Com. v. King, K.

J-S33014-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEIFF KING :
:
Appellant : No. 3199 EDA 2019
Appeal from the Order Entered July 31, 2019
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0001627-2018
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED AUGUST 18, 2020
Appellant, Keiff King, appeals from the Judgment of Sentence of life
imprisonment plus fifteen to thirty years, entered July 31, 2019,1 following a
jury conviction of First-Degree Murder, Criminal Conspiracy to Commit First-
Degree Murder, Endangering the Welfare of a Child (“EWOC”), and Conspiracy
to Commit EWOC.2 We affirm.
We derive the following facts and procedural history from the trial
court’s Opinion, which are supported by the certified record. See Trial Ct.
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* Former Justice specially assigned to the Superior Court.
1 Appellant purports to appeal from the Order of October 24, 2019, which
denied his Post-Sentence Motion. Appeal properly lies from his Judgment of
Sentence entered July 31, 2019. See Commonwealth v. Dreves, 839 A.2d
1122, 1125 n.1 (Pa. Super. 2003) (en banc) (explaining appeal properly lies
from judgment of sentence). We have corrected the caption accordingly.
2 18 Pa.C.S. §§ 2502(a), 903, and 4304, respectively
J-S33014-20
Op., 1/17/20, at 1-25. T.S., the victim in this case, was the 4-year-old child
of Appellant’s girlfriend, Lisa Smith. Appellant began dating Smith in early
2017. Smith and T.S. regularly stayed at Appellant’s home in Willow Grove.
Appellant’s other two children, his grandmother, and an 18-year-old cousin
would also stay at the house. In the summer of 2017, Smith became pregnant
with Appellant’s child. Around this time, family members and caregivers began
to notice signs of abuse on T.S.’s body.
For the next several months, numerous relatives continued to notice
signs of abuse on T.S.’s body. In September 2017, due to concerns about
T.S.’s wellbeing, the family members removed T.S. from Smith’s care, placing
him with his aunt. In January 2018, T.S. went back to live with Smith.
On January 22, 2018, Smith and T.S. were at Appellant’s home when,
at 9:30 AM, T.S. spilled his cereal. T.S. wet his pants while being confronted
by Smith about the incident. As a result, Appellant and Smith forced T.S. into
"the position" on the floor, which was a plank position, or the straight-arm
push-up position, where he was forced to remain for long spans of time
throughout the day. When T.S failed to hold the position, Smith and Appellant
reprimanded and physically abused him by hitting him repeatedly with a flip-
flop. In addition, Appellant hit T.S. on his buttocks with his bare hands two or
three times, and with the flip-flop three or four times after T.S. removed his
pants in preparation for these beatings because he was aware they were
coming.
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Following these beatings, Appellant and Smith put T.S. into a hot
shower, causing first-, second-, and third-degree burns on his body. After the
shower, T.S. was unable move. Smith dressed him and put him on the sofa
where T.S. told Smith he was sleepy. Appellant and Smith then left the room
to watch television in the bedroom.
Smith returned a short time later and found T.S. lying on the floor with
his lips twitching and his eyes rolling back in his head. Appellant did not want
an ambulance coming to the house so instead of calling 911 or taking T.S. to
the hospital, Appellant called his aunt who was 20 minutes away.
Smith nevertheless wrapped T.S. in a coat, left the house, and called
911 from the corner of Coolidge and Columbia in Willow Grove. Officers would
later discover Smith arrived at this intersection in order to execute her cover-
up story. When the ambulance arrived, Smith handed T.S.’s limp body to the
paramedics and walked away. The paramedics transported him to the hospital
where he was pronounced dead on arrival. Neither Smith nor Appellant called
the hospital to check on T.S.
Detective Richard Kondan and other police officers arrived at the corner
of Coolidge and Columbia and discovered that Smith had returned to the
corner. In response to the officers’ questions, Smith provided inaccurate
information regarding her prior whereabouts and how she had arrived at that
location. However, she eventually directed the officers to Appellant’s home as
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her place of origin. Police officers then detained Smith and transferred her to
the police station.
Detective Kondan went to Appellant’s home where Appellant told him
that Smith and T.S. had not been at his home that day. Appellant agreed to
go with the detective to the police station to speak further.
The next day, Dr. Ian Hood performed an autopsy and ruled T.S.’s death
a homicide. The autopsy revealed multiple injuries to T.S.’s body indicative of
past and recent severe physical abuse, including 11 rib fractures in various
stages of healing, head injuries, belt buckle beating scars, burns, pulpified
tissue on his buttocks which caused shock, and organ damage.
On March 12, 2018, the Commonwealth arrested Appellant and charged
him with Murder, Criminal Conspiracy to Commit Murder, and related offenses.
A jury trial commenced on June 18, 2019.3
Several of T.S.’s relatives testified for the Commonwealth. Holly, the
mother of T.S.’s half-sister, testified that she had observed injuries on T.S.‘s
back. When Holly confronted Smith, Smith told her that the injuries were the
result of a rug burn she had inflicted on T.S. because he had peed on the
toilet. N.T. 6/19/19, at 316-18. August and Brenda Pauline, Smith’s mother
and sister, testified regarding their observations of injuries on T.S.’s back and
eye. Id. at 479-82. Brenda Pauline testified that T.S. told her that he had a
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3The Commonwealth charged Smith with the same crimes as Appellant. She
was tried separately.
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black eye because Appellant had punched him. Id. at 504. Anthony Cross,
T.S.’s paternal grandfather, testified that he also observed the injuries
mentioned above and that Smith told him T.S. fell, which caused the black
eye, and that she had dragged T.S. across a rug. Id. at 518-526.
Dr. Hood testified in detail regarding the autopsy results, stating that
the injuries to T.S. had been caused by significant trauma, the swelling and
bruising on T.S.’s back matched the sole of a flip-flop, and the pulpified flesh
was caused by multiple beatings rendered with significant force. N.T. 6/18/19
at 82-100. Dr. Hood also testified that the autopsy revealed scars from injuries
caused by a belt buckle a few months before the date of the autopsy. Id. He
opined that T.S. died as a result of the cumulative beatings, burns, pulpified
flesh, sepsis, and shock that T.S. experienced just before he died. Id. at 99.
The jury convicted Appellant of the above crimes. On July 31, 2019, the
court sentenced Appellant to a term of life imprisonment without the
possibility of parole for the Murder conviction, plus a consecutive term of 15
to 30 years’ imprisonment for the EWOC convictions.4
Appellant timely filed Post-Sentence Motions challenging the sufficiency
and weight of the evidence, as well as the discretionary aspects of his
sentence, which the trial court denied. Trial Ct. Order, 10/24/19. Appellant
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4On the count of Conspiracy to Commit Murder in the First Degree, Appellant
was sentenced to a term of 20 to 40 years’ incarceration to run concurrently
with his life sentence. The EWOC sentences exceeded the aggravated range
suggested in the sentencing guidelines.
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timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The
trial court issued a responsive Opinion.
Appellant raises the following two issues on appeal:
1. Was the evidence sufficient to support the jury’s finding of guilt on
the charge of Murder in the First Degree?
2. Did the trial court abuse its discretion in sentencing Appellant to a
total, aggregate sentence of not less than life in prison, without the
possibility of parole, plus a consecutive fifteen (15) to thirty (30) years
of imprisonment?
Appellant’s Brief at 6 (some capitalization omitted).
Sufficiency of the Evidence
Appellant first challenges the sufficiency of the evidence supporting the
First-Degree Murder conviction by contending that the Commonwealth failed
to prove that T.S.’s death resulted from an intentional killing as required by
18 Pa.C.S. § 2502(a). Id. at 23.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). Our standard
of review is, thus, de novo and our scope of review is plenary.
Commonwealth v. Stotelmyer, 110 A.3d 146, 149 (Pa. 2015).
“We review claims regarding the sufficiency of the evidence by
considering whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal
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quotation marks and citations omitted). “Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—while
passing on the credibility of the witnesses and the weight of the evidence—is
free to believe all, part, or none of the evidence.” Id. “In conducting this
review, the appellate court may not weigh the evidence and substitute its
judgment for the fact-finder.” Id.
To sustain a First-Degree Murder conviction, “the Commonwealth must
prove that: (1) a human being was unlawfully killed; (2) the person accused
is responsible for the killing; and (3) the accused acted with malice and specific
intent to kill.” Commonwealth v. Hitcho, 123 A.3d 731, 746 (Pa. 2015);
18 Pa.C.S. § 2502(a). “Section 2502 of the Crimes Code defines murder of
the first degree as an ‘intentional killing,’” which is defined as a “willful,
deliberate and premeditated killing.” Commonwealth v. Diamond, 83 A.3d
119, 126 (Pa. 2013) (citations omitted).
“When there is no direct evidence of intent to kill, the fact-finder must
glean the intent from the act itself and all surrounding circumstances.”
Commonwealth v. Simmons, 662 A.2d 621, 629 (Pa. 1995) (citation
omitted). A specific intent to kill may be proven by circumstantial evidence
and may be inferred by a defendant’s use of deadly weapon upon a vital part
of the victim’s body. Commonwealth v. Hicks, 156 A.3d 1114, 1124 (Pa.
2017). Where death results after a prolonged period of physical abuse, the
Commonwealth need not present proof of a single, fatal blow to establish the
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defendant acted intentionally in causing the victim’s death. See, e.g.,
Commonwealth v. Powell, 956 A.2d 406, 417-18 (Pa. 2018) (concluding
that the evidence was sufficient to sustain a conviction for First-Degree Murder
where the victim’s body evidenced injuries inflicted over a period of months,
including injuries inflicted over the course of a 12- to 24-hour period just prior
to his death).
Appellant bases his claim of insufficiency on his observation that Dr.
Hood testified that “none of [T.S.’s] injuries . . . in and of itself, would have
been fatal,” and that “the more recent injuries . . . would all have combined
to produce the ‘shock’ that proved to be fatal.” Appellant's Brief at at 23.
Appellant argues that, because of this testimony, the Commonwealth “failed
to establish, by proof beyond a reasonable doubt, that a first-degree murder
did, in fact, take place on January 22, 2018” and that “Appellant acted with a
specific intent to kill T.J.].” Id.
In support of his bald conclusion, Appellant provides no citations to the
record, no citation to the statute defining First-Degree Murder, no citation or
discussion of case law pertaining to the mens rea element of this crime in
support of his argument, and no legal analysis beyond his conclusory
statements. These omissions violate our appellate briefing rules and severely
hamper our review. See Pa.R.A.P. 2119(a) and (c) (briefing requirements);
see also Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super.
2015) (finding the appellant’s claim waived for failing to comply with
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requirements of Pa.R.A.P. 2119). Due to these significant briefing defects, we
conclude this claim is waived.
Even if Appellant had not waived this claim, we would conclude that
Appellant’s contention—that the Commonwealth failed to present evidence
sufficient to establish that he had the specific intent to kill T.S—is meritless.
In addressing Appellant’s sufficiency challenge, the trial court reiterated
in detail the evidence presented by the Commonwealth. See Tr. Ct. Op.,
1/17/2020, at 3-13. The court specifically noted that the evidence showed
that on January 22, 2018, “Appellant and Smith subjected [T.S.] to prolonged
malicious torture and ultimately killed him in an attack of such ferocity that
Dr. Hood likened his injuries and [the] impact upon his body to having been
crushed as if from a building collapse. From those facts, intent to kill can be
inferred.” Id. at 15. The trial court also noted that Appellant’s failure to call
for help when T.S. exhibited signs of distress on January 22, 2018, further
demonstrated that Appellant’s specific intent to kill T.S. We agree.
Reviewing the record evidence and all reasonable inferences derived
therefrom in the light most favorable to the Commonwealth, we conclude that
the evidence of T.S.’s extensive injuries, resulting from months of abuse, and
Appellant’s intentional and brutal actions on January 22, 2018, that directly
caused T.S.’s death, support the jury’s reasonable inference that Appellant
acted with the specific intent to kill T.S. Thus, as a matter of law and fact, we
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conclude that the Commonwealth presented sufficient evidence to support the
jury’s verdict finding Appellant guilty of First-Degree Murder.
Discretionary Aspect of Sentence
Appellant also challenges the discretionary aspect of his sentence. He
contends, inter alia, that the term of 15 to 30 years’ incarceration imposed for
the EWOC and Conspiracy to EWOC convictions is “unduly harsh and
excessive” and “clearly unreasonable.” Appellant’s Brief at 10, 27.5 Appellant
avers that the sentencing court failed to consider properly (1) his history and
characteristics; (2) the information contained in the pre-sentence
investigation (“PSI”) report; and (3) the sentencing guidelines. He further
contends that the court put too much weight on the nature and circumstances
of the offense. Id. at 10, 12-13.
Preliminarily, we note that there is no absolute right to appeal when
challenging the discretionary aspect of a sentence. Commonwealth v.
Moury, 992 A.2d 162, 170 (Pa. Super. 2010). Before we may address the
merits of such a challenge, we conduct a four-part analysis and determine:
(1) whether appellant has filed a timely notice of appeal; (2) whether the issue
was properly preserved at sentencing or in a motion to reconsider and modify
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5 The aggravated range sentence suggested by the sentencing guidelines for
Appellant’s first-degree felony EWOC conviction is 18 to 25 months’
incarceration. See N.T. Sentencing, 7/31/19, at 8. For a Conspiracy to EWOC
conviction, the aggravated range sentence is 12 to 20 months' incarceration.
See id. The court sentenced Appellant to 10 to 20 years’ incarceration for
EWOC, and 5 to 10 years’ incarceration for Conspiracy. Id. at 18.
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sentence; (3) whether the appellant’s brief contained a Pa.R.A.P. 2119(f)
statement; and (4) whether there is a substantial question that the sentence
appealed from is inappropriate under the Sentencing Code. Id.
Whether a substantial question has been raised regarding discretionary
sentencing is determined on a case-by-case basis. Commonwealth v.
Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). “A substantial question exists
only when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.
Super. 2012) (citation omitted).
Appellant timely filed his Notice of Appeal after the reinstatement of his
appeal rights, preserved his challenge in a Post-Sentence Motion, and included
a Rule 2119(f) Statement in his Brief. Thus, we must next determine whether
Appellant has raised a substantial question.
In his Rule 2119(f) Statement, Appellant asserts that his sentence is
manifestly excessive and imposed without consideration of the suggested
Sentencing Guidelines. See Appellant’s Brief at 13. Such claims raise a
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substantial question. Glass, supra at 727. Therefore, we will review the
merits of his challenge to the EWOC and Conspiracy sentence.6
Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal without a manifest abuse
of that discretion. Commonwealth v. Hess, 745 A.2d 29, 31 (Pa. Super.
2000). To constitute an abuse of discretion, the sentence must either exceed
the statutory limits or be manifestly excessive; it is not shown merely by an
error in judgment by the court. Commonwealth v. Mouzon, 828 A.2d 1126,
1128 (Pa. Super. 2003). “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.” Id.
In considering whether a sentence is manifestly unreasonable, the
appellate court must give great weight to the sentencing judge's discretion,
as he or she is in the best position to measure various factors such as the
nature of the crime, the defendant's character, and the display of remorse,
defiance, or indifference. Commonwealth v. Ellis, 700 A.2d 948, 958 (Pa.
Super. 1997). The imposition of consecutive rather than concurrent sentences
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6 Appellant also references the life sentence imposed for his Murder conviction
in his discussion regarding the discretionary aspect of the sentence.
Appellant’s Brief at 24, 25-26, 29. He later correctly acknowledges that the
life sentence is statutorily mandated and not subject to the sentencing court’s
discretion. Id. at 26. We, thus, address Appellant’s challenge only as it
pertains to the sentences imposed consecutive to the life sentence for his
EWOC and Conspiracy to EWOC convictions.
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is within the sound discretion of the trial court. . Commonwealth v. Zirkle,
107 A.3d 127, 133 (Pa. Super. 2014) (citing 42 Pa.C.S. § 9721 and cases).
In determining whether a sentence is reasonable, an appellate court
should consider: (1) the nature and circumstance of the offense and the
history and characteristics of the defendant; (2) the opportunity of the
sentencing court to observe the defendant, including any presentence
investigation; (3) the findings upon which the sentence was based; and (4)
the guidelines promulgated by the commission. Commonwealth v. Walls,
926 A.2d 957, 963 (Pa. 2007) (citing 42 Pa.C.S. § 9781(d)).
Where a PSI report exists, an appellate court shall presume that the
sentencing judge was aware of relevant information regarding the defendant's
character and weighed those considerations along with mitigating statutory
factors. Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). “Having
been fully informed by the [PSI] report, the sentencing court’s discretion
should not be disturbed.” Id.
When a sentencing court chooses to depart from the guidelines, it must
"demonstrate on the record, as a proper point, its awareness of the sentencing
guidelines" and articulate its reasons for deviating therefrom.
Commonwealth v. Durazo, 210 A.3d 316, 320 (Pa. Super. 2019) (citations
omitted). Generally, in deviating upward from the guidelines,
it is impermissible for a court to consider factors already included
within the sentencing guidelines as the sole reason for increasing
. . . a sentence to the aggravated . . . range. However, trial courts
are permitted to use factors already included in the guidelines if
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they are used to supplement other extraneous sentencing
information.
Commonwealth v. Clemat, 218 A.3d 944, 960 (Pa. Super. 2019) (internal
citation and quotation marks omitted; emphasis in original). Additionally,
“[t]he focus should not be upon the seriousness, heinousness or
egregiousness of the offense generally speaking, but, rather, upon how the
present case deviates from what might be regarded as a ‘typical’ or ‘normal’
case of the offense under consideration.” Commonwealth v. Fullin, 892
A.2d 843, 848 (Pa. Super. 2006) (citation omitted).
Here, at the sentencing hearing, the court stated that it had considered
numerous factors, including the sentencing guidelines, the PSI report, the
length of the abuse suffered by T.S., Appellant’s lack of remorse, and his
refusal to seek medical attention for T.S. N.T. Sentencing, 7/31/19, at 16-
18. With respect to the reasons for deviating above the sentencing guidelines,
the court stated:
The sentences for [EWOC]and [C]onspiracy are outside of the
sentencing guidelines, a deviation from the sentencing guidelines.
And the reason for that is, first, the brutality of these crimes from
long-term child abuse over many months have endangered the
life of this child to the absolutely grotesque actions that led to his
death. These are among the most severe and violent acts that
could possibly violate these statutes, and a lengthy consecutive
sentence at the highest level is warranted.
Further, the [c]ourt finds that the defendant poses a clear risk of
harm to the community specifically to children, and the [c]ourt
will impose this sentence to ensure the protection of the
community.
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Third, the [c]ourt notes the defendant’s utter lack of remorse and
total indifference to his crimes.
And, finally, the [c]ourt finds that any lesser sentence on these
acts would depreciate the seriousness of this absolutely
horrendous crime. These multiple acts over many months
rendered an innocent child physically and emotionally broken and
then dead.
N.T. Sentencing, 7/31/19, at 19. See also Order containing Written Reasons
for Deviation above Sentencing Guidelines, dated 7/31/19.
Appellant avers that the sentencing court “simply reiterate[ed] the
nature and extent of the injuries inflicted upon the victim [thus] ignor[ing] the
fact that these very same considerations formed the basis for the charge of
Murder[.]” Appellant’s Brief at 27. He also contends that the trial court failed
to consider adequately Appellant’s “history and characteristics,” his
rehabilitative needs, and the information in the PSI report. Id. at 27-28. We
disagree.
Our review of the sentencing transcript reveals that the sentencing court
explicitly acknowledged the PSI report, which included, among other things,
Appellant’s “history and characteristics” and his rehabilitative needs. See N.T.
Sentencing at 16. The court also observed that Appellant explained his
attitude about his abuse of T.S. when he told the pre-sentence investigator
that he “was raised on beatings worse than that.” Id. at 17. In further
explaining its reasons for concluding that the extensive, long-term abuse
perpetrated by Appellant deviated from what is normally seen in an EWOC
case, the court stated:
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[T]he months of prolonged abuse of this child . . . reflect some of
the most unimaginable violence to an innocent child that one can
imagine[,] from months of repeated beatings and torture to the
brutal attack that killed T.S. . . . Every act and every omission
reflects cruelty and brutality that is just unimaginable. There are
many aspects of the [PSI report] that were interesting to consider,
but overall when I read this information, I am left to conclude that
this defendant utterly lacks remorse, completely ignores his
responsibility to this child, and his actions reflect . . . an
indifference and a defiance to both what he did and to the system.
N.T. Sentencing at 16-17.
In light of the court’s acknowledgment and review of the PSI report and
the sentencing guidelines, we conclude that the court properly considered the
history and characteristics of the defendant and his rehabilitative needs. In
addition, we agree with the sentencing court’s conclusion that the gravity of
the abuse perpetrated by Appellant, the impact on the victim, and Appellant’s
normalization of his cruelty showing a complete lack of remorse, support the
imposition of a sentence beyond the aggravated range, to be served
consecutive to his life sentence for the protection of the public.
As we discern no abuse of the sentencing court’s exercise of its
discretion, we conclude Appellant’s sentencing challenge warrants no relief.
Accordingly, we affirm the Judgment of Sentence.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2020
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