The opinion
J-A21025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KEITH OMAR HORTON,
Appellant No. 1368 WDA 2016
Appeal from the Judgment of Sentence July 22, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0000818-2015
BEFORE: BENDER, P.J.E., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 07, 2017
Appellant, Keith Omar Horton, appeals from the judgment of sentence
entered on July 22, 2016, following his jury convictions for voluntary
manslaughter, possessing an instrument of crime (PIC), recklessly
endangering another person (REAP), and aggravated assault.1 We affirm.
The trial court summarized the facts of this case as follows:
In the early morning hours of November 22, 2014, [Appellant]
attended a birthday party for a friend at the Red Tomato Lounge
on the corner of 18th and Peach Streets in the City of Erie. Also
present at the party were Shadarea Flemings and Derrick
Hemphill, who arrived at 1:00 a.m. Their friends, Seante and
Damon arrived shortly after.
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1
18 Pa.C.S.A. §§ 2503, 907, 2705, and 2702, respectively.
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After passing through security, all walked to the back of the club
where Flemings and Seante took pictures in a photo booth.
At some point, Flemings and Seante left the Red Tomato to
retrieve cigarettes from Flemings’s car, which was parked in the
Firestone parking lot across the street from the Red Tomato.
While in the parking lot, Flemings noticed Arbie Wilson, an old
friend, sitting in another car a few spaces over. Wilson
approached Flemings and the two talked briefly. Wilson did not
accompany Flemings and her friend back into the party, but
instead, sat in Flemings’s car. Flemings testified that she
thought Wilson asked to stay in her car because people knew
what kind of car he was in before, and her car had tinted
windows, so no one would be able to see him.
When Flemings reentered the Red Tomato, security did not
search her. A man standing next to the door[, whom] Flemings
identified as [Appellant], alerted security they did not search
Flemings and her friend when they re-entered the party.
Security asked Flemings to return to the door to submit to a
search. Flemings, though compliant, got “mad as f[**]k” and
called [Appellant] a “bitch ass n[**]ger.” At that point,
[Appellant] began arguing with Flemings. The people around
them started pushing them apart, in an attempt to break up the
verbal altercation. During the dispute, Jameele Williams, joined
in and told Flemings he was going to “beat her ass and make her
go get her n[**]ger.” Flemings explained this meant Williams
was going to beat her up so badly she needed to get Hemphill
for protection. Flemings and company pushed past the crowd
and continued to the back of the party where Hemphill was
waiting. Neither [Appellant] nor Williams followed Flemings
further into the party.
When Flemings found Hemphill, she told him about her dispute
with [Appellant]. She also told Hemphill that she had a bad
feeling about what happened at the entrance to the club and
that they should leave. Hemphill agreed, and the couple left the
party through the front door which led to 18th Street. As the two
left, Flemings continued to yell insults at the people in the VIP
section of the party, but no one else approached them.
When Flemings and Hemphill reached the middle of 18 th Street,
she heard [Appellant] coming around the corner of the Red
Tomato building shouting, “Here I come. Right here. Here I go.
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Right here.” Flemings testified that Jameele Williams quickly
followed [Appellant] and came up the middle of the street, near
her and Hemphill. Hemphill turned around to face [Appellant]
and asked him if he wanted to fight. [Appellant] said “yes.”
Williams rushed over to where [Appellant], Flemings, and
Hemphill were standing. Both Williams and Hemphill pulled up
their pants and started to “square off” as if to prepare for a fight.
At some point, Flemings realized Williams was digging in his
pants pocket for a gun and screamed for Hemphill to run.
Hemphill took off running down 18th Street in the direction of
Peach Street with Jameele Williams chasing him and firing his
weapon.
When the gunfire from Williams subsided, Flemings testified she
saw Wilson near her car and heard [Appellant] yell, “Now, bitch
ass n[**]ger, your gun jammed” to Wilson. Flemings ran to her
car and hid under the dashboard. When she looked up, she saw
[Appellant] standing in front of her car pointing his gun at her.
[Appellant] then ran towards State Street. Flemings heard more
gun shots and eventually saw Wilson running across the street,
limping. [Appellant] and Williams were also in view. Flemings
stated she only saw [Appellant] and Williams with guns that
night.
Flemings eventually left her vehicle in the Firestone parking lot
and found a ride home with strangers. She called 911 but hung
up before she spoke with someone. About forty-five minutes
later, members of the Erie Police Department arrived at
Fleming’s home to ask her questions. At first, she did not tell
the officers everything she knew and gave officers conflicting
stories. She did not learn that Wilson was dead until 4:00 a.m.
when police came back a second time and took her to the police
department to speak with detectives.
Before this, however, officers from the Erie City Police
Department were dispatched to the area of 18th Street between
Peach and State Streets for a call of shots fired. Upon arrival,
Officer Justin Stidham found a crowd gathering around a young,
black, male lying on his back, with an apparent gunshot wound
to his chest. The man was alive, but unconscious, and barely
breathing. [Officer] Stidham first attempted to get the crowd to
disperse and then began rendering emergency aid to the victim
until EMS services arrived to take the victim to the hospital.
[Police recovered forensic evidence from the scene and video
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footage of the incident from the Labor Temple building nearby.]
The victim was later identified as Arbie Wilson. After
unsuccessful surgical intervention, Wilson died.
Trial Court Opinion, 10/19/2016, at 3-5 (original brackets and record
citations omitted).
Procedurally, the case progressed as follows:
[Appellant] was originally charged with the criminal homicide of
Arbie Wilson, conspiracy to commit criminal homicide, one count
of aggravated assault on Arbie Wilson, [PIC], criminal attempt at
criminal homicide as to Derrick Hemphill, an additional count of
aggravated assault as to Derrick Hemphill, [REAP] as to Derrick
Hemphill, simple assault as to Shadarea Flemings, and terroristic
threats as to Shadarea Flemings.
Following a pre-trial motion hearing, the conspiracy charge was
dismissed. No appeal was taken by the Commonwealth.
Trial began on August 31, 2015. At the conclusion of the
Commonwealth’s case-in-chief, [Appellant’s] motion for
judgment of acquittal for the charge of criminal attempt to
commit criminal homicide was granted.
A jury then found [Appellant] not guilty of first and third degree
murder, the aggravated assault of Derrick Hemphill, and the
charges of simple assault and terroristic threats to Shadarea
Flemings. The jury found [Appellant] guilty of [REAP] as to
Derrick Hemphill, but was unable to reach a verdict on the other
charges. A mistrial on those charges was declared.
The Commonwealth retried [Appellant] on the deadlocked
counts[, which included voluntary manslaughter/criminal
homicide of Wilson, aggravated assault of Wilson, and PIC.] In
the interim, [Appellant’s] co-defendant, Jameele Williams, who
had also been partially convicted, filed a motion to sever [his]
remaining charges from [Appellant’s remaining charges]. The
motion was granted.
[Appellant’s] second trial began May 23, 2016. Prior to giving
final instructions to the jury, [Appellant] objected to the trial
court’s instruction on accomplice liability. [Appellant’s] objection
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was overruled. At the end of the second trial, [Appellant] was
convicted by jury on all remaining charges.
On July 22, 2016, [Appellant] was sentenced to an aggregate of
one-hundred two to two-hundred four months[’] (eight years, six
months to seventeen years[’]) incarceration.
Id. at 1-2 (footnote omitted). This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
1. Did the Commonwealth present insufficient evidence at the
first trial to sustain the conviction of [REAP] under a theory of
direct or accomplice liability?
2. Did the Commonwealth present insufficient evidence at the
second trial to sustain Appellant’s convictions for voluntary
manslaughter, aggravated assault, and/or [PIC] under a
theory of direct or accomplice liability?
3. Did the trial court commit an abuse of discretion or error of
law when it denied Appellant’s motion for a new trial on the
basis that the convictions at the second trial were contrary to
the weight of the evidence?
4. Did the trial court err when it instructed the jury, over
defense counsel’s objection, that an individual may be
convicted of voluntary manslaughter under a theory of
accomplice liability?
5. Did the trial court err when it instructed the jury on
accomplice liability, at the second trial, where the facts of
record did not demonstrate that Appellant intended to
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2
Following trial, the trial court granted Appellant an extension to file a
post-sentence motion. Thereafter, Appellant filed a timely post-sentence
motion. By order entered on August 15, 2016, the trial court denied relief.
On September 13, 2015, Appellant filed a notice of appeal. On the same
day, the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
October 19, 2016.
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facilitate the shooting death of Mr. Wilson and/or aided or
encouraged anyone in that regard?
Appellant’s Brief at 8 (complete capitalization and suggested answers
omitted).
Appellant’s first two issues challenge the sufficiency of the evidence to
support his various convictions. The standard we apply is as follows:
[W]hether[,] 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. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa. Super. 2017)
(citation omitted).
In his first issue presented, Appellant claims that the Commonwealth
failed to present sufficient evidence to support his conviction for REAP as the
principal actor, or under a theory of accomplice liability, with regard to the
victim, Derrick Hemphill. Id. at 37-41. Appellant claims that although he
initially challenged Hemphill to a fight, co-defendant, Jameele Williams,
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“came onto the scene and directly engaged with Hemphill” and “[w]hen
Williams started chasing and shooting at Hemphill, Appellant just stood
there.” Id. at 40. Moreover, Appellant claims there was no evidence that
Appellant “knew Williams had a loaded firearm.” Id. at 41 (citation
omitted).
“A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury.” 18 Pa.C.S.A. § 2705. “The mens
rea required for this crime is a conscious disregard of a known risk of death
or great bodily harm to another person.” Commonwealth v. Martir, 712
A.2d 327, 328 (Pa. Super. 1998).
“A person is guilty of an offense if it is committed by his own conduct
or by the conduct of another person for which he is legally accountable, or
both.” 18 Pa.C.S.A. § 306(a). “A person is an accomplice of another person
in the commission of an offense if […] with the intent of promoting or
facilitating the commission of the offense, he: (i) solicits such other person
to commit it; or (ii) aids or agrees or attempts to aid such other person in
planning or committing it[.]” 18 Pa.C.S.A. § 306(c)(1). Moreover, “[a]n
accomplice may be convicted on proof of the commission of the offense and
of his complicity therein, though the person claimed to have committed the
offense has not been prosecuted or convicted or has been convicted of a
different offense or degree of offense or has an immunity to prosecution or
conviction or has been acquitted.” 18 Pa.C.S.A. § 306(g).
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Here, the trial court determined:
The evidence presented at trial showed that after an altercation
with Flemings, [Appellant] and Mr. Williams raced after Flemings
and Hemphill in the middle of 18th Street. Flemings testified that
she heard Hemphill ask [Appellant] if he wanted to fight;
[Appellant] responded in the affirmative. After this, Flemings
believe[d] Williams attempt[ed] to retrieve a firearm from his
pocket.
Video footage recovered from the night of the incident also
showed [Appellant] and Williams returning to [Appellant’s] car to
retrieve what appeared to be firearms. Williams, Hemphill, and
[Appellant] are later seen running while shots [were] fired.
Evidence was also presented to indicate that as of the day of
trial, [Appellant] still owned a .40 caliber firearm, which was the
type of firearm that would have discharged many of the
projectiles found at the scene.
This evidence is sufficient to support [Appellant’s] conviction for
[REAP]. [Appellant] was present at the time threats were made
to Hemphill; [Appellant] and Williams returned to [Appellant’s]
car to retrieve what appeared to be firearms; [Appellant] was
initially with his co-defendant who chased Hemphill. Once
Williams did so, there exists evidence supporting the fact that
[Appellant] fired shots in the area. Coupled with Flemings’
testimony, the evidence, when seen in the light most favorable
to the Commonwealth, proves the elements of [REAP], either
directly or on an accomplice liability basis.
Trial Court Opinion, 10/19/2016, at 16 (record citation omitted).
Based upon our standard of review and our examination of the
certified record, we discern no error in denying Appellant relief on his first
sufficiency claim. Here, Appellant engaged in verbal confrontations with
Fleming and Hemphill. Appellant and Williams retrieved firearms from
Appellant’s vehicle and began running towards Hemphill. An eyewitness
testified that Appellant was wielding a firearm and video surveillance footage
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confirmed it. There was evidence that Appellant owned a firearm at the time
of the crimes. Multiple shots were fired at Hemphill. Appellant and Williams
were seen fleeing the scene together in Appellant’s car. Forensic evidence
confirmed Appellant’s firearm was the same caliber as bullet fragments
police recovered from the scene. There was sufficient circumstantial
evidence to support a conviction for REAP with Appellant as the principal
actor. Moreover, even if Appellant was not the actual shooter, the evidence
showed that Appellant aided Williams in the commission of REAP, when the
two men retrieved firearms from Appellant’s vehicle, ran towards Hemphill in
concert with one another, recklessly placed Hemphill in danger of death or
serious bodily injury by firing shots in the victim’s direction, and then fled
the scene together in Appellant’s vehicle. Hence, Appellant’s first issue lacks
merit.
Next, Appellant claims there was insufficient evidence to support his
convictions for voluntary manslaughter, aggravated assault, and PIC, with
regard to the victim, Arbie Wilson. Appellant’s Brief at 42-45. Appellant
argues that Fleming was not able to identify him and did not see him fire an
actual weapon and that Appellant’s physical location vis-a-vis Wilson at the
time he sustained the fatal gunshot wound precluded him from being the
shooter. Id. at 43-44. Appellant maintains that, “the testimony of record
does not indicate that Appellant had any negative interaction with Wilson
earlier in the evening” and the videotaped surveillance “present[ed] two
other possible shooting suspects” who “had the correct angle by which to
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inflict the fatal wound.” Id. Accordingly, Appellant posits that “[t]here is no
evidence that Appellant intended to promote the killing of Wilson or agreed
to aid or assist William in committing the murder.” Id. at 45.
On this issue, the trial court decided there was sufficient evidence to
support Appellant’s convictions for voluntary manslaughter, aggravated
assault, and PIC:
[…] Shadarea Flemings, an eyewitness to the shooting,
confirmed the identity of [Appellant] on the video recovered
from the Labor Temple where he was seen running to his car
with Jameele Williams [and] retrieving what appeared to be a
firearm. Later, [Appellant] is seen on the video following Wilson
after Wilson appears on screen, limping across the street. Next,
[Appellant] and Williams are seen running back to [Appellant’s]
car and driving away. Flemings also testified she heard
[Appellant] yelling to Wilson about a gun jamming or misfiring,
placing [Appellant] squarely in the middle of a conflict involving
firearms with the victim.
Additional testimony revealed numerous bullet jackets,
fragments, and other physical evidence [recovered from] the
Firestone parking lot, the area in which Flemings stated she saw
[Appellant] and Wilson together.
Finally, the medical evidence showed Wilson was shot from the
back to the front on the left side on his body. [Appellant], as
shown on his booking sheet, [is] left[-]handed, making it
possible he fired the fatal shot, even if he appeared to the right
of Wilson in the video [surveillance]. Direct evidence of
[Appellant’s] involvement notwithstanding, evidence was
presented to also show his liability as an accomplice. In all video
footage, [Appellant] was seen with Jameele Williams, who also
retrieved what appeared to be a firearm from the same car,
running through the streets of downtown Erie.
Trial Court Opinion, 10/19/2016, at 19.
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Upon review, we discern no error or abuse of discretion in the trial
court’s conclusion that there was sufficient evidence to support Appellant’s
convictions for voluntary manslaughter, aggravated assault, and PIC.
Initially, we reject Appellant’s suggestion that there was insufficient evidence
to identify him as the perpetrator. We have previously determined that
“evidence of identification need not be positive and certain to sustain a
conviction.” Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super.
2008) (citation omitted). Moreover, “[i]t is settled law that a witness may
testify to a person's identity from his voice alone” and “the weight to be
accorded voice identification testimony is a question for the trier of fact.”
Id. (original citation, quotations, and brackets omitted). Here, an
eyewitness saw Appellant wield a firearm, heard Appellant say to the victim,
“Now, bitch ass n[**]ger, your gun jammed,” and then heard gunshots
which resulted in the Wilson’s death. Furthermore, there was evidence that
Wilson was shot by a left-handed assailant and there was evidence that
Appellant is, in fact, left-handed. Based on this evidence, we find there was
sufficient identification evidence.
We turn now to examine the elements of the individual offenses to
determine whether there was sufficient evidentiary support to uphold
Appellant’s convictions. First, “[a] person who kills an individual without
lawful justification commits voluntary manslaughter if at the time of the
killing he is acting under a sudden and intense passion resulting from serious
provocation by [] the individual killed.” 18 Pa.C.S.A. § 2503(a)(1). Next,
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“[a] person is guilty of aggravated assault if he [] attempts to cause serious
bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the
value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1). “A person commits a
misdemeanor of the first degree if he possesses any instrument of crime
with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a).
Here, there was evidence that Appellant and Wilson engaged in a
verbal confrontation, Appellant was seen wielding a firearm, and was heard
yelling at Wilson. We conclude there was sufficient evidence to support a
conviction for voluntary manslaughter. Appellant killed Wilson without lawful
justification while acting under sudden passion caused by Wilson’s
provocative conduct. Moreover, we have upheld convictions for voluntary
manslaughter under a theory of accomplice liability. See Commonwealth
v. Kimbrough, 872 A.2d 1244, 1255 (Pa. Super. 2005). As set forth above,
the evidence showed that Appellant and his co-defendant aided each other
by retrieving firearms from Appellant’s vehicle, running towards the victim
while gunshots rang out, and then eventually fled together in Appellant’s
vehicle. Thus, there was also sufficient evidence that Appellant was an
accomplice to his co-defendant. Likewise, we find there was sufficient
evidence to support Appellant’s conviction for aggravated assault. Appellant
recklessly fired a weapon at the victim. When shots were heard, an
eyewitness saw Appellant holding a firearm that matched bullet fragments
and casings recovered from the scene. This was also sufficient evidence to
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support Appellant’s conviction for PIC. For all of the foregoing reasons, we
conclude there was sufficient evidence to support Appellant’s convictions for
voluntary manslaughter, aggravated assault and PIC.
Appellant, in the alternative, maintains that his convictions for
voluntary manslaughter, aggravated assault and PIC were against the
weight of the evidence. Appellant’s Brief at 45-49.
Our standard of review when presented with a weight of the evidence
claim is distinct from the standard of review applied by the trial court:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014) (citation
omitted).
Here, the trial court determined that the convictions for voluntary
manslaughter, aggravated assault and PIC did not shock the conscious of
the court and Appellant was not entitled to relief on his weight of the
evidence. Based upon our deferential standard of review and an
examination of the certified record, we discern no abuse of discretion in
rejecting Appellant’s weight claim.
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Appellant’s final two arguments pertain to jury instructions on
accomplice liability and we will examine them together. In his fourth issue
presented, “Appellant suggests that the jury should have been instructed
that Appellant could not be convicted of voluntary manslaughter on the basis
of accomplice liability.” Appellant’s Brief at 50. However, as previously
mentioned, we have upheld convictions for voluntary manslaughter under a
theory of accomplice liability. See Kimbrough, 872 A.2d at 1255. Thus,
we summarily reject this claim. Next, Appellant contends the evidence of
record did not support an instruction on accomplice liability. Appellant’s
Brief at 50-51.
Our Supreme Court has set forth the standard used when adjudicating
whether a trial court had grounds for instructing the jury on a certain
matter:
It is axiomatic that a jury need not be instructed regarding
matters that have no relevance to the evidence introduced at
trial.
* * *
There is no duty on a trial judge to charge a jury upon a law
which has no applicability to the presented facts. There must be
some relationship between the law upon which an instruction is
required and the evidence presented at trial.
Commonwealth v. Meadows, 553 A.2d 1006, 1013 (Pa. Super. 1989)
(citations omitted).
We employ the following standard in assessing jury instructions:
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When evaluating the propriety of jury instructions, this Court will
look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a 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. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Sauers, 159 A.3d 1, 12 (Pa. Super. 2017) (citation and
brackets omitted).
In this matter, as set forth at length supra, the evidence showed that
Appellant and his co-defendant aided each other by retrieving firearms from
Appellant’s vehicle, running towards the victims while gunshots rang out,
and then eventually fled together in Appellant’s vehicle. Thus, there was a
strong relationship between the law of accomplice liability and the evidence
presented at trial to warrant an instruction. Hence, Appellant’s final two
claims lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/2017
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