J-A05034-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LEE BOOZER : : Appellant : No. 990 WDA 2019
Appeal from the Judgment of Sentence Entered October 1, 2018 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006519-2017
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED MARCH 06, 2020
Lee Boozer (Boozer) appeals the judgment of sentence entered by the
Court of Common Pleas of Allegheny County (trial court) following a jury trial
on charges stemming from a fatal convenience store shooting. Boozer was
convicted of second-degree murder, criminal attempt to commit criminal
homicide, attempted homicide, robbery, and aggravated assault. He was
sentenced on the second-degree murder count to a mandatory prison term of
life without the possibility of parole. He received a consecutive term of nine
to 18 years on the aggravated assault count, with no further penalty as to the
remaining convictions. On appeal, Boozer contends that he is entitled to a
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* Retired Senior Judge assigned to the Superior Court. J-A05034-20
new trial due to the trial court’s denial of the right to self-representation, as
well as the admission of disputed identification evidence. We affirm.
I.
Darryl Terry (Terry) was the owner of the Allendale Market located at
3333 Allendale Street in the East Sheridan section of the City of Pittsburgh.
In May 2014, a man entered Terry’s store, shot him once in the chest and
ransacked the establishment. Terry tried to flee, but he was shot four more
times in the back as he ran across the street, and after he fell to the ground,
Terry was shot twice in the head. His accumulated injuries were fatal.
Susan Wagner (Wagner) happened to observe this shooting from her
car while driving on Allendale Street toward her mother’s nearby home.
Wagner saw the shooter running away, and she tried to position her car in a
place where she could safely call the police. As she did so, Wagner saw the
shooter enter a home located at 1107 Stanhope Street. Wagner turned onto
Stanhope Street, where the shooter came outside and accosted her,
discharging a firearm and grazing Wagner’s arm. The shooter pursued
Wagner on foot as she turned onto Chartiers Avenue and then shot her once
in the chest. Wagner survived the attack. Police later recovered various items
from the yard of the home at 1107 Stanhope Street, including a pair of
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sunglasses bearing DNA from which Boozer could not be excluded as a
contributor.1
The afternoon of the shooting, a man came to the home of Sarom Long
(Long) on 1308 Pritchard Street, less than a mile away from the shooting.
The man was pacing back and forth in front of the residence. Long did not
recognize the man, but her boyfriend’s brother, Matthew Sherrell, asked Long
to give the man a ride to the bus station and Long obliged. During the drive,
the man asked to be dropped off at his home, and as he got out, Long saw
blood on his hands, legs and shoes.
During the police investigation of the shooting, Long selected a picture
of a suspect named “Emmett Reese” in a photo-array police showed her. See
Trial Transcript, at 508. Long testified that at the time, she was unsure that
the photo of Reese matched the appearance of the person she had driven on
the day of the shooting. Id. at 510.2
Subsequently, Long texted Detective McGee a photo of Boozer,
identifying him as the man she had driven. The police soon compiled another
photo-array, and Long selected Boozer’s picture. Id. at 512. Sometime after
1 In addition to Boozer, there were three other contributors of DNA found on the sunglasses.
2 At trial, Long testified that she had never met Emmett Reese, and that Emmett Reese was not the person she encountered at her home who had requested a ride. See Trial Transcript, at 510.
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that, while the investigation was still underway, Boozer came back to Long’s
home and assaulted her. Id. at 528-29.
Police also interviewed Wagner, but initially she remembered little of the
incident and could not positively identify the man who shot her. In a six-
person photo line-up, Wagner could only say that one photo resembled her
attacker, again, a man named Emmett Reese. Id. at 558-61, 575. About a
year later, police presented Wagner with a photo of Boozer and she said that
he also resembled the man who killed Terry and attempted to murder her.
Id. at 561-63.
Boozer was not arrested in relation to this incident until June 2017,
which was shortly after his DNA was linked to the sunglasses found at 1107
Stanhope Street.3 In his recorded interview with police, Boozer admitted to
going to Terry’s store on at least one occasion. It also came out that Boozer
and Terry had both been romantically involved with the same woman, Lasawn
Sherrell (Sherrell), the sister of Matthew Sherrell. Boozer admitted that at
some point before the shooting, he had seen nude pictures of Terry on
Sherrell's phone. Police interpreted that fact as a potential motive for Boozer
to attack Terry.
3 Police had also collected photographs of Boozer wearing a dark jacket and a fisherman’s hat, taken at around the same time of the shooting. Wagner had described the shooter as wearing a dark jacket and a fisherman’s cap.
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Based on the evidence collected during the police investigation, Boozer
was charged with criminal homicide, robbery, criminal attempt to commit
criminal homicide, aggravated assault, possession of a firearm without a
license, and a person not to possess a firearm.4 Boozer was appointed defense
counsel and the case proceeded to trial.
Once the 27th of 32 total trial witnesses had finished testifying, a recess
for lunch was granted, and upon returning, Boozer’s counsel informed the trial
court that Boozer had asked to represent himself. See Trial Transcript, at
695. The matter was addressed the next morning, at which point defense
counsel asked to be discharged because Boozer had threatened him with an
allusion to defense counsel’s son. Id. at 764-65.5 Boozer denied making the
threat and insisted that his counsel had failed to gather and present
exculpatory evidence. Id. at 765.
The trial court had Boozer sworn so that a colloquy could be held to
determine if he could proceed pro se. Id. at 766-71. The trial court
4 The charge of person not to possess a firearm was severed and tried in a non-jury trial held in conjunction with the jury trial on the other charges. That offense is not at issue in this appeal.
5 Defense counsel also requested a mistrial due to the threat, but after the trial court denied Boozer’s request to proceed pro se, the motion was not addressed, and defense counsel thanked the trial court for allowing him to remain on the case. See Trial Transcript, at 770. That apparently abandoned motion for a mistrial is not at issue in this appeal, so it merits no further discussion here.
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questioned Boozer regarding the privileges and pitfalls of self-representation,
including the elements of the charged crimes, maximum penalties, and the
standards he would be held to as his own advocate.
Boozer insisted that the trial should not proceed unless he was first
provided documents he claimed counsel had withheld from him. Id. at 769.
Counsel responded that the documents in question were made confidential by
court order and could not be disclosed to Boozer. Id. Boozer then asked
counsel to show him transcripts and documents concerning his alibi, such as
flight information, bank receipts and subpoenas of alibi witnesses such as
Matthew Sherrell. Id.
Counsel said he had the documents referred to by Boozer, but indicated
that they were a “grand jury matter.” Id. at 770. Boozer protested that he
could not be ready to proceed pro se until given additional time to review
those materials: “I can’t represent myself without the information.” Id.
at 770. The trial court denied Boozer’s request and allowed defense counsel
to remain on the case, explaining that it did not appear that Boozer understood
enough of the legal issues, procedure and evidence to take on his own
defense. Id.6 Boozer again commented that he had not “even seen the
evidence involved,” and the trial court replied that he was “not capable of
effectively representing [himself]”. Id.
6 It appears that defense counsel withdrew his earlier motion to withdraw.
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In its opinion, the trial court reasoned further that Boozer was
attempting to derail the proceedings rather than legitimately seeking to
exercise the right of self-representation:
Boozer's conduct during the course of this particular trial indicated that his ultimate goal was to disrupt the process and this would be achieved by him representing himself. It was clear that his request to represent himself was not the exercise of a constitutionally protected right but, rather, his desire to cause a mistrial which would result [in] the retrial of these charges since it appeared that he believed that the Commonwealth had [proven] the charge[s] of criminal homicide and criminal attempt criminal homicide. While [the trial court] noted that it did not think that Boozer had the ability to handle this case, it was the real motivation of the request to represent himself that was considered in light of Boozer's attitude during the course of this case when he threatened his own counsel and continued to demand the introduction of irrelevant materials in an attempt to form the basis for a mistrial. It was abundantly clear to [the trial court] that there was no desire by Boozer to exercise his constitutionally protected right to represent himself but, rather, to provide himself with an opportunity to ensure that a mistrial occurred. Since [the trial court] viewed that Boozer's request was not legitimate, it denied him the right to proceed pro se.
Trial Court Opinion, 7/9/2019, at 8-9.
At the conclusion of trial, Boozer was found guilty of the offenses
outlined above. The jury found him not guilty of possession of firearm without
a license. Boozer's trial counsel filed a motion to withdraw after the
sentencing, and appellate counsel entered an appearance, filing an application
to reinstate Boozer's appellate rights, which the trial court granted. Both
Boozer and the trial court complied with Pa.R.A.P. 1925.
In his appellate brief, Boozer asserts four issues for our consideration:
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1. Did the Trial Court commit reversible error when it refused to allow Mr. Boozer the right to represent himself when it was clear in the record that . . . Boozer knowingly, intelligently and voluntary waived his right to counsel[?]
2. Did the Trial Court commit reversible error when it permitted an in court line-up to be shown to Susan Wagner [a shooting victim] which was extremely suggestive and prejudicial[?]
3. Did the Trial Court commit reversible error when it permitted Detective McGee, prior to Sarom Long's testimony, to instruct Long to point Boozer out and say it was him that [Long] drove away from the scene [of the crime?]
4. Was it reversible error to allow into evidence a prior statement of Mathew Sherrell who testified he did not remember the prior statement and did not want to participate in this trial violating Pennsylvania Rule of Evidence 804[?]
Appellant’s Brief, at 4 (renumbered). Each of those issues will be addressed
in turn below.
II.
A.
The trial court did not abuse its discretion in precluding Boozer from
representing himself because the request was indisputably untimely, and
there was evidence that the request was equivocal and made for purposes of
delay.
It is well-established that a defendant has a constitutional right to
represent himself in court. See Faretta v. California, 422 U.S. 806, 821
(1975) (recognizing that under the Sixth Amendment, the criminally accused
has a right to mount his own defense). A defendant’s right to self-
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representation must be honored when invoked if a trial court is able to
ascertain that the defendant is knowingly, voluntarily and intelligently waiving
the constitutional right to the assistance of counsel. Id. at 835; see also
Commonwealth v. Starr, 664 A.2d 1326, 1334–35 (Pa. 1995) (outlining
waiver of counsel procedure set forth in Pa.R.Crim.P. 121). This probing
colloquy requires the court to engage a “searching and formal inquiry” as to
“(1) whether the defendant is aware of his right to counsel or not and (2)
whether the defendant is aware of the consequences of waiving that right or
not.” Starr, 664 A.2d at 1335.
Significantly, however, a defendant’s request to proceed pro se “must
be made timely and not for purposes of delay and must be clear and
unequivocal.” Commonwealth v. Davido, 868 A.2d 431, 438 (Pa. 2005). If
a defendant waits until the trial is already underway, then the request is
untimely and must be “addressed to the sound discretion of the trial court.”
Id. (quoting Commonwealth v. Owens, 436 A.2d 129, 133 n.6 (Pa. 1981));
see also Commonwealth v. El, 977 A.2d 1158, 1163-65 (Pa. 2009).
The right to self-representation may also be waived or forfeited by
deliberately engaging “in serious and obstructionist misconduct.”
Commonwealth v. Tighe, No. 57 MAP 2018, at 12 (Pa. February 19, 2020)
(quoting Faretta, 422 U.S., at 834 n.46). In the event of an untimely
invocation of the right, the protections of Faretta and the formal inquiry
discussed in Starr do not apply. See El, 977 A.2d at 1164 (“Most significant
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is the fact that with both the right to a jury trial and the right to self-
representation, there exists the potential danger of a defendant using the right
to manipulate or delay proceedings.”).
In this case, the trial court denied Boozer’s request to represent himself,
finding that he was unprepared to proceed, and that his invocation of the right
to self-representation was merely an attempt to disrupt the proceedings and
set up a mistrial. See Trial Court Opinion, 7/9/2019, at 8-9. The trial court
did so after Boozer’s defense counsel conveyed that he believed Boozer had
threatened him. Moreover, Boozer’s professed reasons for seeking self-
representation – his counsel’s alleged refusal to grant him access to various
documents – could have been resolved before the trial started and certainly
before dozens of witness had already testified.
Significantly, Boozer conditioned his readiness to proceed on having the
chance to review pieces of evidence he knew about prior to the day of trial
but which were confidential grand jury materials. Boozer informed the trial
court that he could not “represent [him]self without the information.” Trial
Transcript, at 770.
Had the trial court acquiesced to Boozer’s request to go forward on his
own, it could have easily caused a significant delay and possibly a mistrial had
Boozer refused to continue unless given access to the confidential items.
Further, Boozer never established his right to the particular evidence he
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sought, so his conditional readiness to proceed might have never been
realized, making the request equivocal at best.
On these facts, Boozer’s request was untimely, and conditioned on his
receipt of evidence, it appears he was not entitled to. There is ample evidence
that Boozer had an ulterior motive in seeking to represent himself. As stated
above, a defendant must timely invoke the right to self-representation, and if
he does not, a trial court may deny the request if there is evidence it was
made for purposes of delay or obstruction. The trial court had reason to
suspect that Boozer’s 11th hour request, coupled with a threat against his
attorney, was intended to disrupt or avoid the resolution of the proceedings.
Accordingly, the trial court did not abuse its discretion in denying Boozer
control over his defense. See e.g., El, 977 A.2d at 1165 (explaining that “the
very basis for requiring a timely and unequivocal assertion of the right to
proceed pro se is to avoid manipulation and delay.”); Commonwealth v.
Dowling, 959 A.2d 910, 915 (Pa. 2008) (same); Commonwealth v.
Treiber, 874 A.2d 26, 32 (Pa. 2005) (same).
B.
As to whether the trial court erred in allowing Susan Wagner to identify
Boozer from the stand as the person who shot her, the admission of that in-
court identification is subject to the trial court’s discretion. See Pa.R.E. 611(a)
(“The court should exercise control over the mode and order of examining
witnesses and presenting evidence so as to: (1) make those procedures
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effective for determining the truth[.]” “Admission of evidence is within the
sound discretion of the trial court and a trial court’s rulings on the admission
of evidence will not be overturned absent an abuse of discretion or
misapplication of law.” Maisano v. Avery, 204 A.3d 515, 523 (Pa. Super.
2019). “An abuse of discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias
or ill-will, as shown by the evidence or the record, discretion is abused.” Id.
A special standard applies to the admissibility of in-court identifications
which have been tainted, pre-trial, by unduly suggestive procedures. The
United States Supreme Court held in Neil v. Biggers, 409 U.S. 188, 199-200
(1972), that if such a taint arises, the admissibility of a subsequent in-court
identification turns on several factors, including “the opportunity of the
witness to view the criminal at the time of the crime, the witness’ degree of
attention, the accuracy of the witness’ prior description of the criminal, the
level of certainty demonstrated by the witness at the confrontation, and the
length of time between the crime and the confrontation.” See also
Commonwealth v. Carter, 643 A.2d 61, 71 (Pa. 1994) (same). “In
reviewing the propriety of identification evidence, the central inquiry is
whether, under the totality of the circumstances, the identification was
reliable.” Commonwealth v. Brown, 23 A.3d 544, 558 (Pa. Super. 2011).
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In this case, Wagner admitted to having trouble remembering the
shooting and the face of the perpetrator when she was initially interviewed by
police. See Trial Transcript, at 557-59, 574-76. Wagner testified on direct
examination that at that time she was shown the first array of six photos, she
did not remember identifying anyone.
Sometime later, Wagner was shown a photo of Boozer, who she also
believed “resembled” the shooter. Then, at trial, the Commonwealth had
Wagner evaluate from the stand each photo she had previously been shown.
Wagner confirmed that the first six photos did not depict her assailant. She
was then shown the seventh photo (of Boozer), which she had said resembled
the shooter, and she testified that she was “certain” of his identity as the man
who attacked her. Id. at 563.
The defense objected that it was unduly suggestive for the prosecution
to stage a line-up in front of the jury. The Commonwealth countered that
having Wagner identify Boozer, to the exclusion of the other individuals in the
photo array, was necessary to rebut Boozer’s defense that someone else
committed the subject crimes.
Although the trial court overruled the objection, defense counsel was
allowed to cross-examine Wagner on the out-of-court and in-court
identifications. She admitted that she had told police at one point that Emmett
Reese resembled the shooter. However, Wagner testified that there was only
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a “slim” possibility of her identifying Reese as the shooter if he were also
present in the courtroom. Id. at 592-94.
Boozer now argues pursuant to Biggers that the trial court erred in
allowing Wagner to identify him in court because it resulted from suggestive
and prejudicial procedures employed before and during the trial. See
Appellant’s Brief, at 19-26. He contends that Wagner’s earlier uncertainty of
the shooter’s identity and Boozer’s presence in the courtroom made Wagner’s
identification improper because it was so strongly suggested by the prosecutor
who she should identify.
Contrary to Boozer’s claims, this case is not governed by Biggers, and
the procedures used to elicit the in-court identification were also not so unduly
suggestive as to render it inadmissible. Wagner viewed photo arrays prior to
trial and told police that Boozer and one other individual resembled the person
who shot her. There appears to be nothing suggestive or unduly prejudicial
about those out-of-court identifications, and Boozer does not contend that
there was. Accordingly, the Biggers analysis does not apply because it is not
asserted here that an improper pre-trial identification tainted the identification
Wagner made at trial. See Commonwealth v. Johnson, 542 Pa. 384, 668
A.2d 97, 103 (1995) (“Because the out-of-court identifications were not
tainted, we need not address [the] appellant’s argument that the in-court
identifications lacked an independent basis [for its admissibility].”).
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Boozer’s central contention, rather, is that having Wagner view photos
from an array while Boozer was present in court prompted her to identify
Boozer as the culprit. Clearly, Boozer’s presence alone did not render the in-
court identification inadmissible or preclude Wagner from attempting to
identify him. By that logic, all in-court identifications would be inadmissible.
See Commonwealth v. Santiago, 209 A.3d 912 (Pa. 2019) (the presence
of the defendant at trial is “never suppressible”).
The admission of the in-court identification was, therefore, subject to
the trial court’s discretion. Since the outcome of the trial in this case hinged
on proof of the shooter’s identity, Wagner’s in-court identification was highly
relevant, despite her admitted memory lapses in the past. To the extent that
Wagner’s testimony or the procedures used to elicit the in-court identification
were irregular, it was a matter of weight for the jury. See e.g.,
Commonwealth v. Kyle, 533 A.2d 120, 132 (Pa. Super. 1987) (the
discrepancies between an initial description and the person identified in a
photo array concern “credibility,” not “undue suggestiveness”);
Commonwealth v. Zabala, 449 A.2d 583, 587 (Pa. Super. 1982) (the fact
that a witness “could not previously identify [an] appellant does not render
[his or her] in-court identification any less admissible. The fact that [the
witness] could not identify [the defendant] earlier is relevant only to the
weight and credibility of [his or her] testimony.”). In view of the totality of
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the circumstances, the trial court did not abuse its discretion in ruling that
Wagner’s in-court identification was admissible.
C.
Boozer next argues that Sarom Long should have been excluded as a
witness at trial on the ground that Detective McGee advised her just before
testifying to identify Boozer. Prior to the subject shooting, Long knew
Detective McGee personally through mutual acquaintances and prior cases.
During Long’s testimony, she recounted driving Boozer out of town right after
the shooting occurred, and she was certain she knew who he was. From our
review of the record, the trial court did not err in permitting Long to testify to
that effect, notwithstanding her inadvisable conversation with Detective
McGee.7
The facts relevant to this issue are as follows. During a recess from
trial, defense counsel overheard Detective McGee speaking with Long in a
hallway within the courthouse. Defense counsel immediately reported to the
trial court that the officer was overheard instructing Long to identify Boozer in
court as the perpetrator. Defense counsel moved for a mistrial, and the trial
court then took testimony outside the presence of the jury in order to question
Long and Detective McGee about their exchange. See Trial Transcript, at 237-
44, 245-56.
7 The standards of admissibility discussed above in Part II.B. are applicable to this issue.
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Detective McGee explained to the trial court that he had been
acquainted with Long from previous cases. Long sat next to Detective McGee
on a bench in the courthouse hallway and told him that she was afraid of
seeing Boozer in the courtroom because of his violent nature. Detective
McGee said he knew how nervous Long could get before testifying, so he tried
to give her encouragement:
What happened was we were talking. She said “Is he going to be in there when I testify.” I said yes. She said, “I don't want to see him. I’m afraid of him. I don’t want to be in the same room with him.” I said that he has a constitutional right to be in the same room with you while you’re testifying against him. And if he’s not in the room, it violates his constitutional rights. At which time, she said, “Well, he violated my constitutional rights when he came to my house and beat me up.” I said, “Well, at this point it’s your turn to do what you have to do. When you see him in the courtroom and tell your story, point to him and say this is the person that did it.”
Id. at 242.
Long testified that Detective McGee had not influenced her testimony in
any way. She also corroborated Detective McGee’s account about what he
had told her. Id. at 246-47. On cross-examination before the jury, Long
testified that she had falsely told police she had given a ride to Emmett Reese,
but that she was sure it was Boozer who she drove away from the crime scene.
Defense counsel also had ample opportunity to impeach Long’s testimony
based on her earlier representations and the improper exchange with
Detective McGee. Thus, under the circumstances, the testimony was not the
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product of unduly suggestive procedures, and the trial court did not abuse its
discretion in permitting Long to identify Boozer.
D.
Finally, the trial court did not err in admitting into evidence prior
recorded statements that Matthew Sherrell had made to police regarding
Boozer’s activities on the day that Terrell and Wagner were shot. Boozer
objected to those recorded statements on hearsay grounds, and the trial court
overruled the objection, finding that the witness claimed to have no
recollection of what he had said, satisfying an exception to the hearsay rule.
See Trial Transcript, at 883-84.
The statements were admissible under Pa.R.E. 803.1(4)(C), which
permitted the Commonwealth to introduce prior statements “by a declarant-
witness who testifies to an inability to remember the subject matter of the
statement,” as long as the statement “is a verbatim contemporaneous electric
recording of an oral statement.”
Sherrell was called to testify at Boozer’s trial involuntarily, and he
repeatedly invoked the right to remain silent, saying he did not want to be
involved in the case. When the trial court attempted to compel him to testify
about what he told police in a recorded interview, Sherrell claimed that he
could not answer any such questions because he could not remember the
conversation. See Trial Transcript, at 871-75, 881.
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These circumstances satisfy the requirements for admission outlined in
Pa.R.E. 803.1(4)(C) because Sherrell adamantly denied having the ability to
remember the subject matter of a statement which was electronically recorded
contemporaneously with its utterance. Thus, none of Boozer’s appellate
claims has merit, and the subject order on review must stand.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/6/2020
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