Com. v. Tepper, F. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK TEPPER :
:
Appellant : No. 1806 EDA 2017
Appeal from the PCRA Order May 19, 2017,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0001877-2010.
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 03, 2020
Frank Tepper appeals from the order denying his first timely petition for
relief filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-
46. We affirm.
This Court previously summarized the pertinent facts and procedural
history as follows:
On November 21, 2009, [Tepper] was hosting a family
function at his house in Port Richmond. That same day, the
victim, William Panas, and some of his friends were
socializing outside a nearby building. Around 10:30 p.m., a
fight erupted between the victim, the victim’s friends, and
various people attending [Tepper’s] family function.
[Tepper], an off-duty Philadelphia police officer, went
outside with a firearm and attempted to disperse the crowd.
The Commonwealth’s witnesses testified [Tepper] pointed
his gun at them and said, “Back the fuck up.” [Tepper] then
pointed the gun at the victim, who stated in response, “What
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* Retired Senior Judge assigned to the Superior Court.
J-S69025-19
are you fucking going to shoot me?” One witness testified
that the victim said, “[Tepper] is not going to shoot anyone.”
[Tepper] responded by shooting and killing the victim.
Forensic evidence showed the victim’s clothing had no
traces of lead residue, which indicated [Tepper’s] gun was
at least three feet away from the victim’s body when
[Tepper] fired his weapon.
On February 23, 2012, following a five-day trial, a jury
found [Tepper] guilty of first-degree murder, [possession of
an instrument of crime, and recklessly endangering another
person]. On April 4, 2012, the court sentenced [Tepper] to
life imprisonment for the first-degree murder conviction,
plus a concurrent term of one (1) to two (2) years’
imprisonment for each of the lesser convictions. [Tepper]
timely filed a post-sentence motion on April 9, 2012. On
May 7, 2012, the court denied the post-sentence motion.
Commonwealth v. Tepper, 105 A.3d 804 (Pa. Super. 2014), unpublished
memorandum at 1-2.
Tepper filed a timely appeal to this Court in which he challenged the
sufficiency and/or weight of the evidence supporting his convictions. On July
29, 2014, we rejected these claims and affirmed Tepper’s judgment of
sentence. Tepper, supra. Tepper did not seek further review.
On June 22, 2015, Tepper filed a pro se PCRA petition. On July 17,
2015, newly retained counsel (current counsel) filed an amended petition, in
which Tepper claimed that trial counsel was ineffective for failing to: 1) “ call
any of a multitude of witnesses who has seen the incident, provided interviews
to police, and proffered testimony that affirmed and bolstered that of other
defense witnesses”; 2) file a motion for change of venue; and 3) request a
competency hearing and evaluation of Tepper because he “was so heavily
medicated that he could not meaningfully participate in his own defense and
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be able to knowingly waive his right to testify.” See Amended PCRA Petition,
7/17/15, at 2. The Commonwealth filed a motion to dismiss the amended
petition on November 2, 2015.
On September 22, 2016, without first seeking leave of court, Tepper’s
counsel filed a supplemental PCRA petition. In this petition, Tepper raised the
additional claim that trial counsel was ineffective “when he failed to play [for]
the jury the radio tapes that were made to 911 dispatch on November 21,
2009.” Supplemental PCRA petition, 9/22/16, at 2. Tepper claims “[t]hese
calls would have [corroborated his] theory that he was being attacked.” Id.
The Commonwealth filed a supplemental motion to dismiss on December 15,
2016.
On March 10, 2017, the PCRA court issued Pa.R.Crim.P. 907 notice of
its intention to dismiss Tepper’s petition as meritless.1 Tepper filed a response
on April 4, 2017. In this response, for the first time, Tepper raised multiple
additional claims including this assertion that trial counsel was ineffective for
failing to: 1) object to the trial court’s instruction that the jury could
“infer/presume intent from the proven fact that a deadly weapon was used on
a vital part of the human body”; and 2) “prepare and assert a defense that,
acting as a police officer, [Tepper] had no ‘duty to retreat.’” See Response to
Dismissal of PCRA under Rule 907, 4/4/17, at unnumbered 4-5.
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1 The PCRA court’s Rule 907 notice does not appear in the certified record.
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By order entered May 19, 2017, the PCRA court denied Tepper’s PCRA
petition. This timely appeal followed.2
Although the PCRA court did not require Tepper to file a Pa.R.A.P. 1925(b)
statement, the court filed a Rule 1925(a) opinion.
Tepper raises the following six issues:
A. Whether [] trial counsel was ineffective for failing to call
multiple witnesses who had witnessed the incident,
provided interviews to police, and proffered testimony
that confirmed the account of other defense witnesses?
B. Whether [] trial counsel was ineffective for failing to file
a motion for change of venue, due to the extensive
negative publicity he had received in the Philadelphia
area and resulting in [Tepper] being subject to undue
[prejudice] during the selection of his jury?
C. Whether [] trial counsel was ineffective for failing to play
the 911 tapes to the jury which would have demonstrated
that [Tepper] was being attacked and in fear of his
safety?
D. Whether [Tepper] did not knowingly waive his right to
testify where [he] was so heavily medicated that he could
not meaningfully participate in his own defense?
E. Whether [Tepper] was deprived of due process where the
trial judge instructed the jury that they can infer or
presume intent from the proven fact that a deadly
weapon was used on a vital part of the human body. The
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2 Although Tepper filed his appeal with this Court on June 14, 2017, the
certified record was not promptly forwarded to this Court. After our
Prothontary issued two notices to the lower court regarding its delinquency,
we received the certified record on March 26, 2019. That same day, we issued
the briefing schedule for the parties.
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jury was also instructed that if it found “intent,” then
malice was also established?
F. Whether [] trial counsel was ineffective for failing to
prepare and assert a defense that, acting as a police
officer, [Tepper] had no duty to retreat?
Tepper’s Brief at 8.3
Our scope and standard of review is well settled:
In PCRA appeals, our scope of review is limited to the
findings of the PCRA court and the evidence on the record
of the PCRA court's hearing, viewed in the light most
favorable to the prevailing party. Because most PCRA
appeals involve questions of fact and law, we employ a
mixed standard of review. We defer to the PCRA court's
factual findings and credibility determinations supported by
the record. In contrast, we review the PCRA court's legal
conclusions de novo.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super. 2015)
(citations omitted).
The PCRA court dismissed Tepper’s PCRA petition without first holding
an evidentiary hearing. As this Court has summarized:
When the PCRA court has dismissed a petitioner’s PCRA
petition without an evidentiary hearing, we review the PCRA
court’s decision for an abuse of discretion. Commonwealth v.
Roney, 79 A.2d 595, 604 (Pa. 2013). The PCRA court has
discretion to dismiss a petition without a hearing when the court
is satisfied that there are no genuine issues concerning any
material fact, the defendant is not entitled to post-conviction
collateral relief, and no legitimate purpose would be served by
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3 On October 28, 2019, this Court granted Tepper leave to file an amended
brief. A review of the issues stated in this brief, with one noticeable exception,
see infra, raises the same claims albeit phrased somewhat differently. We
cite Tepper’s original brief, because these issues, as stated, were addressed
by the PCRA court in its Rule 1925(a) opinion.
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further proceedings. Id. To obtain a reversal of a PCRA court’s
decision to dismiss a petition without a hearing, an appellant must
show that he raised a genuine issue of material fact which, if
resolved in his favor, would have entitled him to relief, or that the
court otherwise abused its discretion in denying a hearing.
Commonwealth v. Blakeney, 108 A.3d 739, 750 (Pa. 2014).
All of Tepper’s claims on appeal allege the ineffectiveness of trial
counsel.4 To obtain relief under the PCRA premised on a claim that counsel
was ineffective, a petitioner must establish by a preponderance of the
evidence that counsel's ineffectiveness so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place. Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009).
“Generally, counsel’s performance is presumed to be constitutionally
adequate, and counsel will only be deemed ineffective upon a sufficient
showing by the petitioner.” Id. This requires the petitioner to demonstrate
that: (1) the underlying claim is of arguable merit; (2) counsel had no
reasonable strategic basis for his or her action or inaction; and (3) petitioner
was prejudiced by counsel's act or omission. Id. at 533.
In his first issue, Tepper asserts that trial counsel was ineffective for
failing to present “critical witnesses who would have changed the outcome of
the trial.” Tepper’s Brief at 13. Within his brief, Tepper then cites to multiple
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4 Although Tepper’s fourth issue is not framed in such terms, his supporting
argument challenges the effectiveness of trial counsel.
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witnesses who, based on their statements to police, should have been called
in addition to the five witnesses that trial counsel called in Tepper’s defense
at trial. See id. at 13-16.
This Court has reiterated a PCRA petitioner’s burden when raising this
claim:
When raising a claim of ineffectiveness for failure to call
a potential witness, a petitioner satisfies the performance
and prejudice requirements of the [Strickland v.
Washington, 466 U.S. 668 (1984)] test by establishing
that: (1) the witness existed; 2) the witness was available
to testify for the defense; (3) counsel know of, or should
have known of, the existence of the witness; (4) the witness
was willing to testify for the defense; and (5) the absence
of the testimony of the witness was so prejudicial as to have
denied the defendant a fair trial[.]
Commonwealth v. Matias, 63 A.3d 807, 810-11 (quoting Commonwealth
v. Sneed, 45 A.3d 1096, 1108-09 (Pa. 2012). “To demonstrate Strickland
prejudice, a petitioner must show how the uncalled witnesses’ testimony
would have been beneficial under the circumstances of the case.” Finally, “[a]
failure to call a witness is not per se ineffective assistance of counsel for such
decision usually involves matters of trial strategy.” Id.
Here, the PCRA court determined that Tepper did not meet this burden:
Trial counsel called four witnesses to testify that the
victim was the aggressor. However, [Tepper] claims trial
counsel was ineffective for not calling six additional
witnesses to testify to the same information. The PCRA
requires that [Tepper] present upfront certifications of any
witness’s testimony. (42 Pa.C.S.A. § 9545(d)(1)). [Tepper]
did not provide this. Instead, [Tepper] presents potential
witness statements to police as proof that they would have
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been available and willing to testify. [Tepper] has not
provided evidence as to how the absence of [their]
testimony prejudiced [him]. [Tepper] had four witnesses
give similar testimony at trial, therefore there is no
reasonable likelihood that the additional testimony would
change the outcome of the trial. Additional witness
testimony, would be nothing more than cumulative evidence
which is insufficient for a finding of ineffectiveness.
Commonwealth v. Showers, 782 A.2d 1010, 1022 (Pa.
Super. 2001). Accordingly, [Tepper’s] claim lacks merit.
PCRA Court Opinion, 3/25/19, at 4-5.5
Our review of Tepper’s PCRA petition supports PCRA court’s conclusion
that Tepper failed to establish one or more of the Matias criteria. Tepper’s
claim that he “clearly satisfied” the Matias test is refuted by our review of the
record. Tepper’s Brief at 16. Additionally, Tepper’s bare assertion that
“[t]here is no evidence that [these witnesses] weren’t available and willing to
testify,” id., ignores his burden to prove these facts. Thus, Tepper’s first issue
fails.
In his second issue, Tepper claims that trial counsel was ineffective for
failing to file a motion for change of venue given the extensive negative
publicity his case received in the Philadelphia area that, in turn, subjected him
to undue prejudice during the selection of his jury. He then cites seven news
articles to support his to support his assertion that the “coverage was
relentless and negative.” Tepper’s Brief at 18.
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5 Tepper also called a fifth witness, Lylene Russell, who allegedly viewed the
incident from her apartment window and whose husband called 911.
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“The mere existence of pretrial publicity does not warrant a presumption
of prejudice.” Commonwealth v. Chambers, 685 A.2d 96, 103 (Pa. 1996)
(citations omitted). Our Supreme Court has explained the deference that
should be given to the trial court’s discretion in granting or denying a motion
for change of venue:
We have recognized that the trial court is in the best
position to assess the atmosphere of the community and to
judge the necessity of any requested change. In reviewing
the trial court decision not to grant a change of venue the
focus of our inquiry is whether any juror formed a fixed
opinion of the defendant’s guilt or innocence due to the
pretrial publicity.
A change in venue is compelled whenever a trial court
concludes a fair and impartial jury cannot be selected from
the residents of the county where the crime occurred. As a
general rule, for a defendant to be entitled to a change of
venue because of pretrial publicity, he or she must show
that the publicity caused prejudice by preventing the
empaneling of an impartial jury.
Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011) (citations omitted).
The PCRA court found this claim lacked merit because Tepper failed to
establish that the pretrial publicity adversely prejudiced him during jury
selection:
In his instant petition, [Tepper] does nothing more than
cite to negative pre-trial publicity in order to prove a change
of venue was necessary. [Tepper] did not use the notes of
testimony of the voir dire, nor did [he] cite anything other
than a few news articles found on the internet.
Moreover, the transcript of the beginning of the trial
shows that this Court did colloquy the jury about pretrial
publicity and ensured that they had not read, watched or
listened to anything about the case before coming to court.
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Furthermore, the articles cited by [Tepper] were published
in the time period between November 2009 until March
2010. [Tepper’s] trial took place in February 2012.
[Tepper] does not account for the “cooling off” period that
took place between news coverage and trial, which is
sufficient to cure any potential prejudice of negative news
coverage. Accordingly, [Tepper’s] claim lacks merit.
PCRA Court Opinion, 3/25/19, at 5-6 (citations omitted).
Our review of the record supports the PCRA court’s conclusion. Initially,
we agree with the Commonwealth that Tepper’s failure to provide the
transcript from his voir dire of potential jurors renders Tepper’s ability to
establish his ineffectiveness claim impossible. See, e.g., Commonwealth v.
Houck, 102 A.3d 443, 456 (Pa. Super. 2014) (finding claim waived when the
defendant had not made the transcript of the proceedings at issue part of the
certified record). Without this transcript, we are unable to review the PCRA
court’s determination that Tepper was not prejudiced by the pretrial publicity.
In his supplemental brief, Tepper makes the bare assertion that the
PCRA court’s finding regarding a “cooling off” period, did “not account that
before trial, the “cooling off period” was reheated to a boiling point.” Tepper’s
Supplemental Brief at 17. Tepper proffers no evidence to support this
statement. Notwithstanding this shortcoming, we note that, without the voir
dire transcript, even if true, Tepper cannot establish that his ineffectiveness
claim warrants relief. See Briggs, 12 A.3d at 314 (stating that, when
reviewing whether an adequate “cooling off” period occurred, “[n]ormally,
what prospective jurors tell us about their ability to be impartial will be a
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reliable guide to whether the publicity is so fresh in their minds that it has
removed their ability to be objective”). Thus, Tepper’s second issue fails.
In his third issue, Tepper claims that trial counsel was ineffective for
failing to play a 911 tape at trial in which the caller reports, “there’s a fight at
the corner of Edgemont and Elkhart,” and states that “some kid was waiving
[sic] a gun around and we just heard a shot.” Tepper’s Brief at 20. Tepper
states that the contents of this call corroborated “witness statements and
[Tepper’s] belief that [the victim] did have a gun and was reaching for his
waist.” Id. Tepper then cites his own 911 call in which he informed the
dispatcher of the location of the shooting and that he “discharged [his] firearm
at someone after I was assaulted.” Id. According to Tepper, “there was no
reasonable trial strategy for not playing these 911 dispatch calls” because
“[b]oth calls demonstrated that [he] believed that he was acting in self-
defense when he discharged a single shot” at the victim. Id.
The PCRA court found that Tepper could not establish this claim of
ineffectiveness:
[Tepper] called five witnesses at trial, none of whom claimed
that the victim (or any of the other young people) was
[waving] a gun around. The only witness who testified to
witnessing the shooting itself testified that the victim did
nothing more than argue with [Tepper] just before [Tepper]
shot him. Even the two new witnesses [Tepper] proffered
in his first amended petition only claimed that the victim
reached for his waistband, not that he pulled out or [waved]
a gun. Thus, counsel would not likely have secured an
acquittal if he introduced a statement that lacked
corroboration and would contradict his own witness. As for
the second tape, this was actually played and discussed at
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trial. (N.T. 2/21/12, 82, 107). Accordingly, this claim lacks
merit.
PCRA Court Opinion, 3/25/19, at 7.
Our review of the record supports the PCRA Court’s conclusion.6 Claims
of trial counsel’s ineffectiveness are not self-proving and therefore cannot be
raised in a vacuum. See generally, Commonwealth v. Pettus, 424 A.2d
1332 (Pa. 1981). Where the facts do not appear of record, the defendant
must identify “any affidavits, documents, and other evidence showing such
facts[.]” Pa.R.Crim.P. 902(A)(12)(b); Pettus, 424 A.2d at 1335 (explaining
that when a defendant raises ineffectiveness he or she must set forth an offer
to prove at an appropriate hearing facts upon which a reviewing court can
conclude that trial counsel may have been ineffective). Tepper made no such
proffer. This is especially true as the evidence Tepper introduced at trial was
inconsistent with the 911 call.
Additionally, our review of the record does establish that Tepper’s 911
call was played multiple times at trial. Although Tepper claims in his
supplemental brief that the prosecution only played a “cherry picked
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6 The Commonwealth asserts that this claim is waived because it was raised
for the first time by Tepper in an unauthorized supplemental PCRA petition,
and because Tepper failed to provide any certification from trial counsel to
support the claim. See Commonwealth’s Brief at 21. We decline to find
waiver, since the PCRA court addressed the claim and our review supports the
court’s determination that Tepper failed to meet his burden of establishing his
ineffective assistance claim.
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Commonwealth excerpt” of his 911 call, Tepper’s Supplemental Brief at 19,
he does not proffer any additional content of the call that would have benefited
him at trial. Tepper’s third issue warrants no relief.
In his fourth issue, Tepper asserts, “trial counsel failed to request a
competency hearing and evaluation for [him] despite signs that indicated such
a hearing was necessary.” Tepper’s Brief at 22. He then argues that, “[a]s a
result, [his] waiver of his right to testify was not made knowingly.” Id.
According to Tepper, “[t]rial counsel was aware of [his] psychological
condition as well as the medication that he was taking but made no effort to
ascertain whether [he] was making a knowing and clear-headed decision [not
to testify].” Id. at 23.7
“A defendant is presumed to be competent to stand trial, and the burden
is on the defendant to prove by a preponderance of the evidence that he was
incompetent to do so.” Blakeney, 108 A.3d at 752. “Competency to stand
trial is measured by the relationship between counsel and client. To be
deemed competent, the defendant needs to have the ability to consult with
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7 When phrasing this issue in his supplemental brief, Tepper makes no mention
of his medical condition, but rather changes his argument to one in which trial
counsel dissuaded him from testifying because he could be impeached by his
history of misconduct while employed as a police officer. See Tepper’s
Supplemental Brief at 20-21. Because this claim was never raised in his PCRA
petition, it was not addressed by the PCRA court. As this new theory of
ineffectiveness is being raised for the first time on appeal, we will not consider
it. See generally, Pa.R.A.P. 302(a).
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counsel with a reasonable degree of understanding, in order to participate in
his defense, and he must be able to understand the nature or object of the
proceedings against him.” Id.
Here, the PCRA court found that the record refuted Tepper’s claim that
he was unable to make a knowing waiver of his right to testify. The court
explained:
[Tepper] claims that he was heavily medicated during his
trial. [He] also claims that he was suffering from Post-
Traumatic Stress Disorder (PTSD) as a result of his
involvement in several shootings and violent altercations
that occurred during his employment as a police officer, as
well as from being a victim in a violent robbery in 2007.
However, [Tepper] is misguided.
***
[Tepper] does not address these issues in his instant
petition, and nothing on the record would suggest [he] was
incompetent. In fact, this Court conducted a colloquy of
[Tepper] in determining that he was voluntarily waiving his
right to testify. [Tepper] testified that he was not under the
influence of drugs or alcohol, and was not suffering from a
mental illness. Accordingly, [Tepper’s] claim lacks merit.
PCRA Court Opinion, 3/25/19, at 6-7 (citations omitted).
Our review of the record supports the PCRA court’s conclusion that there
is no support for Tepper’s claim that he was incompetent to stand trial. Thus,
his fourth issue, in which he claims that trial counsel was ineffective for failing
to request a psychological evaluation, fails, and trial counsel cannot be
deemed ineffective for failing to pursue this meritless claim. See
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc).
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Tepper raised his fifth and sixth issue for the first time in his response
to the PCRA court’s Rule 907 notice. As such, the PCRA court did not address
them. Thus, the claims were not properly preserved below. See
Commonwealth v. Rykard, 55 A.3d 1177, 1192 (Pa. Super. 2012)
(explaining that a PCRA petitioner must request leave to amend his petition in
his Rule 907 response in order to raise new trial counsel ineffectiveness
claims).8
In sum, because the PCRA court correctly concluded that all of Tepper’s
ineffective assistance of counsel claims lacked merit, the court properly denied
his PCRA petition without a hearing. We therefore affirm its order denying
Tepper post-conviction relief.
Order affirmed.
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8 Even were we to address these issues we would find them to be without
merit. As to Tepper’s fifth issue, well-settled precedents recognize the use of
the inference of which Tepper complains. See, e.g., Commonwealth v.
Hall, 701 A.2d 190, 196 (Pa. 1997) (holding both malice and specific intent
to kill may be inferred from the use of a deadly weapon on a vital part of the
victim’s body). As to Tepper’s sixth issue, even if Tepper had no duty to
retreat, the Commonwealth adequately disproved his claim of self-defense by
presenting evidence that Tepper was the aggressor and did not reasonably
believe he was in imminent danger of death or seriously bodily injury. See
generally 42 Pa.C.S.A. § 505.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/20
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