Com. v. Moreno, A. ( 2019 )

J-S80020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTONIO MORENO :
:
Appellant : No. 2449 EDA 2017
Appeal from the Judgment of Sentence February 17, 2017
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003594-2016,
CP-51-CR-0008756-2014, CP-51-CR-0013838-2010
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 17, 2019
Antonio Moreno appeals from the aggregate judgment of sentence of
sixteen and one-half to thirty-three years of incarceration imposed in the
above three cases.1 We affirm.
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1 Appellant filed a single notice of appeal captioned in all three cases. This
Court issued a rule to show cause why the appeals should not be quashed
pursuant to Pa.R.A.P. 341 (indicating that separate notices of appeal must be
filed at each docket when a single order resolves issues related to more than
one judgment or docket). Appellant responded, citing the facts that no co-
defendant is involved, all three docket numbers were included on the notice
of appeal, and that the issues arose at a single hearing. Answer to Rule to
Show Cause, 9/14/17, at ¶ 7.
Our Supreme Court made it clear in Commonwealth v. Walker, 185 A.3d
969 (Pa. 2018), that appellants are required to file separate notices of appeal
at each docket number implicated by an order resolving issues that involve
more than one trial court docket, regardless of whether a single hearing or
order addressed the issues at all implicated dockets. However, as the instant
appeal predates Walker, and the Court indicated that Walker applies
prospectively, we do not quash this appeal.
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At case number 13838-2010 (“the 2010 case”), Appellant entered a
guilty plea to possession with intent to deliver controlled substances (”PWID”),
and received a county sentence followed by eight years of probation. He then
pled guilty to PWID again at case number 8756-2014 (“the 2014 case”), for
which he received a sentence of intermediate punishment and a probationary
tail of three years.
On February 1, 2016, while on . . . probation for the above-
mentioned cases, [Appellant] met with Officer Cleaver of the
Philadelphia Police Narcotics Field Unit, and sold the officer
fourteen packets of heroin. The Narcotics Unit received
[Appellant]’s phone number from Janice Matthews, whose son,
Austin Sternberg, was found dead of a fentanyl overdose on
January 28, 2016. Ms. Matthews went through her son’s phone
following his death, discovered that the last text messages he
exchanged were with [Appellant] and appeared to be arranging
for the purchase of narcotics, and contacted the police with that
information. Following the February 1st sale, the police ran
[Appellant]’s license plate and discovered that he resided at 2075
Monmouth Street. On February 2, 2016, Officer Cleaver received
a text message from [Appellant] informing the officer that
[Appellant]’s phone number had changed. On February 3, 2016,
Officer Cleaver contacted [Appellant] at the new phone number,
and arranged to make a sale. Officers observing 2075 Monmouth
Street [saw Appellant] leave that residence and get into his car.
[Appellant] then met with Officer Cleaver and sold him twenty five
packets of alleged heroin. Testing revealed that sixteen of the
packets contained heroin and nine contained fentanyl. On
February 10 and February 15, 2016, Officer Cleaver again met
with [Appellant] and purchased heroin. On February 16, 2017,
Officer Cleaver arranged to meet with [Appellant], however,
before the meeting took place, officers executed a search warrant
of 2075 Monmouth Street and arrested [Appellant]. Officers
recovered ten bundles of heroin, each containing fifteen packets,
as well as $810.00, an ID card, and a probation card from
[Appellant]. From inside the home officers recovered thirty two
bundles of heroin and six bottles of crack cocaine.
Sentencing Court Opinion, 11/27/17, at 1-2 (citations omitted).
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As a result of the sales to Officer Cleaver, Appellant was charged at
case number 3594-2016 (“the 2016 case”) with PWID and criminal use of a
communications facility (“CUCF”), to which he pled guilty. Another
consequence of the new PWID charge was the revocation of Appellant’s
probation in the 2010 and 2014 cases.
On February 17, 2017, the sentencing court sentenced Appellant in all
three cases. In the 2016 case, Appellant received five to ten years of
imprisonment for PWID, with a consecutive term of three and one-half to
seven years of incarceration for CUCF. For the probation revocations, the
court imposed consecutive sentences of four to eight years of imprisonment
at each docket. As such, Appellant received an aggregate sentence of sixteen
and one-half to thirty-three years of incarceration.
Appellant filed a timely motion for reconsideration of sentence. By
orders dated March 6, 2017,2 the sentencing court vacated Appellant’s
sentences in the 2010 and 2014 cases pending reconsideration.3 The
sentencing court thereafter denied the motion for reconsideration by orders
____________________________________________
2 The orders were not docketed until October 27, 2017, after this Court
directed their entry.
3 See Pa.R.Crim.P. 708(E) (“The filing of a motion to modify sentence will not
toll the 30-day appeal period.”).
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filed in all three cases on June 28, 2017.4 Appellant filed a timely notice of
appeal on July 28, 2017, and both Appellant and the sentencing court
complied with Pa.R.A.P. 1925.
Appellant presents the following question for this Court’s consideration:
Should not the lower court’s manifestly excessive aggregate total
sentence of 16½ to 33 years [of] incarceration be vacated where
the sentence imposed in [A]ppellant’s 2016 case was far in excess
of the guidelines, the sentences in each case were far in excess of
the sentences requested by the prosecution, and the lower court
based the sentences in each docket almost entirely on a crime for
which [Appellant] was never charged, tried, or found guilty?
Appellant’s brief at 2.
The following principles apply to our consideration of whether
Appellant’s question raises a viable challenge to the discretionary aspects of
his sentence.
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly preserved
____________________________________________
4 Although the trial court did not expressly state its intent to re-impose the
previously-vacated original sentences in the 2010 and 2014 cases in the June
28, 2017 order, such a ruling is implicit in the subsequent denial of Appellant’s
motion for reconsideration of those sentences. Therefore, we treat the trial
court’s order denying Appellant’s motion for reconsideration as vacating the
prior order that had vacated the sentences, and deem the appealed-from
sentences to have been imposed on the date they originally were announced
in open court: February 17, 2017. Accord Commonwealth v.
Nahavandian, 954 A.2d 625, 630 (Pa.Super. 2008).
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at sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial question
that the sentence appealed from is not appropriate
under the Sentencing Code.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)
(citations omitted).
Appellant filed a timely notice of appeal and preserved the issue in a
timely post-sentence motion seeking reconsideration of his sentence.
Appellant’s brief contains a statement of reasons relied upon for his challenge
to the discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f).
Thus, we consider whether Appellant has raised a substantial question.
Appellant avers that his aggregate sentence is manifestly excessive and
is based upon the sentencing court’s consideration of an impermissible factor.
Appellant’s brief at 13. Appellant further complains that the sentencing court
“focused solely on retribution, to the exclusion of other required statutory
considerations[.]” Id.We conclude that Appellant has raised a substantial question that the
sentence is not appropriate under the sentencing code. See, e.g.,
Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (holding
claims that trial court failed to consider relevant sentencing criteria and relied
upon impermissible sentencing factors presented substantial questions);
Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa.Super. 2011) (“[A]
claim that a sentence is excessive because the trial court relied on an
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impermissible factor raises a substantial question.”). Therefore, we shall
proceed to address the merits of Appellant’s claims.
We review the sentencing court’s sentencing determination for an abuse
of discretion.
In this context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
Regarding Appellant’s sentence in the 2016 case, we observe that, while
a sentencing court has broad discretion, its
discretion is not unfettered. When imposing a sentence, the
sentencing court must consider the factors set out in 42 Pa.C.S.
§ 9721(b), that is, the protection of the public, gravity of offense
in relation to impact on victim and community, and rehabilitative
needs of the defendant. And, of course, the court must consider
the sentencing guidelines.
Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 2011)
(cleaned up). “We cannot re-weigh the sentencing factors and impose our
judgment in the place of the sentencing court.” Commonwealth v. Macias,
968 A.2d 773, 778 (Pa.Super. 2009).
As to sentencing following revocation of Appellant’s probation in the
2010 and 2014 cases, the sentencing guidelines did not apply, and the court
was “limited only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence.” Commonwealth v.
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Simmons, 56 A.3d 1280, 1286-87 (Pa.Super. 2012) (internal quotation
marks omitted). A sentence of total confinement may be imposed following
probation revocation if the sentencing court finds, inter alia, that “the conduct
of the defendant indicates that it is likely that he will commit another crime if
he is not imprisoned;” or that “such a sentence is essential to vindicate the
authority of the court.” 42 Pa.C.S. § 9771(c)(2) and (3).
As detailed above, Appellant’s conviction and sentence for PWID in the
2016 case was not related to the overdose death of Austin Sternberg. Yet, at
the sentencing hearing, the sentencing court heard extensive testimony and
received other evidence, such as identical drug packaging, that demonstrated
that Mr. Sternberg had purchased the drugs that killed him from Appellant.
The Commonwealth additionally presented evidence to show the extent of the
opioid epidemic in the neighborhood where Appellant had conducted all of the
drug sales at issue in these cases, and how people like Appellant are “out
there on the streets of Philadelphia, profiting on the destructions of family
lives.” N.T. Sentencing, 2/17/17, at 35. The court also heard from Appellant
and his witnesses that Appellant himself is a victim of substance abuse, that
Appellant did not know that he was selling fentanyl rather than heroin, and
that he only went back to selling drugs to provide for his children.
Upon hearing all of this information, as well as considering the
sentencing guidelines and the presentence investigation report, the
sentencing court imposed its sentence based upon the weight it gave to the
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aggravating factors, the fact that Appellant “will continue to commit more
crimes unless he is incarcerated[,]” and his lack of respect for the authority of
the court in the face of prior “lenient sentences and treatment
opportunities[.]” Trial Court Opinion, 11/27/17, at 8. Therefore, the
sentencing court consciously deviated from the guidelines and imposed an
aggregate sentence more than twice as long as that requested by the
Commonwealth. N.T. Sentencing, 2/17/17, at 77.
Appellant contends that this was improper, arguing “the record makes
abundantly clear that the lower court relied almost exclusively on the
impermissible factor of the homicide [that] the lower court believed
[Appellant] had committed when crafting the sentence in each of [Appellant]’s
three cases.” Appellant’s brief at 20. Appellant notes that he did not admit
to selling any drugs to Mr. Sternberg, that he did not waive his right to have
a fact finder decide his mens rea, and that the evidence offered at the
sentencing hearing was not sufficient to prove he committed a homicide. Id.
at 24-25. Appellant suggests that, even if the circumstantial evidence did
point to his having sold the fentanyl to Mr. Sternberg, there was no indication
that Appellant knew it was fentanyl rather than heroin, and the sentencing
court’s “importing a theory of strict products liability” was improper. Id. at
24. Appellant maintains that “the alleged uncharged criminal conduct in this
case [does not] show anything new about [Appellant]’s character or the
potential danger he poses to society.” Id. at 25.
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Appellant argues that this Court’s decision in Commonwealth v.
Rhodes, 990 A.2d 732 (Pa.Super. 2009), requires that we find that the
sentencing court abused its discretion in this case. In Rhodes, the defendant,
who had no prior criminal record, initially reached an agreement with the
Commonwealth to plead guilty to involuntary manslaughter in connection with
the death of her newborn child, but the trial court refused to accept the plea.
The parties then presented the court with an open plea to voluntary
manslaughter, which the trial court accepted. Prior to sentencing, the trial
court conducted an ex parte investigation into the circumstances of the child’s
death.
At the sentencing hearing, after the parties presented their arguments,
the trial court provided counsel with a thirty-six page “Statement of
Sentencing Rationale” which it had prepared and distributed to the media, but
not to the defendant or the Commonwealth, before the sentencing hearing
commenced. The court declined to recess the hearing to allow Rhodes and
her counsel to read and respond to the document. Instead, the court
discussed the statement on the record, revealing its conclusion, based upon
hearsay from police reports, that the killing had not been the product of
sudden and intense passion admitted by Rhodes pursuant to her guilty plea.
Instead, the trial court detailed “an alternate recitation of the case, drawing
unfavorable inferences against the defendant and fashioning a narrative of
depravity and deceit indicative of a premeditated, calculated and intentional
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killing.” Id. at 740 (internal quotation marks omitted). The court “then
concluded the hearing with a nod to the Sentencing Guidelines, but imposed
a sentence . . . only one to two years shy of the statutory maximum[.]” Id.
at 741. The trial court rejected the objections of defense counsel that the
court issued a predetermined sentence, based upon evidence not of record
and which the defense had not even seen, and had not given Rhodes the
opportunity to cross-examine any of the people whose statement the court
relied upon.
On appeal, this Court held that the trial court abused its discretion by
relying upon impermissible considerations in that it “effectively convicted and
sentenced the defendant for conduct and intent she had not admitted and
could not prepare to address.” Id. at 747. As we explained,
The court’s reliance on police reports it obtained ex parte is of
particular concern, as [the trial judge] failed to afford Rhodes the
opportunity to cross-examine the witnesses whose hearsay
statements comprised the bulk of the reports’ contents. He then
drew factual inferences directly from those reports on the basis of
which he imposed a sentence almost five times that recommended
by the Commonwealth and only one to two years shy of the
statutory maximum for voluntary manslaughter. The court then
sought to buttress the sentence with the repeated assertion that
its duration reflected Rhodes’s commission of a calculated,
premeditated killing, reflecting a finding of elements that define
an offense with which Rhodes was not charged and to which she
did not plead. Every such occurrence contravened accepted
sentencing norms in this Commonwealth.
Id. at 745 (internal quotation marks and unnecessary capitalization omitted).
We agree with the Commonwealth that Rhodes is readily distinguished
from the instant case. See Commonwealth’s brief at 12-14. Here, the
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sentencing court did not do an independent investigation to reach a sentencing
decision prior to the hearing based upon evidence that Appellant had no
opportunity to challenge. Rather, it considered the evidence offered at the
sentencing hearing, including the presentence investigation report, and gave
Appellant the opportunity to cross-examine witnesses and present his own
evidence, before reaching its decision.
Furthermore, the sentencing court here did not punish a first-time
offender based upon its determination that she was guilty of a crime other
than that for which she was being sentenced as the court did in Rhodes.
Instead, the sentencing court was tasked with fashioning three sentences for
Appellant, who just had his fifth PWID conviction as an adult: one for each of
two prior PWID convictions, and one for the current PWID committed while he
was still under supervision for the other two. Relevant to its decisions,
addressing Appellant’s repeated criminal activity between 2010 and 2016,
were the requirements of §§ 9721(b) and 9771(c) of the sentencing code.
Those statutes provide, in relevant part, 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[,]” 42
Pa.C.S. § 9721(b) (emphases added); and that total confinement may be
imposed if “the conduct of the defendant indicates that it is likely that he will
commit another crime if he is not imprisoned.” 42 Pa.C.S. § 9771(c).
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Indeed, in Commonwealth v. Ali, 149 A.3d 29 (Pa. 2016), our
Supreme Court expressly recognized that a trial court’s consideration of the
impact of a defendant’s drug dealing on the community is an appropriate
consideration under the sentencing code. The defendant in Ali operated a
convenience store along with a partner, out of which they sold synthetic
marijuana (“K2”). The operation was discovered by police who made an
undercover buy and executed a search warrant after receiving information
that a person who purchased K2 from the store operated an automobile while
under the influence of the drug, killing two people.
Ali was convicted of PWID, conspiracy, corrupt organizations, and
delivery of paraphernalia. Although Ali was not charged with or convicted of
causing the deaths at issue, the trial court at sentencing allowed the
Commonwealth to present evidence from the families of the victims of the car
accident “to attempt to establish a causal relationship between the sale of K2
to [the driver responsible for the deaths] and the accident.” Id. at 31.
Specifically, the Commonwealth offered evidence that K2 from Ali’s store was
found in the car after the accident, that the driver smoked K2 before the
accident, causing his heart to race and vision to become blurry, and that K2
is known to cause heart attacks and strokes, along with victim impact
testimony from the driver’s sentencing hearing. Id.
The trial court, while acknowledging that the evidence offered would not
allow a jury to conclude that Ali directly caused the deaths, “determined that
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it could not ignore the connection between the sale of the K2 and the fatal
accident.” Id. The trial court explained its reasoning as follows:
[The deaths are] connected to what you do, Mr. Ali, exactly what
you do. If you peddle death and dangerous substances, you can
expect something like this to happen. This is within the purview
of being a business owner. If you take the risk, you should expect
it. . . .
And when people buy something and go in the nature of
convenience stores in this society, they do so by vehicle. They
drive up and they drive away. And if you sell them something that
can lead to their death, that can lead to them being impaired, then
this is a consequence that should be readily known to you.
. . . I believe you simply were operating for profit, you took a risk,
and your risk ended up contributing, leading, being connected to,
whatever you want to say—the Court is not finding that you
caused their death[s] directly, but you certainly were connected
to a series of horrific events that led to unspeakable tragedy for
the families that this Court had to listen to during the sentencing
phase of [the driver’s] case. So I cannot turn a blind eye to it. It
is simply a fact. And that was the tragic turn of events that now
leads to your conviction and your sentencing.
Id. (internal quotation marks omitted).
On appeal, Ali contended that the trial court was not permitted to
consider the victim impact evidence in sentencing him for the crimes at issue
because, as they were not crimes against a person and thus had no legal
victims, the evidence was irrelevant. This Court agreed, and held that the
trial court erred in considering victim impact testimony where Ali was not
charged with or convicted of any crime related to the two deaths.
Our Supreme Court reversed, largely based upon § 9721(b). The Court
explained, “when it comes to impacts and effects of crimes, the provision
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explicitly directs courts to fashion sentences that are consistent with the
protection of the public and the impact on both the life of the victim and on
the community.” Ali, supra at 37. While Ali made arguments focused on the
language concerning “the victim,” he did not acknowledge “the broader focus
of the provision making relevant the impact on the community and the
protection of the public.” Id. The Court accepted the position of an amicus
curiae that, with § 9721(b), “the General Assembly has recognized that
criminal law exists to protect not only direct victims, but also the community
that bears the indirect consequences of crime, and this, in turn, affords some
flexibility in the trial court considering the practical and tangential effects of a
crime in fashioning a sentence.” Id.
Specifically addressing the conduct and impact at issue in Ali, the Court
stated as follows:
Perhaps a complicating factor here is the evidence deemed
relevant by the trial court was posed as victim impact rather than
“community impact” evidence. But, considerations of public
protection and community impact presumably may be addressed
in myriad ways. The general community effects of illegal drug
distribution are well-known, including effects (sometimes fatal)
upon abusers, attendant property crimes by certain of those
suffering from addiction, and violence associated with certain
drugs or manners of distribution. The tragic fortuity here—the
death of two at the hands of a driver impaired, to some extent,
by an illegal narcotic—obviously is not present in all, or even in
many, cases involving distribution of the involved drug.
However, the risk or danger of such consequent fortuities is
present and where, as here, the crime in fact is logically connected
to a community impact suffered by specific individuals, section
9721(b) makes that impact or effect a relevant consideration at
sentencing[.]
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Id. at 38 (footnote and unnecessary capitalization omitted)
While Ali is not entirely on all fours with the instant case, we conclude
that its reasoning supports the sentencing court’s consideration of the
overdose death of Mr. Sternberg at Appellant’s sentencing hearing.5 The
Commonwealth presented evidence that connected Mr. Sternberg’s death to
Appellant’s criminal activity through an assumption-of-risk logic accepted in
Ali, which in turn was relevant to the court’s evaluation of what sentences
were appropriate to protect the public from Appellant and to rectify the impact
of his drug dealing on the community. Further, the extent of the harm
Appellant had caused through his continuing criminal activity properly
informed the court’s determination as to whether prior lenient punishment had
been ineffective and a lengthy term of incarceration upon revocation of
probation was necessary to vindicate its authority. As such, the sentencing
court in this case did not consider any improper factors, but rather acted within
its discretion in considering evidence relevant to the sentencing considerations
established by our legislature.
Furthermore, we cannot conclude that the sentencing court committed
an abuse of discretion in imposing an aggregate sentence of sixteen and one-
half to thirty-three years of incarceration on the other bases argued by
____________________________________________
5 Appellant does not acknowledge the Ali decision in his brief, let alone
attempt to distinguish the case.
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Appellant. First, the fact that the sentencing court reviewed the presentence
investigation report prepared for sentencing leads to the presumption “that
the court properly considered and weighed all relevant factors in fashioning
the defendant’s sentence.” Commonwealth v. Baker, 72 A.3d 652, 663
(Pa.Super. 2013). Even so, the sentencing court did expressly acknowledge
Appellant’s mitigating evidence, but found that it was not “sufficient to
overcome the aggravating factors in this case.” Sentencing Court Opinion,
11/27/17, at 5. Thus, Appellant’s claim that the sentencing court ignored all
considerations but retribution is meritless.
Second, Appellant’s repeated return to the same criminal conduct
unquestionably supported the sentencing court’s finding that lenient
punishment was ineffective in rehabilitating Appellant, and that a lengthy
period of incarceration was warranted to vindicate its authority. See, e.g.,
Commonwealth v. Colon, 102 A.3d 1033, 1045 (Pa.Super. 2014) (affirming
sentence of four to twelve years of incarceration, imposed following probation
revocation to protect the public and vindicate the authority of the court, where
defendant with history of a history of substance abuse and mental health
issues engaged in antisocial conduct while on probation following release from
inpatient treatment). As such, we cannot agree that the sentence was
manifestly excessive.
For all of the above reasons, we hold that Appellant failed to show “that
the sentencing court ignored or misapplied the law, exercised its judgment for
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reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Antidormi, supra at 760. Therefore, he is entitled
to no relief from this Court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/19
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