State v. Rentas

[Cite as State v. Rentas, 2022-Ohio-2412.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellant, :
No. 111044
v. :
JULIO RENTAS, :
Defendant-Appellee. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 14, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-81-162946-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Brandon A. Piteo, Assistant Prosecuting
Attorney, for appellant.
Walter H. Edwards, for appellee.
KATHLEEN ANN KEOUGH, P.J.:
The state of Ohio (“the state”) appeals the trial court’s decision
dismissing the indictment against defendant-appellee, Julio Rentas (“Rentas”).
For the reasons that follow, we affirm.
I. Procedural History and Background
In March 1981, Rentas was indicted with rape and gross sexual
imposition, and a warrant was subsequently issued. The state alleged that Rentas,
then age 27, forcefully engaged in sexual conduct with the victim, then age 14, in
the victim’s bedroom on January 4, 1981. 1 It is undisputed that he was a close
personal friend of the victim’s family, but alleged to have been in a relationship
with the victim.
In early September 2020, Rentas was arrested in Puerto Rico on the
outstanding warrant. Authorities returned him to the United States following his
arrest and he immediately retained counsel. Due to the COVID-19 pandemic,
arraignment did not occur until October 28, 2020. On March 15, 2021, following
initial discovery, Rentas moved to dismiss the indictment, raising three
arguments: (1) the state violated his constitutional right to a speedy trial; (2) the
state violated his due process rights in delaying prosecution following indictment;
and (3) the statute of limitations expired, preventing prosecution. He requested
an oral hearing on his motion.
On April 2, 2021, the state filed its opposition, contending that it did
not violate Rentas’s speedy trial or due process rights because Rentas caused the
delay in prosecution and that he could not demonstrate that he suffered any
prejudice. The state further maintained that prosecution against Rentas
1 In 1981, the age of consent was 13. See former R.C. 2907.02(A)(3).
commenced within the relevant statute of limitations period. On June 10, 2021,
the trial court summarily denied Rentas’s motion.
According to the trial court’s docket, plea negotiations and ongoing
discovery subsequently occurred. On August 25, 2021, Rentas filed a “motion for
evidentiary hearing and to reconsider denial of [his] motion to dismiss.” In his
motion, he again asserted that the indictment should be dismissed for want of
prosecution because the state violated his constitutional guarantees to due process
and a speedy trial. The state again opposed the motion, incorporating its prior
motion in opposition. The court conducted an evidentiary hearing on October 21,
2021.
II. Evidentiary Hearing
Peter Demopoulos, an investigator with the Cuyahoga County
Prosecutor’s Office CODIS unit, testified on behalf of the state. He stated that he
became involved in the matter in 2020 at the direction of CODIS’s then director,
Richard Bell. Demopoulos started his investigation by reviewing an incomplete
police file — he learned that the original 1981 police file had been destroyed. (Tr.
14 and 33.) According to Demopoulos, the file would have included the original
investigating detective’s notes and impressions and witness statements. He also
testified that he contacted the original investigating detective, Kenneth Lyons,
whom Demopoulos said could not recall the case. (Tr. 34.)
Demopoulos learned that shortly after the alleged rape, the victim
was treated at Deaconess Hospital, which has since closed. He learned that the
victim’s medical records were not retained after they were transferred to “Iron
Mountain,” a store house. Demopoulos testified that because these records were
not retained, it was unclear whether any clothing was preserved.
Demopoulos provided a timeline of what steps the police took over
the past 40 years since Rentas’s indictment. He stated that within a few days after
the rape was reported, the police looked for Rentas. Demopoulos admitted that
the warrant contained three addresses, but said from his review of the file, none of
the addresses appeared to have been investigated. (Tr. 45-46.) However, he
testified earlier that he believed Rentas lived with his brother, Joselito Rentas
(“Joselito”), who was mistakenly arrested in connection with this matter. (Tr. 14-
15.) After the victim’s family confirmed that Joselito was not Julio Rentas, he was
released from police custody. At the time, the victim’s family indicated that Rentas
may have traveled to New York where his sister lived — his sister’s address was
listed on the documentation presented at the hearing.
Demopoulos testified that the police then sought an indictment in
March 1981 and a warrant was issued. He stated that the police did not have a
proper social security number, full name, or date of birth for Rentas but stated they
had a description. In fact, it was later discovered that the information on the
warrant pertained to Joselito, and even after he was arrested, no one changed the
information or obtained the correct information from him while he was in custody.
(Tr. 23, 48.) Demopoulos testified that “nothing in the police file indicates what
the police were doing to find Rentas” from 1981 to 1996. (Tr. 18.)
In 1996, then Prosecutor Stephanie Tubbs Jones contacted the FBI
to help locate Rentas. The FBI made an arrest in New York. However, authorities
again arrested Joselito due to the inaccurate information that remained in the
warrant.
According to Demopoulos, Joselito was in police custody for months
and hired an attorney and private investigator to clear up this issue. He testified
that documents and statements from Joselito’s attorney in 1996 were included in
his file, which he reviewed. Those documents included a handwritten unsworn
statement from the victim’s mother, who is now deceased, and a handwritten
unsworn translated statement from the victim’s sister. In both of these statements,
the witnesses claim that Rentas raped the victim on January 1, 1981, at knifepoint.
Demopoulos testified that the victim’s original statement did not mention any
knife in connection with the rape.
Demopoulos further testified about another narrative that was
created by Joselito’s legal team. In that narrative, the unknown author indicated
that they traveled to Cleveland and spoke with Nelson Soto, the victim’s brother-
in-law. According to the narrative, Soto reported that Rentas — not Joselito —
allegedly raped the victim but “this rape to him was questionable because [Rentas]
was the [victim’s] boyfriend and the alleged rape took place in a room that was less
than fifteen feet from the [victim’s] parent[’s] room.” See Exhibit D. Demopoulos
testified that since Rentas’s arrest, he had not been directed to locate Soto,
although he believed that Soto may be deceased.
After reviewing all the documentation provided to him, Demopoulos
spoke with the victim and her brothers. Based on those interviews, he began
questioning whether the U.S. Marshal was actually looking for Rentas, rather than
Joselito, because the warrant information was never updated, despite arresting the
wrong person on two occasions. He was advised by the victim that she last heard
from Rentas’s family that Rentas was living in Puerto Rico. Demopoulos
conducted a simple search on social media via Facebook and located Rentas in
Puerto Rico. (Tr. 23.)
Demopoulos admitted that he was not able to find any factual basis
to support the state’s contention that Rentas was “hop-scotching” around New
York in an evasive manner or that Rentas stole Joselito’s social security number to
hide from police. (Tr. 49, 51.) Demopoulos stated that despite the police in 1981
having Rentas’s employer information, including address, there is no indication
that the police attempted to locate Rentas at this address when the rape was
initially reported. He further admitted that despite having a purported New York
address in 1981, there is no indication that the police attempted to locate Rentas at
this address when the rape was initially reported.
Rentas’s son, also named Julio Rentas, testified on behalf of his
father. He said that his father worked for a local New York CBS affiliate for 15
years. In support, he identified his father’s pension documentation, showing that
Rentas received earned-service credits from 1984 until 1999. He further identified
documents to support Rentas’s contention that he was living openly as himself and
not evading police detection or apprehension. Those documents included: a
translated legal document dated October 2008 purportedly originating from a
court in Puerto Rico; a utility bill in Rentas’s name dated February 2, 2021; a
certificate from a police agency in Puerto Rico dated February 13, 2021; and
Rentas’s Puerto Rico government-issued identification dated August 20, 2020.
His son further testified that his mother knew at all times where Rentas was living.
According to the son, his mother would have told the police where Rentas was
living if interviewed, and he believed that she had been interviewed.
At the close of testimony, the trial court admitted all exhibits into
evidence and issued its decision in open court granting Rentas’s motion. The trial
court found that the amount of missing or destroyed evidence — hospital records,
clothing, Cleveland Police Department archives, witness statements, unavailability
of the alleged victim’s mother due to her being deceased — prejudiced Rentas. (Tr.
67.) The court further found that the remaining evidence — inconsistent
statements and the investigation conducted by counsel and the investigator hired
by Joselito — did not remedy the prejudice that existed in this case. (Tr. at id.) The
trial court subsequently issued a judgment entry summarily granting the motion
and dismissing the case without prejudice.
The state now appeals. 2
Pursuant to R.C. 2945.67(A), the state may appeal the dismissal of an indictment
2
whether the dismissal is with or without prejudice. State v. Craig, 116 Ohio St.3d 135,
2007-Ohio-5752, 876 N.E.2d 95, syllabus.
III. Assignment of Error
The state raises as its sole assignment of error that the trial court
erred in dismissing the indictment without considering all relevant factors
pursuant to Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
The crux of the state’s argument is that the trial court did not fully
engage in a complete analysis of the Barker factors when rendering its decision
because it only addressed the prejudice factor in rendering its decision. It contends
that this court should reverse the trial court’s decision for this reason alone and
remand the matter for a new hearing with an order for the court to consider all the
Barker factors.
In support, the state cites State v. Perkins, 2d Dist. Clark No. 08-CA-
0081, 2009-Ohio-3033. In Perkins, the court reversed the trial court’s decision
dismissing the indictment “for reasons not argued by the state.” Id. at ¶ 7. In its
sua sponte review, the court noted that the trial court “apparently” only considered
two of the Barker factors — delay and reason for the delay — both of which were
either apparent from the record or conceded by the state. The Perkins Court found
that the defendant delayed asserting his right to a speedy trial until 22 months after
his arrest. Additionally, the court found that the record contained no evidence that
the defendant offered any allegation of prejudice, which is necessary in a
constitutional speedy trial challenge. According to the court, this lack of
information warranted a remand to the trial court for a “reevaluation” of the
defendant’s motion. Id. at ¶ 16.
We find Perkins distinguishable, however, because the record here
is more than sufficient for this court to review the merits of this appeal. In this
case, and unlike in Perkins, the trial court conducted a full evidentiary hearing with
witness testimony, admission of exhibits, and counsel’s arguments. The record is
replete with evidence offered by Rentas supporting his argument that he was
prejudiced by the state’s delay in prosecuting this matter. Additionally, the state
presented testimony and evidence refuting Rentas’s allegations while supporting
its assertion that Rentas caused the delay.
Even if this court agreed with the state and relied on Perkins, the
appropriate remedy would be to remand the matter to the trial court for it to fully
explain its consideration of all the Barker factors, not conduct a new hearing.
Moreover, the state has not provided any authority that would prevent this court
from independently reviewing the Barker factors based on the record provided.
We find the Ohio Supreme Court’s decision State v. Long, 163 Ohio
St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, instructive. In Long, the court
considered when the speedy trial clock starts after convictions are reversed on
appeal. The court clarified that the clock starts when the reviewing court orders
the case remanded to the trial court. Id. at ¶ 16. Based on its holding, the court
determined that the appellate court’s incorrect determination of when the clock
started led the appellate court to improperly weigh the first Barker factor against
the defendant. Id. at ¶ 17-19.
Rather than remand the matter to the appellate court or the trial
court to conduct a new review of the Barker factors in light of the clarification, the
Supreme Court independently considered and weighed the factors based on the
established record. In fact, the court specifically recognized that the proposition
of law only pertained to the proper speedy trial calculation, but “because our review
is de novo, we independently review the application of all the Barker factors to the
facts here.” Id. at ¶ 18, fn. 1; compare id. at ¶ 29 (Kennedy, J., concurring in
judgment, finding that she “would remand the cause to the court of appeals to
evaluate [the] speedy-trial claim in light of this court’s decision clarifying the law”);
see also id. at ¶ 31 (Fischer, J., concurring in part and dissenting in part, finding
that he would remand the case to the court of appeals to “weigh the Barker factors,
in the first instance”).
As the Long Court reaffirmed, a review of a trial court’s decision on
a motion to dismiss for constitutional speedy trial claim raises a mixed question of
law and fact. Long at ¶ 15; see also State v. Burks, 8th Dist. Cuyahoga No. 106639,
2018-Ohio-4777, ¶ 22. A reviewing court applies a de novo review to the legal
issues and independently determines whether the trial court correctly applied the
law to the facts of the case. Burks at id. Accordingly, a reviewing court must afford
great deference to the trial court’s findings of fact, if any, if they are supported by
competent, credible evidence, but review the application of the law to those facts
de novo. Long at ¶ 15; Burks at id.Reviewing the motions filed in the trial court, the state’s briefs in
opposition, the transcript and evidence presented at the full evidentiary hearing,
and the trial court’s in-court pronouncement, we find that the record is sufficiently
established to afford the state meaningful appellate review.
A. Speedy Trial Violation
The Sixth and Fourteenth Amendments of the United States
Constitution and Section 10, Article I of the Ohio Constitution guarantee a
defendant the constitutional right to speedy trial. State v. Taylor, 98 Ohio St.3d
27, 2002-Ohio-7017, 781 N.E.2d 72, ¶ 32.
To determine whether there has been a denial of a defendant’s
constitutional right to a speedy trial, the court balances the four factors identified
in Barker, 407 U.S. at 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101; Long, 163 Ohio St.3d
179, 2020-Ohio-5363, 168 N.E.3d 1163, at ¶ 14. Those factors are: “‘(1) the length
of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his speedy
trial right; and (4) prejudice to the defendant.’” Long, quoting State v. Hull, 110
Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶ 22, citing Barker at 530.
However, no single factor controls the analysis. Long at ¶ 14. Standing alone, none
of the four factors is “either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. Rather, they are related factors and must
be considered together with such other circumstances as may be relevant.” Barker
at 533.
A defendant must meet the “threshold requirement” of a
“presumptively prejudicial” delay to trigger a Barker analysis. State v. Duncan,
8th Dist. Cuyahoga No. 97208, 2012-Ohio-3683, ¶ 8. “‘Until there is some delay
which is presumptively prejudicial, there is no necessity for inquiry into the other
factors that go into the balance.’” Long at id., quoting Barker at 530. Courts have
generally held that a delay approaching one year becomes “presumptively
prejudicial.” Long at id., citing Doggett v. United States, 505 U.S. 647, 651, 112
S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1.
1. Length of the Delay
Rentas was indicted in March 1981 and arrested in September 2020.
On appeal, the state maintains that while there is delay in this case, it is not
“presumptively prejudicial” and the trial court made no finding regarding this
threshold requirement. Despite their position on appeal, the state conceded in the
trial court that the delay of approximately 40 years satisfies the threshold
requirement of a presumptively prejudicial delay. See State’s Brief in Opposition
filed Sept. 2, 2021, p. 4 (“While the Defendant has made a threshold showing that
there was delay in the commencement of prosecution of this case * * *); State’s
Brief in Opposition filed Apr. 2, 2021, p. 4 (“The length of delay in this case was 39
years. This triggers the rest of the Barker factors.”) Accordingly, because the state
conceded this factor, the trial court was not required to make any specific finding.
Based our de novo application of the law, this factor weighs in Rentas’s favor, and
thus, triggers the remaining factors in the Barker analysis.
2. Reason for the Delay
The second factor under Barker is the reason the state assigns to
justify the delay. Barker, 407 U.S. at 531, 92 S.Ct. 2182, 33 L.Ed.2d 101. Different
reasons for delay are afforded “different weights.” Id. A deliberate delay by the
government weighs heavily against the state. Id. Delay resulting from a neutral
reason such as negligent conduct of the government weighs less heavily. Id. Delay
that is justifiable and reasonable in time generally does not weigh against the state
at all. Id.While it is true that a defendant is under no obligation to take
affirmative steps to ensure that he will be brought to trial in a timely fashion, “a
court need not ignore a defendant’s fugitivity in considering where there has been
a violation of his Sixth Amendment right to a speedy trial.” Rayborn v. Scully, 858
F.2d 84, 90 (2d Cir.1988). Accordingly, intertwined within this Barker analysis is
whether the defendant shares any responsibility for the delay. State v. Triplett, 78
Ohio St.3d 566, 570, 679 N.E.2d 290 (1997).
The state concedes that gaps exist where it could not show the efforts
of Cleveland police to locate and apprehend Rentas. (Tr. 9.) Nevertheless, the
state maintains that Rentas “is the only person responsible for the thirty-nine-year
delay in the initiation of prosecution” following indictment because he fled from
Ohio immediately after the offense and evaded police by living in New York and
Puerto Rico. According to the state, Rentas did not live his life “open” enough to
allow the police to find him.
Admittedly, the evidence demonstrates that Rentas lived in New
York from at least 1984 until 1999, and that he was apprehended in Puerto Rico in
September 2020. However, the record does not support the state’s assertion that
Rentas is solely responsible for the delay in prosecution.
Demopoulos testified that there was nothing in the police file to
indicate what efforts the police were taking to locate and apprehend Rentas from
1981 until 1996. And he admitted that he was not able to find any factual basis to
support the state’s assertion that Rentas was “hop-scotching” around New York in
an evasive manner or that Rentas stole Joselito’s social security number to hide
from police. (Tr. 49-51.)
Additionally, the conduct that triggered the delay appears to be the
incorrect information connected to the warrant. Demopoulos testified that when
the warrant was issued, the police did not have Rentas’s correct social security
number, date of birth, or full name. This information or lack thereof caused the
police to arrest Joselito immediately following the allegations. After Joselito’s
arrest, it was discovered that the information contained on the warrant was
incorrect. Nevertheless, the state did not update or correct the warrant
information. Rather, Joselito’s information remained and Joselito was again
arrested in 1996 in New York. In fact, Demopoulos suggested that even after
Joselito’s arrest in 1996, the warrant information was not updated until he began
investigating the case in 2020.
There is nothing in the record to suggest, however, that the state’s
delay in its apprehension was deliberate in order to gain any tactical advantage in
its prosecution of Rentas. And Rentas has not asserted that the state’s delay was
deliberate. Accordingly, we conclude that the state’s reason for the length of the
delay is a “neutral reason” that weighs against the state, but not as heavily. An
almost 40-year delay is at a minimum negligent, especially considering that
Demopoulos testified that he was able to ascertain Rentas’s whereabouts by
conducting a simple search on social media via Facebook. However, the state
gained no tactical advantage by its own dilatory conduct.
Based on the record before this court, we find that the state caused
the delay in this case, and thus, the second Barker factor weighs against the state.
3. Assertion of Speedy Trial Right
The third Barker factor to consider is the defendant’s assertion of
his right to a speedy trial. Assertion of speedy trial must be in due course and
timely. State v. Doggett, 505 U.S. 647, 651, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).
The state contends that Rentas did not timely assert his right to a
speedy trial because he waited until “June 10, 2021” to move to dismiss the
indictment. The state’s reading of the docket is incorrect. Rather, it shows that
Rentas first moved to dismiss the indictment in March 2021. Although Rentas
requested an oral hearing, the trial court summarily denied the motion in June
2021. Following this denial, Rentas requested reconsideration of the denial and
that the court conduct an evidentiary hearing.
A review of the court record demonstrates that Rentas was indicted
in March 1981. Nothing in the record before this court indicates that Rentas had
any knowledge that the police were searching for him in 1981 or that he knew of
the indictment prior to his arrest in 2020. This conclusion is supported by
Demopoulos’s testimony that he was unable to find any evidence to suggest that
Rentas was actively evading detection or apprehension. Accordingly, Rentas could
not assert a speedy trial claim until he was arrested in 2020.
Moreover, under the circumstances of the case, we find that Rentas
moved to dismiss the indictment in due course after discovery was obtained.
Although some of the facts supporting Barker factors are apparent from the
docket, i.e. length of the delay, Rentas could not sufficiently assert a prejudice
argument without determining what evidence existed at the time of indictment and
what evidence remained following arrest. Accordingly, when viewing the totality
of the circumstances surrounding the case, we find that Rentas asserted his speedy
trial rights in a timely fashion; this factor weighs in his favor.
4. Prejudice from the Delay
The fourth Barker factor is prejudice of the delay to the defendant.
In Long, the Ohio Supreme Court reiterated that “[t]he prejudice factor in the
analysis ‘should be assessed in the light of the interests of defendants[,] which the
speedy trial right was designed to protect.’” Long, 163 Ohio St.3d 179, 2020-Ohio-
5363, 168 N.E.3d 1163, at ¶ 22, quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182, 33
L.Ed.2d 101. The three interests are: “(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Id. The third interest — the
impact of the delay on the ability of the defendant to prepare his defense — is the
greatest concern because it “‘skews the fairness of the entire system.’” Id.The trial court found that the amount of missing or destroyed
evidence — hospital records, clothing, Cleveland Police Department archives,
witness statements, unavailability of the alleged victim’s mother due to her being
deceased — prejudiced Rentas. The court further found that the remaining
evidence — inconsistent statements and the investigation conducted by counsel
and the investigator hired by Joselito, Rentas’s brother — did not remedy the
prejudice that existed in this case. The trial court’s findings are supported by
competent and credible evidence, and thus, we afford great deference to these
findings. See Long at ¶ 15.
The entirety of the state’s argument on appeal regarding this factor
is a general assertion that Rentas “has not been prejudiced by the delay” because
the victim is still alive, and Rentas has failed to show “genuine prejudice.”
According to the state, this factor weighs against him. The state fails, however, to
demonstrate how or why the trial court’s findings were unsupported by the record,
thereby rendering its conclusion of prejudice erroneous.
Our review of the record reveals that Rentas made an affirmative
showing of prejudice. As the trial court found, the amount of evidence that was
originally available at the time of indictment that is now either missing or
destroyed has prejudiced Rentas. Among this evidence is the victim’s hospital
records and any clothing that may have been retained and the original police file
containing the investigating detective’s notes and impressions, and witness
statements. Finally, Demopoulos testified that the original investigating detective
cannot recall the case.
Moreover, the victim’s mother, who provided a written statement in
1996 to Joselito’s legal team, has since passed away. Demopoulos admitted that
the mother’s statement and the victim’s 1981 statement contain inconsistent
information about whether a weapon was used to facilitate the rape. This
information would attack the credibility and weight of the state’s evidence against
Rentas.
No one disputes that the victim is still alive, and cases have been
prosecuted on victim testimony alone. However, Rentas contends that any defense
that the sexual conduct was consensual has been diminished because of the
unavailability (or death) of the victim’s brother-in-law, Nelson Soto. In 1996, he
provided a written statement questioning the validity of the rape allegation
because (1) Rentas and the victim were in a relationship; and (2) the rape allegedly
occurred in a room that was less than 15 feet from the victim’s parents. The state
claims that Rentas has failed to prove that Soto is unavailable; however, we note
that the state has not disclosed Soto as a potential witness in its discovery
responses.
Based on the evidence available at the time of indictment compared
with the unavailability of a majority of that evidence now and its relevance to
Rentas’s defense, we find that Rentas has demonstrated prejudice sufficient to
suggest that this Barker factor weighs in his favor.
Accordingly, weighing the Barker factors after consideration of the
entire record and affording deference to the trial court’s findings of fact, we agree
with the trial court that the state violated Rentas’s constitutional right to a speedy
trial. The trial court did not err in granting the motion to dismiss. The state’s
assignment of error is overruled.3
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
3 Rentas also moved to dismiss the indictment on the basis that the state violated
his right to due process due to the length of time that had passed in bringing him to trial
after indictment — commonly referred to as post-indictment delay. Insofar as the trial
court based its dismissal on this ground, the state has not raised this basis as an
assignment of error. Accordingly, it is deemed waived for appellate review.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
EMANUELLA D. GROVES, J., CONCUR