Com. v. McCollum, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVE RICHARD MCCOLLUM, JR. :
:
Appellant : No. 1307 MDA 2021
Appeal from the PCRA Order Entered April 3, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005177-2011
BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 5, 2022
Appellant, Steve Richard McCollum, Jr., appeals nunc pro tunc from the
April 3, 2019 order entered following our January 9, 2018 remand, which
ordered an evidentiary hearing on Appellant’s outstanding claim of ineffective
assistance of counsel raised under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541–9546. Appointed counsel, Aaron N. Holt, Esq., has filed a
Turner/Finley1 “no merit” letter and a petition to withdraw. After careful
review, we grant counsel’s petition to withdraw and affirm the order denying
PCRA relief.
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1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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As set forth in our disposition of Appellant’s direct appeal, Appellant was
convicted of several crimes, including attempted murder, relating to the
shooting of Timothy Juett on October 9, 2011.
In the early morning of October 9, 2011, Timothy Juett (“Juett”)
suffered a gunshot wound to the back following an altercation over
a parking space. At approximately 2:39 a.m., Officer Nathan
Ishman (“Officer Ishman”) of the Harrisburg Police Department
received a dispatch of shots fired in the area of 135 North Summit
Street. Officer Ishman arrived on the scene approximately three
minutes later and discovered the victim on 13th and State Street.
Shortly thereafter, Hany Ahmed (“Ahmed”), a friend of the victim
and witness to the incident, arrived and provided Officer Ishman
with information regarding the appearance of the suspect and his
vehicle. Officer Ishman put out information over the radio that
the suspect was driving a white Cadillac with a blue ragtop and a
license plate beginning with “J–M–R”.
While en route to the scene of the shooting, Officer Mike Rudy
(“Officer Rudy”) of the Harrisburg Police Department observed a
white Cadillac with a blue ragtop and a license plate beginning
with “H–M–R” driving on the 100 block of Summit Street. Because
the vehicle matched the description of the suspect vehicle, Officer
Rudy followed the vehicle in his police cruiser but did not activate
his lights. After approximately three blocks, the vehicle slowed
down, both of its front doors opened, and its occupants attempted
to flee. Officer Rudy then activated his emergency equipment.
The vehicle then pulled over to the side of the road and struck a
parked car. The driver fled the vehicle and dropped something on
the ground as he ran. Officer Rudy then arrested the driver as he
attempted to re-enter the vehicle. Once the driver of the vehicle
and the remaining passengers were detained, Officer Rudy
discovered a handgun in the area where he observed the driver
drop something.
Once the passengers of the vehicle were detained, Officer Ishman
drove Ahmed to see if he could identify any of the individuals as
the shooter. With each individual handcuffed and seated on the
curb, the police stood each man up individually while Ahmed
observed from Officer Ishman’s police cruiser. Ahmed then
identified the driver of the vehicle, [Appellant], as the person
responsible for shooting Juett.
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Commonwealth v. McCollum, No. 646 MDA 2013, unpublished
memorandum at *1 (Pa. Super. Feb. 19, 2014). After this Court affirmed
Appellant’s judgment of sentence on direct appeal, see id., the Supreme
Court of Pennsylvania rejected his petition for permission to appeal. See
Commonwealth v. McCollum, 96 A.3d 1026 (Pa. 2014) (per curiam).
Appellant filed his first PCRA petition on June 24, 2015. Appointed
counsel ultimately filed a Turner/Finley “no merit” letter and petition to
withdraw, which the PCRA court granted. Appellant appealed, and we affirmed
the denial of PCRA relief as to four of the five preserved claims.
Commonwealth v. McCollum, 2018 WL 327615 (Pa. Super. Jan. 9, 2018)
(unpublished memorandum). The remaining claim, which is the subject of the
present appeal, had alleged that counsel provided erroneous advice regarding
Appellant’s right to testify at trial. Appellant’s brief in support of his pro se
petition asserted that he had been ready and willing to testify, “until counsel
intervened and directed petitioner not to testify because the prosecution would
impeach him with his prior 2005 federal charge and his 1995 assault charge.”
Memorandum of Law in Support of PCRA Petition, 6/24/15, at 2. Appellant
noted that these offenses were not inherently crimen falsi and, thus, the
advice was objectively unreasonable.2 The PCRA court opined that counsel’s
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2 A court must first examine the elements of a crime to determine if it is
inherently crimen falsi. Commonwealth v. Davis, 17 A.3d 390, 395 (Pa.
Super. 2011). If not, an examination of the underlying facts occurs “to
(Footnote Continued Next Page)
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advice was reasonable, and that Appellant failed to prove prejudice because
he did not demonstrate how his testimony would have changed the outcome
of the trial.
We remanded for an evidentiary hearing. As established by
Commonwealth v. Walker, 110 A.3d 1000 (Pa. Super. 2015), the pertinent
legal question is “whether the result of the waiver proceeding would have been
different absent counsel’s ineffectiveness, not whether the outcome of the trial
itself would have been more favorable had the defendant taken the stand.”
Id. at 1005 (emphasis in original). Our decision also recognized that an
evidentiary hearing was needed to determine whether counsel had informed
Appellant that the prior convictions were admissible. McCollum, 2018 WL
327615, at *3 (“[W]e cannot deem [Appellant’s] decision not to testify as
either knowing or intelligent where counsel allegedly advised [Appellant] not
to testify based on the incorrect belief that the Commonwealth would impeach
him on his prior non-crimen falsi convictions.”).
The PCRA court held an evidentiary hearing on November 18, 2018.
Appellant and trial counsel, Ari Weitzman, Esq., testified. Appellant related
that he informed Attorney Weitzman of his desire to testify at trial. Counsel
____________________________________________
determine if dishonesty or false statement facilitated the commission of the
crime.” Id. Appellant’s prior convictions are not inherently crimen falsi
crimes, and there is no suggestion that the facts of the convictions would
render them crimen falsi. We therefore accept, for purposes of our disposition,
that the convictions could not have been admitted as crimen falsi.
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told him that, “if you [testify,] they’ll be able to use your criminal record
against you.” N.T. Remand Hearing, 11/18/18, at 17. However, Attorney
Weitzman “didn’t go into explaining it, like, how they could or … couldn’t do
anything.” Id. at 18. Appellant stated that, had he known his prior
convictions were not admissible for impeachment as crimen falsi, “I would
have never said I didn’t want to testify.” Id. at 19.
Attorney Weitzman testified that he always instructs his clients that the
decision to testify is theirs alone and explains that criminal convictions can be
introduced under some circumstances. “I describe to a defendant that most
of your criminal history is not admissible other than the crimen falsi, unless of
course you open the door.” Id. at 29. For example, “I steer people away
from saying, I would never … do anything illegal; I would never disrespect
somebody. If you testify, don’t say those things because your priors can
ultimately come in on that basis.” Id. at 29-30. Turning to the particulars of
this trial, counsel was “certain” that he had this conversation with Appellant.
Id. at 30.
Counsel also stated that he was aware that Appellant’s convictions were
not crimen falsi and could not have been introduced absent Appellant’s
opening the door. Id. He additionally explained that in most cases, he
reserves advising the client on whether to testify based on how the trial goes.
“I ... tell clients, it’s a game-time decision whether or not you testify. Let’s
see how the trial goes ... let’s see if your testimony could potentially be helpful
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or hurtful.” Id. at 31. Attorney Weitzman advised Appellant not to testify for
multiple reasons. First, “I thought the case went as well as it possibly could
have with the hand that ultimately was dealt to us, so to speak.” Id. at 34.
Second, Mr. Weitzman alluded to his testimony throughout that Appellant
could be volatile. His notes reflected that Appellant would not entertain a plea
offer and wished to go to trial. Following a suppression hearing challenging
the identification procedure, the two met and Appellant “became enraged and
left the meeting room.” Id. at 25. Appellant “was prone to get quite
emotional during our meetings,” id. at 26, and those observations factored
into his advice. “I was concerned about [Appellant’s] demeanor on how he
would come across in front of a jury. I didn’t have the ability to ultimately
control his emotions.” Id. at 35.
The PCRA court issued an order on April 3, 2019, denying Appellant’s
claim. The PCRA court concluded that Attorney Weitzman “credibly testified
as to … his ultimate recommendation that [Appellant] not testify at trial, which
did not include a statement that [Appellant]’s non-crimen falsi prior
convictions would be admissible if he testified.” Order, 4/3/19 at 1. The order
further determined that counsel’s advice not to testify was reasonable under
the circumstances. Id. at 2.
Before determining whether counsel complied with the Turner/Finley
requirements, we set forth the procedural irregularities that resulted in this
nunc pro tunc appeal. Following our remand, counsel filed a motion to amend
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the PCRA petition to add a claim of newly-discovered evidence. The April 3,
2019 order disposing of the remand claim advised Appellant of his right to
appeal within thirty days while clarifying in a footnote that the “[a]mended
PCRA petition” was not dismissed by this order. No appeal was filed.
Meanwhile, litigation of the after-discovered evidence claim proceeded,
concluding on August 23, 2019, when the PCRA court denied relief. On
September 23, 2019, Appellant attempted to file a single notice of appeal from
that order, which purported to also appeal from the April 3, 2019 order. That
appeal was erroneously filed with this Court, and we transferred it to the PCRA
court. Instead of docketing the appeal, the PCRA court sent the notice of
appeal to Appellant’s counsel. On September 24, 2019, counsel filed a motion
to withdraw, and was permitted to do so. In November of 2019, Appellant
inquired about the status of his appeal. The PCRA court construed this as a
PCRA petition and sua sponte reinstated Appellant’s right to appeal from the
August 23, 2019 order nunc pro tunc. Appellant then filed a pro se notice of
appeal.
On December 29, 2020, we quashed that appeal. Commonwealth v.
McCollum, No. 1889 MDA 2019, unpublished memorandum at *1 (Pa. Super.
Dec. 29, 2020). We held that the PCRA court exceeded the scope of our
remand order when it permitted Appellant to raise a new claim via
amendment. Id. at *4. The April 3, 2019 order had completed our remand
directive and was therefore an appealable final order. We declined to hold
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that a breakdown in the court system caused the consequent errors, as the
April 3, 2019 order correctly informed the Appellant that he had thirty days to
file a notice of appeal. “Rather, it was counsel who, according to Appellant’s
response to our show cause order, relayed misinformation about the
timeframe for appeal.” Id. at *5.
Appellant thereafter filed a pro se PCRA petition on February 8, 2021,
asserting that the petition satisfied the time-bar exceptions for both newly-
discovered facts and governmental interference. See 42 Pa.C.S. §
9545(b)(1)(i-ii). Petitioner requested “to have his PCRA appeal rights
reinstated.” Pro se PCRA Petition, 2/8/21, at 10. Notably, the Commonwealth
filed a response stating that it did “not object to reinstating [Appellant]’s direct
appeal rights with regard to the April 3, 2019 order dismissing [Appellant]’s
PCRA petition[.]” Commonwealth’s Answer, 9/13/21, at 1. On September
15, 2021, the PCRA court granted Appellant’s request and ordered that
Appellant’s “appeal rights are reinstated.” Order, 9/15/21, at 1. Appellant
filed a nunc pro tunc appeal from the April 3, 2019 order on October 8, 2021.
Attorney Holt3 has filed a motion to withdraw from representing
Appellant and a Turner/Finley brief, stating that the following, single issue
that Appellant seeks to raise on appeal is meritless:
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3 This Court entered an order on February 17, 2022, directing the PCRA court
to determine if Appellant’s prior counsel had abandoned Appellant, as no brief
had been filed by that attorney. On March 22, 2022, the PCRA court appointed
Attorney Holt to represent Appellant.
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1. Did the [PCRA] court abuse its discretion, err, and infringe on
[Appellant’s] constitutional rights, including his right to due
process of law under the Constitution of the United States and
under the Constitution of Pennsylvania, by denying
[Appellant’s] petition for relief pursuant to the [PCRA] on …
when [Appellant] presented sufficient evidence of trial
counsel’s ineffective assistance of counsel in advising
[Appellant] not to testify at trial?
Turner/Finley Brief at 12 (unnecessary capitalization omitted).
We begin our review by determining whether Attorney Holt substantially
complied with our procedural requirements. The Turner/Finley brief must:
(1) detail the nature and extent of counsel’s review of the case;
(2) list each issue the petitioner wishes to have reviewed; and (3)
explain counsel’s reasoning for concluding that the petitioner’s
issues are meritless. Counsel must also send a copy of the brief
to the petitioner, along with a copy of the petition to withdraw,
and inform the petitioner of the right to proceed pro se or to retain
new counsel. If the brief meets these requirements, we then
conduct an independent review of the petitioner’s issues.
Commonwealth v. Knecht, 219 A.3d 689, 691–92 (Pa. Super. 2019).
Attorney Holt has complied with the procedural requirements. The brief
certifies that he “thoroughly reviewed” the claim and the record, determined
that the claim lack merit, and explains why he considers the issue meritless.
Counsel attached a copy of the letter sent to Appellant, which indicates that
he provided Appellant with copies of the “no merit” brief and the motion to
withdraw. The letter also informs Appellant that he has the right to proceed
pro se or through retained counsel. Accordingly, we proceed to determine if
we agree with Attorney Holt’s assessment that Appellant’s issue is meritless.
This Court’s standard of review is well-settled.
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This Court analyzes PCRA appeals in the light most favorable to
the prevailing party at the PCRA level. Our review is limited to
the findings of the PCRA court and the evidence of record and we
do not disturb a PCRA court’s ruling if it is supported by evidence
of record and is free of legal error. Similarly, we grant great
deference to the factual findings of the PCRA court and will not
disturb those findings unless they have no support in the record.
However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of
review is de novo and our scope of review is plenary. Finally, we
may affirm a PCRA court’s decision on any grounds if the record
supports it.
Commonwealth v. Benner, 147 A.3d 915, 919 (Pa. Super. 2016) (citation
omitted). The principles applicable to Appellant’s ineffectiveness claim are
equally well-settled. The petitioner “must 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) the petitioner suffered prejudice because of counsel’s action
or inaction.” Commonwealth v. Krock, 282 A.3d 1132, 1137 (Pa. Super.
2022) (cleaned up).
We first discuss the procedural irregularities giving rise to the PCRA
reinstatement of appellate rights, as it implicates jurisdictional principles.
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019) (“[T]he
timeliness of any PCRA petition is a jurisdictional prerequisite. No court has
jurisdiction to review an untimely PCRA petition.”) (citations omitted). See
also Bisher v. Lehigh Valley Health Network, Inc., 265 A.3d 383, 400
(Pa. 2021) (“[S]ubject-matter delineations must be policed by the courts on
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their own initiative even at the highest level.”) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 583 (1999)).
While the Commonwealth did not contest the application of the time-bar
exception and conceded reinstatement of appellate rights, our Supreme
Court’s decision in Commonwealth v. Reid, 235 A.3d 1124 (Pa. 2020),
suggests that we have an independent obligation to review the timeliness of
the underlying petition. Id. at 1143 (“[I]t is appropriate for an appellate court
to consider sua sponte the timeliness of a PCRA petition from which nunc pro
tunc appellate rights have been reinstated, even where the Commonwealth
has not separately appealed (or appeals but then withdraws its appeal) from
the order granting relief.”). This case differs from Reid as the Commonwealth
did not appeal or otherwise contest the timeliness of the PCRA petition, but it
appears that the Commonwealth’s concession cannot relieve this Court of its
duty to independently determine the correctness of the jurisdictional question.
Cf. Commonwealth v. Brown, 196 A.3d 130, 146 (Pa. 2018) (declining to
accept Commonwealth’s concession; “a district attorney’s concession of error
is not a substitute for independent judicial review”).
We agree that the PCRA court did not commit an error of law in finding
that Appellant’s petition seeking reinstatement of his PCRA appellate rights
satisfied a time-bar exception. We find that PCRA counsel abandoned
Appellant. The general principle that attorney abandonment can qualify as a
newly-discovered fact was firmly established in Commonwealth v. Bennett,
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930 A.2d 1264 (Pa. 2007), which involved appointed counsel’s failing to file
an appellate brief challenging a PCRA denial, causing Bennett’s appeal to be
dismissed. Bennett then filed an untimely PCRA petition seeking restoration
of his appellate rights. Our Supreme Court held that abandonment may serve
as the factual predicate for triggering the newly-discovered-fact exception.
Bennett “recognized a distinction between situations in which counsel has
narrowed the ambit of appellate review by the claims he has raised or foregone
versus those instances, as here, in which counsel has failed to file an appeal
at all.” Id. at 1273. Cases involving the former cannot trigger the newly-
discovered-facts exception without eviscerating the legislative intent to accord
finality to the criminal process. However, where counsel has abandoned the
client, the litigant has suffered a complete denial of counsel. In those
scenarios, applying the newly-discovered-fact exception to the time-bar
represents “a limited extension of the one-year time requirement under
circumstances when a petitioner has not had the review to which he was
entitled due to a circumstance that was beyond his control.” Id.
In Commonwealth v. Peterson, 192 A.3d 1123 (Pa. 2018), the
Supreme Court of Pennsylvania applied Bennett in a case where PCRA
counsel filed the PCRA petition one day late. The Court held that Bennett’s
conception of “abandonment” is not limited to scenarios where counsel simply
fails to take any action (as in Bennett). “Abandonment, however, is only one
form of ineffectiveness per se, and our decision in Bennett did not limit its
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application to instances of attorney abandonment.” Id. at 1131. The record
in this case establishes that counsel believed that the amendment to the PCRA
petition, later deemed a legal nullity, was valid.
ATTORNEY CLARKSON: I believe [Appellant is] also
asking about the fact that there were two separate
orders issued because we had raised two separate
PCRA petitions. My understanding of how the
Superior Court would interpret it is since the docket –
it was one case. Even though it was two PCRA
petitions, the docket is what is going to control. The
docket was still open here in Dauphin County after the
first order was issued, making it not final for an appeal
until now.
N.T., 10/17/19, at 8-9.
This is ineffectiveness per se and constitutes “abandonment” under
Bennett. As a result of the erroneous belief that the April 3, 2019 order was
not final, counsel failed to appeal the order resolving the remand. In turn,
this ineffectiveness resulted in the total deprivation of appellate review. The
fact that Appellant enjoyed appellate review of his other PCRA claims does
not, in our view, foreclose application of the Bennett line of cases. Counsel’s
error prevented any appellate review of Appellant’s outstanding PCRA claim.
Appellant “has not had the review to which he was entitled due to a
circumstance that was beyond his control.” Bennett, 930 A.2d at 1273.
Thus, we find that the PCRA court did not err in concluding that an exception
to the time-bar applied, and we therefore have jurisdiction to entertain the
merits of this appeal.
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Turning to the ineffectiveness claim, we agree with Attorney Holt that it
lacks merit following the PCRA court’s credibility findings. While counsel has
wide latitude to try a case as he or she sees fit, there is no doubt that the
right to testify is one decision over which the criminal defendant has the final
say. “Some decisions, however, are reserved for the client—notably, whether
to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and
forgo an appeal.” McCoy v. Louisiana, 138 S.Ct. 1500, 1508 (2018) (citation
omitted). Counsel’s role is limited to advising the client whether to exercise
that right. Thus, when addressing an ineffectiveness claim, the allegation can
involve either an interference with the absolute nature of the right to testify
or a claim that the advice given was so unreasonable that the waiver of the
right to testify was not truly knowing and voluntary. Commonwealth v.
Nieves, 746 A.2d 1102, 1104 (Pa. 2000). The former theory is not at issue.
Appellant’s ineffectiveness claim was premised on the notion that trial
counsel unreasonably informed Appellant that his prior convictions for
firearms violations and aggravated assault were admissible per se as crimen
falsi. Attorney Weitzman’s testimony contradicted that claim and the PCRA
court specifically credited that testimony. We cannot overturn credibility
determinations that find support in the record. Commonwealth v. Chmiel,
30 A.3d 1111, 1127 (Pa. 2011) (“The PCRA court’s credibility determinations
are binding on this Court when they are supported by the record.”).
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We note that Appellant’s response to the Turney/Finley brief asserts
that our remand decision had already decided that point in his favor.
According to Appellant, “the scope of the remand was for the PCRA court to
determine whether counsel’s erroneous advice was reasonable.” Pro se
Response to Turner/Finley Brief, 8/29/22, at 11. However, our remand
order explicitly recognized that Appellant merely alleged that counsel
misunderstood the law. McCollum, 2018 WL 327615, at *3 (deeming a
hearing necessary because “counsel allegedly advised McCollum not to
testify based on the incorrect belief that the Commonwealth would impeach
him on his prior non-crimen falsi convictions”) (emphasis added). The PCRA
court’s credibility findings make clear that counsel was not ignorant of the
applicable law when advising Appellant not to testify. Contrast this with
Commonwealth v. Washington, 269 A.3d 1255, 1261 (Pa. Super. 2022)
(en banc), wherein counsel mistakenly believed that a prior conviction for
aggravated assault was per se admissible for impeachment purposes as
crimen falsi. No such misapprehension is present here.
Finally, we conclude that to the extent Appellant has preserved any
argument that counsel’s advice was otherwise objectively unreasonable,
Appellant cannot overcome the presumption of effectiveness. “In any case
presenting an ineffectiveness claim, the performance inquiry must be whether
counsel’s assistance was reasonable considering all the circumstances.”
Strickland v. Washington, 466 U.S. 668, 688 (1984). Counsel advised
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Appellant not to testify for several reasons, including the presentation of the
prosecution’s case and counsel’s cross-examination of the witnesses, the
relatively low value of the testimony that Appellant would offer, and his
inability to ensure that Appellant would not “open the door” to other
convictions. See Commonwealth v. Barnett, 121 A.3d 534, 551 (Pa. Super.
2015) (“[W]hether [the a]ppellant could withstand vigorous cross-
examination was a legitimate concern.”). Considering these circumstances,
advising Appellant to remain silent was objectively reasonable.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/05/2022
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