Com. v. Cook, P. ( 2016 )


Menu:
  • J-S58023-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    PATRICK L. COOK
    Appellant                 No. 381 MDA 2016
    Appeal from the PCRA Order February 4, 2016
    In the Court of Common Pleas of Mifflin County
    Criminal Division at No(s): CP-44-CR-0000087-2013
    CP-44-CR-0000517-2012
    BEFORE: GANTMAN, P.J., BOWES, and PLATT, * JJ.
    MEMORANDUM BY BOWES, J.:                          FILED OCTOBER 27, 2016
    Patrick L. Cook appeals from the February 4, 2016 order denying PCRA
    relief.     We sua sponte vacate judgment of sentence and remand for
    resentencing in light of the United States Supreme Court decision in Alleyne
    v. United States, 
    33 S. Ct. 2151
    (2013).
    On November 13, 2013, following a jury trial at which Appellant
    proceeded pro se, but with the assistance of standby counsel, Appellant was
    convicted of aggravated indecent assault, indecent assault, and corruption of
    minors.       The offenses were perpetrated between November 2004 and
    September 2007, and involved two females who were less than thirteen
    * Retired Senior Judge assigned to the Superior Court.
    J-S58023-16
    years of age. Another offense occurred in July 2010, and involved one of
    the earlier victims.
    Appellant appeared pro se at sentencing, but again had the benefit of
    appointed standby counsel. The trial court imposed an aggregate sentence
    of eleven to twenty-two years imprisonment based on the application of two
    five to ten year mandatory minimum sentences for aggravated indecent
    assault on a child less than thirteen years old.1           Appellant, who had been
    determined to be a sexually violent predator, was also advised of the lifetime
    reporting requirements and what that entailed.
    Following pronouncement of sentence, the court advised Appellant of
    his post-sentence and appeal rights. Specifically, Appellant was told that he
    had the right to file a written post-sentence motion within ten days stating
    the particular relief sought. N.T. Sentencing, 2/28/14, at 18. The court also
    advised Appellant that he had “the same right to assigned counsel as has
    existed through sentencing.”          
    Id. at 19.
         If he chose not to file a post-
    sentence motion, the court explained that he had the option to appeal to the
    Superior Court within thirty days.             Appellant was provided with a written
    acknowledgement of post-sentence procedures. Appellant informed the trial
    court on the record that he wanted a transcript of the proceedings and he
    ____________________________________________
    1
    The mandatory minimum for aggravated indecent assault on a child was
    subsequently changed to ten to twenty years imprisonment.
    -2-
    J-S58023-16
    was advised to put that in writing either in his post-sentence motion or in his
    appeal. 
    Id. at 20.
    Appellant did not file a direct appeal from judgment of sentence.
    Rather, on February 23, 2015, he filed a timely pro se PCRA petition. The
    court appointed counsel to represent him, and counsel filed an amended
    petition on May 7, 2015 on Appellant’s behalf. Appellant asserted that the
    court’s    failure   to   conduct   a   waiver-of-counsel   colloquy   pursuant   to
    Pa.R.Crim.P. 121 and its denial of his request to permit standby counsel to
    assume representation during the trial resulted in the violation of his federal
    and state constitutional right to counsel and so undermined the truth
    determining process that no reliable adjudication of guilt or innocence could
    have taken place. Finally, Appellant maintained that although his waiver of
    right to counsel was voluntary, it was neither knowing nor intelligent, and
    that his performance at trial was so ineffective as to deprive him of a
    defense.
    The court scheduled a hearing on the amended petition.             By order
    dated July 31, 2015, Matthew M. McClenahen, Esquire, was granted leave to
    withdraw as counsel2 and on August 6, 2015, attorney Steven P. Trialonas
    was appointed as counsel. Counsel filed a second amended PCRA petition on
    ____________________________________________
    2
    The trial court represents that Attorney McClenahen sought withdrawal
    due to threats made by Appellant. Trial Court Opinion, 2/4/16, at 3.
    -3-
    J-S58023-16
    October 27, 2015, in which he averred that prior counsel had presented the
    only issues of merit.     Following an evidentiary hearing on December 11,
    2015, and the submission of briefs, the PCRA court denied relief on February
    4, 2016.
    Appellant timely filed the instant appeal on March 4, 2016 and
    complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise
    statement of errors complained of on appeal.      The trial court adopted its
    February 4, 2016 opinion as its Rule 1925(a) opinion, having concluded that
    it addressed the issues identified.   Appellant presents two issues for our
    review:
    A. Did the lower court commit an error of law and abuse of
    discretion by denying Defendant’s PCRA on the issue that the
    pro se colloquy was valid?
    B. Did the lower court improperly deny Defendant’s PCRA with
    respect to whether his constitutional right to an attorney was
    violated at the time of trial.
    Appellant’s brief at 3.
    We first outline our standard of review of a PCRA court’s ruling:
    Under the applicable standard of review, we must
    determine whether the ruling of the PCRA court is supported by
    the record and is free of legal error. Commonwealth v.
    Marshall, 
    596 Pa. 587
    , 
    947 A.2d 714
    , 719 (2008). The PCRA
    court's credibility determinations, when supported by the record,
    are binding on this Court. Commonwealth v. Johnson, 
    600 Pa. 329
    , 
    966 A.2d 523
    , 532, 539 (2009). However, this Court
    applies a de novo standard of review to the PCRA court's legal
    conclusions. Commonwealth v. Rios, 
    591 Pa. 583
    , 
    920 A.2d 790
    , 810 (2007).
    -4-
    J-S58023-16
    Commonwealth v. Spotz, 
    18 A.3d 244
    , 259 (Pa. 2011).
    In order to prevail on a petition for PCRA relief,
    a petitioner must plead and prove by a preponderance of the
    evidence that his or her conviction or sentence resulted from one
    or more of the circumstances enumerated in 42 Pa.C.S. §
    9543(a)(2). These circumstances include a violation of the
    Pennsylvania or United States Constitution or ineffectiveness of
    counsel, either of which "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)(i) and (ii). In
    addition, a petitioner must show that the claims of error have
    not been previously litigated or waived. 42 Pa.C.S. § 9543(a)(3).
    An issue has been waived "if the petitioner could have raised it
    but failed to do so before trial, at trial, on appeal or in a prior
    state post[-]conviction proceeding." 42 Pa.C.S. § 9544(b). An
    issue has been previously litigated if "the highest appellate court
    in which the petitioner could have had review as a matter of
    right has ruled on the merits of the issue." 42 Pa.C.S. §
    9544(a)(2).
    
    Id. The right
    to counsel in a criminal proceeding is a fundamental right
    guaranteed under the Sixth Amendment of the United States Constitution
    and Pa. Const. Art. 1 §9. Pa.R.Crim.P. 121 embodies the requirements for a
    colloquy ensuring that a waiver of that fundamental right is given knowingly,
    voluntarily, and intelligently. Rule 121(A)(2) provides that:
    (2) To ensure that the defendant's waiver of the right to
    counsel is knowing, voluntary, and intelligent, the judge or
    issuing authority, at a minimum, shall elicit the following
    information from the defendant:
    (a) that the defendant understands that he or she
    has the right to be represented by counsel, and the
    right to have free counsel appointed if the defendant
    is indigent;
    -5-
    J-S58023-16
    (b) that the defendant understands the nature of
    the charges against the defendant and the elements
    of each of those charges;
    (c) that the defendant is aware of the permissible
    range of sentences and/or fines for the offenses
    charged;
    (d) that the defendant understands that if he or she
    waives the right to counsel, the defendant will still be
    bound by all the normal rules of procedure and that
    counsel would be familiar with these rules;
    (e) that the defendant understands that there are
    possible defenses to these charges that counsel
    might be aware of, and if these defenses are not
    raised at trial, they may be lost permanently; and
    (f) that the defendant understands that, in addition
    to defenses, the defendant has many rights that, if
    not timely asserted, may be lost permanently; and
    that if errors occur and are not timely objected to, or
    otherwise timely raised by the defendant, these
    errors may be lost permanently.
    ....
    Pa.R.Crim.P. 121.
    Appellant contends that the trial court did not conduct the mandated
    colloquy. The court did not explain the nature of the charges, the elements
    of the offenses, that Appellant acting pro se would be bound by the rules of
    criminal procedure, and that the failure to raise defenses would be
    permanently lost. Thus, he contends, his waiver of his right to counsel was
    not knowing and intelligent. In support of his contention, Appellant adduced
    the following evidence at the PCRA hearing.      He supplied the August 26,
    -6-
    J-S58023-16
    2013 transcript of the proceeding on his motion to withdraw, motion to
    consolidate, and arraignment.            He also tendered the transcript of the
    November 12, 2013 jury trial. Appellant also took the stand and answered
    his counsel’s hypothetical question:
    Q. Mr. Cook if you had been informed of the elements of
    the charges that you were facing, if you had been informed of
    the possible range of sentences that you might receive upon
    conviction of those charges, if you had been informed that when,
    there are possible defenses to those charges that an attorney
    might be aware of , and if they’re not raised at trial you might
    waive them, and if you had been informed that in addition to
    defenses there are many rights that if not timely asserted could
    be lost permanently, if you had been informed of those things
    would your decision to go pro se have remained? Would you still
    have wanted to represent yourself at trial?
    A. Yes.
    Q. Yes. You would have wanted to represent yourself?
    A. Yes.
    N.T. PCRA Hearing, 12/11/15, at 10-11.
    We find first, that trial court error in the colloquy was an issue that
    could have been raised at trial and argued on direct appeal.3 Thus, under 42
    ____________________________________________
    3
    When the issue of a defective waiver of counsel colloquy is raised on direct
    appeal, there is no requirement that an appellant independently prove
    prejudice. One need only demonstrate that the colloquy was, in fact
    defective. See Commonwealth v. Tabu Nazshon Phillips, 
    93 A.3d 847
    ,
    855 (Pa.Super. 2014) (holding, on direct appeal, "[i]n light of the...court’s
    failure to meet the minimum requirements of Rule 121 and to question
    Appellant on the qualitative aspects of his waiver of counsel at multiple
    (Footnote Continued Next Page)
    -7-
    J-S58023-16
    Pa.C.S. § 9544(b)4, the issue is waived.              However, since Appellant was
    represented by counsel when the allegedly defective waiver colloquy
    occurred, and is currently represented by counsel, Appellant also could have
    asserted the ineffectiveness of trial counsel in failing to object to the
    allegedly inadequate colloquy herein.            See 
    Spotz, supra
    (alleging counsel
    ineffectiveness for failing to object to the trial court’s allegedly ineffective
    waiver colloquy).       Since Appellant did not assert any claim of ineffective
    assistance of counsel, however, that claim is waived as well.
    Nevertheless, even if this claim was not waived, it would not afford
    relief. While appearing to concede that the colloquy did not strictly comply
    with Pa.R.Crim.P. 121, the PCRA court concluded that Appellant was not
    entitled to relief as he suffered no prejudice.              The court pointed to
    _______________________
    (Footnote Continued)
    critical stages of the proceedings, we are constrained to vacate the
    judgment of sentence and remand for further proceedings.").
    4
    42 Pa.C.S. § 9544(b) provides:
    (b) ISSUES WAIVED. – For purposes of this subchapter, an issue
    is waived if the petitioner could have raised it but failed to do so
    before trial, at trial, during unitary review, on appeal or in a prior
    postconviction proceeding.
    -8-
    J-S58023-16
    Appellant’s own admission that if he had been apprised of the Rule 121
    concerns, he would still have chosen to proceed pro se.5
    Moreover, the trial court found that Rule 121’s colloquy requirements
    did not apply where, as here, Appellant’s “extreme and serious misconduct
    acted to forfeit his right to counsel.” Commonwealth v. Kelly, 
    5 A.3d 370
    ,
    378    (Pa.Super.     2010)      (holding      Pa.R.Crim.P.   121   and   its   colloquy
    requirements do not apply to situations where forfeiture is found). The court
    pointed to “a pattern of serious misconduct, abuse, threats, and an utter
    failure to collaborate [in] his own defense.” Trial Court Opinion, 2/4/16, at
    5. Appellant does not challenge that finding on appeal.6
    ____________________________________________
    5
    Additionally, the court cited Appellant’s “repeated and numerous demands
    to proceed pro se” and the fact that the court appointed standby counsel.
    Trial Court Opinion, 2/4/16, at 5. The record reveals that on September 26,
    2013, at the pretrial conference, the court asked Appellant if it was still his
    intention to represent himself. N.T. Pretrial Conference, 9/26/13, at 1.
    Appellant responded in the affirmative. Appellant added, however, that he
    wanted to dismiss Mr. Sembach as standby counsel.             The court was
    amenable if Appellant hired a lawyer to represent him. Again, Appellant
    insisted that he was representing himself, but that he had a problem with
    Mr. Sembach as standby counsel. The court advised that “pending the entry
    of an appearance by any other lawyer that you may choose to hire in any
    capacity, . . I’m not dismissing court-appointed standby counsel.” 
    Id. at 7.
    See Commonwealth v. Kelly, 
    5 A.3d 370
    (Pa.Super. 2010) (recognizing
    that the constitutional right to counsel of one's own choice is not absolute
    and that where court-appointed counsel is involved, a defendant does not
    have the right to choose other assigned counsel unless a substantial reason
    exists).
    6
    The record contains numerous accounts of Appellant’s abusive treatment
    of both paid and appointed counsel, resulting in the withdrawal of three
    (Footnote Continued Next Page)
    -9-
    J-S58023-16
    Were we able to overlook Appellant’s failure to allege counsel’s
    ineffectiveness, we would find nevertheless that Appellant is not entitled to
    relief.    He was required to plead and prove, by a preponderance of the
    evidence, three elements: (1) the underlying legal claim has arguable merit;
    (2) counsel had no reasonable basis for his action or inaction; and (3) that
    he    suffered     prejudice      because        of   counsel's   action    or   inaction.
    Commonwealth v. Steele, 
    961 A.2d 786
    , 796 (Pa. 2008) (citing
    Commonwealth v. Pierce, 
    527 A.2d 973
    (Pa. 1987)). The prejudice prong
    proves insurmountable.
    Spotz and Mallory are instructive in this regard.                In Spotz, the
    petitioner alleged inter alia that the waiver of his right to counsel during the
    guilt phase of his trial was not voluntary, knowing, or intelligent; that he was
    not competent to waive this right; that counsel was ineffective for failing to
    object to the trial court's allegedly inadequate colloquy, and for numerous
    deficiencies in the defense presented. Noting the Rule 121 requirements for
    a waiver colloquy, our High Court relied upon its earlier decision in
    Commonwealth v. Mallory, 
    941 A.2d 686
    (Pa. 2008), for the proposition
    _______________________
    (Footnote Continued)
    attorneys. At jury selection, standby counsel Mr. Sembach placed on the
    record that when he made himself available to Appellant for questions,
    Appellant told him “shut up, you can leave now.” N.T. Jury Selection,
    11/4/13, at 20. He testified to other instances of foul language and serious
    mistreatment by Appellant.      In light of our disposition, we need not
    determine if Appellant’s conduct rose to the level of forfeiture of counsel.
    - 10 -
    J-S58023-16
    that the waiver rules were not the equivalent of the rights the rules were
    designed to protect. The Court clarified:
    A waiver colloquy is a procedural device; it is not a constitutional
    end or a constitutional “right.” . . . An on-the-record colloquy is a
    useful procedural tool whenever the waiver of any significant
    right is at issue, constitutional or otherwise, e.g., waiver of a
    trial, waiver of the right to counsel, waiver of the right to call
    witnesses, waiver of the right to cross-examine witnesses, waiver
    of rules-based speedy trial time limits, etc. But the colloquy does
    not share the same status as the right itself.
    
    Spotz, supra
    at 263 (quoting Mallory, supra at 697).
    Where a petitioner asserts ineffective assistance of counsel based on
    counsel’s failure to object to a defective colloquy, it is not enough to prove
    that the colloquy was defective; the petitioner must prove prejudice as with
    any other ineffectiveness claim. To establish prejudice, the petitioner must
    demonstrate a reasonable probability, considering the totality of the
    circumstances, that but for counsel's ineffectiveness, he would not have
    waived the right at issue. Mallory, supra at 698-704.
    Herein, had the ineffectiveness issue not been waived, Appellant could
    not establish prejudice. In considering such a claim of ineffectiveness, the
    court considers the totality of the circumstances and the entire record, not
    just the colloquy itself. 
    Id. Appellant testified
    at the PCRA hearing that he
    would have proceeded pro se even if his counsel had ensured that the court
    - 11 -
    J-S58023-16
    provided a Rule 121 colloquy.7 Further evidence of a lack of prejudice was
    supplied by standby counsel, Mr. Sembach. He testified at the evidentiary
    hearing    that,    prior    to    trial,   he   presented   a   document   entitled
    “Acknowledgement of Availability of Counsel” to Appellant for his signature.
    Commonwealth Exhibit 1. He read the bolded portions of the document to
    Appellant, the contents of which were “very similar or identical” to the Rule
    121 waiver of counsel.            In preparing it, counsel wanted to ensure that
    Appellant’s waiver of counsel was knowingly, voluntarily, and intelligently
    done. 
    Id. at 45.
    Appellant refused to sign it, although Deputy Laurie Kozak
    signed the document acknowledging that Mr. Sembach reviewed the
    document with Appellant. Mr. Sembach also testified that, in a letter he sent
    to Appellant regarding a plea offer, he explained the statutory maximums
    and delineated the guideline ranges for each offense.            N.T. PCRA Hearing,
    12/1/15, at 35. Mr. Sembach concluded that Appellant “wanted to proceed
    pro se” and “[he] knew exactly what he was getting into.” 
    Id. at 43.
    Based
    on the totality of circumstances, Appellant failed to demonstrate prejudice
    and would not be entitled to relief.
    Appellant’s second issue, that the trial court erred in declining his
    request to have standby counsel assume representation at trial, also does
    ____________________________________________
    7
    While the Commonwealth maintains that Appellant’s admission that he
    would have represented himself anyway constitutes a waiver, we disagree
    with that conclusion.
    - 12 -
    J-S58023-16
    not afford relief.   It appears from the record that Appellant became
    frustrated in his attempt to impeach one of the victims regarding her prior
    statements to police detailing when the charged offenses occurred.      N.T.
    Trial, 11/12/13, at 99-100. Following a recess to permit Appellant to consult
    with standby counsel, a sidebar was held off the record. The trial court then
    asked Appellant whether he was trying to suggest that the victim’s
    statement referred to a later timeframe for the Mifflin County incidents.
    Appellant responded that he “was trying to figure out she gave three
    different statements of when the incident happened.” 
    Id. at 101.
    At that
    point, standby counsel interjected that, “Mr. Cook has told me that if I will
    represent him fairly that he would allow me to do the questioning.” 
    Id. The court
    refused, stating that the defense would not be permitted to go back
    and forth between a lawyer and pro se representation. Attorney Sembach
    acquiesced in the court’s ruling, and responded, “Understood, your Honor.”
    
    Id. Appellant then
    asked, “I can’t have him represent me now?”      
    Id. at 102.
    The court reviewed Appellant’s difficulties with prior counsel, reminded
    Appellant that he chose to proceed without counsel, that he had standby
    counsel available, and suggested that counsel help Appellant develop
    questions on this issue.    
    Id. at 102-03.
       Appellant thanked the court,
    accepted its suggestion, consulted with counsel, and when the proceedings
    resumed, completed his cross-examination of the witness.
    - 13 -
    J-S58023-16
    Although Appellant now characterizes the exchange as a request that
    Mr. Sembach take over his representation for the remainder of the trial, the
    trial court did not interpret it as such. The court construed it as a request
    that Mr. Sembach cross-examine and impeach that witness with her prior
    statements; Appellant would then resume his self-representation.          Hybrid
    representation is not countenanced. Commonwealth v. Padilla, 
    80 A.3d 1238
    (Pa. 2013).         Since it is not patently clear that Appellant sought to
    revoke his waiver of counsel for the remainder of the trial, we find no factual
    support in the record to support Appellant’s claim of trial court error. See
    Commonwealth v. Bryant, 
    855 A.2d 726
    , 737 (Pa. 2004) (citing Buhl v.
    Cooksey, 
    233 F.3d 783
    , 800 (3d Cir. 2000), for the proposition that, "[i]t is
    well established that a defendant can waive the right of self-representation
    after asserting it.”).
    Furthermore, in that this issue implicates trial court error, it could
    have been asserted on direct appeal. Since Appellant was fully apprised of
    his direct appeal rights and right to counsel at his sentencing, this issue is
    waived under 42 Pa.C.S. § 9544(b).           See Commonwealth v. Berry, 
    877 A.2d 479
    (Pa.Super. 2005) (en banc) (failure to file a direct appeal results in
    waiver of non-effectiveness and non-illegal sentencing issues); in accord
    Commonwealth             v.   Walls,   
    993 A.2d 289
      (Pa.Super.   2010);
    Commonwealth v. Jones, 
    932 A.2d 179
    (Pa.Super. 2007) (recognizing
    - 14 -
    J-S58023-16
    that trial court error had to be pursued on direct appeal or the defendant
    would forego the opportunity to litigate it).
    Moreover, Appellant did not and could not assert any claim of counsel
    ineffectiveness.   As our High Court held in Commonwealth v. Blakeney,
    
    108 A.3d 739
    , 756 (Pa. 2014), a defendant “who chooses to represent
    himself cannot obtain post-conviction relief by raising a claim of his own
    ineffectiveness or that of standby counsel.” The Blakeney Court explained
    that, “the limited role of standby counsel is essential to satisfy the United
    States Supreme Court's directive that a defendant's choice to proceed pro se
    must be honored out of that respect for the individual which is the lifeblood
    of the law even when the defendant acts to his own detriment.” Blakeney,
    supra at 756-757. No relief is due on this ground.
    We note, however, that Appellant was sentenced to two mandatory
    minimum sentences based on the age of his victims. In 
    Alleyne, supra
    , the
    Supreme Court held that any fact that increases the penalty for a crime
    must be treated as an element of the offense. Hence, it must be submitted
    to a jury rather than a judge and found beyond a reasonable doubt.        In
    recognition that post-Alleyne, “application of a mandatory minimum
    sentence gives rise to illegal sentence concerns,” Commonwealth v.
    Watley, 
    81 A.3d 108
    , 118 (Pa.Super. 2013) (en banc), and that such claims
    - 15 -
    J-S58023-16
    are non-waivable, we sua sponte review the legality of Appellant’s
    sentence.8 See Commonwealth v. Wolfe, 
    106 A.3d 800
    , 801 (Pa.Super.
    2014) ("[A] challenge to the legality of the sentence can never be waived
    and may be raised by this Court sua sponte.").
    In Commonwealth v. Wolfe, 
    140 A.3d 651
    (Pa. 2016), our Supreme
    Court affirmed this Court’s holding that 42 Pa.C.S. § 9718, which imposed a
    mandatory minimum sentence for violation of 18 Pa.C.S. §3123(a)(7)
    (involuntary deviate sexual intercourse of a minor), pursuant to judicial fact-
    finding of facts that were not elements of the crime, was facially
    unconstitutional, non-severable, and void under Alleyne. That same facially
    unconstitutional statute, 42 Pa.C.S. § 9718, was the basis for the imposition
    of the mandatory minimum sentences herein.
    Appellant is entitled to the benefit of the ruling in Alleyne as his
    judgment of sentence became final after Alleyne was decided on June 17,
    2013,    and    the    instant   PCRA     petition   is   timely   filed.   Compare
    Commonwealth v. Ruiz, 
    131 A.3d 54
    (Pa.Super. 2015) (declining to give
    Alleyne retroactive effect to cases on timely collateral review when the
    defendant's judgment of sentence was finalized before Alleyne was
    ____________________________________________
    8
    The issue whether Alleyne claims are illegality of sentence claims that
    cannot be waived is presently pending before the Pennsylvania Supreme
    Court.    See Commonwealth v. Barnes, 
    122 A.3d 1034
    (Pa. 2015)
    (allocatur granted September 18, 2015).
    - 16 -
    J-S58023-16
    decided). For this reason, we vacate judgment of sentence and remand for
    resentencing consistent with this memorandum and without the application
    of the § 9718 mandatory minimum.
    Order vacated.   Judgment of sentence vacated.   Case remanded for
    resentencing. Jurisdiction relinquished.
    President Judge Gantman joins the memorandum.
    Judge Platt concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/27/2016
    - 17 -