Com. v. Reid, L. ( 2020 )


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  • J-S73025-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    LENNY REID                                 :
    :
    Appellant               :   No. 369 MDA 2019
    Appeal from the Judgment of Sentence Entered January 31, 2019
    In the Court of Common Pleas of Dauphin County Criminal Division at
    No(s): CP-22-CR-0000066-2017
    BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
    MEMORANDUM BY LAZARUS, J.:                     FILED: FEBRUARY 4, 2020
    Lenny Reid appeals from the judgment of sentence, entered in the Court
    of Common Pleas of Dauphin County, after a jury found him guilty of one count
    each of possession of a firearm prohibited,1 possession with intent to deliver
    (PWID),2 and possession of drug paraphernalia.3         Upon careful review, we
    affirm.
    On November 10, 2016, an anonymous caller notified the City of
    Harrisburg police that Reid had entered unit 5D of Hall Manor (Unit 5D). At
    the time, Reid was wanted for violating his parole on a prior conviction. The
    ____________________________________________
    1   18 Pa.C.S.A. § 6105(a)(1).
    2   35 P.S. § 780-113(a)(30).
    3   35 P.S. § 780-113(a)(32).
    J-S73025-19
    police responded by sending several officers to prevent Reid’s escape and
    apprehend him pursuant to an arrest warrant. Upon arrival, officers took up
    positions accounting for the layout of Unit 5D. The residence had two floors
    with a front and rear entrance.         The second floor was divided into a front
    bedroom, a rear bedroom, and a bathroom. Officer Daniel Antoni, along with
    other officers, knocked on the front door.        Simultaneously, Officer Donald
    Bender positioned himself behind Unit 5D. Tyra Williams, the head of the
    household, opened the front door. When officers asked if anyone else was
    present, Williams indicated her children were on the first floor and her friend
    Mamie Barnes was upstairs with a friend. Officer Antoni informed Williams as
    to the purpose behind their presence at Unit 5D and asked for her permission
    to search for Reid. Williams consented.
    Officers cleared the first floor; Williams and her children were the only
    persons present. Officer Antoni then called for the individuals upstairs to come
    down.    Barnes descended with a small child and her friend Jose Aponte.
    Officer Bender then radioed Officer Antoni and stated he had observed a
    different individual, a dark-skinned black male,4 stick his head out of the rear
    bedroom window on the second floor, look around, and close the blinds after
    spotting the police.
    ____________________________________________
    4 Officer Antoni testified Aponte “is not a dark-skinned male.”        N.T. Trial
    12/12/18, at 84.
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    Officer Antoni requested Officer Bender bring a K-9 in to search the
    second floor. At this point, Reid showed himself, came down the stairs, and
    surrendered. After the police placed Reid in custody, officers performed a
    cursory check to see if anyone else was in Unit 5D. No other individuals were
    present. Officer Antoni then asked Williams if he could search the house for
    contraband. She consented. In the rear bedroom on the second floor, Officer
    Antoni found and seized narcotics packaging supplies, a semi-automatic pistol,
    heroin bundles, and a cell phone.
    Prior to trial, Reid moved to exclude any reference to the purpose behind
    the police’s presence at Unit 5D, namely, effectuating an arrest warrant for
    his violation of parole. The court granted his request. At trial, Officer Bender
    stated “the warrant was [of] a felony nature[,]” prompting defense counsel,
    Aaron Holt, Esquire, to move for a mistrial on the grounds that the
    Commonwealth violated the terms of the court’s pre-trial order. N.T. Trial,
    12/12/18, at 37. The court denied Reid’s motion.
    During closing arguments, Attorney Holt advanced the theory that
    Aponte solely possessed the heroin and the handgun found in the rear
    bedroom on the second floor of Unit 5D, and further alleged the police erred
    by failing to investigate Aponte as a suspect.   5   See id. at 136–37 (“It was
    ____________________________________________
    5 Aponte testified that he and Barnes were asleep in the front, upstairs
    bedroom. N.T. Trial, 12/12/18, at 70. Aponte further testified he woke up to
    let Reid into Unit 5D, returned to the front bedroom to go back to sleep, was
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    [Aponte] and him alone.”). Specifically, Attorney Holt highlighted the police’s
    failure to take the following steps: (1) search Aponte for drugs or cash; (2)
    search for and analyze DNA evidence from the handgun or the drugs; or (3)
    obtain a warrant to search the cell phone found in the rear bedroom. The
    court found it necessary to clarify points of law concerning Attorney Holt’s
    above-referenced assertions relating to an officer’s authority to search
    individuals and the procedure for searching a cell phone.           Attorney Holt
    protested vigorously at sidebar.
    The jury found Reid guilty on all counts. On January 31, 2019, the court
    sentenced Reid to an aggregate sentence of four to eight years’ incarceration,
    followed by two years’ probation. Reid did not file post-sentence motions. He
    timely filed a notice of appeal on February 27, 2019. Both Reid and the court
    complied with Pa.R.A.P. 1925.
    Reid raises the following claims for our review:
    1.     When the Commonwealth elicited prior-bad-act testimony in
    violation of the court’s previous ruling on a motion in limine,
    did not the court abuse its discretion by refusing to grant
    defendant’s motion for mistrial?
    2.     Was it not improper for the court in instructing the jury to
    include sua sponte commentary disputing the legal validity
    of certain claims argued by defense counsel when there was
    no factual or legal basis for the court to instruct the jury in
    such terms and when the court assumed the role of an
    advocate?
    ____________________________________________
    unaware of what Reid was doing at Unit 5D, and never entered the back
    bedroom. Id. at 71, 76.
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    Brief of Appellant, at 5.
    First, Reid argues Officer Bender violated the pre-trial ruling precluding
    evidence of Reid’s prior bad acts by stating the Harrisburg Police were
    attempting to effectuate a “warrant [of] a felony nature” and that the trial
    court subsequently abused its discretion by failing to declare a mistrial. See
    Brief of Appellant, at 26–27.
    We have outlined the relevant standard of review as follows:
    The denial of a motion for a mistrial is assessed on appellate
    review according to an abuse of discretion standard. It is primarily
    within the trial court’s discretion to determine whether [a]
    defendant was prejudiced by the challenged conduct. On appeal,
    therefore, this Court determines whether the trial court abused
    that discretion. An abuse of discretion is not merely an error of
    judgment; rather, discretion is abused when the law is overridden
    or misapplied, or the judgment exercised is manifestly
    unreasonable, or the result of partiality, prejudice, bias, or ill-will,
    as shown by the evidence or the record.
    Commonwealth v. Padilla, 
    923 A.2d 1189
    , 1192 (Pa. Super. 2007)
    (citations   and   quotations    omitted);    see   also    Commonwealth         v.
    Boczkowski, 
    846 A.2d 75
    , 95 (Pa. 2004) (“A trial court need only grant a
    mistrial where the alleged prejudicial event may reasonably be said to deprive
    the defendant of a fair and impartial trial.”).
    Orders resolving motions in limine bind parties at trial in an identical
    fashion to suppression orders. Padilla, 
    supra at 1194
     (“[B]oth a suppression
    motion and a motion in limine settle, before trial, issues regarding the
    exclusion or admission of evidence.”). These motions exist, in part, to provide
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    a pre-trial opportunity to exclude evidence “that may prove to be so prejudicial
    that no instruction could cure the harm to the defendant, thus reducing the
    possibility that prejudicial error [would require] the trial court to either declare
    a mistrial in the middle of the case or grant a new trial at its conclusion.” 
    Id.
    “Determining whether prejudice has occurred is a fact[-]specific
    inquiry.” Commonwealth v. Metzer, 
    634 A.2d 228
    , 235 (Pa. Super. 1993).
    Our analysis is guided, in part, by the scope of the prohibition established by
    the trial court’s pre-trial ruling. See Padilla, 
    supra
     at 1195–96 (comparing
    effect of relatively narrow restrictions established by pre-trial orders in
    Commonwealth v. Treiber, 
    874 A.2d 26
     (Pa. 2005) and Commonwealth
    v. Edwards, 
    762 A.2d 382
     (Pa. Super. 2000) with “much broader” ruling
    “prohibiting any reference to . . . incarceration and parole” in Padilla). Pre-
    trial orders excluding evidence of prior bad acts are guided by the long-
    established prohibition against “evidence of crimes other than those charged
    in the case . . . [being] presented at trial to prove the defendant’s criminal
    character or his tendency towards committing criminal acts.” Padilla, 
    supra at 1194
     (quotation omitted).      Passing references to prior criminal activity,
    however, do not require reversal “unless the record illustrates definitively that
    prejudice results. Prejudice results where the testimony conveys to the jury,
    either expressly or by reasonable implication, the fact of another criminal
    offense.” 
    Id. at 1195
     (quotations omitted).
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    Treiber, supra and Edwards, 
    supra
     provide examples of narrowly-
    tailored orders resolving motions in limine. In Treiber, supra, the trial court
    issued a pre-trial order precluding evidence of a previous fire in the
    defendant’s home.6 Treiber, supra at 31. The court, however, admitted a
    threatening letter authored by the defendant to his girlfriend, in which he
    stated, “[g]et rid of the dogs or I[’]ll kill them and burn you out again.” Trial
    counsel objected to the word “again[,]” arguing it referred to the defendant
    setting other fires and contended the word should have been redacted. Id.
    Our Supreme Court found the “the threat note had no relationship to the in
    limine ruling as no specific prior fire was mentioned, nor was there any
    evidence related to the [previous] fire.” Id. The Court reasoned, as the word
    “again” failed to convey any information to the jury about a prior crime, the
    trial court did not abuse its discretion in admitting the evidence. Id.
    In Edwards, 
    supra,
     the defendant was wanted for a January 8, 1995
    robbery. Edwards, 
    supra at 384
    . He was arrested on January 29, 1995,
    following a “scuffle” in a department store, during which a gun fell out of his
    waistband. 
    Id.
     The defendant was subsequently charged with robbery and
    possession of an instrument of crime for the January 8 incident, but was not
    charged for his conduct on January 29. 
    Id.
     In a pre-trial ruling, the trial court
    precluded the Commonwealth from introducing testimony “that would
    ____________________________________________
    6The defendant in Treiber was charged with, inter alia, burning his own home
    down. Treiber, supra at 29.
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    establish directly or by inference that [defendant] was arrested for other
    offenses arising out of the [January 29] incident[.]” Id at 388. The court
    permitted a police officer and a department store employee to testify
    regarding the January 29 incident, describing the scuffle, the gun, and the
    defendant being transported to the police station. Id. This Court concluded
    “the Commonwealth complied with the [t]rial [c]ourt’s ruling and did not elicit
    facts . . . to indicate that Appellant had been arrested or charged with criminal
    offenses in connection with [the January 29] incident.” Id. Therefore, we
    concluded the testimony was not prejudicial, as it “did not expressly or by
    reasonable implication communicate to the jury the involvement of Appellant
    in another criminal offense.” Id. at 388–89.
    The two cases above are brought into sharp relief by Padilla, 
    supra,
    which involved a far broader pre-trial ruling prohibiting “any reference to
    [Appellant’s] incarceration and parole[.]” Padilla, 
    supra at 1195
    . At trial,
    an officer described arriving at the scene of the crime by stating, in relevant
    part, “[a]pparently [Appellant] just got out of jail[.]” 
    Id. at 1192
    . This Court,
    taking the “much broader” ruling into account, found the officers remarks “a
    direct reference to Appellant’s recent incarceration.”      
    Id. at 1196
    .     We,
    therefore, concluded the testimony “expressly and by reasonable implication[]
    communicated to the jury Appellant’s involvement in another criminal
    offense.” 
    Id.
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    Instantly, Attorney Holt anticipated the prejudicial impact of Reid’s
    status as a parolee during pre-trial motions. See N.T. Trial 12/12/18, at 12.
    He sought to preclude any mention of Reid’s status as a parolee on the record
    in the following exchange:
    [Attorney Holt:] . . . And there’s another issue as well. The reason
    the officers went to the home is that somebody said that . . . Reid
    had a warrant out for his arrest. He was on state parole at the
    time. I guess he absconded.
    So I don’t want any mention of—a motion in limine—to limit the
    testimony as to why the officers were present in the home. I don’t
    think that’s relevant or germane to the fact at issue.
    The court: Well, there’s always a need for context. So let’s find
    out—how were you[, the Commonwealth,] planning on explaining
    the officers present at—
    [The Commonwealth:] Your Honor, my plan was to refer to . . .
    Reid as a person of interest that the police were interested in
    speaking with and that they had received a tip that he was there—
    or not even a tip. It doesn’t have to be a tip. Just that they were
    aware that a person they were interested in speaking with was at
    this residence and we were interested in speaking with him.
    [Attorney Holt:] Could I confer with my client for just a moment?
    The court: Absolutely.
    [Attorney Holt:] All right, Your Honor, if we could just not get into
    the fact that he was on parole at the time, that would be fine by
    me. The fact that he had a warrant, I mean the jury can know
    that but what the warrant was for is not relevant.
    The court: All right. Well, if indeed it was for a parole violation
    being probably being more prejudicial than probative, all right. So
    let’s just keep it as a warrant and not mention that it was parole
    and we’re good.
    N.T. Trial, 12/12/18, at 11–12 (capitalization adjusted).
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    Officer Bender, the first witness presented by the Commonwealth,
    affirmed his presence at the scene resulted from “a wanted person with a
    warrant being at [Unit] 5D[.]” N.T. Trial, 12/12/18, at 32–33. Attorney Holt
    moved for a mistrial after the following exchange:
    [Commonwealth:]     And what would be—what would be the
    purpose of the K-9 unit coming in to assist with that, what would
    procedure be?
    [Officer Bender:] Procedure for this would be that the warrant
    was [of] a felony nature which is required for use of a K-9 in this
    application [sic]. So having that the first floor was already cleared
    by officers, I was at the bottom of the stairs and I gave two[ . . .
    7]
    Id. at 37.
    Reid argues the court erred by failing to grant a mistrial as the
    Commonwealth’s questioning “elicited the type of prejudicial reference—a
    warrant of a felony nature—that the pretrial ruling was designed to prevent.”
    Brief of Appellant, at 26 (quotation omitted). We disagree. We find the above-
    mentioned pre-trial ruling to be narrowly tailored such that it permitted
    mention of the police’s presence for the purpose of effectuating a warrant and
    precluded testimony revealing the warrant’s origin—a parole violation.
    Compare Treiber, supra at 31 (precluding mention of prior arson) and
    Edward, 
    supra at 388
     (precluding testimony expressing or implying
    Appellant was charged for conduct during incident leading to his arrest) with
    ____________________________________________
    7At this point, Attorney Holt’s objection interrupted Officer Bender. N.T. Trial,
    12/12/18, at 37.
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    Padilla, 
    supra at 1195
     (prohibiting “any reference to [Appellant’s]
    incarceration and parole[.]”).
    The exchange to which Attorney Holt objected related to the procedure
    under which the Harrisburg Police deploy their K-9 unit.        See N.T. Trial,
    12/12/18, at 37. Officer Bender did not portray Reid as a parolee. See id. at
    37.   Rather, Officer Bender’s limited disclosure informed the jury he was
    present at Unit 5D because of an arrest warrant. N.T. Trial, 12/12/18, at 37.
    The jury later learned the warrant was for Reid’s arrest, that Reid was
    arrested, and that, prior to Reid’s arrest, he had been in a room containing
    contraband. Id. at 39, 87–90. Officer Bender’s statement, however, did not
    expressly or by reasonable implication communicate any information
    regarding Reid’s violation of parole or his involvement in any criminal episode
    other than the one at trial; the statment, therefore, did not prejudice his case.
    Compare Padilla, supra at 1192, 1196 (finding statement that Appellant
    “just got out of jail” prejudicial as it was “a direct reference to Appellant’s
    recent incarceration”) with Edward, 
    supra at 388
     (finding witnesses’
    testimony detailing fight leading to appellant’s arrest, gun dropped by
    appellant, and transporting appellant to police station did not prejudice
    defendant because witnesses did not specifically mention arrest or indicate
    filing criminal charges). Consequently, the court did not abuse its discretion
    by denying Reid’s motion for a mistrial. See Padilla, 
    supra at 1192
    .
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    Next, Reid argues the court abused its discretion by providing
    commentary during its jury instruction, without a factual or legal basis, which
    undermined Attorney Holt’s closing argument. Brief of Appellant, at 30.
    We review the trial court’s jury instructions as follows:
    [T]he reviewing court must consider the charge as a whole to
    determine if the charge was inadequate, erroneous, or prejudicial.
    The trial court has broad discretion in phrasing its instructions,
    and may choose its own wording so long as the law is clearly,
    adequately, and accurately presented to the jury for its
    consideration. A new trial is required on account of an erroneous
    jury instruction only if the instruction under review contained
    fundamental error, misled, or confused the jury.
    Commonwealth v. Fletcher, 
    986 A.2d 759
    , 792 (Pa. 2009) (citations and
    quotations omitted).
    “It is properly the function of the trial judge to define and frame for the
    jury those factual issues which are contested and which require the weighing
    of conflicting evidence.” Commonwealth v. Kelly, 
    446 A.2d 941
    , 944 (Pa.
    Super. 1982); see Pa.R.Crim.P. 647(E) (“The trial judge may give any other
    instructions to the jury . . . at anytime during the trial as the judge deems
    necessary and appropriate for the jury’s guidance in hearing the case.”). Such
    instruction is proper, “provided[:]    (1) there is reasonable ground for any
    statement [the court] may make; and (2) [the court] clearly leaves to the jury
    the right to decide all the facts and every question involved in the case
    regardless of any opinion of the court thereon.” Commonwealth v. Nesbitt,
    
    419 A.2d 64
    , 67 (Pa. Super. 1980).
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    Instantly, Attorney Holt advanced the theory that the Harrisburg Police
    failed to investigate whether the confiscated contraband belonged to one of
    the other individuals in Unit 5D—particularly Aponte—stating as follows during
    closing argument:
    You heard testimony from the officer that when . . . Barnes and
    . . . Aponte walked down the stairs[,] neither of those individuals
    were searched. Although they did not see which room those
    individuals came out of, the officers did not take the opportunity
    to stop them, pat these individuals down, see if [Aponte] had
    drugs on his person, see if he had four or five grand in his pocket.
    ...
    You also heard testimony that there was a cell phone in that back
    bedroom—a cell phone.          I mean, this is—it does—the
    Commonwealth—the officer was practically given a gift wrapped
    way of corroborating who was in that back bedroom.
    ...
    [An officer] could have just as easily executed a search warrant,
    gotten into that phone. There may have been pictures of [Aponte]
    in that phone. There could have been text messages from
    [Aponte] to whomever. There could have been [e]-mails, social
    media accounts that they could have gone through, the whole
    nine.
    N.T. Trial, 12/12/18, at 138.
    The court responded to Attorney Holt’s above-recounted argument
    during its jury charge as follows:
    I don’t normally comment on arguments of counsel[,] but in
    certain cases I just want to make sure that there’s no confusion.
    I know there was some reference to whether the police searched
    the people coming down the steps.
    Just be aware that a police officer going into a private home with
    permission to search for someone that they have a warrant for
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    does not give authority to the police to search anybody else in
    that house.
    I mean, there’s limitations on what they can do. They need to
    have their own independent probable cause. So there [were] a
    lot of things that were raised that the police may or may not have
    done such as fingerprinting and all the rest. That’s fair game.
    But to say that they didn’t search private citizens in someone’s
    home when they really don’t have a legal authority to do it is kind
    of a tough one. I want to make sure we keep things in fair game
    as far as argument.
    Similarly[,] in searching a phone, [] a judge would have to sign
    an order like that[;] that’s only done when there’s specific
    probable cause that [can] justify the invasion of the privacy of
    someone’s phone and the contents of it. So that actually isn’t
    done for the convenience of an investigation. There has to be
    probable cause to believe there is evidence on a particular phone.
    
    Id.
     at 174–75.
    Reid asserts “[t]here was no factual or legal basis for the court to give
    those instructions[,]” arguing the court’s instruction informed the jury
    “categorically that there was no way for the police to have searched Aponte”
    and suggested “that the police could not have procured a search warrant with
    respect to the phone.” 
    Id.
     at 34–35.
    Reid mischaracterizes the court’s statements.         The above-recounted
    instructions   describe   discrete   criminal   procedure    concepts—searching
    individuals in a home and searching cell phones. 
    Id.
     at 174–75. In explaining
    these concepts, the court did not make a definitive pronouncement as to how
    they would be applied; instead, as the following passage reveals, the court
    attempted to clarify any potential misconceptions created by Attorney Holt’s
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    closing argument and direct the jury towards making findings-of-fact relevant
    to the case at hand:
    [T]he statements that I made are how the [c]ourt views the law
    as it comes to whether someone can be searched in someone’s
    home or whether a phone can be searched in a private home as
    opposed to something that was tied to a specific criminal
    investigation.
    ...
    I told you the law isn’t what I want it to be. . . . And that’s why I
    have to rule the way I truly do. But I don’t want it to interfere
    with your fact-finding function and that is you’ve got to
    concentrate on the evidence that was there or the evidence that’s
    not there, but you can’t take a legal conclusion and try to build
    something beyond [that.]
    
    Id. at 187
    .
    The police had consent to search Unit 5D for contraband. See N.T. Trial.
    12/12/18, at 86–87 (affirming Williams gave consent for police to “search the
    house for anything illegal.”).   This, however, did not give the police the
    authority to search everyone in the house, as there neither existed probable
    cause for an “all persons present” search warrant nor reasonable suspicion to
    suspect anyone posed a danger to the police.          See Commonwealth v.
    Wilson, 
    631 A.2d 1356
    , 1358 (Pa. Super. 1993) (noting disfavor for “all
    persons present” warrants; requiring “affidavit of probable cause [containing]
    sufficient fact to justify a search of everyone found on the premises.”); see
    also Commonwealth v. Bozeman, 
    205 A.3d 1264
    , 1274 (requiring officers
    “articulate specific facts from which he could reasonably infer that the
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    individual was armed and dangerous” for Terry8 frisk). Likewise, the court
    correctly stated a search of a cell phone requires a warrant supported by
    probable cause. See Commonwealth v. Fulton, 
    179 A.3d 475
    , 487 (Pa.
    2018) (“[A] warrant is generally required for law enforcement to search a cell
    phone.”).
    While neither description—either that pertaining to police authority for
    searching citizens in private homes while effectuating an arrest warrant or
    that contemplating the requirements for searching a cell phone—constitutes
    an exhaustive doctrinal explanation, the court’s commentary served only to
    frame issues brought into question by Attorney Holt’s closing argument. See
    Kelly, 
    supra at 944
     (permitting court to “define and frame for the jury those
    factual issues which are contested”). As the court possessed the authority to
    instruct the jury on these subjects, and as nothing in its instructions was
    “inadequate, erroneous, or prejudicial[,]” we find no abuse of discretion in the
    court’s charge. Fletcher, supra at 792. Reid’s second claim, therefore, fails.
    Judgment of sentence affirmed.
    ____________________________________________
    8   Terry v. Ohio, 
    392 U.S. 1
     (1968).
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    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 02/04/2020
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