Com. v. Cannon, D.

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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. : : DONTE CANNON, : No. 1342 EDA 2012 : Appellant :

Appeal from the Judgment of Sentence, March 28, 2012, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0008426-2010

BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 08, 2014

Appellant challenges the judgment of sentence imposed following his conviction for second degree murder, two counts of robbery, criminal following his conviction, appellant was sentenced to life imprisonment for second degree murder, and concurrent sentences of 10 to 20 years for each robbery, 10 to 20 years for criminal conspiracy, 2½ to 5 years on the VUFA, and 2½ to 5 years on the PIC. We affirm.

The facts, as summarized by the trial court, are as follows:

Police Officer Eric Riddick testified that on January 23, 2010, at approximately 10:00 P.M., he and his partner responded to a report of gunshots on the 5500 block of Beaumont Street in Philadelphia. He saw two women, later identified as Diane Stewart

• • Retired Senior Judge assigned to the Superior Court.

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and Shande Stewart, exit 5537 Beaumont Street and walk towards his patrol car. Shande Stewart told Officer Riddick that an incident had occurred on the block. Officer Riddick got out of his patrol car to inspect the area. He saw a male, later identified as Philippe Koukoui, lying face-down with a gunshot wound to the back of his head and to the back part of his neck in the back of a vacant lot at 5527 Beaumont Street. Officer Riddick went through the backpack that had been removed from the

to Philippe Koukoui; a scale; a cell phone; Ziploc baggies; and, a small amount of marijuana. He walked across the street to where there was a smaller vacant lot at 5531 Beaumont Street and recovered three shell casings. Officer Riddick then entered an alleyway that ran behind Beaumont Street and Litchfield Street where he recovered a black patent leather Nike sneaker.

While at the scene, Officer Riddick was approached by a male who identified himself as James Henderson. Henderson told Officer Riddick that he had been the victim of a robbery and that he had been with Philippe Koukoui, hereinafter referred to as the decedent, and Shande Stewart. Henderson was transported to the Homicide Unit to be interviewed.

James Henderson testified that the decedent had been his friend for five (5) to six (6) years. He testified that on January 23, 2010, he went with the decedent to the 5500 block of Beaumont to visit Shande Stewart, whom the decedent knew, and to smoke marijuana. The decedent and Henderson

approximately ten (10) minutes. The decedent, Henderson and Shande Stewart then left the house to walk to a nearby store. They walked down Beaumont Street towards 55th Street. Henderson was walking in the street, ahead of the decedent and Shande Stewart, talking on his cell phone. A male pointing a gun jumped out at Henderson, grabbed him, and started going through his pockets.

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Henderson looked back toward where the decedent and Shande Stewart were walking and saw that another male had grabbed the decedent and had a gun pointed at him. The male that was holding Henderson told him to turn around, not to look back, and to run through an alleyway towards 56th Street.

heard gunshots. His sneaker came off as he was running. When he reached the end of the alley, he heard more gunshots. He went to his house, put on another pair of sneakers and then walked back to [the] scene. He saw the police and told them that he and his friend were just robbed.

Henderson gave a statement wherein he described the male that pointed the gun at him and robbed him as a boy, about 17 or 18 years old,

wearing a tan snap cap with a brim that was pulled down to his eyes and a black hoodie. In his statement Henderson indicated that the gun that was pointed at him was silver, but he did not know if it was a revolver or an automatic. At trial, he testified that he did not remember giving those answers.

Shande Stewart testified that she knew the decedent from buying marijuana from him on two (2) occasions. She knew his cell phone number and had stored his number in her cell phone. On January 23, 2010, she called the decedent. She wanted to buy five (5) bags of marijuana for $20.00. The decedent came to her house at 5537 Beaumont Street with another male approximately ten (10) minutes later.

Shande Stewart further testified that before she called the decedent, the Defendant was in her house and she had a conversation with him about robbing the decedent. She heard the Defendant make a telephone call after which the Co-Defendant,

While sitting in the living room of her house, Shande Stewart, the Defendant and Co-Defendant

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talked about robbing the decedent. The Defendant and Co-Defendant told her to call the decedent and tell him that she wanted five (5) for $10.00. The Defendant and Co-Defendant told her that they were going to be in the basement of the house and were going to leave the house from the back door in the basement to rob the decedent. The decedent called and told her he was outside of her house. She let the decedent and Henderson into the house. The decedent told her he was not going to sell her the marijuana for the price she asked. Shande Stewart, Henderson and the decedent then left the house through the front door and walked down Beaumont Street towards 55th Street. She then saw the Defendant come out of a vacant lot located at 5527 Beaumont Street. The Co-Defendant came out from the other side of the street. The Defendant was holding a gun and grabbed the decedent by his shirt. The Co-Defendant was holding a gun and grabbed Henderson by his shirt. She ran towards her house. Henderson was running and the Co-Defendant shot at him. As she ran inside her house, she heard more gunshots. She ran down to the basement where she saw the Defendant and the Co-Defendant. She heard the Defendant say,

her mother that that [sic] the boys she was with were robbed. She then went outside with her mother and saw a police car coming down the street. She told the police that she had heard the gunshots. She was transported to Homicide for investigation.

At the Homicide Division, Shande Stewart told the detectives about the robbery and the - consented to a search of her cell phone. She was then taken into custody.

On April 27, 2011, Shande Stewart entered into a Memorandum of Agreement with the District herein she would plead to two (2) counts of robbery and conspiracy and the murder charge would be nolle prossed. At the time of trial, she had not yet been sentenced.

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Detective Timothy Bass testified that based on information received from Shande Stewart, he went to 5537 Beaumont Street and transported the Defendant to the Homicide Division. Detective Bass

the Defendant told Detective Bass in summary: that he did not know the decedent or James Henderson; that he and the Co-Defendant talked about robbing the two (2) men; that Shande Stewart called him and told him that the two (2) males they were going to rob did not carry guns; and, that he knew the Co-Defendant probably had a gun. He indicated further that: he was in the house with Shande Stewart and the Co-Defendant when the two (2)

one of the two men outside; grabbed him; and, started fighting with him. He got two (2) cigarettes from the male he robbed. He saw that the other male had a backpack and saw that male try to run away from the Co-Defendant who was standing at the end of the lot. He heard four (4) to five (5) gunshots. The Defendant further indicated that after the incident, the Co-Defendant called him and asked him if anyone was shot; the Defendant told him that somebody was dead. The Defendant told the Co- house. The Co-Defendant told him that he was going on the run.[Footnote 1]

[Footnote 1] When the statement was read to the jury, references to the Co-Defendant were redacted and read as

statement being read, the trial court cautioned the jury that the statement could be used as evidence only against the Defendant.

Detective Bass testified that the cell phones of Shande Stewart, the Defendant and the decedent were recovered. The Co-Defendant was arrested on June 22, 2011.

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Corey Williams testified that he has known the Co-Defendant for more than ten (10) years. On January 23, 2010, he was with the Co-Defendant when the Co-Defendant received a phone call from

Shande Stewart. The Co-Defendant told him that he

-Defendant was gone for approximately twenty (20) minutes. When the Co-Defendant returned, he admitted to Corey Williams what had occurred and a male was dead.

Williams testified that he had seen the Co-Defendant with guns on multiple occasions and that the last gun he saw the Co-Defendant with was a chrome and black semi-automatic.

Dr. Gulino, Chief Medical Examiner for the City of Philadelphia, testified that the decedent had suffered three (3) gunshot wounds: one gunshot wound entered his head in the left back; the second was a through and through gunshot wound of the right arm which fractured the humerus; the third was a graze wound along the back of the neck. Dr. Gulino opined that the decedent died as a result of a gunshot wound to the head and the manner of death was homicide.

Dr. Gulino testified that hypothetically the

was consistent with the decedent being in a squatting position and the shooter standing behind the decedent, pointing the gu[n] down towards the

his head being forward and pointed at the ground.

Detective Christopher Tankelewicz testified that he is the director of the Philadelphia District

his unit handles computer forensics, cell phone forensics, audio and video forensics. Detective Tankelewicz testified that he extracted

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one on February 7, 2011. That information provided that on January 23, 2010, at 9:54:21 P.M., Shande Stewart texted the Co-

Officer Gregory Welsh, assigned to the Firearms Identification Unit testified that the three (3) 9 mm Luger fired cartridge casings recovered from the scene were fired from the same firearm. He testified that he examined the bullets that were turned over to his unit by the Medical

clothing. He testified that it was possible that the three (3) fired cartridge casings and the two (2) bullets were fired by the same gun.

Trial court opinion, 3/17/13 at 2-8.

Appellant and his co-defendant, Aaron McCallum, were tried before a jury. The trial began on March 21, 2012, and concluded on March 28, 2012. Both men were found guilty of the aforementioned charges.1 A third co-defendant, Shande Stewart, in return for her cooperation, had murder charges withdrawn; she pled guilty to robbery charges. Post-trial motions order to file a Rule 1925(b) statement. Appellant raises five issues on weight of the evidence.

1 McCallum filed a direct appeal with this court docketed at No. 1464 EDA

sentence.

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Appellant challenges the sufficiency of the evidence to convict him. Specifically, he claims he was not present and did not commit the crimes. Appellant contends the evidence was inconsistent, conflicting, and

In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to determine whether there is sufficient evidence to enable the factfinder to find every element of the crime established beyond a reasonable doubt. Commonwealth v. Thomas, 867 A.2d 594 y applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the Id. at 597. And while a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty. Id. quoting Commonwealth v. Coon, 695 A.2d 794, 797 (Pa.Super.1997). This Court is not free to substitute its judgment for that of the fact-finder; if the record contains support for the convictions they may not be disturbed. Id. citing Commonwealth v. Marks, 704 A.2d 1095, 1098 (Pa.Super.1997) and Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). Lastly, the factfinder is free to believe some, all, or none of the evidence. Id.

Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006). Resolving contradictory testimony and questions of credibility are matters for the finder of fact. Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.Super. 2000). Notably, questions concerning inconsistent testimony and improper motive go to the credibility of the witnesses, not the sufficiency of

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the evidence. Commonwealth v. Davido, 868 A.2d 431, 442 (Pa. 2005), cert. denied, 546 U.S. 1020 (2005); Commonwealth v. DeJesus, 860 A.2d 102, 107 (Pa. 2004) (holding that questions concerning inconsistent testimony go to the credibility of the witness, and hence, implicate the weight, rather than the sufficiency, of the evidence).

Second degree murder is defined as follows:

A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or as an accomplice in the perpetration of a felony.

18 Pa.C.S.A. § 2502(b).

A person is guilty of robbery if, in the course of committing a theft, he (1) inflicts serious bodily injury upon another.

18 Pa.C.S.A. § 3701.

Conspiracy is defined as follows:

(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime;

or

(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an

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attempt or solicitation to commit such a crime.

18 Pa.C.S.A. § 903(a). must establish the defendant: 1) entered into an agreement to commit or aid in an unlawful act with another person or persons; 2) with a shared criminal intent; and 3) an overt act was done in furtherance of the

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). The law is well established that circumstantial evidence may provide of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa.Super. 2005). arising from the facts and circumstances and not by mere suspicion or

Commonwealth v. Savage, 566 A.2d 272, 276 (Pa.Super. 1989). The law also recognizes that circumstances taken together in context, like an association between alleged conspirators, knowledge of the commission of the crime, presence at the scene of the crime, and/or participation in the object of the conspiracy, may be sufficient to prove a conspiracy when each standing alone is insufficient. Commonwealth v.

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Thoeun Tha, 64 A.3d 704, 710 (Pa.Super. 2013); Commonwealth v. Swerdlow, 636 A.2d 1173, 1177 (Pa.Super. 1994). person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent t shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in the city of the first class . . 6108. sufficient to support a conviction for felony murder and the related offenses appe

Id.) Such a challenge based on inconsistent testimony is a veiled attack on the weight of the evidence. Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (an attack on the reliability and credibility of the evidence is a weight claim, not a sufficiency claim).2

2 The trial court concluded the evidence was sufficient for a jury to have found that the elements of the crimes charged were proven beyond a reasonable doubt. (Trial court opinion, 3/17/13 at 11.) Viewing the evidence in the light most favorable to the Commonwealth, as our standard of review requires, the evidence along with the testimony presented by the

-defendant,

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Our standard of review for evaluating a weight of the evidence claim is well-established:

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

weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the

not against the weight of the evidence and that a new trial should be granted in the interest of justice.

This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing

mports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not

Aaron he decedent and Henderson and that Shande Stewart called him and told him that the two males they were going to rob did not carry guns. The decedent and Henderson walked into a trap and were ambushed by appellant and McCallum. In the course of the robbery, Henderson fled, gunshots were fired, and the decedent died of multiple gunshot wounds. See Commonwealth v. Munchinski, 585 A.2d 471, 483 (Pa.Super. 1990) (evidence sufficient to establish second degree murder where crime began as a robbery and ended in a homicide).

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merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis in the original) (citations omitted).

Here, the trial court summarized the testimony as well as the physical evidence, and found that the verdict was not against the weight of the evidence. (Trial court opinion, 3/17/13 at 8-10.) Appellant complains that

[I]t matters not whether appellant finds a solely within the province of the jury as trier of fact and, as such, will not be

Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (Pa.Super. 1994), appeal denied, 655 A.2d 512 (Pa. 1995). careful analysis of the weight of the evidence issue. While appellant asserts that there was no one who identified him as being involved other than Shande Stewart, that testimony, if believed by the fact-finder, is enough. See Commonwealth v. Kunkle, 623 A.2d 336 (Pa.Super. 1993) (uncorroborated testimony of a single witness is sufficient for conviction).

ions concerning inconsistent testimony and improper motive go to the credibility of the

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witnesses. See Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super. 2004), appeal denied, 959 A.2d 928 (Pa. 2008). Based upon the evidence presented, the trial court weight of the evidence claim.

Next, appellant argues that the trial court abused its discretion in permitting the expert testimony of Detectives Tankelewicz and Glenn.

ing to appellant, Detective Tankelewicz was qualified as an expert witness, but Detective Glenn was not. Appellant complains that both were allowed to testify as to the phone records and extraction of information and text messages from the cell phones of appellant, Stewart, and McCallum. (Id.)

Commonwealth v. Page, 59 A.3d 1118, 1135 (Pa.Super. 2013). Expert testimony is governed by Pa.R.E. 702, which reads,

Rule 702. Testimony by experts

If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.

Pa.R.E. 702.

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Whether a witness is qualified as an expert is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion. See Commonwealth v. Jennings, 958 A.2d 536, 539 (Pa.Super. 2008). Pennsylvania applies a liberal standard for the qualification of an expert witness. Commonwealth v. Ramos, 920 A.2d range of training, knowledge, intelligence, or exp Jennings, 958 to specialized knowledge on the subject under investigation he may testify, Commonwealth v. Harris established that an expert may render an opinion based on training and

Ramos, supra at 1256.

Here, the record indicates that there was much discussion concerning whether Detective Tankelewicz should be qualified as an expert in the field of digital forensics with regard to cellular phones. The detective stated his qualifications; for example, he is the Director of the Philadelphia District 128.) He testified that he has over 1,000 hours of training in digital forensics which include several certifications. (Id. at 129.) He was also

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assigned to the FBI in their Joint Terrorism Task Force for four years. (Id. at 130.) Cellebrite in performing his work. (Id. at 136.) According to appellant, the detective indicated that, depending on the make and model of the phone, the computer program did all the work. (Id.) The detective testified he was not involved in the making of the computer program, and he could not estimate a percentage of error that might be in the program. (Id. at 143.) T continuing objection. Defense counsel claimed that the detective put the device into a computer which resulted in a print-out; essentially, there was no expertise involved. (Id. at 149-150.)

The record indicates that the trial court initially allowed Detective Tankelewicz to be qualified as an expert. (Id. at 129, 150.) During the next day of the trial, during a sidebar discussion with counsel,

to call [Detective Tankelewicz] an expert, either. [Although] I think he had more training [than Detective

-18.) During jury instructions, the trial court stated:

I have permitted Dr. Gulino, Police Officer Welsh [to testify]. Dr. Gulino is a medical examiner. Police Officer Welsh is the Firearms Identification Unit ballistics expert, and Police Officer Tankelewicz to testify as expert witnesses. Now, I have to say that you heard some back and forth about

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Police science, you know. They download these cell phones. I permitted him to testify as an expert. Police Officer Tankelewicz, because he had some -- he had some knowledge about this new technology and he knows the done. However, I do want to caution you that he plugged the phone into the computer and the

present you with an opinion as the other experts did. They both gave opinions.

Notes of testimony, 3/28/12 at 48-49.

As Detective Tankelewicz did not offer any expert opinion, but merely presented the data that he had downloaded from a cell phone, we see no prejudice to appellant by allowing his testimony. Detective Glenn was not qualified as an expert and merely testified regarding the information that 23-66.). We see no error here.

Appellant argues th the assistant district attorney repeatedly showed the autopsy photograph of

We review claims of prosecutorial misconduct according to the following standard:

Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion. In considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one. Not every inappropriate remark by a prosecutor constitutes

do not occur in a vacuum, and we must view them in

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improper, they generally will not form the basis for a new trial unless the comments unavoidably prejudiced the jury and prevented a true verdict.

Commonwealth v. Bedford, 50 A.3d 707, 715 716 (Pa.Super. 2012) (internal citations and quotations omitted).

According to appellant, the prosecutor had no valid reason for showing the photo because there was no dispute as to the cause of death. The Commonwealth argues it was proper to show the photograph because the photo had been admitted into evidence and was used to show the track of the bullet that killed the decedent. Our review of the record reveals that the evidence and published to the jury. (Notes of testimony, 3/26/12 at 111.) We see no error in the prosecution calling attention to properly admitted evidence.

Appellant argues the testimony of Corey Williams regarding statements made by co-defendant McCallum was inadmissible and prejudicial. He acknowledges, however, that the statement was redacted in compliance with Bruton v. U.S., 391 U.S. 123 (1968). the admission was an abuse of discretion. Commonwealth v. Hardy, 918 A.2d 766, 776 (Pa.Super. 2007). An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill-will, partiality, prejudice, manifest

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unreasonableness, or a misapplication of law. Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa.Super. 2008).

During trial, the Commonwealth called Corey Williams, who identified himself as a friend of co-defendant McCallum. (Notes of testimony, 3/26/12 at 75.) According to Williams, he had been hanging out with McCallum and

(Id. at 77.) Williams

Id.) Williams testified McCallum was gone for

- Id. at 81.) Williams was asked to explain what McCallum said when he returned to the house. He stated that McCallum told him:

[McCallum] was waiting for the guy to come. The guys came. He hopped out on the guys. One guy took off. Shots got fired. The other guy, he got grabbed, he got threw [sic] to the ground. Shots got

Id. at 82-83.

Williams was asked if McCallum mentioned the name of the girl who and he was getting ready to wal Id. a police photo. (Id. at 85-86.) The name connected to the photo was

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Shande Stewart. (Id. at 86.) During his testimony, Williams never prejudiced the jury against appellant. He also claims that the statement was hearsay and in violation of the right to confront a witness. Our review indic addressed the issue in its opinion and we will adopt its discussion as our own. (See trial court opinion, 3/17/13 at 12-13.)

nts, we affirm the judgment of sentence.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/8/2014

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