative value. In light of the important similarities, the nature of
Appellee’s prior crime alone does not render it unduly prejudicial. See
Commonwealth v. Frank, 577 A.2d 609 (Pa.Super. 1990) (holding
admission of evidence of appellant’s prior sexual assaults of children under
common plan exception was not unduly prejudicial where assaults possessed
high degree of similarity and court issued cautionary instructions).
Moreover, to alleviate the potential for unfair prejudice, the court can issue a
cautionary instruction to the jury, to advise the jury of the limited purpose of
the evidence and to clarify that the jury cannot treat the prior crime as proof
of Appellee’s bad character or criminal tendencies. See id.; Hairston,
supra. Jurors are presumed to follow the trial court’s instructions. See id.Importantly, one factor in the “undue prejudice” analysis—the
Commonwealth’s need to present evidence under the common plan
exception—weighs heavily in favor of the Commonwealth. Identity is not an
issue in this case, as Appellee acknowledges he had sexual intercourse with
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G.B. on the day in question. The only issue is consent. If evidence of
Appellee’s prior conviction is excluded, the Commonwealth must rely solely
on the uncorroborated testimony of G.B. to counter Appellee’s defense of
consent to vaginal intercourse. Thus, the Commonwealth has a significant
need for the prior crime evidence to prove Appellee had non-consensual sex
with G.B. See G.D.M., Sr., supra. See also Commonwealth v. Gordon,
543 Pa. 513, 673 A.2d 866 (1996) (holding evidence of appellant’s similar
prior sexual assaults was not unduly prejudicial where Commonwealth was
required to prove non-consensual touching occurred; evidence was
necessary for prosecution of case, where uncorroborated testimony of victim
might lead jury to determine there was reasonable doubt as to whether
appellant committed crime). Given the substantial similarity between the
current incident and Appellee’s prior crime, and the importance of the
common scheme evidence to the Commonwealth’s case, we conclude the
trial court abused its discretion when it found Appellee’s prior conviction was
inadmissible under the common scheme exception to Rule 404.
Likewise, the trial court should have declared the evidence of
Appellee’s prior rape conviction admissible under the absence of mistake or
accident exception to Rule 404.4 Appellee disputes G.B.’s account that she
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4
In his motion in limine, Appellee completely misconstrued and failed to
respond substantively to the Commonwealth’s argument regarding the
exception to Rule 404 for absence of mistake or accident. Appellee stated:
(Footnote Continued Next Page)
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was asleep when Appellee initiated sexual intercourse with her—Appellee
maintains he thought G.B. consented to the act. Given the relevant
similarities between the two incidents, evidence of Appellee’s prior rape
would tend to prove he did not “mistakenly believe” G.B. was awake or gave
her consent. Appellee was invited into G.B.’s home for another reason,
Appellee knew G.B. was in a compromised state, and G.B. awoke to find
Appellee having vaginal intercourse with her. Appellee’s prior conviction
would likewise show he had been invited into the home of an acquaintance,
knew the victim was in a compromised state, and had non-consensual sex
with the victim while the victim was unconscious. The prior conviction would
tend to prove Appellee was previously in a very similar situation and suffered
legal consequences from his decision to have what proved to be non-
consensual vaginal intercourse with an unconscious victim. Thus, the
evidence would tend to show Appellee recognized or should have recognized
that, as with T.B., G.B.’s physical condition rendered her unable to consent.
_______________________
(Footnote Continued)
“There is no question in this case as to the identity of [Appellee] and the
only reason to introduce the evidence of the prior conviction would be to
prove a common plan, despite the limited similarities between the two
instances.” (Appellee’s Motion in Limine, filed 6/3/13, at 3; R.R. at 27a).
The Commonwealth, however, did not try to introduce evidence of Appellee’s
prior conviction, under the absence of mistake or accident exception, to
prove identity but to show Appellee made no mistake or accident when he
evaluated G.B.’s purported “consent.” Appellee also failed to address this
argument at the hearing on the motions in limine. Therefore, Appellee
arguably waived any objection to admission of his prior conviction under that
exception to Rule 404. See Pa.R.A.P. 302(a) (stating issues not raised in
trial court are waived and cannot be raised for first time on appeal).
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The jury must have a chance to decide if Appellee, in light of his past legal
experience and conviction for a substantially similar criminal episode, could
have reasonably concluded G.B.’s consent was possible under comparable
circumstances.
As with the common scheme exception, certain differences between
the two incidents—such as the exact reason the victim was in a
compromised state—are not essential to the question of whether Appellee
mistakenly believed G.B. consented to sexual intercourse. The evidence of
Appellee’s prior crime is highly probative of the fact that Appellee could not
have reasonably believed G.B. was conscious enough to give her consent.
Rather, the evidence of the prior conviction tends to prove Appellee
intentionally exploited another opportunity to take advantage of a woman
sexually, when he knew the woman was in a diminished state. The prior
crime at issue fits within the absence of mistake or accident exception to
Rule 404. See Kinard, supra. Given the established similarity between the
incidents, we conclude Appellee’s prior conviction is highly probative on the
issue of consent, but not so remote in time or unduly prejudicial as to bar its
admission under the absence of mistake or accident exception to Rule 404.
See Dillon, supra; Aikens, supra. Our previous analysis of “undue
prejudice” and remoteness with respect to the common plan or scheme
exception is equally applicable in the context of the absence of mistake or
accident exception.
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Based on the foregoing, we hold evidence of Appellee’s prior conviction
is admissible under both the common plan or scheme and the absence of
mistake or accident exceptions to Rule 404. Thus, we reverse the trial
court’s order excluding this evidence.
Order reversed; case remanded for further proceedings. Jurisdiction is
relinquished.
Ford Elliott, P.J.E., Panella, Shogan, Mundy and Olson, JJ. join the
opinion.
Donohue, J. files a dissenting opinion in which Bender, P.J.E. and Ott,
J. join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
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