J-S15025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL DYWANE DEER
Appellant No. 733 MDA 2014
Appeal from the Judgment of Sentence of February 11, 2014 In the Court of Common Pleas of Cumberland County Criminal Division at No.: CP-21-CR-0001943-2013
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY WECHT, J.: FILED APRIL 30, 2015
Michael Dywane Deer1 appeals the judgment of sentence entered on
February 11, 2014. He contends that the trial court abused its discretion by
failing adequately to consider Deer’s rehabilitative needs in directing that
Deer serve a state rather than a county sentence. He also challenges the
trial court’s calculation of time served relative to the instant conviction. We
affirm.
On December 10, 2013, Deer pleaded guilty to driving under the
influence (“DUI”), general impairment with refusal (third or subsequent
____________________________________________
1 In Deer’s brief, his attorney identifies his middle name as Dwayne. However, the trial court docket, and consequently our docket, lists Deer’s middle name as Dywane. Upon the record before us, we cannot determine with any confidence which spelling is correct. Accordingly, we use the spelling that appears on our and the trial court’s docket. J-S15025-15
offense), see 75 Pa.C.S. § 3802(a)(1).2 The Commonwealth recommended
that the trial court impose only the mandatory minimum one-year sentence.3
On February 11, 2014, the trial court imposed a sentence of one to five
years’ imprisonment to be served in a state correctional institution and gave
Deer credit for twenty days’ time served, consisting of the periods between
July 12 and July 22, 2013, and January 1 and January 9, 2014. These
periods bracketed his service, from July 23, 2013 to December 31, 2013, of
two sentences imposed upon Deer for two prior parole violations.
At sentencing, the court had before it a pre-sentence investigation
report, which detailed a litany of prior offenses and serial parole violations,
both in Pennsylvania and out-of-state jurisdictions. As well, it had before it
a sentencing recommendation from the Cumberland County adult probation
office, which recommended a standard-range sentence. The mitigated-
2 Deer’s counsel, in defiance of Rule Pa.R.A.P. 2117(b) (requiring the exclusion from the statement of the case of “[a]ll argument”), impugns argumentatively the events that led law enforcement to conduct a traffic stop on Deer and various other matters surrounding his arrest. Deer does not rely upon any of these contentions in presenting argument in support of this appeal. Because we find that providing a full factual and procedural history of this case would add nothing of substance to our analysis, we omit it in the interests of brevity. 3 Under the circumstances of this case, Deer was subject to a mandatory sentence of one year’s incarceration. Although a conviction for DUI general impairment generally calls for a minimum sentence of ten days’ imprisonment, see 75 Pa.C.S. § 3804(a)(3), Deer’s lengthy prior record, reflected in a prior record score of five, incurred a one-year mandatory minimum sentence. See Guideline Sentencing Form at 1.
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range sentence provided for twelve months’ imprisonment, the standard-
range sentence was twelve to eighteen months’ imprisonment, and the
aggravated range called for a sentence of twenty-one months.
With regard to sentencing, counsel for Deer offered only the following
argument: “[Deer] would ask if you would consider a county sentence. I
know [Deer] has a heavy background, but he bailed out. He’s here today.
He’s got a family. He would like to get a county sentence with work release
and at least provide some money for his family.” Notes of Testimony—
Sentencing, 2/11/2014 (“N.T.S.”), at 2. On his own behalf, Deer expressed
his desire “to apologize to my community of Carlisle. I would like to
apologize, also, to my family, especially.” Id. at 3.
As noted, the trial court imposed a sentence of one to five years’
imprisonment in a state correctional facility.4 The trial court offered the
following brief explanation of its basis for the sentence:
As I look at your record, the last thing that we want to have is to deal with you at the county level for the next five years. Your adjustment on county parole has been atrocious, going all the way back to 1999. It’s parole revocation after parole revocation, supervision extended, probation revocation, supervision ____________________________________________
4 Pursuant to 42 Pa.C.S. § 9762(a)(1), the trial court’s imposition of a maximum sentence of five years left the court no discretion to order that Deer’s sentence be served in a county jail. Consequently, Deer’s argument necessarily depends upon the implicit proposition that the trial court should have imposed a maximum sentence of one day less than five years’ imprisonment, if not less, which would have enabled the trial court in its discretion to place Deer in a county or state facility, pursuant to subsection 9762(a)(2).
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extended, probation revocation, parole revocation. I just can’t, in good conscience, allow you to stay in the county.
Id. at 3.
Thereafter, Deer filed a timely “Motion to Reconsider Sentence and
Add Time Credit.” Therein, Deer asked the trial court to impose a county
sentence because “many of the parole transgressions were from other
counties for which no background was made available to [the trial] court as
to the reasons for same.” Motion to Reconsider Sentence and to Add Time
Credit, 2/21/2014, at 1. He added that “[w]hat stands out from Deer’s prior
record is alcohol and drug abuse for which it is believed that Deer could
benefit [from treatment,] and there are county[-]level programs in place for
him.” Id. at 2. If the court were unwilling to reduce the duration of the
sentence, see supra n.3, Deer asked the court in the alternative to modify
his sentence “in favor of the 2-year State Intermediate Punishment
Program[,] which would address Deer’s abuse history, his present charges
related to drugs and/or alcohol[,] and the supervision would be with the
state.” Id.5 ____________________________________________
5 Before this Court, as well, Deer argues that the trial court should have referred his case for state intermediate punishment pursuant to 62 Pa.C.S. § 4101. See Brief for Deer at 26-28. However, pursuant to subsection 4104(a)(1), “the court may, upon motion of the Commonwealth, commit a defendant to [DOC] for the purpose of evaluating whether the defendant would benefit from a drug offender treatment program . . . .” 62 Pa.C.S. § 4104(a)(1) (emphasis added). In this case, Deer does not assert, nor does the record suggest, that the Commonwealth made such a motion. Deer makes no argument that the trial (Footnote Continued Next Page)
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On April 1, 2014, the trial court held a hearing to address Deer’s
motion. With regard to Deer’s requested reduction or modification of
sentence, Deer’s counsel offered essentially no argument, observing simply
that he did not “have a lot to add to what [he] said at sentencing.” Notes of
Testimony—Post-Sentence-Motion (“N.T.P.S.M.”), 4/1/2014, at 2. Deer
augmented his attorney’s comments in the following exchange with the trial
court:
THE COURT: Anything you want to add to that, Mr. Deer?
[DEER:] Yes, Your Honor. I was just hoping that I could receive treatment from Cumberland County and work release, along with the Gaudenzia program that the county also offers.
THE COURT: Well, the problem with Cumberland County right now is that we have no funding for in[-]patient treatment, which I think is what you need.
[DEER:] Which I would be able to provide through work release, I would be able to pay out of pocket.
THE COURT: Not for in[-]patient.
[COUNSEL FOR DEER:] Did you have anything like Gateway insurance or anything like that that you had previously?
THE COURT: Well, there are programs at the state that deal with drug and alcohol issues.
[DEER:] Which is all overcrowded, sir. That’s why I plead to the Court to reconsider my sentence so that way I could make a push to do it on my own. I am also studying the Bible with a spiritual advisor, Philip Peeple (phonetic), who’s been a part of the community for over 50 years and attends the _______________________ (Footnote Continued)
court has discretion to make such a referral sua sponte, i.e., without a Commonwealth motion. Accordingly, we will not consider this argument.
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congregation on Mooredale Drive in Carlisle, which is Jehovah’s Witness.
THE COURT: The problem, Mr. Deer, is that you were on parole in Cumberland County in 2004. That had to be revoked several times in 2005, three times in four months. You were on probation in 2007 in Cumberland County, and that had to be revoked. You were on parole—I won’t even deal with Franklin County. You received a probationary sentence in 2013 in Cumberland County. That probationary sentence had to be revoked. You were given three days to six months on that sentence, and that parole—you were paroled, and that parole had to be revoked. So, I mean, you just do not respond well to county parole.
[DEER:] The difference now, sir, is that I’m studying the Bible . . . . I’m turning my life over to God and to be more mature with myself. I’m not getting any younger.
THE COURT: That’s obvious. The same God in Cumberland County Prison is the God that’s in the state correctional institution.
[DEER:] I understand that, sir. The difference is, like I said in the beginning, that the state is way overcrowded. For me to even get into a program, it’s by the luck of the [Department of Corrections]; which with this, I could be doing it on my own and be monitored by the same probation officers that already know who I am.
THE COURT: You don’t listen to them. It’s the probation officers that recommended the state incarceration.[6]
****
[DEER:] . . . I believe I deserve this chance to prove to the Court and to myself and also to my family that I can do this. I don’t want to lose my family, and I definitely don’t want to lose myself. It’s because of the alcohol abuse.
6 See Cumberland County Adult Probation Memo, 1/30/2014, at 1 (noting the standard range of twelve months’ incarceration and recommending a standard-range sentence).
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THE COURT: I understand that, and I hope you can get the treatment that you need in the state facilities, Mr. Deer. We’ve reached the end of our rope here, sir.
Id. at 4-7. At the conclusion of the hearing, the trial court denied Deer’s
post-sentence motion in an order that was docketed on April 2, 2014.
On April 30, 2014, Deer filed a timely notice of appeal. On May 1,
2014, the trial court filed an order directing Deer to file a concise statement
of the errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Deer
timely complied. Thereafter, the trial court issued a brief Rule 1925(a)
statement, in which it directed this Court’s attention to the trial court’s
above-excerpted comments during the hearing it held on Deer’s post-
sentence motion in lieu of a full opinion.
Before this Court, Deer raises the following issues:
I. Was the trial court’s denial of modification of [Deer’s] state sentence an abuse of discretion?
II. Was the trial court’s denial of [Deer’s] post-sentence motion to add time credit where [Deer] had a period of unmade bail not accounted for by the court at sentencing an abuse of discretion?
Brief for Deer at 5 (capitalization modified).7
In Deer’s first issue, he asserts that the trial court failed to consider
his rehabilitative needs and relied upon impermissible, extrinsic
considerations in fashioning his sentence, which implicates discretionary
aspects of his sentence. See, e.g., Commonwealth v. Dodge, 77 A.3d ____________________________________________
7 The Commonwealth has declined to file a brief.
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1263, 1273 (Pa. Super. 2013). “A challenge to the discretionary aspects of
a sentence must be considered a petition for permission to appeal, as the
right to pursue such a claim is not absolute.” Commonwealth v. McAfee,
849 A.2d 270, 274 (Pa. Super. 2004). To obtain review of the merits of a
challenge to the discretionary aspects of a particular sentence, an appellant
must preserve the challenge in a post-sentence motion and in his Rule
1925(b) statement, and he must include a Pa.R.A.P. 2119(f) statement in
his brief.8 Dodge, 77 A.3d at 1269. In the Rule 2119(f) statement, “the
appellant must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d
at 274. A substantial question requires a demonstration that “the sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)
(quoting Commonwealth v. Mouzon, 812 A.2d 617, 627 (Pa. 2002)).
8 In pertinent part, Rule 2119 provides the following:
(f) Discretionary aspects of sentence. An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.
Pa.R.A.P. 2119(f).
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“Our inquiry must focus on the reasons for which the appeal is sought, in
contrast to the facts underlying the appeal, which are necessary only to
decide the appeal on the merits.” Id. (quoting Commonwealth v.
Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en banc)) (emphasis in
Goggins). “[I]f the sentencing court, after considering the appropriate
sentencing factors,[9] states valid reasons for its sentence, which are
supported by the record, this Court must affirm the decision even if the
particular panel does not agree with the weight the sentencing court
accorded them.” Commonwealth v. Marts, 889 A.2d 608, 617
(Pa. Super. 2005).
Deer’s Rule 2119(f) statement is deficient. Although Deer faithfully
recites the legal standard applicable to challenges to the discretionary
aspects of sentence and provides case law that establishes that the
challenges raised herein implicate the trial court’s sentencing discretion, see
Brief for Deer at 19-20, he does not tie those principles to the circumstances
of this case. Merely asserting a right to review does not, by itself, clear the
“substantial question” hurdle. If it did, compliance with Rule 2119(f) would
be nothing but a formality. See Commonwealth v. Mouzon, 812 A.2d
9 Pursuant to 42 Pa.C.S. § 9721(b), the trial court is directed to “follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.”
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617, 627 (Pa. 2002) (“[O]nly where the appellant’s Rule 2119(f) statement
sufficiently articulates the manner in which the sentence violates either a
specific provision of the sentencing scheme set forth in the Sentencing Code
or a particular fundamental norm underlying the sentencing process, will
such a statement be deemed adequate to raise a substantial
question . . . .”).
Despite the deficiencies in Deer’s Rule 2119(f) statement, we will not
deem his sentencing challenge waived for that reason. The argument
section of his brief sets forth a challenge to the sufficiency of the trial court’s
consideration of his individual rehabilitative needs, and therein he discusses,
as such and at greater length, the substantial question requirement.
See Brief for Appellant at 21-23 (citing Commonwealth v. Downing, 990
A.2d 788 (Pa. Super. 2010)). Moreover, when the Commonwealth raises no
objection to a Rule 2119(f)’s technical adequacy, we may overlook the
deficiency. Commonwealth v. Hobson, 604 A.2d 717, 720 n.9
(Pa. Super. 1992).
In his own words, the substance of Deer’s challenge is as follows:
Mr. Deer asked of the sentencing court to consider, in particular, his rehabilitative needs to determine the manner of and location where—county prison or [a state correctional institution—]his sentence would be served. From the [t]ranscript of the [sentencing p]roceedings . . . there’s a palpable, almost personal[] sense of ill will toward Mr. Deer by the [trial c]ourt found in [the court’s] statement in regard to the request. “As I look at your record, the last thing that we want to have is to deal with you at the county level for the next five years. Your
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adjustment on county parole has been atrocious, going all the way back to 1999.”[10]
In part, the [trial c]ourt arrived at its sentencing decision on the ad hominem statements noted above. It did not consider the “nature and circumstances of the offense and the history and characteristics of the defendant.” 42 Pa.C.S. § 9781(d)(1). It did not consider the nature of the state sentence it imposed in light of the parole violations from other counties for which no background information was made available to the [trial c]ourt. Nor did the [c]ourt avail itself [of] medical or psychological background information that may have concerned the substance abuse connection to the crimes . . . .
[I]t is Mr. Deer’s alcohol abuse that has loomed like the sword of Damocles above his head for untold years, and so much the reason for his recidivist record. Consequently, his rehabilitative needs loomed large over the proceedings.
Mr. Deer offered considerable logic as to his particular need for rehabilitative treatment during incarceration, and most importantly at a county facility as opposed to an SCI. . . . Mr. Deer reasoned, “The difference is . . . that the state [facilities are] way overcrowded for me to even get into a program it’s by the luck of the [Department of Corrections] . . . .”
For the [trial c]ourt, financial considerations held greater weight than the actual rehabilitative aspect; and without greater specific disclosure as to what the financial issues were to the [c]ourt, too subjective a consideration to substantiate. All we have is “[W]ell, the problem with Cumberland County right now is that we have no funding for inpatient treatment, which I think is what you need.” ____________________________________________
10 In violation of Pa.R.A.P. 2117(a)(4) and 2119(c), Deer does not cite record sources for his various characterizations and quotations of the sentencing proceedings.
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Brief for Deer at 22-29 (citations modified; emphasis added by Deer).11
In effect, Deer contends that the trial court did not adequately
consider his rehabilitative needs in fashioning a sentence that denied him
the opportunity to pursue substance abuse treatment in the Cumberland
County jail rather than in an SCI. He also contends that the trial court did
not state an appropriate reason during the sentencing proceeding, and that
the trial court improperly noted that “the last thing that we want to have is
to deal with you at the county level for the next five years.”
Deer is correct that the trial court’s brief comments at sentencing,
which did not include any reference to Deer’s rehabilitative needs, were at
best of questionable adequacy. See 42 Pa.C.S. § 9721 (in relevant part,
requiring that the court to “make as a part of the record, and disclose in
open court at the time of sentencing, a statement of the reason or reasons
for the sentence imposed”). However, the trial court vitiated any such
deficiency by providing a more detailed explanation during the hearing on
Deer’s post-sentence motions. Therein, the trial court specifically recited
Deer’s long history of parole and probation violations. Moreover, the trial
court did not dispute Deer’s claims that his alcohol abuse was a substantial
factor in his lengthy criminal record, or that Deer was a candidate for ____________________________________________
11 Notably, even as Deer criticizes the court for relying upon unsubstantiated considerations regarding the lack of funding in Cumberland County for in-patient treatment, he relies upon an equally unsubstantiated claim regarding the state correctional system’s ability to provide treatment.
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substance abuse treatment. To the contrary, the trial court underscored
Deer’s need for treatment. Nonetheless, the trial court determined in its
judgment that Deer would be better served in the state system.
Deer merely insists that the trial court exercised its discretion poorly in
light of the available information, which included a pre-sentence
investigation and Deer’s own comments to the effect that his alcoholism was
a factor in mitigation. In Commonwealth v. Lopez, this Court found no
substantial question where the appellant contended that the trial court
“abused its discretion when it ignored the mitigating circumstances in the
record, and failed to address factors weighing in favor of probation and other
sentencing alternatives.” 627 A.2d 1229, 1231 (Pa. Super. 1993).12 The
appellant did not allege that the trial court was unaware of the mitigating
circumstances in question, but rather challenged the trial court’s weighing of
these considerations. We held that “[t]his type of claim, which asks us to
substitute our judgment for that of the sentencing court, does not present a
substantial question that the sentence imposed was inappropriate under the
Sentencing Code.” Id. at 1231-32; accord Commonwealth v. Wellor,
731 A.2d 152, 154 (Pa. Super. 1999) (citing Commonwealth v. Rivera,
637 A.2d 1015, 1017 (Pa. Super. 1994) (finding no substantial question ____________________________________________
12 This Court has called the Lopez decision into question regarding its resolution of an issue with no bearing on the substantial question analysis. See Commonwealth v. Rosario-Hernandez, 666 A.2d 292, 299 (Pa. Super. 1995).
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when appellant merely argued that trial court “inappropriately applied
correct information,” because appellant was “effectively asking this [C]ourt
to substitute our judgment for that of the lower court”)); Commonwealth
v. Hobson, 604 A.2d 717, 721 (Pa. Super. 1992) (same); Commonwealth
v. Rogers, 563 A.2d 165, 168 (Pa. Super. 1989) (same).
Deer asks this Court to substitute our judgment for that of the trial
court, which does not present a substantial question. Consequently, we do
not reach the merits of this argument.
In his second issue, Deer challenges the trial court’s refusal to award
credit for time that he does not dispute he was serving for parole
revocations that took precedence over his incarceration pending charges in
the instant matter. Deer acknowledges that the trial court had discretion to
award what would have amounted to “double credit,” and abused that
discretion in declining to do so. Deer does not assert that the trial court
violated the law or otherwise objectively erred in calculating Deer’s credit for
time served.
As set forth, the trial court explained its reasons for opting not to
award double credit as follows:
[COUNSEL FOR DEER:] The reasons for requesting additional time credit was back at the time of the preliminary hearing, which was back on July 12th of 2013, the case did get held for court, and the bail was set at $500.00 back then. So [the court] set $500.00 bail on him up until the time of the date of the sentencing.
THE COURT: Right, and we gave him credit from the time— the date bail was set until July 23rd, when he was revoked and
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recommitted on MD 288-213. Then on August 27 he was sentenced to 2 to 12 months on 1278 Criminal 2013, which ran consecutive to the 288 MD 2013. He maxed out on the MD 288- 2013 on September 30, 2013, at which time his sentence on 1278 Criminal 2013 went into effect. He did his three months on that and was paroled on 12/31/13, and we gave him credit from that date until he actually made bail on January 9, 2014. So we gave him credit for every day he served on this charge that he did not serve on another charge.
[COUNSEL FOR DEER:] . . . I think it would be up to the Court if he gets credit for the time that he continuously did on this charge or not. I mean, I know there is no entitlement to double credit.
THE COURT: And we saw no reason to give him the double credit. It was a mandatory sentence . . . . We could have sentenced him to one and a half years, but we didn’t, so we gave him credit in that regard.
N.T.P.S.M. at 2-3
Deer cites a number of authorities in support of his argument. Brief
for Deer at 30-35. However, these cases do not establish anything
resembling a mandatory obligation on the trial court relative to the
circumstances of this case. For example, in Gaito v. Pennsylvania Board
of Probation & Parole, the Supreme Court held that “time spent in custody
pursuant to a detainer warrant shall be credited to a convicted parole
violator’s original term . . . only when the parolee was eligible for and had
satisfied bail requirements for the new offense and thus remained
incarcerated only by reason of the detainer warrant lodged against him.”
412 A.2d 568, 571 (Pa. 1980) (quoting Rodriques v. Penna. Bd. of Prob.
& Parole, 402 A.2d 184, 185-86 (Pa. Cmwlth. 1979)). “If a defendant,
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however, remains incarcerated prior to trial because he has failed to satisfy
bail requirements on the new criminal charges, then the time spent in
custody shall be credited to his new sentence.” Id. Notably, the court did
not hold that, in the latter circumstance, the appellant would be entitled to
credit against both sentences. The same is true of Commonwealth v.
Mann, in which this Court held that, “[w]here an offender is incarcerated on
both a Board [of Probation and Parole] detainer and new criminal charges,
all time spend in confinement must be credited to either the new
sentence or the original sentence,” not both. 957 A.2d 746, 749
(Pa. Super. 2008) (quoting Martin v. Penna. Bd. of Probation & Parole,
840 A.2d 299, 309 (Pa. 2003)) (emphasis modified). Indeed, these cases
tend to support the trial court’s decision not to award Deer double credit.
Simply put, Deer’s arguments rely upon dubious citations to inapposite
cases. Even read most favorably, they fail to establish that Deer was
entitled to credit not only for the time he served solely on the instant
charge but also for the time he served on separate matters. Moreover, Deer
does not maintain that the trial court failed to account for every moment
that Deer served during the pendency of the instant charges, such that Deer
was denied credit for any such time. Nothing Deer cites, read in isolation or
in tandem with the facts of his case, establishes a basis for the trial court to
have awarded double-credit, let alone a reason that we might find that the
court’s failure to do so constituted an abuse of any such discretion.
Consequently, this argument lacks merit.
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Judgment of sentence affirmed.
Judge Lazarus joins the memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/30/2015
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