Com. v. McKenzie, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAMMERON L. MCKENZIE,
Appellant No. 1188 WDA 2016
Appeal from the PCRA Order Entered July 14, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000384-2013
BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 28, 2017
Appellant, Kammeron L. McKenzie, appeals from the post-conviction
court’s July 14, 2016 order denying his petition filed under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, in which he raised
several claims of ineffective assistance of counsel (IAC). We affirm.
This Court summarized the procedural and factual history of
Appellant’s case in our disposition of his direct appeal:
A jury found [Appellant] guilty of possession of a controlled
substance (cocaine) with intent to deliver (“PWID”),1 possession
of a controlled substance,2 possession of a small amount of
marijuana,3 carrying firearms without a license,4 persons not to
possess a firearm5 and receiving stolen property.6 The trial court
sentenced [Appellant] to an aggregate term of 5-10 years’
imprisonment.7
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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…
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(16).
3
35 P.S. § 780-113(a)(31).
4
18 Pa.C.S. § 6106(a)(1).
5
18 Pa.C.S. § 6105(a)(1).
6
18 Pa.C.S. § 3925(a).
7 On October 30, 2013, the trial court sentenced
[Appellant] to an aggregate term of 7-14 years’
imprisonment. [Appellant] filed a timely post-sentence
motion seeking modification of his sentence. He
subsequently filed supplemental post-sentence motions
which included challenges to the sufficiency and weight of
the evidence. On January 30, 2014, the trial court granted
[Appellant’s] motion for modification of sentence and
denied the remaining post-sentence motions. On February
28, 2014, the trial court resentenced [Appellant] to an
aggregate of 5-10 years’ imprisonment.
…
[Appellant] and his co-defendant, Anthony Slappy, were tried
together. The trial court accurately recounted the evidence
adduced during the … trial as follows:
On December 1, 2012 at approximately 1:30 a.m., Officer
David Johnson of the City of Beaver Falls Police
Department was on patrol in a marked police vehicle when
he observed what he believed to be Anthony Slappy
pumping gas into a white Cadillac at the A-Plus gas station
in Beaver Falls. Officer Johnson also observed that
another individual he could not identify from that distance
was in the passenger seat of the Cadillac. After pumping
the gas, the individual that appeared to be Slappy entered
the driver's side of the Cadillac and exited the gas station
parking lot.
As the Cadillac turned onto Eighth Avenue and then to 26 th
Street, Officer Johnson further observed that the taillights
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of the vehicle were not illuminated. Officer Johnson then
activated the overhead lights of his patrol vehicle in an
attempt to initiate a traffic stop. According to Officer
Johnson, the driver of the Cadillac started to pull toward
the curb but ultimately drove back toward the middle of
the road and continued driving. As a result, Officer
Johnson activated his siren and notified dispatch that the
driver was refusing to stop. The driver of the Cadillac
disregarded the siren and continued traveling south on
Tenth Avenue. As they approached the intersection of
Tenth Avenue and 25th Street, it appeared to Officer
Johnson that the driver attempted to make a left turn
toward Ninth Avenue, but Captain Martin of the Beaver
Falls Police Department had arrived to intercept the driver
at Ninth Avenue. The driver continued on Tenth Avenue
through a ‘Do Not Enter’ sign and onto a one-way street.
It again appeared to Officer Johnson that the driver
attempted to turn left at the intersection of 24th Street and
Tenth Avenue, but the driver was again blocked by Captain
Martin’s police vehicle. The driver continued traveling
south on Tenth Avenue, and, at the intersection of Tenth
Avenue and 23rd Street, Officer Johnson observed, with the
aid of his spotlight, the passenger moving around and
throwing a white object out the window. According to
Officer Johnson, the road on which the driver was traveling
ended, and the driver was forced to turn left and
eventually stop because he was intercepted by Captain
Martin.
After stopping the vehicle, Officer Johnson and Captain
Martin approached the Cadillac with their weapons drawn.
Officer Johnson approached the passenger side of the
Cadillac and recognized [Appellant] as the passenger of
the vehicle. According to Officer Johnson, [Appellant] was
leaning to the left and over his seat toward the floor of the
Cadillac. Officer Johnson ordered [Appellant] to show his
hands, and, after initially refusing to comply, [Appellant]
raised his hands. Knowing that there was an active
warrant for [Appellant]’s arrest, Officer Johnson removed
[Appellant] from the inside of the Cadillac and took him to
the back of the vehicle in order to conduct a search for
weapons. While doing so, Officer Johnson observed a
white rock substance on the window of the Cadillac. During
the frisk, [Appellant] stated that he had ‘a little bit of
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weed.’ The search uncovered a small baggy of suspected
marijuana, $640, and a cell phone. After Captain Martin
removed the driver who was determined to be Anthony
Slappy from the Cadillac, the officers discovered an
unloaded .45 caliber Taurus 24/7 Pro firearm on the
driver's side of the vehicle. Officer Johnson described the
location of the firearm as follows:
[W]e did observe that there was a firearm also under
the, what would be the driver's seat post, next to the
hump. So if I would be sitting in the driver's seat,
there, like, the bolts where the seat is bolted to the
floor, there’s a firearm that would be slid down on
the side of the hump right against that post.
The magazine for the firearm was also located on the
driver’s side of the vehicle. The officers also found another
cell phone and a 45 caliber bullet ‘on the passenger
floorboard where [Appellant] was seated[].’ In addition,
white residue that was later determined to be cocaine was
found in the vehicle.
After [Appellant] and Slappy were arrested and secured for
transport, Officer Johnson and Captain Martin went to the
intersection of Tenth Avenue and 23rd Street where they
previously observed a white rock substance thrown from
the passenger side window of the Cadillac. Upon arriving
at that location, the officers found and collected a plastic
baggie of suspected crack cocaine as well as several solid
pieces of suspected crack cocaine of varying sizes. These
items as well as the evidence obtained from the Cadillac
were turned over to the police department's record
custodian, Detective Kevin Burau.
Once the officers returned to the station, the suspected
marijuana and cocaine were tested, yielding positive
results for the presence of marijuana and cocaine. The
officers also determined that the Cadillac was registered to
Slappy. After the Cadillac was impounded, the officers
obtained a search warrant for the Cadillac. The
subsequent execution of the search warrant revealed
additional white, rock-type substances from both the driver
and passenger sides of the vehicle. Using the serial
number on the Taurus 24/7 Pro firearm, the officers
conducted a search of the National Crime Information
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Center database, which revealed that someone in
Independence Township had reported that the firearm had
been stolen. The officers also determined through an
inquiry to the Pennsylvania State Police Firearms Unit that
neither [Appellant] nor Slappy had a valid license to carry
a firearm concealed. The firearm as well as the recovered
ammunition, the suspected controlled substances, and
DNA samples from [Appellant] and Slappy were
subsequently transferred to the Pennsylvania State Police
for further testing.
Trial Court Opinion, pp. 1-4.
Several additional facts bear mention. Joseph Kukosky, a
forensic DNA scientist with the Pennsylvania State Police Crime
Lab, testified that swabs taken from the firearm contained DNA
that matched [Appellant’s] DNA profile. In addition, both
[Appellant] and Slappy testified in their own defense.
[Appellant] admitted to possessing the firearm in Slappy’s
vehicle but testified that Slappy had given it to him. On the
other hand, Slappy testified that he never possessed the firearm
and claimed that [Appellant’]s testimony was false. [Appellant]
admitted possessing cocaine but claimed it was for personal use.
The Commonwealth, however, demonstrated that [Appellant]
possessed 10 grams of cocaine mostly in rock form but had no
pipe with which to ingest cocaine. Additionally, [Appellant] was
unemployed at the time of his arrest, but he carried $640.00 in
his pocket and possessed two mobile cellular phones.
Commonwealth v. McKenzie, No. 527 WDA 2014, unpublished
memorandum at 1-6 (Pa. Super. filed January 9, 2015) (some footnotes
omitted).
Appellant filed a timely direct appeal from his judgment of sentence,
and after this Court affirmed, see id., our Supreme Court denied his
subsequent petition for allowance of appeal. See Commonwealth v.
McKenzie, 125 A.3d 776 (Pa. 2015). Appellant then filed a timely, pro se
PCRA petition on October 30, 2015. Counsel was appointed and he filed an
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amended petition on Appellant’s behalf raising various IAC claims. A PCRA
hearing was conducted on May 2, 2016, at which Appellant, and his trial and
direct appeal counsel, Mitchell Shahen, Esq., both testified. On July 14,
2016, the PCRA court issued an order and opinion denying Appellant’s
petition.
Appellant filed a timely notice of appeal, as well as a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. On September 19,
2016, the PCRA court issued a responsive opinion, relying in large part on
the rationale set forth in its July 14, 2016 opinion denying Appellant’s
petition. In Appellant’s brief to this Court, he presents the following three
issues for our review:
I. Whether there was ineffective assistance of counsel in failing
to challenge on appeal the sufficiency of the evidence on
receiving stolen property - firearm[?]
II. Whether there was ineffective assistance of counsel in failing
to request the trial court to properly and adequately charge the
jury and/or failing to object to the trial court improperly and
inadequately charging the jury regarding (a) receiving stolen
property - guilty knowledge, (b) constitutional limits on using
inferences in criminal cases, (c) direct and circumstantial
evidence - additional request, and (d) unanimity required for one
of alternative theories of guilt of receiving stolen property[?]
III. Whether there was ineffective assistance of counsel in failing
to object to the exhibits of experts being in possession of the
jury during deliberations[?]
Appellant’s Brief at 4 (unnecessary capitalization omitted).
First, “[t]his Court’s standard of review from the grant or denial of
post-conviction relief is limited to examining whether the lower court’s
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determination is supported by the evidence of record and whether it is free
of legal error.” Commonwealth v. Morales, 701 A.2d 516, 520 (Pa. 1997)
(citing Commonwealth v. Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)).
Where, as here, a petitioner claims that he received ineffective assistance of
counsel, our Supreme Court has directed that the following standards apply:
[A] PCRA petitioner will be granted relief only when he proves,
by a preponderance of the evidence, that his conviction or
sentence resulted from the “[i]neffective assistance of counsel
which, in the circumstances of the particular case, so
undermined the truth-determining process that no reliable
adjudication of guilt or innocence could have taken place.” 42
Pa.C.S. § 9543(a)(2)(ii). “Counsel is presumed effective, and to
rebut that presumption, the PCRA petitioner must demonstrate
that counsel's performance was deficient and that such
deficiency prejudiced him.” [Commonwealth v.] Colavita, 606
Pa. [1,] 21, 993 A.2d [874,] 886 [(Pa. 2010)] (citing
Strickland[ v. Washington, 104 S.Ct. 2053 (1984)]). In
Pennsylvania, we have refined the Strickland performance and
prejudice test into a three-part inquiry. See [Commonwealth
v.] Pierce, [515 Pa. 153, 527 A.2d 973 (Pa. 1987)]. Thus, to
prove counsel ineffective, the petitioner must show that: (1) his
underlying claim is of arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner
suffered actual prejudice as a result. Commonwealth v. Ali,
608 Pa. 71, 86, 10 A.3d 282, 291 (2010). “If a petitioner fails to
prove any of these prongs, his claim fails.” Commonwealth v.
Simpson, [620] Pa. [60, 73], 66 A.3d 253, 260 (2013) (citation
omitted). Generally, counsel's assistance is deemed
constitutionally effective if he chose a particular course of
conduct that had some reasonable basis designed to effectuate
his client's interests. See Ali, supra. Where matters of strategy
and tactics are concerned, “[a] finding that a chosen strategy
lacked a reasonable basis is not warranted unless it can be
concluded that an alternative not chosen offered a potential for
success substantially greater than the course actually pursued.”
Colavita, 606 Pa. at 21, 993 A.2d at 887 (quotation and
quotation marks omitted). To demonstrate prejudice, the
petitioner must show that “there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
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proceedings would have been different.” Commonwealth v.
King, 618 Pa. 405, 57 A.3d 607, 613 (2012) (quotation,
quotation marks, and citation omitted). “‘[A] reasonable
probability is a probability that is sufficient to undermine
confidence in the outcome of the proceeding.’” Ali, 608 Pa. at
86–87, 10 A.3d at 291 (quoting Commonwealth v. Collins,
598 Pa. 397, 957 A.2d 237, 244 (2008) (citing Strickland, 466
U.S. at 694, 104 S.Ct. 2052)).
Commonwealth v. Spotz, 84 A.3d 294, 311-12 (Pa. 2014).
Appellant first argues that Attorney Shahen was ineffective for failing
to challenge, on direct appeal, the sufficiency of the evidence to prove the
‘guilty knowledge’ element of his receiving stolen property conviction. More
specifically, Appellant stresses that to convict an individual of receiving
stolen property, the Commonwealth must prove, inter alia, that the person
possessed the property “knowing that it has been stolen, or believing that it
has probably been stolen….” 18 Pa.C.S. § 3925(a). Appellant contends that
in this case, there was insufficient evidence to prove that he knew the
property at issue - i.e., the firearm - was stolen, or that he believed it was
probably stolen. According to Appellant, there was no evidence linking him
to the firearm, other than his presence in the vehicle in which it was found.
He also argues that the fact that the firearm was stolen three years prior to
his arrest supported that he did not know that it was stolen. Thus, Appellant
asserts that, had Attorney Shahen raised these sufficiency-of-the-evidence
arguments on direct appeal, this Court would have reversed his receiving
stolen property conviction.
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In rejecting this claim, the PCRA court concluded both that Appellant’s
sufficiency challenge was meritless, and that Attorney Shahen had a
reasonable basis for not raising this issue on direct appeal. Because we
agree, for the reasons stated infra, with the court’s determination on the
reasonable basis prong, we need not decide whether Appellant’s sufficiency
claim has arguable merit, or whether Appellant was prejudiced by counsel’s
conduct. See Simpson, 66 A.3d at 260.
In regard to the reasonable basis prong, we begin by noting:
When assessing whether counsel had a reasonable basis for his
act or omission, the question is not whether there were other
courses of action that counsel could have taken, but whether
counsel's decision had any basis reasonably designed to
effectuate his client's interest. As the Commonwealth accurately
states, this cannot be a hindsight evaluation of counsel's
performance, but requires an examination of “whether counsel
made an informed choice, which at the time the decision was
made reasonably could have been considered to advance and
protect [the] defendant's interests.” Our evaluation of counsel's
performance is “highly deferential.”
Commonwealth v. Williams, 141 A.3d 440, 463 (Pa. 2016), (internal
citations omitted).
In concluding that Attorney Shahen had a reasonable basis for not
raising a sufficiency challenge to the ‘guilty knowledge’ element of
Appellant’s receiving stolen property conviction, the PCRA court reasoned:
The [Pennsylvania] Supreme Court’s decision in Williams
is relevant to this [c]ourt’s [o]pinion with regard to prior
counsel’s reasonable strategic basis. In Williams, our Supreme
Court held:
It is true that “arguably meritorious claims may be omitted
in favor of pursuing claims which, in the exercise of
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appellate counsel's objectively reasonable professional
judgment, offer a greater prospect of securing relief.”
[Commonwealth v.] Bracey, 795 A.2d [935,] 950 [(Pa.
2001)] (citing Jones v. Barnes, 463 U.S. 745, 750–54,
103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)). “Appellate
counsel need not (and should not) raise every nonfrivolous
claim, but rather may select from among them in order to
maximize the likelihood of success on appeal.” Id. at 950–
51 (quoting [Smith v.] Robbins, 528 U.S. [259,] 288
[(2000)]…).
Id. at [471]. … [Attorney Shahen] indicated at the evidentiary
hearing that he had considered[,] in deciding not to raise on
direct appeal the issue of sufficiency of the evidence on
[Appellant’s] receiving stolen property charge, case law and a
quote by Judge Aldisert that too many issues on appeal detracts
from the process of review. The most recent applicable
Pennsylvania Supreme Court case at the time [of counsel’s
decision], which this [c]ourt cited in its [July 14, 2016 o]pinion,
was the case of Com[monwealth] v. Jones, … 815 A.2d 598([Pa.] 2002). Jones held that counsel may reasonably forego
even claims with merit as part of a strategic decision. Id. at …
613 [(stating that, “as the U.S. Supreme Court has recognized,
appellate counsel is not constitutionally obliged to raise every
conceivable claim for relief. Counsel may forego even arguably
meritorious issues in favor of claims which, in the exercise of
counsel’s objectively reasonable professional judgment, offered a
greater prospect of securing relief”) (citation omitted)]. The
decision in Jones was…, however, only a plurality opinion.
Williams, on the other hand, now commands a majority of the
Court and so is binding precedent which further supports the
[c]ourt’s analysis that [Attorney Shahen’s] decision not to raise
[this specific sufficiency] issue on appeal was part of a
reasonable strategic decision which defeats [Appellant’s] claim of
ineffective assistance. Indeed, given the fact that [Appellant’s]
aggregate sentence in this case would not have been affected
even if [he] had been successful on appeal on that issue,[1] the
[c]ourt can well understand [Attorney Shahen’s] strategy in
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1
Appellant received a concurrent term of incarceration for his receiving
stolen property offense.
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deciding not to pursue that claim on appeal where it might …
only detract from more important issues.
PCRA Court Opinion, 9/19/16, at 3-4 (some citations omitted).
In attacking the PCRA court’s rationale, Appellant claims that Attorney
Shahen never testified at the PCRA hearing that he made a strategic decision
not to include the at-issue sufficiency claim on direct appeal. The same was
true in Williams, and led to our Supreme Court’s concluding that appellate
counsel in that case did not express a reasonable basis for failing to raise a
particular claim on appeal. See Williams, 141 A.3d at 471 (concluding that
counsel failed to state a reasonable basis where “appellate counsel did not
testify that he made a reasoned decision to exclude [the] particular claim …
in an effort to winnow down his arguments to those that had the highest
chance for success on appeal”). Instead, the attorney in Williams “testified
that he had no independent recollection regarding the issues he raised on
appeal or why he chose the issues he raised….” Id.
We disagree with Appellant that Attorney Shahen’s PCRA hearing
testimony was similar to the attorney’s testimony in Williams. Attorney
Shahen specifically testified that when deciding on what issues to present in
Appellant’s direct appeal, he recalled considering the following, oft-quoted
remark by Judge Ruggiero Aldisert:
With a decade and a half of federal appellate court experience
behind me, I can say that even when we reverse a trial court it
is rare that a brief successfully demonstrates that the trial court
committed more than one or two reversible errors.... [W]hen I
read an appellant's brief that contains ten or twelve points, a
presumption arises that there is no merit to any of them. I do
not say that this is an irrebuttable presumption, but it is a
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presumption nevertheless that reduces the effectiveness of
appellate advocacy. Appellate advocacy is measured by
effectiveness, not loquaciousness.
Commonwealth v. Showers, 782 A.2d 1010, 1016 (Pa. Super. 2001)
(internal citations omitted). See also PCRA Hearing, 5/2/16, at 23
(counsel’s testifying that he considered the above stated quote by Judge
Aldisert in deciding what issues to raise in Appellant’s appeal).
Attorney Shahen also testified that in his experience, challenges to the
sufficiency of the evidence are “hard to win.” PCRA Hearing at 24.
Nevertheless, he did challenge the sufficiency of the evidence to prove the
possessory element of Appellant’s receiving stolen property and firearm
convictions on direct appeal.2 Counsel explained that he chose to raise this
sufficiency-of-the-evidence claim because the primary defense at trial was
that Appellant did not possess the firearm found in the car. Id. at 26.
Considering the Judge Aldisert quote, Attorney Shahen did not want to raise
an additional claim that Appellant did not know the gun was stolen. Id. at
23, 25.
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2
Attorney Shahen also raised two other issues on direct appeal, a challenge
to the weight of the evidence to support Appellant’s PWID conviction, and a
claim that the court erred by qualifying Robert Kukosky, of the DNA crime
lab, as an expert witness. See Williams, No. 527 WDA 2014, unpublished
memorandum at 6. Appellant does not argue that these claims, or the
sufficiency challenge to the possessory element of his receiving stolen
property and firearm offenses, were weaker than a challenge to the
sufficiency of the evidence to prove the ‘guilty knowledge’ element of
receiving stolen property.
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In view of this testimony, we conclude that the record supports the
PCRA court’s determination that Attorney Shahen strategically chose to omit,
on direct appeal, a sufficiency-of-the-evidence claim pertaining to
Appellant’s knowledge that the gun was stolen. We further conclude that
Jones and Williams support the PCRA court’s decision that Attorney
Shahen’s strategy was reasonable. Thus, Appellant’s first IAC claim is
meritless.
Next, Appellant takes issue with Attorney Shahen’s failure to object to,
or request, four specific jury instructions. Notably, in three of Appellant’s
jury-instruction claims, he argues that Attorney Shahen was ineffective for
not requesting specific instructions that Appellant’s current counsel has
created. We fail to see how we could deem Attorney Shahen ineffective for
not requesting instructions that are the product of current counsel’s
imagination. In any event, however, we conclude that the well-reasoned
opinion of the Honorable Kim Tesla of the Court of Common Pleas of Beaver
County accurately disposes of Appellant’s arguments that Attorney Shahen
acted ineffectively by failing to request certain jury instructions. See PCRA
Court Opinion, 7/14/16, at 21-25. Accordingly, we adopt Judge Tesla’s
opinion as our own, and conclude that Appellant’s second IAC issue is
meritless on that basis.
Lastly, Appellant contends that Attorney Shahen was ineffective for not
objecting when the trial court permitted the jury to review certain expert
reports during deliberations. Appellant focuses his argument on one
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particular report, the expert report regarding the DNA found on the gun in
this case. Essentially, Appellant avers that allowing the jury to possess this
report - which contained “astronomical percentages that [Appellant’s] DNA
was on the stolen firearm” - weakened his defense that Slappy possessed
the firearm. Appellant’s Brief at 31 (“Gaining an admission [during the
cross-examination of the DNA expert] that [Slappy] could have possessed
the firearm even though his DNA was not on it did not, and could not,
address the finding that [Appellant’s] DNA was found on the firearm.
Allowing the jury to possess the DNA Report with those astronomical
percentages of [Appellant’s] DNA on it and therefore possessing it cannot be
justified as effective under any circumstance.”).
Appellant’s argument is unconvincing. At trial, the DNA expert
testified that the probability that the DNA found on the gun matched
someone other than Appellant was “1 in 110 sextillion within the Caucasian
population[,]” and “[1] in 3.9 quintillion” out of the African-American
population. N.T. Trial, 9/9/13, at 70. Thus, the jury heard the same
numbers that were contained in the expert report that the court permitted
them to review during deliberations. Moreover, Appellant conceded that his
DNA was on the firearm, explaining that he had touched the weapon after
Slappy threw it on his lap and he picked it up to throw it back. N.T. Trial,
9/9/13, at 175-177. In closing arguments, Attorney Shahen again
acknowledged that Appellant’s DNA was on the weapon, and argued that the
DNA was there because Appellant had touched the weapon when throwing it
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back at Slappy. See N.T. Trial, 9/10/13, at 62. Counsel further stressed
that, on cross-examination, the DNA expert had admitted that “the lack of
DNA [from Slappy] did not mean that … Slappy[] did not handle the
firearm.” Id.
In light of this testimony and argument by Attorney Shahen, we fail to
see how Appellant was prejudiced by the jury’s having, during deliberations,
a report that stated the ‘astronomical percentages’ regarding the probability
that it was Appellant’s DNA on the firearm. The jury heard those same
numbers during the DNA expert’s testimony, and Appellant conceded that
his DNA was on the weapon. Therefore, Appellant has not demonstrated he
was prejudiced when Attorney Shahen did not object to the jury’s reviewing
the DNA expert’s report during deliberations.
In sum, we agree with the PCRA court that Appellant’s three IAC
claims are meritless. Accordingly, the court did not err in denying his
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2017
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Circulated 07/10/2017 09:33 AM