J

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSEPH F. PORTERFIELD,

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 898 WDA 2017

Appeal from the Judgment of Sentence May 30, 2017 in the Court of Common Pleas of Mercer County, Criminal Division at No(s): CP

- 43

- CR

- 0001760

- 2016

BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 30, 2018

Joseph F. Porterfield (“ Porterfield ”) appeals from the judgment of

sentence imposed following his conviction of two counts of driving under the

influence of alcohol (“DUI”)

. 1 We affirm.

At approximately 1:00 a.m. on J uly 2, 2016, Porterfield entered a DUI

checkpoint on the Shenango Valley Freeway in Sharon, Pennsylvania , and

his vehicle was stopped

. 2 Pennsylvania State Police Trooper Sherry Hogue

(“Trooper Hogue”) approached Porterfield’s vehicle

. Trooper Hogue

immed iately detected an odor of alcoholic beverages coming from inside of

the vehicle , and asked Porterfield to exit the vehicle

. Trooper Hogue smelled

alcohol on Porterfield’s breath and noticed that his eyes were glassy and

_________________ __________ ______ ____ _______

1 See 75 Pa.C.S .A. § 3802 (a)( 1 ) and (b)

.

2 Porterfield’s ten

- year

- old daughter was a passenger in the vehicle.J

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- 2

-

bloodshot. Porterfield admitted to Trooper Hogue that he had consumed a

six

- pack of beer, but alleged that he was not drunk because he was

“immune” to alcohol . Trooper Hogue asked Porterfield to perform field

sobriety tests. Howeve r, Porterfield replie d that he could not perform the

tests because of a herniated disk in his back. Trooper Hogue then

administered a portable breath test, which was positive for alcohol.

Trooper Hogue p laced Porterfield under arrest for suspicion of DUI

,

and transported him to Sharon Regional Hospital for a chemical test of his

blood alcohol content (“BAC”). 3 At the hospital, Trooper Hogue read

Porterfield the warnings contained on the Pennsylvania Department of

_________________ __________ ______ ____ _______

3 Trooper Hogue did not have a warrant to compel Porterfield to submit to

the blood test.J

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- 3

-

Transportation DL

- 26 form ( “DL

- 26 form” )

, 4 in accordance with the mandate

of 75 Pa.C.S.A. § 1547 (concerning blood or breath testing to determine

amount of alcohol/controlled substance, and the consequences for refusal to

submit to a test). After Trooper Hogue read Porterfield the DL

- 26 form

w arnings, both s he and Porterfield signed the form. Porterfield then

submitted to a blood test. A subsequent chemical analysis of Porterfield’s

blood sample revealed that he had a BAC of .13 percent (hereinafter

referred to as “the blood test result”)

.

_________________ __________ ______ ____ _______

4 Notably to the instant appeal, the DL

- 26 form that Trooper Hogue read to

Porterfield was the new version , which had been revised in response to the decision of the United States Supreme Court in Birchfield v. N orth

Dakota , 136 S. Ct. 2160 (2016)

. The Birchfield Court held that, because

the taking of a blood sample is a search within the meaning of the Fourth

Amendment to the United States Constitution, police officers may not compel the taking of a blood sample without a search warrant, absent an applicable exception. See id. at 2185. After concluding that “the search

incident to arrest doctrine does not justify the warrantless taking of a blood sample,” id.

, the Birchfield Court considered whether implied

- consent laws,

which require cooperation with blood

- alcohol testing as “a condition of the privilege of driving on s tate roads,” could provide an exception to the

warrant requirement consistent with the federal constitution. Id. at 2169,

2185

- 86. The Birchfield Court held that, although implied

- consent laws

that impose civil penalties and evidentiary consequences for refusing to

consent are constitutional, implied

- consent laws that impose criminal penalties for refusing to consent to a blood test are unconstitutional because

“motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense.” Id

. at 2185

- 86. I mportantly, i n the

instant case, the post

- Birchfield DL

- 26 form that Trooper Hogue read to

Porterfield did not contain any reference to enhanced criminal penalties for

refusal to submit to a blood test (though the form did state that such refusal

would result in the motorist’s operating privileges being suspended for at

least a year). See N.T. (Suppression H earing), 4/6/17, at 6 (wherein Trooper Hogue read into the record the contents of the DL

- 26 form at issue).J

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- 4

-

The Commonwealth charged Porterfield with two counts of DUI, and

one count each of careless driving 5 and recklessly endangering another

person (“REAP”)

. 6 Prior to trial, Porterfield filed a n Omnibus Pretrial Motion

(hereinafter “Motion to Suppress ”), seek ing, inter alia , to suppress the blood

test result . Porterfield argued that the blood test result was unlawfully

obtained without a warrant, and his consent to the blood draw was

unknowing, involuntary, a nd coerced.

After conducting an evidentiary heari ng, the trial court entered an

Order denying the Motion to Suppress

. Concomitantly with this Order, the

trial court issued Findings of Fact . Therein

, the court found that Birchfield

was inapplicable to the instant case, and the warrantless blood draw was

thus not illegal, since the new, post

- Birchfield DL

- 26 form that Trooper

Hogue read to Porterfield contained no mention of enhanced criminal

penalties for refusal to submit to a blood test.

The matter then proceeded to a non

- jury trial on May 12 , 2017

. When

the Commonwealth sought to admit the blood test result , Porterfield’s

counsel objected, asserting that the chain of custody concerning this

evidence was deficient. The trial court overruled the objection and admitted

the blood test result

. Prior to the close of trial, the trial court granted

Porterfield’s Motion for judgment of acquittal on the charges of careless

_________________ __________ ______ ____ _______

5 See 75 Pa.C.S.A. § 3714(a).

6 See 18 Pa.C.S.A. § 2705.J

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-

driving and REAP. The court then found Porterfield guilty of two counts of

DUI.

On May 30, 2017, the trial court sentenced Porterfield to serve not less

than 48 hours nor more than 6 months in the Mercer County Jail , plus a

$1,000 fine and court costs

. Porterfield timely filed a Notice of Appeal.

On June 19 , 2017 , the trial court issued an Order directing Porterfield

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal within 21 days. 7 Porterfield did not file his Concise Statement until

July 18, 2017, nine days late. The trial court thereafter issued a Rule

1925(a) Opinion

, addressing the merits of the issues raised by Porterfield

d espite the lateness of his Concise Statement

. 8

Porterfield now presents the following issues for our review:

1. [ W hether] the suppression court erred in allowing a

warrantless withdrawal of Porterfield’s blood [?]

_________________ __________ ______ ____ _______

7 The trial court’s docket indicates that Porterfield was given notice of the entry of the June 19 , 2017 Order.

8 T hough we could find that Porterfield waived his issues on appeal based on

the untimeliness of his Concise Statement

, see C ommonwealth v. Castillo

, 888 A.2d 775, 776 ( Pa. 2005), we decline to do so because the

trial court addressed the merits of Porterfield’s issues in its Opinion

. See

C ommonwealth v. Thompson

, 39 A.3d 335, 340 (Pa. Super. 2012) (declining to find waiver because the trial court had addressed the issues

raised in t he untimely concise statement); see also Commonwealth v.
Burton , 973 A.2d 428, 433 (Pa. Super. 2009) ( en banc ) (stating that “[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial court has addressed those issues[,] we need not remand and may address

the merits of the issues presented.”).J

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- 6

-

2. [Whether] the trial court erred in admitting the results of testing on Porterfield’s blood without a proper chain of custody[?]

Brief for Appellant at 5 (capitalization omitted).

In his first issue, Porterfield argues that the trial court erred in denyin g

his Motion to Suppress , where the blood test result was unlawfully obtained

under Birchfield

, supra , and his consent to the blood draw was invalid

.

See Brief for Appellant at 10

- 17.

[O]ur standard of review in addressing a challenge to a trial court’s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts

are correct. We are bound by the suppression court’ s factual findings s o long as they are supported by the record; our standard of review on questions of law is d e novo

. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth

and so much of the evidence for the defense as remains

uncontradicted. Our scope of review of suppression rulings includes only the suppression hearing record and excludes

evidence elicited at trial.

Commonwealth v. Yandamuri , 159 A.3d 503, 516 (Pa. 2017) (citation s

omitted).

The Fourth Amendment to the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution protect
citizens from unre asonable searches and seizures.

Commonwealth v. McAdoo , 2012 PA Super 118, 46 A.3d 781, 784 (Pa. Super. 2012). B lood tests constitute searches under

the Fourth Amendment [,] as they implicate privacy concerns.

Birchfield , 136 S.Ct. at 2173 [; s ] ee also Commonwealth v. Ellis , 415 Pa. Super. 220, 608 A.2d 1090, 1091 (Pa. Super. 1992) (providing that “t he administration of a blood test is a search within the meaning of the F ourth Amendment if it is performe d by an agent of the government” ).J

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- “ A search conducted without a warrant is deemed to be

unreasonable and therefore constitutionally impermissible,

unless an established exc eption applies.” Commonwealth v. Strickler , 563 Pa. 47, 56, 757 A.2d 884, 888 (2000) (citations omitted). Those exceptions include voluntary consent. Id. “The

central Fourth Amendme nt in quiries in consent cases entail assessment of the constitutional validity of the citizen/police encounter giving rise to the consent; and, ultimately , the

voluntariness of consent.” Id.

Commonwealth v. Smith , 2017 PA Super 416 , at *9 (Pa. Super. 201 7)

.

In Smith

, which is directly on point, this Court recently discussed

Birchfield , and the admissibility of warrantless blood test results obtained

after the motorist’s signing of a post

- Birchfield DL

- 26 form

, and consenting

to the blood test. In Smith

, as here

, the appellant was arrested by Trooper

Hogue in Mercer County for suspicion of DUI

, and taken to a hospital for a

blood test. Id. at *3. Trooper Hogue read the appellant the warnings on

the post

- Birchfield DL

- 26 form, which did not contain any information

regarding enhanced criminal penalties for refusal to submit to a blood test

.

Id. The appellant signed the DL

- 26 form and the blood test was performed,

which later revealed that the appellant’s BAC was well above the legal limit.

Id.

On appeal, the appellant in Smith raised a virtually identical claim to

Porterfield’s above

- mentioned claim

, challenging the suppression court’s

denial of her motion to suppress the warrantless blood testing resu lts , and

relying upon Birchfield

. Id. at * 8. This Court addressed the appellant’s

claim and summarized the applicable law as follows:J

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-

In Birchfield , the High Court reviewed a consolidated case in which one of the petitioners, Steve Michael Beylund, was

a rrested for DUI and informed that the refusal to submit to blood testing constituted a crime itself under North Dakota law. Thereafter, petitioner Beylund argued that his consent had been coerced by the officer’ s warning. Relevant to the instant case, the United States Supreme C ourt held that a state may not

“ insist upon an intrusive blood test, but also

... impose criminal penalties upon the refusal t o submit to such a test.” Birchfield

, 136 S.Ct. at 2185. Moreover, the High Court emphasized that

“ moto rists cannot be deemed to have consented to a blood test upon pain of committing a criminal offense.” Id. at 2186. As petitioner Beylund had consented to a blood test only after police had erroneously informed him that he could be criminally penalized if he refused to do so, the Birchfield Court r emanded for the trial court to “reevaluate Beyland’ s consent given the

pa rtial inaccuracy of the officer’ s advi sory.” Id.

Nevertheless, the B irchfield Court emphasized that its holding did not apply to the imposition of civil penalties a nd evidentiary consequences upon motorists suspected of DUI who refused blood testing upon their arrest:

It is well established that a search is reasonable when the subject consents, and that sometimes consent to a

search ne ed not be express but may be fairly inferred

from context. Our prior opinions have referred approvingly to the general concept of implied

- consent

laws that impose civil penalties and evidentiary

consequences on motorists who refuse to comply.

Petitioners do not question the constitutionality of those laws, and nothing we say here should be read to cast

doubt on them

.

Birchfield , 136 S.Ct. at 2185 (emphasis added) (citations omitted). [FN]

[FN] We observe that the Pennsylvania Commonwealth

Court held that Birchfield does not affect the imposition

of civil license suspension for refusal to submit to a blood

test

. Boseman v. Commonwealth, Dep’t of Transportation, Bureau of Driver Licensing , 157 A.3d 10, 21 (Pa. Cmwlth. 2017)[; see also

Commonwealth v. Bell , 167 A.3d 744, 750 (Pa. Super. 2017) (same).]J

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- Thereafter, this Court decided Commonwealth v. Evans

, 2016 PA Super 293, 153 A.3d 323 (Pa. Super. 2016), in which the appellant had similarly argued that his consent to blood testing after his arrest for DUI was coerced as he only consented after the police warned him that his refusal to submit to blood testing would result in harsher penalties upon conviction. Although the Evans [C] ou rt recognized that Pennsylvania’ s implied consent law did not make refu sal to submit to a blood test a crime, the panel emphasized that the law “ undoubtedly impose[s] criminal penalties on t he refusal to submit to a

test.” Evans , 153 A.3d at 331 (quoting Birchfield , 136 S. Ct.

at 2185

- 86). This C ourt pointed [] to the DUI p enalty provisions

set forth in 75 Pa.C.S.A. § 3804:

Se ction 3804(c) p rovides that an “ individual who

violates section 3802(a)(1)[, DUI, general impairmen t] and refused testing of blood” is punished more severely

than an individual who commits the stand

- al one DUI, general impairment offense under S ection 3802(a)(1)

— and to the same extent as an individual who

violates Section 3802(c), relating to DUI, highest rate of

alcohol

. 75 Pa.C.S.A. § 3804(c). As such Bir chfield

contro ls the case at bar.

Id.

Since the appellant in Evans had argued that he agreed to submit to blood testing only after being informed that harsher penalties would apply if he refused, t his Court held that the officer’s advisory to Evans was “partially inaccurate[,]”

as Birchfield prohibi ts states from imposing criminal penalties for the refusal to submit to blood testing. Evans , 153 A.3d at

331. As a result, t his Court vacated the appellant’ s sentence and the suppression order and remanded with instructions for

the trial court to reevaluate the voluntariness of appellant’ s consent in light of this inaccurate warning and the totality of the

circumstances.

The instant case is factually distinguishable from

Birchfield and E vans

. To reiterate, the decision in Birchfield

, which was controlli ng law at the time of [a]ppellant’ s a rrest, prohibited states from imposing criminal pe nalties upon an

individual’ s refusal to subm it to a warrantless blood test.

Birchfield , 136 S. Ct. at 2185. The trial court in this case [, asJ

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-

in Porterfield’s case,] found Birchfield was inapplicable since [a] ppellant was never advised that she would be subject to enhanced criminal sanctions upon refusal of blood testing. Our review of the record confirms this finding; both parties agree that Trooper Hogue onl y inf ormed [a]ppellant that her driver’ s license would be suspended if she refused blood testing.

A ppellant signed a DL

- 26 form acknowledging that she was advised of this particular consequence. This form does not contain any reference to enhanced crimin al penalties. See

Commonwealth’ s Exhibit 1, DL

- 26 form. Thereafter, [a] ppellant agreed to submit to blood testing, which revealed a blood alcohol

level of 0.274 [percent]

. We cannot conclude that the trial c ourt erred in denying [a]ppellant’ s suppression motion

....

Smith

, 2017 PA Super 416

, at **10

- 13 (footnote in original ). The sound

rationale of Smith is controlling in the instant case, and compels an identical

result

. See id.

We additionally note that Porterfield appears to argue that his consent

cannot be deemed knowing and voluntary where, at the time of his arrest,

the Pennsylvania DUI penalty provision allowing for enhanced penalties upon

refusal of blood testing had not ye t been amended by the General Assembly

to conform with B irchfield and its progeny. See Brief for Appellant at 16

-

17 (asserting, inter alia , that “Pennsylvania’s driving under the influence law

has been around long enough that this[, i.e.

, presumably, the pre

Birchfield enhanced criminal penalty for refusal to submit to a blood test

,

as previously contained in former 75 Pa.C.S.A. §§ 1547(b)(2)(ii) andJ

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-

3804(c) 9 ,] is common knowledge to the motoring public[,] not to mention

that we are all presumed to know the law.”) . However, our review of the

record discloses that at no time did Porterfield raise this claim before the

trial court. Accordingly, it is waived. See Pa.R.A.P. 302(a) (stating that a

claim cannot be raised for the first time on appeal); see a lso

Commonwealth v. Phillips , 141 A.3d 512, 522 (Pa. Super. 2016) (stating

that a new theory of relief cannot be raised for the first time on appeal)

.

Thus

, Porterfield’s first issue challenging the suppression court’s refusal to

suppress the blood test result fails.

In his second issue, Porterfield contends that the trial court erred by

overruling his objection to the admission of the blood test result , where the

chain of custody concerning th is evidence was lacking

. See Brief for

Appellant at 18

- 21. Porterfield advances scant substa ntive argument to

develop this claim, asserting as follows: “ In Porterfield’s trial, the

Commonwealth failed to introduce any proper evidence to establish the

ch ain of custody between the time the arresting trooper placed the blood

into evidence and the time the chemist tested the same .” Id. at 21.

The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of

_________________ __________ ______ ____ _______

9 On July 20, 2017, the General Assembly amended s ections 1547(b)(2)(ii)

and 3804(c ), so as to eliminate enhanced criminal penalties for refusing a

warrantless test of one’s blood (and the warning associated therewith)

, bring ing these statutes into compliance with Birchfield

. See Section 4 of

the Act of July 20, 2017, P.L. 333.J

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-

discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonab leness, or partiality, prejudice, bias, or ill

- will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Johnson , 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

We review a chall enge concerning a chain of custody under the

following standard :

While the Commonwealth bears the burden of demonstrating

some reasonable connection between the p rofe[] red e xhibits

and the true evidence, Commonwealth v. Pedano

, 266 Pa.Super. 461, 467, 405 A.2d 525, 528 (1979), it need not

establish the sanctity of its exhibits be yond a moral certainty. E.g., Commonwealth v. Miller

, 234 Pa.Super. 146, 155, 339 A.2d 573, 578 (1975), aff’ d

, 469 Pa. 24, 364

A.2d 886 (1976). The Commonwealth need not produce

every individual who came into contact with an item of evidence, nor must it eliminate every hypothetical possibility

of tampering. Commonwealth v. Rick

, 244 Pa.Super. 33, 38, 366 A.2d 302, 304 (1976). A complete chain of custody

is not required so long as the C ommonwealth’ s evidence,

direct and circumstantial, establishes a reasonable inference

that the identity and condition of the exhibits have remained

the same from the time they were first received until the time

of trial. Commonwealth v. Oates

, 269 Pa.Super. 157, 163,

409 A.2d 112, 115 (1979); Commonwealth v. Miller

, supra

. Any gaps in testimony regarding the chain of custody

go to the weight to be given the testimony, not to its admissibility. Commonwealth v. Bo lden

, 486 Pa. 383, 388

- 89, 406 A.2d 333, 335

- 36 (1979).

Commonwealth v. Cugaini , 452 A.2d 1064, 1065 (Pa

. Super. 1982).

In its Opinion, the trial court addressed and rejected Porterfield’s

challenge to the admissi bility of the blood test result , stating as follows:

Turning to the [] issue of whether the Commonwealth established the chain of custody of the drawn blood such thatJ

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the lab results were admissible, the [trial c] ourt finds that the

Commonwealth has met its burden. The facts reveal that there

wa s sufficient chain of custody evidence produced establishing that the blood drawn at the hospital was the blood tested at the

crime lab.

Theresa Susak [(“Susak”)] testified at the trial of this case.

She was [the] phlebotomist [at] Sharon Regional Hospit al who performed the blood draw. [] Susak testified as to how she uses

a kit and [,] after she withdrew the blood [,] she would hand it over to the police officer and would sign and initial all paperwork. (Trial transcript pp. 10

- 15).

Trooper [] Hogue

... testified [,] in pertinent part [,] that

after taking [Porterfield ] to the Sharon Regional Hospital [,] she was present when

... Susak took [Porterfield’s] blood. (T.T. p. 8). After the blood was drawn, Trooper Hogue testified that she

retained control of the blood until it was entered into evidence [,] and then the evidence was ultimately sent to the Erie Crime Lab. (T.T. p. 8). Trooper Hogue further testified that the evidence

taken from the hospital goes int o the evidence locker and would

either have been hand[

- ] delivered or picked up by UPS. (T.T. p. 9).

Neal Rerko [(“Rerko”)] testified that he is a forensic chemist employed by the Pennsylvania State Police at the Erie Regional Crime Laboratory. (T.T. p. 20). [] Rerko testified that the kit containing the blood draw was submitted to the laboratory on July 7, 2016, having arrived at 15:27 hours by Trooper Stuck[] y. Thus, the kit was hand[

- ] delivered to the laboratory [,] and then the laboratory chain of custody picked u p from there. (T.T. p. 26). Once the crime lab received the

evidence [,] it was entered into the laboratory information system and assigned a barcode and a laboratory number that is used to track the evidence as it moves through the laboratory. [] Rerko t estified that the evidence was received by the evidence technician, [and] placed into refrigerator vault one on July 7,

2016. The evidence technician then retrieved the evidence and gave it to [] Rerko [,] who destroyed the packaging and broke

out the tube s of blood themselves and conducted his analysis. (T.T. p. 27).

[Porterfield’s] allegation goes to the weight to be afforded

the evidence. It is sufficient that the evidence, direct and circumstantial, establish a reasonable inference that the identityJ

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-

and condition of the exhibit remain unimpaired until they are

surrendered to the court. ( Com [ monwealth ] v. Feliciano , 67 A.3d 19 (Pa. Super. 2013)). There is no rule requiring the prosecution produce as witnesses all persons who are in a position to come into contact with the article sought to be

introduced into evidence. Physical evidence may be properly admitted despite gaps in testimony regarding custody [.] ( Com [ monwealth ] v. Jenkins , 332 A.2d 490, 492 (Pa. Super. 1974)); Feliciano

, supra at 29. [Po rterfield’s] argument must

fail on this issue [.]

Trial Court Opinion, 7/25/17, at 3

- 5

. We agree with the trial court’s

determination and sound analysis, which is supported by the record, and

therefore affirm on this basis in rejecting Porterfield’s secon d issue. See id.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2018