Com. v. Ziegler, M.

• Court: Superior Court of Pennsylvania
• Decided: March 16, 2022
• Docket: 519 EDA 2020
• Status: Unpublished

Opinion

J-S23043-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MIQUEL ZIEGLER : : Appellant : No. 519 EDA 2020

Appeal from the PCRA Order Entered December 30, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007786-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : MIQUEL ZIEGLER : : Appellant : No. 2589 EDA 2021

Appeal from the PCRA Order Entered November 18, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007786-2017

BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED MARCH 16, 2022

In this consolidated matter, Miquel Ziegler (Appellant), appeals pro se

from the order the of the Court of Common Pleas of Philadelphia County that

dismissed his first petition filed under the Post Conviction Relief Act (PCRA).1 ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546. J-S23043-21

He raises multiple ineffective assistance of counsel claims, alleging that his

prior counsel had unlawfully induced him to enter a guilty plea and failed to

file a requested direct appeal. Upon review, we affirm.

On May 25, 2018, Appellant entered a negotiated guilty plea to third-

degree murder, attempted murder, and possessing an instrument of crime.2

In exchange for the plea, the Commonwealth recommended an aggregate

sentence of 42 1/2 to 85 years’ incarceration and agreed to nolle prosse

additional charges.3

The following summary of the facts was presented at Appellant’s plea

hearing:

If called to testify Timaya Hedgepeth would testify that on July 17th of 2017, at approximately 4 p.m., in the area of 2713 Daly Terrace in the city and county of Philadelphia she was at her home when [Appellant] came over saying he wanted to talk.

She had broken up with him the day previously. [Appellant] got angry, grabbed her and slammed her against the wall. He hit her two times, threw her onto the bed and strangled her. She was eventually able to break free and call the police.[4]

____________________________________________

2 18 Pa.C.S. §§ 2502(c), 901(a), and 907(a), respectively. 3 Appellant also pleaded guilty to strangulation of his attempted murder victim at docket number CP-51-CR-0007785-2017. He received a concurrent prison term. That offense was committed two days prior to the commission of the offenses addressed in the instant case. Appellant’s notice of appeal challenged only the denial of post-conviction relief at CP-51-CR-0007786-2017. See Commonwealth v. Hardy, 99 A.3d 577, 579 (Pa. Super. 2014) (holding that this Court is without jurisdiction to grant relief with respect to a judgment entered on a bill number not listed in the notice of appeal).

4 Appellant’s actions on that date formed the basis for his strangulation conviction at CP-51-CR-0007785-2017.

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[Appellant] was then arrested and charged and posted bail on July 19th. Approximately 12 hours later[, Appellant] went back to that location at 1:55 a.m. on July 20, 2017 and broke into the house. He began stabbing Timaya multiple times, saying, “Die, bitch.”

She suffered multiple stab wounds as well as a slash across her throat and she los[t] a tooth.

[Appellant] then stabbed her mother, Tracy Hedgepeth, thirteen times.

Officers responded to the scene as [Appellant] fled and rushed both women to the hospital. Police officers asked Tracy Hedgepeth who it was that stabbed her, and she said my daughter’s ex[-]boyfriend. One of the officers said, “Miguel?” And she said yes.

Two knives were recovered at the scene[.]

…

Doctor Lindsay Simon conducted an autopsy where she found stab wounds to [Tracy Hedgepeth’s] torso as well as 12 additional stab wounds to the head, neck, torso and extremities. She said the cause of death was the stab wound to the torso, and the manner of death is homicide.

N.T. 5/25/18, 36-37.

That same day, the court sentenced Appellant to the agreed-upon

sentence. Appellant did not file a post-sentence motion or notice of appeal.

On April 1, 2019, Appellant timely filed a pro se PCRA petition. The

PCRA court appointed counsel for Appellant. On December 3, 2019, PCRA

counsel filed an application to withdraw and a no-merit letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On December 6, 2019,

the PCRA court entered an order notifying Appellant pursuant to Pa.R.Crim.P.

907 that the court intended to grant PCRA counsel’s request to withdraw and

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dismiss Appellant’s petition without a hearing. Appellant filed a timely pro se

response to the Rule 907 notice. On December 30, 2019, the PCRA court

formally dismissed his petition and granted his counsel’s withdrawal request.5

This appeal followed.6

Appellant’s notice of appeal was docketed on January 31, 2020, two

days beyond the thirty-day deadline for filing an appeal. Pa.R.A.P. 903(a)

(general rule for 30-day time limitation for filing an appeal). Accordingly, this

Court issued a rule to show cause directing Appellant to show cause why this

appeal should not be quashed as untimely filed.

5 It appears that, rather than issuing a separate order granting counsel’s request to withdraw, the PCRA court signed a separate docket entry indicating that counsel’s motion to withdraw had been granted. See Order, 12/30/19, at 1. While this procedure is unusual, no party has objected to the entry of this order and, in the interest of judicial economy, we will determine that counsel was properly permitted to withdraw. See, e.g., Commonwealth v. Cooper, 2020 WL 5758706, *3 n.8 (Pa. Super., filed Sep. 28, 2020) (unpublished memorandum) (affirming dismissal of PCRA petition although copy of the order granting counsel’s petition to withdraw was not part of the certified record, where Appellant was aware that the court had granted counsel’s petition); see also Pa.R.A.P. 126(b)(1)-(2) (non-precedential decisions of this Court filed after May 1, 2019 may be cited for persuasive value).

6 We note with disapproval that the Commonwealth’s brief for Appellee was filed late, despite having been granted two extensions of time. Order, 4/6/21, at 1; Order, 6/22/21, at 1. The Court’s second extension order permitted a deadline of June 30, 2021, and stated that no further extensions would be granted. Order, 6/22/21, at 1. The Commonwealth did not file its appellate brief until July 23, 2021. We, therefore, decline consideration of arguments advanced in the Commonwealth’s untimely brief. Commonwealth v. Brown, 161 A.3d 960, 964 n.2 (Pa. Super. 2017).

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On October 13, 2020, this Court remanded the matter to the PCRA court

because, although the dismissal of the petition was indicated on the docket,

the dismissal order was not contained in the certified record on appeal. See

Commonwealth v. Ziegler, 266 A.3d 633 (Pa. Super. 2021) (unpublished

memorandum). Pa.R.A.P. 301(a)(1) and 301(b) require that, for an order to

be appealable, it must be entered on the appropriate docket and set forth in

the certified record on a separate document. Id. at *2. As a result, Appellant

had not been properly advised of his rights as required by Pa.R.Crim.P.

907(a)(4) and Pa.R.Crim.P. 114, because he had not been served with a copy

of the order advising him of his appellate rights and the time limits within

which the appeal must be filed. Id.

On November 18, 2021, the PCRA court returned the record with an

appropriate final dismissal order indicating that the Honorable Sandy L.V.

Byrd, who had presided at Appellant’s combined guilty plea and sentencing

hearing, and had previously dismissed his PCRA petition, was no longer sitting

as a judge for the Philadelphia Court of Common Pleas and thus no opinion

from the PCRA court would be forthcoming.7 On October 14, 2020, this Court

discharged the rule to show cause; Appellant filed a response two days after

the discharge.

Appellant raises the following issues on appeal:

7 Judge Byrd did not issue an order pursuant to Pa.R.A.P. 1925(b) prior to his retirement.

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I. Did counsel err by not upholding the 6th Amendment?

II. Did counsel err in telling his client he had no defense?

III. Did counsel err in not filing [an] appeal of sentence when asked

to do so by defendant?

IV. Did counsel err in not challenging identification by [a] key

witness?

V. Did counsel err in not getting forensic results?

Appellant’s Brief at 4 (some formatting altered).

All of Appellant’s claims on appeal concern the effectiveness of his plea

counsel.

When reviewing the denial of a PCRA petition, “[o]ur standard of review

. . . is limited to examining whether the PCRA court’s determination is

supported by the record and free of legal error.” Commonwealth v.

Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016). We must view the

findings of the PCRA court and the evidence of record in a light most favorable

to the prevailing party. Commonwealth v. Johnson, 236 A.3d 63, 68 (Pa.

Super. 2020) (en banc). The PCRA court’s credibility determinations, if

supported by the record, are binding on this Court. Johnson, 236 A.3d at

68.

Initially, we must determine whether Appellant has preserved his issues

on appeal. While Appellant is proceeding pro se, under Pennsylvania law, pro

se defendants are subject to the same rules of procedure as are represented

defendants. See Commonwealth v. Williams, 896 A.2d 523, 534 (Pa.

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2006) (pro se defendants are held to same standards as licensed attorneys).

“Although the courts may liberally construe materials filed by a pro se litigant,

pro se status confers no special benefit upon a litigant, and a court cannot be

expected to become a litigant’s counsel or find more in a written pro se

submission than is fairly conveyed in the pleading.” Commonwealth v.

Blakeney, 108 A.3d 739, 766 (Pa. 2014). “While this Court may overlook

minor defects or omissions in an appellant’s brief, we will not act as his or her

appellate counsel.” Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.

Super. 2015).

Instantly, Appellant’s pro se brief falls well below the standards

delineated in our Rules of Appellate Procedure. Specifically, Appellant’s brief

contains a litany of boilerplate allegations which he fails to develop with

analysis and appropriate citation to legal authority from this jurisdiction. See

Pa.R.A.P. 2119(a) (“argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each part — in distinctive

type or in type distinctively displayed — the particular point treated therein,

followed by such discussion and citation of authorities as are deemed

pertinent”); Kelly v. The Carman Corporation, 229 A.3d 634, 656 (Pa.

Super. 2020) (citing Pa.R.A.P. 2119(a) (argument shall include citation of

authorities)); see also, e.g., Commonwealth v. Spotz, 18 A.3d 244, 281

n.21 (Pa. 2011) (without a “developed, reasoned, supported, or even

intelligible argument[, t]he matter is waived for lack of development”); In re

Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (“The argument

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portion of an appellate brief must include a pertinent discussion of the

particular point raised along with discussion and citation of pertinent

authorities[; t]his Court will not consider the merits of an argument which fails

to cite relevant case or statutory authority” (internal citations and quotation

marks omitted)); Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006)

(explaining appellant’s arguments must adhere to rules of appellate

procedure, and arguments which are not appropriately developed are waived

on appeal; arguments not appropriately developed include those where party

has failed to cite any authority in support of contention).

In Freeman, id., this Court concluded that, where the appellant had

“made no effort whatsoever to discuss the applicable law or to link the facts

of his case to that law[,]” his claim was waived. Analogously, in the current

action, Appellant has made no effort to discuss the applicable law or to link

the facts of his case to that law; accordingly, this failure to develop a coherent

legal argument in support of any of his claims results in the waiver of all of

those issues. Id. However, even assuming that we did not find waiver,

Appellant’s claims would not merit relief.

As to a claim asserting ineffective assistance of counsel, we are guided

by a well-settled set of precepts:

We presume counsel’s effectiveness, and an appellant bears the burden of proving otherwise. To establish ineffectiveness of counsel, a PCRA petitioner must plead and prove: his underlying legal claim has arguable merit; counsel’s actions lacked any reasonable basis; and counsel’s actions prejudiced him. Failure to satisfy any prong of the ineffectiveness test requires dismissal of the claim. Arguable merit exists when the factual statements

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are accurate and could establish cause for relief. Whether the facts rise to the level of arguable merit is a legal determination.

Commonwealth v. Urwin, 219 A.3d 167, 172 (Pa. Super. 2019) (internal

citations and quotation marks omitted). As to what constitutes “reasonable

basis,” “[t]he test for deciding whether counsel had a reasonable basis for his

action or inaction is whether no competent counsel would have chosen that

action or inaction, or, the alternative, not chosen, offered a significantly

greater potential chance of success.” Commonwealth v. Stewart, 84 A.3d

701, 707 (Pa. Super. 2013) (citation omitted). As such, “[c]ounsel's decisions

will be considered reasonable if they effectuated his client's interest.” Id.

(citation omitted).

A criminal defendant has the right to effective assistance of counsel in

deciding whether to plead guilty. Commonwealth v. Valazquez, 216 A.3d

1146, 1149 (Pa. Super. 2019). Ineffective assistance of counsel in connection

with a guilty plea will serve as a basis for PCRA relief only if the ineffectiveness

caused the defendant to enter an involuntary or unknowing plea. Velazquez,

216 A.3d at 1149. “Where the defendant enters his plea on the advice of

counsel, the voluntariness of the plea depends on whether counsel’s advice

was within the range of competence demanded of attorneys in criminal cases.”

Velazquez, 216 A.3d at 1149-50 (citation omitted). Finally, this Court has

held that a defendant “is bound by the statements he makes in open court

while under oath and he may not later . . . contradict the statements he made

. . .” Commonwealth v. Hopkins 228 A.3d 577, 583 (Pa. Super. 2020).

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In his first issue, Appellant presents a number of reasons he alleges that

plea counsel provided deficient representation at his plea hearing. These

reasons include that counsel: did not meet Appellant in-person prior to the

plea hearing; failed to develop a defense; urged Appellant to consider the

Commonwealth’s plea offer; and promised Appellant that he would be

“released in 25 years for good behavior.” Appellant’s Brief at 8.8

Appellant’s assertion that plea counsel was ineffective for not meeting

him in-person prior to the plea hearing was never included in either Appellant’s

pro se PCRA petition or his pro se response to the PCRA court’s dismissal

notice pursuant to Pa.R.Crim.P. 907. Accordingly, that part of his argument

is waived. See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super.

2011) (“issues not raised in a PCRA petition cannot be considered on appeal”)

(quotation and citations omitted); Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).9

Appellant next implies that counsel was ineffective for failing to

communicate a plea offer to him, contending that counsel “urged him to

consider the [Commonwealth’s] plea offers which is plural but the defendant

only knew of one.” Appellant’s Brief at 8. Appellant attached correspondence ____________________________________________

8 Appellant also claims that counsel unlawfully induced him to plead guilty to strangulation. Appellant’s Brief for Appellant at 9. However, as noted above, Appellant did not appeal from docket number CP-51-CR-0007785-2017, and cannot now challenge that conviction. See Hardy, 99 A.3d at 579.

9 Appellant asserts in passing that plea counsel was ineffective for failing to develop a defense; however, as he repeats this claim at greater length in his second issue, we will defer our analysis.

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from counsel to his PCRA petition. See PCRA Petition, 4/1/19, Counsel

Correspondence dated 2/9/18. Without expounding on this statement further,

Appellant has failed to proffer any evidence that additional plea offers were

not communicated to him or that counsel should have not advised him to

accept the plea.

Regardless, Appellant has failed to show how he was prejudiced by

counsel. Urwin, 219 A.3d 167, 172. The plea was for a sentence lower than

the original offer from the Commonwealth, and by pleading guilty, Appellant

avoided a potential conviction for first-degree murder, which could have

carried a life sentence. Moreover, the plea agreement resulted in the nolle

prosequi of additional charges. Where the two victims in this case were both

familiar with Appellant, and the homicide victim specifically identified

Appellant as the assailant, the Court cannot conclude based on Appellant’s

baldly-stated claim that counsel was ineffective for advising him to accept his

plea offer.

Similarly, we reject Appellant’s argument that counsel improperly

induced his plea by promising him that “he would be released in 25 years for

good behavior.” Appellant’s Brief at 8. This bald allegation is unsupported by

any evidence or affidavit. Further, at his plea hearing and colloquy, Appellant

acknowledged that he understood the terms of his plea agreement, which

included an aggregate minimum prison term of 42 1/2 years, and agreed that

no one had promised him anything to make him enter the plea. N.T. Plea

Colloquy, 5/25/18, at 11, 24, 27. As noted, supra, a defendant is “bound by

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the statements he makes in open court while under oath,” Hopkins 228 A.3d

at 583. Appellant cannot now claim that his plea was unlawfully induced. We

decline to find error in the PCRA court’s dismissal of this claim. Whitehawk,

146 A.3d at 269.

In his second issue, Appellant claims that plea counsel provided

ineffective assistance by telling him that “he did not have a defense.”

Appellant’s Brief at 9-10. Appellant suggests that counsel had “disregard [sic]

towards [Appellant’s] case and unfamiliarity with [it].” Id. at 10. As noted

above, Appellant’s argument is woefully underdeveloped and does not address

any of the three prongs required to show counsel’s ineffectiveness, but merely

makes an unfounded, boilerplate allegation that counsel was not prepared.

See, e.g., Commonwealth v. Marinelli, 910 A.2d 672, 679 (Pa. 2006)

(“boilerplate allegations do not suffice as the kind of meaningful application of

the ineffective standard that is required for effective substantive review of

such claims”).

Regardless, nothing about counsel’s alleged statement rises to the level

of ineffectiveness. Appellant suggested in his response to the PCRA court’s

dismissal notice pursuant to Pa.R.Crim.P. 907 that plea counsel should have

pursued a heat of passion defense. See Response to Rule 907 Notice,

12/24/19, 4-5. However, nothing in the record would have supported such a

defense. A heat of passion defense would have required the demonstration

of a “sufficient provocation to create uncontrollable passion in a reasonable

person,” that that “provocation lead directly to the slaying of the person

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reasonable for the provocation,” and that Appellant had insufficient time to

cool off from the provocation. Commonwealth v. Martin, 5 A.3d 177, 186

(Pa. 2010).

Appellant does not and cannot suggest any provocation on the part of

the victims where the record reflects that Appellant broke into the victims’

home before repeatedly stabbing them. Because Appellant’s suggested

defense lacks arguable merit, his claim fails. See Commonwealth v. Mason,

130 A.3d 601, 630 (Pa. 2015) (holding evidence of previous issues between

Appellant and victim insufficient to support heat of passion defense; Appellant

must show “provocation on the part of the victim immediately prior to the

attack”).

In his third issue, Appellant argues that plea counsel provided per se

ineffective assistance by failing to file a requested direct appeal. Appellant’s

Brief at 10-11. He asserts that, at the conclusion of his plea hearing, he asked

counsel to withdraw his plea and file an appeal from his judgment of sentence,

and that counsel failed to comply with this request. Id. However, Appellant

did not preserve the claim regarding a direct appeal in his PCRA petition or his

response to the PCRA court’s dismissal notice. As a result, he waived this

claim. See Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa. 2004)

(holding that a claim not raised in a PCRA petition cannot be raised for the

first time on appeal); Pa.R.A.P. 302(a).

To the extent that Appellant contends that counsel did not file a motion

to withdraw his plea, he did preserve this claim in his response to the

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Pa.R.Crim.P. 907 notice. See Response to Rule 907 Notice, 12/24/19, 5.

However, Appellant has failed to establish that counsel was ineffective

because he failed to make a proffer below to establish that he had requested

counsel to file a plea withdrawal motion: he neither offered a certification for

any proposed testimony from plea counsel, nor produced any documents to

support the existence of a plea withdrawal motion request. 42 Pa.C.S. §

9545(d)(1)(i)-(iii) (PCRA petition requesting an evidentiary hearing should

include signed certification from each intended witness or a certification from

the petitioner stating, inter alia, the efforts to obtain the witness’s signature);

Pa.R.Crim.P. 902(A)(12)(b) (PCRA petition shall contain facts supporting each

ground for relief, and where the facts do not appear in the record, the petition

shall include “an identification of any affidavits, documents, and other

evidence showing such facts”). By failing to make a proffer supporting the

existence of an ignored request for a post-sentence plea withdrawal motion,

Appellant failed to meet his threshold burden on his claim. See

Commonwealth v. Gonzalez, 840 A.2d 326, 331 n.7 (Pa. Super. 2003) (en

banc) (“as a general rule, counsel will not be deemed ineffective for failing to

file a post-trial/sentence motion absent a request by the defendant to do so.”).

Additionally, Appellant failed to plead and prove prejudice below such

that, had counsel filed a plea withdrawal motion, there was a reasonable

probability that the court would have granted it. The transcript from the

combined guilty plea and sentencing hearing provide no support that a request

for the filing of a plea withdrawal was made in between the entry of Appellant’s

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plea and the imposition of his negotiated sentence. Accordingly, any proposed

withdrawal motion, for purposes of his ineffectiveness claim, would need to

be assessed under the post-sentence standard for withdrawal requests.

When a defendant seeks to withdraw a plea after sentencing, he “must

demonstrate prejudice on the order of manifest injustice.” Commonwealth

v. Yeomans, 24 A.3d 1044, 1046 (Pa. Super. 2011). “Manifest injustice

occurs when the plea is not tendered knowingly, intelligently, voluntarily, and

understandingly.” Commonwealth v. Kpou, 153 A.3d 1020, 1023 (Pa.

Super. 2016) (citations omitted). In determining whether a plea is valid, the

court must examine the totality of the circumstances surrounding the plea.

Id. Where a written plea colloquy is supplemented by an oral colloquy, the

proceedings strongly suggest that a defendant’s plea was knowing and

intelligent. See, e.g., Commonwealth v. Sauter, 567 A.2d 707, 708-09

(Pa. Super. 1989).

Here, the record does not reflect that any manifest injustice would have

warranted the withdrawal of Appellant’s plea. Indeed, he executed a written

guilty plea colloquy, and the written colloquy and the lower court’s detailed

oral colloquy together addressed all of the essential elements for a valid plea.

See Commonwealth v. Muhammad, 794 A.2d 378, 383 (Pa. Super. 2001);

see also Comment to Pa.R.Crim.P. 590. Appellant was informed in the oral

colloquy of the nature of the charges to which he was pleading guilty; the

terms of the plea agreement; the factual basis for the charges; his right to a

trial by jury; the fact that he was presumed innocent; the possible maximum

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sentences for the charges; and the court’s power to depart from the

recommended negotiated sentence. N.T. Plea Hearing, 5/25/18, at 11-21,

23-25, 28-35, 39-41. Appellant affirmed that he had an opportunity to review

the written guilty plea colloquy with his attorney. Id. at 42. Appellant’s

assertions in the guilty plea colloquies would have belied any attempt to

withdraw his guilty plea. See, e.g., Sauter, 567 A.2d at 708-09. Appellant

cannot demonstrate that the failure to file a plea withdrawal motion resulted

in prejudice. Urwin, 219 A.3d 167, 172.

In his fourth issue, Appellant argues that plea counsel “err[ed] in not

challenging identification by [a] key witness” based on his cross-examination

of Timaya Hedgepeth’s identification at his preliminary hearing. Appellant’s

Brief at 12-13. Appellant claims that Ms. Hedgepeth contradicted her

identification and claimed that she was not certain of who harmed her. Id. It

is unclear from Appellant’s argument how he believes counsel was ineffective.

As noted, supra, we will not act as appellate counsel; because we cannot

decipher Appellant’s argument, this claim is waived. Freeman, 128 A.3d at

1249.

In his final issue, Appellant argues that plea counsel provided ineffective

assistance by failing to pursue “forensic results.” Appellant’s Brief at 13-14.

Again, Appellant failed to preserve this claim because, in both his PCRA

petition and his response to the court’s Pa.R.Crim.P. 907 notice, he did not

articulate a claim that plea counsel was ineffective for failing to pursue DNA

testing or fingerprint evidence. See Pa.R.A.P. 302(a).

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Accordingly, we conclude that the PCRA court’s determination that plea

counsel was effective in his representation is supported by the record and free

of legal error. Whitehawk, 146 A.3d at 269. We therefore affirm the denial

of PCRA relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/16/2022

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