HomeMy WebLinkAbout95-0850 CRIMINAL
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, P A
vs,
95-0850 CRIMINAL
BILL Y RAY BOGGS
IN RE: PCRA PETITION
BEFORE HESS, 1.
OPINION AND ORDER
Before the court is a petition for post conviction relief filed by Billy Ray Boggs,
In 1995, Boggs was convicted by a jury of conspiracy to commit murder and two counts
of solicitation to commit murder (Docket No, 95-0850 Criminal); he appealed his
conviction, The Superior Court affirmed, Com, v, Boggs, 695 A2d 839 (1997), The
facts of this case are as follows,
At some point prior to April 27, 1995, the state police were notified by an
informant - Daniel Krushinski, an inmate at the State Correctional Institute at Camp Hill -
that Boggs had discussed plans for hiring someone to murder two witnesses scheduled to
testify against him in a burglary case in Clarion County, Working with Trooper Daniel
Wertz, Krushinski informed Boggs that he knew someone who could meet with Boggs
about removing the two witnesses, 1
1 According to Boggs, Krushinski said the person coming to the prison was Krushinski's cousin, an
attorney,
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Wertz informed a fellow police officer, Corporal Craig Fenstermacher, of the
proposed meeting, Fenstermacher also learned from Wertz that the only way to obtain a
private meeting inside the prison was to pose as a lawyer or a member of the clergy, On
April 27, 1995, Fenstermacher went to the prison posing as a lawyer by the name of
Chuck Fry, Aside from the prison's security chief, no other member of the prison staff
was aware of the ruse,
The meeting between Boggs and Fenstermacher took place in a private room,
with no other persons present. Apparently, Fenstermacher introduced himself as Chuck
Fry but stopped short of representing himself as an attorney, Fenstermacher then told
Boggs that he had heard that Boggs had a legal problem involving two witnesses, Boggs
confirmed this, indicated that he needed to be rid of the two witnesses, described them
and where they could be found, and stated that if the two witnesses were gone he could
get out of jail. According to Fenstermacher, when Boggs described his wishes for the
two witnesses he used terms such as "eliminate," "disappear," and "not be able to testify,"
A payment plan was also discussed: the plan called for one of Fenstermacher's
"associates" to collect an initial payment of $2,500 from Boggs's girlfriend at a location
near Shiremanstown, After his meeting with Boggs, Fenstermacher conferred with
Trooper Wertz about the payment arrangements, Thereafter, Wertz met Boggs's
girlfriend in a restaurant parking lot at the appointed time, where she gave him a check
for $2,000 and $500 in cash,
Prior to the next meeting with Boggs, scheduled to take place on May 8, 1995, the
police obtained a warrant for Boggs's arrest. Additionally, Fenstermacher completed an
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application, for District Attorney approval, to record the meeting, With a tape recorder in
his briefcase, Fenstermacher met with Boggs in the private meeting room in the prison,
More details were discussed and Boggs drew a map of where the two witnesses could be
found, Once again, it appears that Fenstermacher did not identify himself as an attorney,
nor did he discuss legal representation, He also did not identify himself as a police
officer or apprise Boggs of his constitutional rights,
When this second meeting ended Boggs was taken directly to the prison security
office, placed under arrest, and given his Miranda warnings, Boggs signed a waiver form
and spoke with Wertz stating, inter alia, that he had not used the words "kill" or
"murder," but that he would plead guilty to everything if his girlfriend was not charged,
Ultimately, Boggs did not plead guilty, After a jury trial he was found guilty of
conspiracy to commit murder and the two counts of solicitation to commit murder.
On appeal, the arguments advanced by Boggs revolved around the statements he
made to Fenstermacher on April 27th and May 8th, Boggs argued that, with respect to
his conversations with Fenstermacher, the Court erred in denying both a Motion to
Suppress and an amended Motion to Suppress, The Superior Court did not agree,
In his petition for post-conviction relief, Boggs makes twenty-three allegations of
error. These claims can be broken down into seven general categories:
1, claims relating to evidence allegedly available from prison inmates;
2, claims relating to the defendant's statements and actions;
3, claims relating to alleged misconduct by police officers;
4, claims relating to the validity of the warrant;
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5, claims relating to Daniel Krushinski;
6, claims relating to previously unavailable evidence; and
7, claims relating to procedural aspects of the trial.
It is noted at the outset that, to be eligible under the Post Conviction Relief Act
(PCRA), a petitioner must plead and prove by a preponderance of the evidence that the
conviction or sentence arose from one or more enumerated errors and that the issues
raised have not been previously litigated, An issue will be deemed previously litigated
when the highest appellate court in which the petitioner could have had review as a
matter of right has ruled on the merits of the issue, Com, v, Morales, 549 Pa, 400, 701
A2d 516,520 (1997),
Eighteen of the twenty-three allegations are based upon an argument of ineffective
assistance of trial counsel. The standard to be applied in assessing counsel's effectiveness
is well established: since the law presumes that counsel is effective, the burden of
establishing ineffectiveness rests with the appellant. A three part inquiry is employed in
considering the merits of the claim, The first question is whether the underlying claim is
of arguable merit. Next, it is asked whether counsel had any reasonable basis for the
questionable act or omission; if there was such a basis the inquiry ends, If there is no
reasonable basis, then the appellant will be granted relief only if counsel's improper
course of conduct was prejudicial, resulting in an adverse effect upon the outcome of the
proceedings, Com, v, Kaufmann, 405 Pa, Super. 229, 233, 592 A2d 91, 93 (1991)
(citing Com, v, Floyd, 506 Pa, 85,90,484 A2d 365,367 (1984); Com, v, Davis, 518 Pa,
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77,83,541 A2d 315,318 (1988); Com v, Pierce, 515 Pa, 153,_158-160,527 A2d 973,
975-976 (1987)),
Boggs alleges that his trial counsel failed to adequately investigate potentially
exculpatory information from Krushinski's cellmate, He also alleges that his counsel was
ineffective in neglecting to investigate whether certain prison inmates did in fact furnish
Trooper Wertz with the information which Wertz provided in his testimony, Assuming
arguendo that Boggs's claim has merit, it appears that the inquiry ends with the second
prong of the analysis, At the PCRA petition hearing, R Mark Thomas, Boggs's trial
counsel, testified that he chose not to raise any issues involving Krushinski's cellmate
"because the case had to do with what transpired between Daniel Krushinski and Billy
Boggs, , , and I [Thomas] didn't see the relevance of Daniel Krushinski's roommate, ,,2
Thomas, an experienced trial attorney, made a reasonable tactical decision not to bring up
Krushinski's cellmate, With respect to the claim that counsel should have investigated
the matter of information provided to Trooper Wertz by certain prisoners, Thomas readily
admitted that Boggs had, in fact, opined to him that the testimony of certain prisoners
would be helpful in his defense, Again, Thomas appears to have made a reasoned
decision not to bring these prisoners into the case, based on his conclusion that the
prisoners would not have "provided any testimony or evidence beneficial to Billy Boggs
in this case, ,,3 In the absence of a finding that there was no reasonable basis for not
raising the matter, Thomas's failure to do so does not appear to have resulted in an
2 See Transcript of Proceedings, PCRA Petition, at 85,
3 See Transcript of Proceedings, PCRA Petition, at 72,
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95-0850 CRIMINAL
adverse effect upon the outcome of the proceedings, The determinative factor in Boggs's
conviction, in fact, seems to have been anchored elsewhere,
Boggs raises the ineffectiveness argument on the grounds that his attorney did not
object to hearsay testimony from Trooper Wertz, and that he failed to detect [and "elicit"]
perjured statements from Troopers Wertz and Fenstermacher. Regarding the former,
Boggs fails to direct the Court's attention to exactly what aspect of Wertz's testimony
amounted to hearsay, At the PCRA hearing, Boggs was unable to point with any degree
of specificity to any of Wertz's statements that may have constituted hearsay,4 The
petitioner in a PCRA proceeding carries the burden of demonstrating a credible claim that
he actually received ineffective assistance of counsel; mere allegation without more will
not suffice, Com v, Parker, 503 Pa, 336,469 A2d 582 (1984), With respect to the latter,
there is a similar lack of specificity, Boggs is simply unable to point to statements from
the troopers which were "perjured,"
Ineffectiveness is also asserted with respect to Thomas's failure to conduct
redirect of Boggs after cross-examination by the prosecution; as a result, it is contended
that testimony adverse to Boggs's defense was left unexplained, Cross-examination is the
primary method for testing the believability of a witness and the truth of his testimony,
Com, v, Rizzuto, 777 A2d 1069 (Pa, 2001) (citing Davis v, Alaska, 415 US, 308, 339
(1974)), Thomas felt that the prosecution had fulfilled this objective all too well. His
impression was that Boggs "did not do well" on cross-examination,5 Thomas recalled
4 See Transcript of Proceedings, PCRA Petition, at 61.
5 See Transcript of Proceedings, PCRA Petition, at 79,
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that Boggs "had become emotional and was actually sparring with the cross-examiner. ,,6
Consequently, he felt that to conduct redirect of Boggs would be counter productive,
given Boggs' state of mind, We are satisfied that the actions of counsel had a reasonable
basis,
Boggs also argues ineffectiveness of counsel on the ground that Thomas failed to
voir dire the jury - or seek cautionary instructions - after he became aware that members
of the jury had seen Boggs in handcuffs, Thomas's recollections on this matter were
uncertain but he expressed a belief that he more than likely told Boggs that the
occurrence was not of great import, as the jury was well aware that Boggs was a prisoner
at the time of the trial. 7 A "brief viewing of a defendant in handcuffs is not so inherently
prejudicial as to strip defendant of the presumption of innocence," Com v, Carson, 761
A2d 686, 702 (Pa, 1999) (citing Com v, Lark, 543 A2d 491, 501 (1988)), Thomas'
estimation of the gravity of a juror beholding Boggs in handcuffs was within reason"
Several of Boggs's ineffectiveness arguments are premised upon alleged errors in
Thomas's trial strategy, Boggs claims that Thomas should have pursued Trooper Wertz's
testimony regarding the circumstances under which the prison meetings with Boggs were
arranged; that Thomas should have raised the issue of notes made by Troopers Wertz and
Fenstermacher; that Thomas should have objected to a copy of the tape of the prison
meeting being played in court; and that an expert witness should have testified, on
Boggs's behalf, with respect to the characteristics of the tape,
6Jd,
7 ld. at 80,
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It is well established that trial counsel possesses wide discretion in matters of trial
strategy and the determination of defense tactics employed during litigation, Com, v,
Fowler, 670 A2d 153, 155 (Pa, Super, 1996), In his testimony at the PCRA hearing,
Thomas provided plausible reasons for not dealing with the above points in the manner
that Boggs feels he should have,8 Thomas was the architect of Boggs's defense strategy,
The objective of that strategy was to demonstrate that Boggs never personally
communicated a desire to have anybody killed or murdered, Thomas's actions were in
pursuit of this end and were strategically sound,
In a similar vein, Boggs claims that his counsel was ineffective in failing to
follow his instructions to raise, brief, and argue certain matters on appeal. 9 Again, so
long as the attorney's strategy is reasonable, deference is afforded the approach taken
and, as a result, Boggs's claim fails with respect to this issue as well.
With regard to the recording device employed by the police officers, Boggs
alleges ineffectiveness of counsel on two grounds, First, he states that an error was made
when no challenge was lodged to the finding of probable cause upon which the warrant
8 See Transcript of Proceedings, PCRA Petition, at 74-76, 79,
9 On appeal, Boggs was represented by Darrell Dethlefs, Esq, It is interesting to note that, by making this
argument, Boggs may be invalidating every one of the arguments he makes regarding ineffectiveness of
trial counsel. It is accepted, in this discussion, that because Dethlefs replaced Thomas after the appeal was
already formulated and submitted to the Superior Court, Boggs's failure to raise ineffectiveness of trial
counsel in his appeal as of right will not bar consideration of those claims at this point If it should be
accepted-as Boggs's counsel urges in this instance-that Dethlefs could have raised and argued issues in
addition to those formulated in the appeal, then ineffectiveness of trial counsel claims could not at this
point be considered, To preserve claims of ineffectiveness of counsel under the PCRA, the claims must be
raised at the earliest stage in the proceedings at which the allegedly ineffective counsel is no longer
representing the claimant Com. v, Kenney, 732 A2d 1161 (Pa, 1999),
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was issued, Next, he contends that the validity of the warrant should have been attacked
on the grounds that it was premised on "lies and false [sic] misleading statements,,,lO
Boggs is clearly confused with respect to the procedures used by the police, The
Commonwealth, in this case, proceeded in accordance with the Pennsylvania
Wiretapping and Electronic Surveillance Control Act, 18 Pa,C.S,A 5701 et seq, (1978),
Section 5704(2)(ii) provides that oral communications may be intercepted where one of
the parties to the communication has given prior consent to such interception but only
when the district attorney, or an assistant district attorney, designated in writing by the
district attorney, has reviewed the facts and is satisfied that the consent is voluntary and
has given prior approval for the interception, In this case, trial counsel did, in fact,
attempt to have the recording suppress under the theory that it was obtained in violation
of the Wiretap law, The grounds advanced by Boggs for the suppression of evidence
have no application to the scenario here presented, Instead, the only viable questions
surround whether or not procedures in the Wiretapping Act were followed, These are
precisely the issues which were raised by trial counsel.
In order to obtain post-conviction relief, Boggs must "plead and prove by a
preponderance of the evidence that his conviction or sentence arose from one or more of
the errors listed at 42 Pa, C.S, S 9543(a)(2) and that the issues he raises have not been
previously litigated" Com v, Morales, 701 A2d 516,520 (Pa, 1997) (emphasis added),
Where an issue has been previously litigated on direct appeal it may not constitute the
basis for post-conviction relief Com, v, Jermyn, 709 A2d 849, 856 (Pa, 1998), One of
10 Motion for Post Conviction Collateral Relief, at 3A(2),
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Boggs's claims revolves around the premise that his 6th Amendment right to counsel was
violated, This is a claim which the Superior Court has already considered and passed
judgment upon, Com v, Boggs, 695 A2d 839, 842, 843 (Pa, Super, 1997),
Another point, while perhaps not previously litigated in the literal sense, is,
however, not only without merit but entirely nonsensical. This is his allegation that
counsel was ineffective for failing to demonstrate that Boggs believed Trooper
Fenstermacher was an attorney, In the prior proceeding, it was obvious that Boggs was
unaware that he was speaking to a police officer when he made his incriminating
statements, In the words of the Superior Court, "[Boggs] believed that he was conversing
with an attorney who was sympathetic to his situation and who was willing to aid him
with his 'problem, ", Id" at 842,
Boggs also argues that the Commonwealth engaged in prosecutorial misconduct
by procuring the sequestration of one of his witnesses and by bringing it to the jury's
attention during closing argument. 11 This argument has no merit. The record reflects
that, during Boggs's testimony, the prosecutor asked to approach the bench; he then
requested that the witness be sequestered due to the fact that the defense had mentioned
that she might be called to the stand and that all defense witnesses were to be
11 The portion of the prosecution's closing argument which forms the basis for this objection and the one
below, reads as follows:
"You saw him when he was testifying, Every time I asked him a question he looked over
at his attorney, See how unnerved he got when I asked Mary Lang to step outside of the
room in the middle of his testimony? You witnessed that"
Record of Trial Proceedings, at B-100,
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sequestered, The defense counsel expressed no disagreement with this and the Court
agreed to the request. 12 The sequestration was proper,
The prosecutor's remarks concerning Boggs's reaction amounted to a conclusion
based upon an observation, The members of the jury were present for Boggs's testimony
and they were free to agree or disagree with the prosecutor's interpretation, Comments
during closing argument do not constitute reversible error unless the unavoidable effect
of such comments would be to prejudice the jury by causing them to feel such bias
against the defendant that they are unable to weight the evidence objectively and return a
true verdict. Com, v, Lam, 684 A2d 153, 167 (Pa, Super 1996) (citing Com, v, Strong,
563 A2d 479,483 (Pa, 1989) cert, denied), It cannot be said that, because of this
particular remark by the prosecutor, the jury was subsequently unable to weigh the
evidence objectively,
Boggs makes two allegations of ineffective assistance of counsel with regard to
Me Thomas's approach to Daniel Krushinski, the police informant at the prison, First,
Boggs alleges that his attorney failed to show that the case against him was created by
Krushinski, This allegation lacks arguable merit. Thomas's strategy was premised upon
the very idea that the case against Boggs was orchestrated by Krushinski, and that, as a
result, the police had been "duped," 13 At trial, the prosecution agreed to a stipulation,
proposed by Thomas, that it was Krushinski who had alerted the police of Boggs's
12 Record of Trial Proceedings, at B-6,
13 See Transcript of Proceedings, PCRA Petition, at 87,88,
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supposed desire to have two witnesses against him killed, 14 In his closing argument,
Thomas urged the jury to accept the proposition that Krushinski was "running the
ShOW,,,lS and that the police investigation, from the outset, "was tainted by what Danny
Krushinski had told them," 16
Next, Boggs alleges ineffectiveness for failure to properly investigate
Krushinski's background, Again, this argument lacks merit. Thomas, with the assistance
of a law student in his employ, did investigate Krushinski' s background, 17 In addition,
Thomas interviewed an attorney involved in another case in which Krushinski had served
as a police informant.18 Me Thomas also contacted and spoke with a Chester County
police officer who had utilized Krushinski as an undercover informant. 19 Finally, Me
Thomas conducted a ninety-minute interview with Krushinski,
In his next allegation, Boggs claims that new facts are now available that were not
previously discoverable, These have to do with Krushinski' s lack of credibility,
Specifically, Boggs names three prison inmates who were in a position to testify with
respect to Krushinski's mendacious nature, These witnesses would testify with respect to
Krushinski's claim that he once worked for the Central Intelligence Agency; that he
could provide or arrange for legal assistance; and that he had access to controlled
14 Record of Trial Proceedings, at A-145,
15 See Id, at B-93,
16 See Id, at B-94,
17 See Transcript of Proceedings, PCRA Petition, at 90,
18 See Id, at 69,
19 See Id, at 70,
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substances,2o One of the inmates, who was housed in a cell adjacent to Krushinski's,
testified that Krushinski had bragged about setting up other prisoners, one of whom was
Boggs?l Krushinski's lack of credibility is not, however, new information, Mr. Thomas
arrived at this very same conclusion after conducting his research,
Boggs also alleges ineffectiveness of counsel because his attorney did not object
to playing the tape of the prison conversation with Trooper Fenstermacher and to
providing the jury with what Boggs claims was an inaccurate transcript of the tape, In the
appeal of this case, the Superior Court found that the tape had been properly procured,
thus, Mr. Thomas can hardly have rendered ineffective assistance by not objecting to the
playing of it. Moreover, Mr. Thomas explained that he listened to the tape, examined the
transcript, and found no discrepancy between the two,22
The petition also argues that his counsel was ineffective in failing to emphasize
that he never expressly asked that the witnesses be killed, Boggs's recollection of
Thomas's actions at trial is flawed, Counsel forcefully argued that Boggs never said he
wanted the witnesses killed, Mr. Thomas, from the outset, maintained that it was
Krushinski who had tainted the investigation, leading the police to conclude that Boggs
wanted witnesses murdered, It is true, as the petitioner contends, that he never used the
words "kill," or "murder," or, for that matter, "get rid of," "eliminate," or "disappear."
20 See Id, at 96-100,
21 See Transcript of Proceedings, PCRA Petition, at 103,
22 See Transcript of Proceedings, PCRA Petition, at 75, 76,
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Of greater importance, however, was what Boggs did not say, A portion of his
conversation with cpt Fenstermacher is illustrative:
Corporal Craig Fenstermacher: Okay, And
you're sure the charges are gonna be
dropped just if these two people aren't
around, that they're missin?
Billy Ray Boggs: That's on- only thing
they have against me,
Fenstermacher: Okay, There's no reason
he that they can keep you in here?
Boggs: No, My max is May 15th, but
tomorrow I'm goin in front of the judge,
Fenstermacher: I understand that. We
talked about that last time, I just want to
make sure that that if these two girls are
gone, disappeared, not available, you you'll
definitely be outta here then,
Boggs: Yes,
Fenstermacher: Okay, Alright. We'll be
leavin , , ,
Boggs: Any questions about anything that
has to do with
Fenstermacher: Nope,
Boggs: I'm sorry I can't give you any, , ,
Fenstermacher: No, no, that that's
Boggs: '"
Fenstermacher: That's fine, What we're
gonna do from here is, uhh, my partner and
I are gonna go out to Pittsburgh tonight,
we'll rent a couple cars and we'll see if we
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can find the playground here in the next
couple days, If everythings like you say it
is, I'm sure it'll be taken care of by the end
of the week.
Boggs: Alright. That's cool. When will I
hear back?
Fenstermacher: Oh, you'll hear it, I'll call
you at the number. Do you want me call
your girlfriend or how do you how do you
want me to do this?
Boggs: You can call her. Alright? I'll
call, uhh, name a specific day and that's the
day I'll call. It'll be done by Friday, say,
Would you say that?
Fenstermacher: Okay, If everything goes
fine out in Pittsburgh, sure, But I can't
guarantee what we're gonna find out there,
that's why we're leaving tonight. Umm,
you want me to give your girlfriend a call
Friday? Let her know how we're making
out? If one's taken care of, or if two's
taken care of?
Boggs: (laughs) No, I don't want you
giving her, I don't want her to know
anything,
Fenstermacher: Well, we can just say uhh,
umm, I'm you know the private
investigator, or I'll have my partner",
work, call her and tell her that, uhh, you
know we've taken care of business or if the
message is we've, uhh, taken care of half of
business so far, you know what that means,
Boggs: Okay,
Fenstermacher: We won't come out and
say we killed the girls, if we killed one girl
or killed two girls, we won't, we won't say
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that. We'll make it, you know, discreet so
that she doesn't know what's goin on, '"
with her he can just you know say who he
is and, you know, I'm the guy you met with
in the parking lot the other night and, uhh,
just get a message to you that you know
we're makin progress and already taken
care of or whatever.
Boggs: Sounds good to me,
Fenstermacher: Anything else you need to
tell me?
Boggs: That's it. That and
Fenstermacher: You you just don't like
surpnses,
Boggs: No, , ,
Interview of Billy Ray Boggs, May 8, 1995, at 14-17 (Commonwealth's Exhibit #7),
The last claim asserted by Boggs is that he is innocent. The jury, based on
credible evidence found otherwise,
ORDER
AND NOW, this 21st day of November, 2001, the petition of Billy Ray Boggs for
post-conviction relief is DENIED,
BY THE COURT,
Kevin A Hess, 1.
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Jaime Keating, Esquire
Chief Deputy District Attorney
Charles Mackin, Esquire
Court-appointed for Defendant
:rlm
17
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, P A
vs,
95-0850 CRIMINAL
BILL Y RAY BOGGS
IN RE: PCRA PETITION
BEFORE HESS, 1.
ORDER
AND NOW, this 21st day of November, 2001, the petition of Billy Ray Boggs
for post-conviction relief is DENIED,
BY THE COURT,
Kevin A Hess, 1.
Jaime Keating, Esquire
Chief Deputy District Attorney
Charles Mackin, Esquire
Court-appointed for Defendant
:rlm