[Cite as In re B.A.T., 2023-Ohio-3366.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE B.A.T. :

: No. 112405

A Minor Child :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: September 21, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case No. DL-22108810

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel T. Van and Chadwick P. Cleveland, 

Assistant Prosecuting Attorneys, for appellant. 

Cullen Sweeney, Cuyahoga County Public Defender, and 

Britta Barthol, Assistant Public Defender, for appellee. 

EILEEN T. GALLAGHER, J.:

Plaintiff-appellant, the state of Ohio, appeals an order of the Cuyahoga 

County Common Pleas Court, Juvenile Division, denying its motions for mandatory 

and discretionary transfers of defendant-appellee, B.A.T., to the jurisdiction of the 

Cuyahoga County Court of Common Pleas, General Division. The state claims the 

following error:
The trial court erred in determining there was not probable cause to 

believe that appellee committed the acts alleged in the complaint.

We find merit to the appeal and reverse the trial court’s judgment. 

I. Facts and Procedural History

In September 2022, the state filed an 11-count complaint against 

B.A.T., charging him with one count of aggravated robbery, three counts of robbery, 

and one count each of tampering with evidence, grand theft, improper handling of 

firearms in a motor vehicle, theft, identity fraud, telecommunications fraud, and 

misuse of a credit card. The aggravated robbery, robbery, grand theft, theft, and 

improper-handling-of-firearms-in-a-motor-vehicle charges included one- and 

three-year firearm specifications. 

Pursuant to R.C. 2152.12 and Juv.R. 30(A), the state filed a notice of 

mandatory bindover as to the aggravated-robbery charge and requested a 

discretionary bindover of the remaining charges. Accordingly, the juvenile court 

held a probable-cause hearing to determine whether there was probable cause to 

believe that B.A.T. committed the acts alleged in the complaint. Tyvon Ross (“Ross”) 

testified at the hearing that he was carjacked on August 1, 2022, at approximately 

1:45 a.m. He explained that he was sitting in his 2013 black Jeep Cherokee on Bridge 

Avenue in Cleveland when someone holding a gun opened the door and told him to 

“get out.” (Tr. 15.) Ross determined, based on the carjacker’s voice, that he was “a 

kid.” (Tr. 16.) 
After the person got into his car, Ross attempted to throw him out, but 

the Jeep sped off, and Ross fell to the ground. (Tr. 16.) Shortly thereafter, a gray car 

pulled up to Ross and Ross asked the driver for help. The driver of the gray car 

indicated he would help but instead drove down the street and stopped to talk to the 

driver of Ross’s car. (Tr. 16.) 

Ross chased the cars down the street until they disappeared. As he was 

running, he encountered a police officer and told the officer what happened. 

(Tr. 19.) He then called his girlfriend, who picked him up, and together they drove 

around the area looking for the stolen Jeep. Ross knew that the Jeep needed gas so 

they toured the area looking for gas stations without success. He then thought the 

thieves might go to the area of East 55th Street in Cleveland because there are gas 

stations open 24 hours a day, every day of the week. (Tr. 19.) When they arrived at 

the Marathon gas station on East 55th Street, Ross observed his car parked at pump 

number four. (Tr. 21, 24.) He called the police and followed the car after it left the 

gas station. A few minutes later, two males exited the Jeep and ran away through a 

baseball field. (Tr. 21-23.) Police met Ross at the field and towed his car; however,

he was unable to give police a detailed description of the suspect who stole his car. 

He explained:

I just know the dude that was driving the car, he had a black hoodie on. 

His friend, I want to say he had like a white or gray hoodie on, the fat 

kid he was with. 

I noticed when they was pulling out the drive — I mean pulling out the 

gas station, he had long braids or long dreads, whatever it was, but that 

was it. 
(Tr. 26.) Ross further stated that his wallet was left in the car and that someone used 

his bank card to make a DoorDash purchase. (Tr. 24.) 

On cross-examination, Ross confirmed that the driver was 

approximately 5’8” or 5’9” in height and was wearing a black hoodie. He also stated 

that the driver had dreads in “a little ponytail” and that his gun was “a black gun 

with a beige or green top.” (Tr. 28-29.) Ross later spoke with a detective over the 

phone regarding the incident. According to Ross, the detective told him he would 

call him at a later date to view photographs of suspects, but he never called and a 

lineup of suspects was never presented to Ross for identification. (Tr. 33-34.) When 

presented at the hearing with a photograph of a single, male suspect wearing a black 

hoodie and jeans, Ross was unable to identify him. (Tr. 40.)

Detective Christy Cappelli of the Parma Police Department, testified 

that she was working as a patrol officer in Parma, Ohio on August 4, 2022, when she 

was involved in car chase of a stolen vehicle. (Tr. 43.) She pursued the vehicle down 

a dead-end street and observed two occupants exit the car and flee from the scene 

on foot. (Tr. 44.) The vehicle was left running and drove into a ravine. When 

Cappelli searched the area, she discovered a tan Sig Sauer handgun that was 

admitted into evidence as state’s exhibit No. 4. (Tr. 43-44, 97.) According to 

Cappelli, the gun was not loaded and two individuals were arrested, but she could 

not provide their names. (Tr. 44.) The state alleged that the gun involved in this 

Parma case was the same gun used in the aggravated robbery of Ross.
Detective Aaron Luther of the Cleveland Police Department, who 

investigated this case, testified that he went to the area of Bridge Avenue and Fulton 

Road to look for any items that may have been dropped by the victim or the suspects. 

(Tr. 59-60.) As part of his investigation, he obtained surveillance video footage from 

the Marathon gas station located at the corner of East 55th Street and Cedar Avenue 

in Cleveland. Detective Luther testified that he obtained this surveillance video 

because Ross’s debit card was used at the gas station. According t0 Detective Luther, 

the surveillance video showed Ross’s vehicle entering the gas station, two males 

exiting the vehicle and completing the transaction before the vehicle left the gas 

station. The surveillance video was not played for the court and was not entered into 

evidence. 

Detective Luther and his partner, Detective Robert Norman, 

questioned B.A.T. in his mother’s presence in the parking lot of the Cleveland Police 

Department’s Fourth District Headquarters. The interview was recorded on 

Detective Luther’s body camera, and a portion of the interview was introduced at 

the hearing as state’s exhibit No. 12. In the portion of the video played for the court, 

B.A.T. confesses to having committed the armed robbery and theft of Ross and his 

Jeep. At the court’s request, the parties subsequently filed briefs regarding the 

admissibility of state’s exhibit No. 12, and the juvenile court ultimately determined 

that it violated the rule of completeness and excluded it. 

Detective Luther testified that he also spoke with Eli Carrington 

(“Carrington”), an adult who was involved in the August 1, 2022 incident. After 
speaking with Carrington, arrest warrants were issued for brothers Natavius and 

Kanyuan Morman, whose names were associated with the DoorDash account used 

to purchase food with Ross’s debit card. According to Detective Luther, Natavius 

and Kanyuan also resembled the males depicted in the surveillance video footage. 

(Tr. 72.) 

Detective Luther testified on cross-examination that although Ross’s 

vehicle was towed and processed for fingerprints, DNA, and trace evidence, he was 

not aware of any significant evidence being recovered from the vehicle. (Tr. 73-74.) 

He also stated that he never met with Ross in person and that he never intended to 

show him a lineup of suspects. (Tr. 75.) 

Detective Luther acknowledged that state’s exhibit No. 12 does not 

contain the full interview he conducted with B.A.T. He admitted that earlier in the 

video, in a portion that was not played for the court, B.A.T. denied that he committed 

the robbery and claimed the Morman brothers were incriminating him. The 

Morman brothers were adults at the time of the incident, and B.A.T. was a juvenile. 

(Tr. 79-80.) B.A.T.’s mother was emotional and crying during the portion of the 

video that was not played for the court. Detective Luther also acknowledged that 

one of the Morman brothers had dreads down to his shoulders. (Tr. 87.) Finally, 

Detective Luther conceded that his partner, Detective Norman, stated during the 

interview of B.A.T. that B.A.T. was 5’2” tall. (Tr. 89.) 

After hearing the evidence and post-hearing briefs, the juvenile court 

concluded that there was insufficient evidence to establish probable cause that 
B.A.T. committed the acts alleged in the complaint. In its judgment entry, the court 

explained, in relevant part:

The Court finds that counsel timely filed their briefs and the Court 

reviewed and considered the arguments set forth in each brief. The 

Court finds that the objection by child through counsel is well taken. 

There is no dispute that the child was interviewed by two detectives for 

approximately one hour. Detective Luther appeared and testified to a 

portion of the interview that he conducted; however, defense counsel 

asserts that the child made other statements, including denial of 

involvement in the act(s) alleged, and the detective [sic] or portion of 

recording was not identified by Detective Luther, or another witness. 

The Court further finds that the testimony of the alleged victim 

described the one suspect who displayed the firearm as 5’8” or 5’9” with 

dread-locked hair and black hoody, and who was later observed bailing 

from the alleged victim’s car; that description is different from the 

second suspect he witnessed, whom the alleged victim described as a 

“fat kid” with a gray hoody. The evidence from the interview appears 

to indicate that the child herein was observed as approximately 5’2” 

and short hair. The Court further finds that the alleged weapon was not 

found on the child’s person but near the location where the alleged 

victim’s car was abandoned after pursuit, the 2 suspects had bailed, ran 

through an athletic field and were not apprehended, with the purported 

weapon located next to a fence. The Court after due consideration, the 

court finds that Exhibit 12 was not complete to allow child’s counsel to 

cross examine the witness as to the child’s interview, such that his 

objection is sustained.

Upon conclusion of all the evidence presented relating to the matter 

herein and the arguments of counsel, the Court finds that the child was 

17 years of age at the time of the conduct charged and that there is not 

probable cause to believe that the child committed the acts alleged in 

the complaint. 

The state now appeals the juvenile court’s judgment pursuant to R.C. 2945.67, as 

interpreted by the Ohio Supreme Court in In re A.J.S., 120 Ohio St.3d 185, 2008-

Ohio-5307, 897 N.E.2d 629. 
II. Law and Analysis

In its sole assignment of error, the state argues the trial court erred in 

finding that there was no probable cause to believe that B.A.T. committed the acts 

alleged in the complaint. 

As a general rule, juvenile courts have exclusive jurisdiction over 

children alleged to be delinquent for committing acts that would constitute a crime 

if committed by an adult. In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 

N.E.2d 584, ¶ 11, citing R.C. 2151.23(A). However, R.C. 2151.10 and 2151.12, in 

conjunction with Juv.R. 30, create a narrow exception to the general rule and 

provide for the mandatory or discretionary transfer of cases involving allegedlydelinquent children to the adult criminal court under certain statutorily-prescribed 

situations. R.C. 2152.10(A) sets forth which juvenile cases are subject to mandatory 

bindover and provides, in relevant part:

(A) A child who is alleged to be a delinquent child is eligible for 

mandatory transfer and shall be transferred as provided in section 

2152.12 of the Revised Code in any of the following circumstances:

* * * 

(2) The child is charged with a category two offense, other than a 

violation of section 2905.01 of the Revised Code, the child was sixteen 

years of age or older at the time of the commission of the act charged, 

and either or both of the following apply:

(a) The child previously was adjudicated a delinquent child for 

committing an act that is a category one or a category two offense and 

was committed to the legal custody of the department of youth services

on the basis of that adjudication.

(b) The child is alleged to have had a firearm on or about the child’s 

person or under the child’s control while committing the act charged 
and to have displayed the firearm, brandished the firearm, indicated 

possession of the firearm, or used the firearm to facilitate the 

commission of the act charged.

Aggravated robbery is a category-two offense. R.C. 2152.02(BB)(1). 

B.A.T. was 17 years old at the time the offense was committed, and the complaint 

alleges that he displayed a firearm during the commission of the offense. Indeed, 

the charges included one- and three-year firearm specifications. Therefore, a 

mandatory-bindover proceeding was required. R.C. 2152.10(A)(2)(b). State v. 

Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 13. And if the child 

is eligible for mandatory bindover, the trial court must transfer the case to the adult 

criminal court if “there is probable cause to believe that the child committed the act 

charged that is a category two offense.” R.C. 2152.12(A)(1)(b)(ii); In re J.R., 8th Dist. 

Cuyahoga No. 110241, 2021-Ohio-2272, ¶ 28.

To establish probable cause in a bindover proceeding, the state must 

present credible evidence supporting each element of the alleged offense. State v. 

Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). “[P]robable cause exists when 

the facts and circumstances are sufficient to provide a reasonable belief that the 

accused has committed a crime.” State v. Martin, 170 Ohio St.3d 181, 2022-Ohio4175, 209 N.E.3d 688, ¶ 17. However, “probable cause requires ‘more than bare 

suspicion.’” Id. at ¶ 18, quoting Brinegar v. United States, 338 U.S. 160, 175, 69 

S.Ct. 1302, 93 L.Ed. 1879 (1949). “The circumstances must demonstrate a ‘fair 

probability’ that a crime has been committed.” Id. at ¶ 18, quoting Illinois v. Gates, 

462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Thus, probable cause 
requires “credible evidence that ‘raises more than a mere suspicion of guilt’” but 

does not require evidence of guilt beyond a reasonable doubt. In re D.M., 140 Ohio 

St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 10, quoting Iacona at 93. 

[T]he juvenile court’s role in a mandatory-bindover proceeding is that 

of a gatekeeper because it is “charged with evaluating whether 

sufficient credible evidence exists to warrant going forward with a 

prosecution on a charge that the legislature has determined triggers a 

mandatory transfer of jurisdiction to adult court.” 

In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 46, quoting 

In re A.J.S., 173 Ohio App.3d 171, 2007-Ohio-3216, 877 N.E.2d 997, ¶ 22 (10th Dist.).

Our review of the juvenile court’s probable-cause determination 

involves questions of both law and fact. “[W]e defer to the trial court’s 

determinations regarding witness credibility, but we review de novo the legal 

conclusion whether the state presented sufficient evidence to demonstrate probable 

cause to believe that the juvenile committed the acts charged.” Id. at ¶ 51. 

We do not apply a manifest-weight-of-the-evidence standard of 

review. In Martin, the Ohio Supreme Court explained that it is not possible to 

conduct a manifest-weight review of the evidence presented during the probablecause portion of a juvenile-bindover hearing because the state is not required to 

marshal all of its evidence at the probable-cause phase of the proceedings Id. at 

¶ 30. The state is only required to present “sufficient credible evidence” to establish 

probable cause. Id., citing In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 

N.E.2d 629, at ¶ 65. Because neither party is required to present the entirety of its 

evidence at the probable-cause hearing, we cannot fairly determine whether “the 
greater amount” of credible evidence favors one side or the other. Id., citing State 

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). As previously stated, 

the juvenile court’s role in the bindover hearing is that of a gatekeeper as opposed to 

the ultimate trier of fact. Id. at ¶ 31.

As previously stated, B.A.T. was subject to mandatory-bindover 

proceedings because he was charged with committing the category-two offense of 

aggravated robbery in violation of R.C. 2911.01(A)(1). R.C. 2911.01(A)(1) provides, 

in relevant part:

No person, in attempting or committing a theft offense, as defined in 

section 2913.01 of the Revised Code, or in fleeing immediately after the 

attempt or offense, shall * * * [h]ave a deadly weapon on or about the 

offender’s person or under the offender’s control and either display the 

weapon, brandish it, indicate that the offender possesses it, or use it[.]

It is undisputed that Ross was robbed at gunpoint and that the 

perpetrator stole his car and wallet. The perpetrator’s identity was the primary issue 

at the probable-cause hearing, and the juvenile court determined that probable 

cause did not exist to justify a belief that B.A.T. was the person who committed the 

acts alleged in the complaint. Indeed, Ross described the suspect as being 5’8” or 

5’9” and other evidence suggested that B.A.T. was 5’2”. Ross described the gun used 

in the crimes as “black with a beige or green top,” and the gun later found at another 

crime scene in Parma where B.A.T. was allegedly present was tan with a small 

amount of black on the top of the gun. There was also no evidence that B.A.T. 

himself possessed the gun found at the scene in Parma, and Ross could not identify 

B.A.T. as the person who robbed him. There were no fingerprints or DNA recovered 
from Ross’s Jeep linking B.A.T. to the crimes, and the Morman brothers resembled 

the individuals depicted in the Marathon gas station surveillance video. Detective 

Luther admitted that one of the Morman brothers had long dread-locked hair, and 

Ross testified that the person driving his Jeep at the Marathon station had long 

dread locks. B.A.T., as depicted in state’s exhibit No. 12, has short hair. 

However, in video footage from Detective Luther’s body camera, 

B.A.T. admitted that he committed the armed robbery of Ross and his vehicle. He 

also identified himself in surveillance footage fromthe Marathon gas station on East 

55th Street, where Ross stated he later recovered his car on the night of the robbery. 

Thus, state’s exhibit No. 12 contains the most compelling evidence identifying B.A.T. 

as the person who committed the acts alleged in the complaint. 

The juvenile court excluded state’s exhibit No. 12 pursuant to the “rule 

of completeness” set forth in Evid.R. 106, because it did not include the entirety of 

Detective Luther’s hour-long interview of B.A.T.; it only included a 12-minute 

portion wherein B.A.T. confessed to the crimes. The defense asserted, in posthearing briefing, that B.A.T. repeatedly denied his involvement in the crimes alleged 

in the complaint in redacted portions of the body-camera video and that the 

redacted portions of the video should have been provided in order to properly assess 

the credibility of B.A.T.’s confession. 

A probable-cause hearing is a preliminary, non-adjudicatory 

proceeding wherein the court’s function is not to determine guilt, but rather whether 

there is probable cause to believe the juvenile committed the alleged acts. In re J.R., 
8th Dist. Cuyahoga No. 110241, 2021-Ohio-2272, at ¶ 37; State v. Burns, 8th Dist. 

Cuyahoga No. 108468, 2020-Ohio-3966, ¶ 74; State v. Starling, 2d Dist. Clark No. 

2018-CA-34, 2019-Ohio-1478, ¶ 26. Because a probable-cause hearing is nonadjudicatory, the evidence presented at the hearing does not need to meet the same 

standards as those for admissibility at trial. In re J.R. at ¶ 37; Burns at ¶ 74. Indeed, 

the Ohio Rules of Evidence do not apply to probable-cause hearings. See Burns at 

¶ 77 (“defense counsel’s motion to suppress was not properly before the juvenile 

court at the time of the probable cause hearing”); In re J.R. at ¶ 37 (“Confrontation 

Clause standards for admissibility of evidence and the Ohio Rules of Evidence do 

not apply to probable cause hearings.”), citing State v. Powell, 4th Dist. Gallia No. 

20CA3, 2021-Ohio-200, ¶ 23, citing Burns at ¶ 74; Starling at ¶ 26-28; In re B.W., 

2017-Ohio-9220, 103 N.E.3d 266, ¶ 48 (7th Dist.); State v. Grays, 1st Dist. Hamilton 

No. C-790914, 1981 Ohio App. LEXIS 12488, 3-4 (Jan. 14, 1981) (“it cannot seriously 

be argued that testimony inadmissible at trial under the rules of evidence cannot be 

considered in a preliminary proceeding such as [a probable cause hearing in juvenile 

court]”). Therefore, the juvenile court erred in excluding state’s exhibit No. 12 and 

we now consider it in conjunction with the other evidence. See In re J.R.

(considering excluded hearsay testimony in reversing juvenile court’s probablecause determination).

In state’s exhibit No. 12, which was played in open court, B.A.T. admits 

that he robbed Ross of his Jeep and drove a short distance before he pulled over, got 

into the passenger seat, and allowed a friend to drive it because B.A.T. did not have 
much experience driving cars. This testimony is consistent with Ross’s testimony 

that he observed the gray vehicle stop next to his Jeep after it was stolen and before 

it disappeared down the road. B.A.T. admitted he committed the robbery but 

maintained the gun he used to perpetrate the crimes was a fake gun and that he 

threw it away after the robbery. Moreover, when Detective Luther showed B.A.T. 

still photographs taken from the surveillance video at the Marathon gas station on 

East 55th Street, he identified himself in the pictures. 

Ross testified that in addition to his Jeep, the suspect also took his 

wallet and used his bank card to purchase something from the Marathon gas station 

where he observed his Jeep, 45 minutes after the robbery. (Tr. 24-25.) He 

discovered the charge when his girlfriend received a notification from an online 

banking application. Moreover, Detective Luther testified that B.A.T. confessed to 

being the person who stole Ross’s Jeep at gunpoint, albeit with an allegedly fake gun. 

Thus, despite some conflicting evidence regarding the suspect’s appearance, there 

was a “fair probability” that B.A.T. committed the acts alleged in the complaint, 

including the category-two offense of aggravated robbery. Therefore, the juvenile 

court erred in denying the state’s request for mandatory bindover and the sole 

assignment of error is sustained.

When an appellate court reverses a juvenile court’s finding of no 

probable cause and determines there is probable cause to believe that the juvenile 

committed the acts alleged in the complaint, the proper remedy is to reverse and 

remand with instructions to enter a mandatory transfer order. In re J.R., 8th Dist. 
Cuyahoga No. 110241, 2021-Ohio-2272, at ¶ 44, citing In re B.W., 2017-Ohio-9220, 

103 N.E.3d 266, at ¶ 52-53, citing In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 

897 N.E.2d 629, at ¶ 65. We, therefore, reverse the juvenile court’s order and 

remand the case to the juvenile court with instructions to enter an order of 

mandatory transfer. 

Ohio’s bindover scheme permits other nonqualifying, or 

“discretionary-bindover” offenses to be transferred to the adult criminal court

without an amenability hearing if there is probable cause to believe (1) that the 

juvenile committed a mandatory-bindover offense, and (2) that the mandatorybindover offense and the discretionary-bindover offenses “arose from a common 

nucleus of operative facts.” State v. Cockrell, 2016-Ohio-5797, 70 N.E.3d 1168, ¶ 17 

(1st Dist.). The discretionary offenses, namely grand theft of a motor vehicle, 

improper handling of a firearm in a motor vehicle, theft, identity fraud, misuse of 

credit cards, and telecommunications fraud arose out of the same conduct and were 

committed as part of a common course of conduct. 

Moreover, based on the evidence in the record, we find probable cause 

to believe that B.A.T. committed these discretionary offenses. Ross testified that his 

wallet was in his Jeep when it was stolen and that whoever stole his Jeep used his 

debit card. Detective Luther testified that Ross’s debit card was used both at the 

Marathon gas station and to purchase food via DoorDash. B.A.T. identified himself 

in still photographs taken from the surveillance cameras at the Marathon gas 
station, thus placing himself at the scene of the crimes committed there. (See state’s 

exhibit No. 12.) 

In addition, Detective Luther testified that he obtained the name from 

DoorDash of the establishment that sold the food purchased with Ross’s debit card. 

A witness from the establishment indicated that B.A.T. was the person who placed 

the order. Therefore, because there is a fair probability that B.A.T. committed the 

discretionary offenses, these offenses should be bound over to the adult court with 

the mandatory-bindover offense.

Judgment reversed. Case remanded with instructions to enter an 

order of transferring the mandatory and discretionary offenses to the Cuyahoga 

County Court of Common Pleas, General Division.

It is ordered that appellant recover from appellee the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court, juvenile division, to carry this judgment into execution. Case 

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, P.J., and

MICHELLE J. SHEEHAN, J., CONCUR