[Cite as State v. Thompson, 2023-Ohio-3358.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112042

v. :

JOHN THOMPSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

RELEASED AND JOURNALIZED: September 21, 2023 

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-00-396442-ZA

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Daniel T. Van, Assistant Prosecuting 

Attorney, for appellee. 

Rufus Sims, for appellant. 

MARY EILEEN KILBANE, J.:

Defendant-appellant John Thompson (“Thompson”) appeals from 

the trial court’s denial of his motion for a new trial. For the reasons that follow, we 

reverse and remand.
Factual and Procedural History

In February 2001, a jury found Thompson guilty of three counts of 

rape in violation of R.C. 2907.02. He was sentenced to life imprisonment and 

classified as a sexual predator.

Thompson’s son, C.W., was seven years old at the time of Thompson’s 

2001 trial. C.W. testified at Thompson’s trial that Thompson engaged in sexual 

conduct with him on three separate occasions. C.W. testified that Thompson 

performed fellatio on his private parts and told C.W. not to tell his mother, M.W. 

After the third occasion, C.W. told M.W. about all three incidents. At the time, M.W.

was employed as a county social worker and was under investigation related to 

allegations that she was selling drugs out of her home and that C.W. was sexually 

acting out with another boy who lived in the neighborhood.

Thompson filed a direct appeal challenging his convictions and 

sentence and a petition for postconviction relief based on ineffective assistance of 

counsel. In Thompson’s direct appeal, this court affirmed his convictions and 

sentence. State v. Thompson, 8th Dist. Cuyahoga No. 79334, 2002-Ohio-5957 

(“direct appeal”). On June 20, 2002, the trial court denied Thompson’s petition for 

postconviction relief. Subsequently, this court affirmed the trial court’s denial of his 

first petition for postconviction relief. State v. Thompson, 8th Dist. Cuyahoga No. 

81573, 2002-Ohio-6845.

On April 20, 2020, Thompson filed a motion for leave instanter to file 

a delayed motion for a new trial. In this motion, he argued that on October 28, 2019, 
C.W. recanted his trial testimony from the 2001 jury trial. Thompson attached an 

affidavit to his motion in which C.W. averred that Thompson was innocent. 

Specifically, C.W. averred that beginning when he was two or three years old, he was 

sexually molested by a male cousin who was five or six years older than C.W. The 

abuse was ongoing for several years. When C.W. finally told his aunt, the cousin’s 

mother, about the abuse, his aunt got extremely upset. Subsequently, the cousin 

approached C.W. and told him to say that someone else had molested him. The 

affidavit states, “Being afraid of [my cousin] and the consequences of it all, and 

honestly, not wanting what I had going on with my cousin to end, I lied and said my 

father John Thompson had molested (raped), me.” At Thompson’s criminal trial, 

seven-year-old C.W. described three incidents in which Thompson came up to him, 

lowered C.W.’s pants, and sucked on C.W.’s penis. All three alleged incidents took 

place in different rooms at the house that Thompson shared with his mother and 

brother.

C.W. also avers that he told his close friends, a professor, his mother

M.W., his brother, and his sister that Thompson did not rape him. C.W. confided in

his graduate school professor because he considered this person to be a mentor and, 

at the time, the professor was also enrolled in law school. Eventually, C.W. spoke to 

Thompson’s original trial counsel, who told him that it was his fault for waiting so 

long. He also reached out to the Innocence Project, who told him that they could 

not help him. C.W. also contacted the Conviction Integrity Unit at the Cuyahoga 

County Prosecutor’s Office and spoke with investigators about the case.
On July 10, 2020, the state filed a brief in opposition to Thompson’s 

motion for leave to file a motion for a new trial.

On March 1, 2021, the trial court denied Thompson’s motion for leave 

to file a delayed motion for a new trial without a hearing. On March 15, 2021, 

Thompson filed a motion for the court to establish findings of fact and conclusions 

of law. The trial court ruled this motion moot. Thompson subsequently appealed 

the denial of his motion for leave to file a delayed motion for a new trial.

This court reversed and remanded the case, holding that “[b]ecause 

Thompson submitted evidence that on its face showed he was unavoidably 

prevented from discovering the evidence sooner, he was entitled to a hearing on his 

motion for leave.” State v. Thompson, 8th Dist. Cuyahoga No. 110391, 2021-Ohio4431, ¶ 14.

On remand, on January 7, 2022, Thompson filed a motion for a new 

trial. On February 4, 2022, the state filed a motion to strike Thompson’s motion for 

a new trial, arguing that the motion was not yet ripe because the trial court had yet 

to hold an evidentiary hearing on Thompson’s motion for leave to file a motion for 

a new trial.

On February 11, 2022, Thompson filed an amended motion for leave 

to file a delayed motion for a new trial. On April 15, 2022, the state filed an 

opposition to Thompson’s amended motion for leave. On April 27, 2022, Thompson 

filed a motion to dismiss his conviction for a violation; an affidavit from his former 

counsel was attached in support of the motion.
On April 26, 2022, the trial court ordered the Cuyahoga County 

Division of Children and Family Services (“CCDCFS” or “agency”) to provide the 

court with “any and all available CCDCFS records” requested by the state related to 

this case. On June 6 and June 10, 2022, agency prosecutors filed CCDCFS records 

under seal for the trial court to conduct an in camera review.

These records contain reports, interview summaries, and other 

documentation relating to numerous CCDCFS investigations into C.W.’s family in 

the summer of 2000. The first investigation was the result of a July 19, 2000 intake 

report in which a neighbor of M.W. contacted CCDCFS and alleged that M.W. was 

selling drugs out of her home and allowing C.W. to engage in inappropriate sexual 

behavior with another child in the neighborhood. The subsequent investigation is 

the result of two separate intake reports. Notably, in an intake report dated August 

8, 2000, Thompson contacted CCDCFS and reported a possible sexual assault of 

C.W. Thompson reported that M.W. had informed Thompson that C.W. had been 

sexually abused but refused to take him to the doctor and refused to call the police. 

In a subsequent intake report, dated several days later, M.W. reported that 

Thompson had sexually abused C.W. M.W.’s report and subsequent investigation 

led to the arrest in Thompson’s underlying criminal case.

On June 13, 2022, the trial court held a hearing on Thompson’s 

motion for leave to file a motion for a new trial. C.W. testified at this hearing that 

he was 29 years old and employed at a local school district as a teacher. C.W. 

identified Thompson as his father and stated that he had not seen his father since 
C.W. testified in court against him in 2000. C.W. testified that around that time, he 

was living with his mother M.W., his brother, his sister, and his grandmother in a 

house in East Cleveland. C.W. explained that he regularly saw his older male cousins 

and several other boys who lived up the street. C.W. testified that his cousin was 

molesting him, and when he told people — social workers or police — that his cousin 

molested him, his aunt “blew up at him,” and shortly thereafter, “my cousin had 

approached me and said to say it was someone else.” C.W. also testified that his 

cousin ultimately told C.W. to say that his father Thompson had molested him.

The following exchange occurred between C.W. and Thompson’s 

counsel:

C.W.: I really, you know, when they came and—when it came up, I 

originally didn’t even say what anything had happened. I don’t know 

who—which group of people that came and talked to me, but they just 

asked specific questions like what did he do. I filled in the blank. How 

many times—I’ll never forget this conversation. I think it was two white 

men. How many times did he do it? Where did he do it?

DEFENSE COUNSEL: Now, when you say who —

C.W.: Being my father.

DEFENSE COUNSEL: Is the “he” you’re referring to?

C.W.: My father. It was two lawyers that came, or two lawyers — two 

men came to talk to me, two white men.

DEFENSE COUNSEL: Two men.

C.W.: They asked me questions to see what had happened after I said 

it was my dad, because I didn’t give any details or nothing. I said—I 

remember questions. He said, What did he do? And I said that he 

sucked my penis. He said, How many times? I said three. He said, 

Where? I thought about my grandmother’s house. I said, the 
bathroom, because I remember the glass doors. I always thought about 

the glass doors when I was there.

DEFENSE COUNSEL: Okay.

C.W.: I said the basement. She had video games in the basement. And 

I think I said the bedroom. It was like, green, red lights in the room, 

just things, you know, stood out in my memory at the time. So three 

places that just came out of my mouth.

C.W. went on to say that he implicated his father, and when asked why he did so, he 

stated:

Because my cousin told me to do it. He said he was going to hurt me, 

hurt my mom. I was kind of foolish enough to believe it at the time.

C.W. testified that he remembered being nervous testifying at trial at 

the age of seven. C.W.’s thoughtful testimony reflects that he wrestled with his trial 

testimony for nearly twenty years. C.W. explained that over a period of several years, 

he had confided in several people close to him about his testimony and attempted to 

reach out to several individuals and legal and news organizations who could help 

him. Having reached several dead ends, in desperation and unsure of where to turn, 

C.W. posted a YouTube video of his recantation. Ultimately, C.W. testified that he 

came forward to recant his trial testimony in approximately 2017, when he 

graduated from graduate school. When asked why it took him that long to come 

forward, C.W. responded:

I was—different reasons throughout the years. Like nervous, scared, 

like scared of my dad being angry at me, scared of, you know, me 

possibly going to jail when I was a kid. Me, just all different sorts of 

things, you know, fear, you know, from like my family would be—just 

all different sorts of things. Anything you can imagine I been through.
C.W. also confirmed that he had not had any direct contact with 

Thompson since the criminal trial in 2001. He referred to only one occasion, shortly 

before the hearing on the motion for leave, in which C.W. and his uncle met with 

Thompson’s counsel in advance of the hearing. During the meeting, C.W.’s uncle 

got a phone call from Thompson, and C.W. and Thompson said hello to each other 

over the phone. Beyond that, the record reflects that C.W. and Thompson had 

absolutely no contact with one another whatsoever in the time between the 2000 

trial and the 2022 hearing on Thompson’s motion for leave to file a motion for a new 

trial.

When asked why he decided to come forward to recant his testimony, 

C.W. responded:

I mean, it was about time it had to come out. It was either tell the truth 

or leave this earth. It was at that point.

On June 17, 2022, Thompson filed a memorandum in support of his 

motion for leave to file a delayed motion for new trial.

On June 29, 2022, the trial court granted Thompson’s motion for 

leave to file a motion for a new trial. On July 5, 2022, Thompson filed a motion for 

a new trial. On August 28, 2022, the state filed a brief in opposition to Thompson’s 

motion for a new trial. On August 30, 2022, Thompson filed a reply brief in support 

of his motion for a new trial.

On August 30, 2022, the court held a hearing on Thompson’s motion 

for a new trial. At the beginning of this hearing, the following exchange took place:
DEFENSE COUNSEL: Your Honor, we have also had, as you know, a 

full hearing on a motion for leave instanter to grant a motion for new 

trial, which I think this Court did grant.

THE COURT: That’s where the young man testified.

DEFENSE COUNSEL: And [C.W.] was also subject to interrogation by 

the State’s two investigators, which you recall there was some 

controversy about me being present or not being present and that, and 

I was not present during that interrogation.

So [C.W.] has been vetted thoroughly, Your Honor. He has been crossexamined by the State of Ohio in a hearing before this Court. He has 

been interrogated by the State’s investigators previously, Your Honor.

He has — I think what is important for the Court to know is that nobody 

prompted [C.W.] to do this affidavit and to come forward with this 

information.

I didn’t even know — I never met [C.W.] until this case evolved, so it is 

not like somebody said to [C.W.], [C.W.], why don’t you do this? You 

better do this. You should do this and help your father out.

The idea for this whole process came from [C.W.] himself, because it is 

in the affidavit of materiality, Judge. He said, listen, I was seven years 

old when I testified. He’s...twenty-nine now. So seven years old, Judge, 

and thirty. So he came of age where he knew that he was compelled 

and forced and interrogated and intimidated to lie under oath on his 

own father.

Also the testimony was, Your Honor, and verified in the transcripts, 

that these alleged individuals who did this intimidation, coercion and 

threats also threatened to harm his mother as well, Your Honor.

So [C.W.] has lived with this heavy burden for a long time; and during 

the course of events, Your Honor, and this came out in his testimony 

before the Court, and it is in the transcripts as well, he went to a number 

of options to try to seek help.

He went to a professor at his college. He went to, Your Honor, my 

heroes, the Innocence Project, but even they could not help him. He 

went to the TV stations. He did a video. He got on the Internet.
He talked to relatives, friends. He did everything he could to come up 

with some way to get the truth out as to what really happened at this 

trial when he was seven years old.

Finally he was able to meet up with Miss Bickerstaff and the truth goes 

on from there. I got involved and became involved representing his dad 

in this matter. So, Judge, I guess the point I want to make is two things:

Looking at the credibility of [C.W.], I think it is clear that he is a credible 

person. He’s credible, because the idea of coming forward came from 

him and he said — again, I don’t want to repeat myself, but he couldn’t 

live with himself knowing that he lied, putting his father in prison.

Ultimately, defense counsel argued that C.W.’s testimony was material, credible, 

and would change the outcome of the trial.1

In response, the state argued that C.W.’s summary of the timeline of 

events in his affidavit does not align with the evidence presented at Thompson’s 

trial.

On September 14, 2022, the court denied Thompson’s motion for a 

new trial and stated, in relevant part:

In relying on all the evidence, including some of the original trial 

transcripts, the court cannot find that it is reasonably well satisfied that 

the trial testimony initially given by the witness was false. The jury, as 

the trier of fact, deserved the benefit of the doubt in weighing the 

credibility of each testifying witness at trial, which included both direct 

and cross-examination. Therefore, the motion for new trial is denied.

The trial court also denied Thompson’s motion to dismiss his 

conviction for a Brady violation.

1 While the record reflects that C.W. was present at this hearing, he did not testify 

or address the court other than to clarify his age.
On September 27, 2022, Thompson filed a motion for reconsideration 

of the trial court’s denial of his motion for a new trial. On October 14, 2022, 

Thompson filed a notice of appeal from the trial court’s denial of his motion for a 

new trial. On October 28, 2022, the trial court denied Thompson’s motion for 

reconsideration.

Thompson presents three assignments of error for our review:

I. The trial court erred and abused its authority by denying Appellant’s 

motion for a new trial.

II. The trial court erred and abused its discretion by denying without a 

hearing Appellant’s motion to dismiss the conviction regarding a Brady 

violation [even] with no opposition from the state.

III. The trial court erred and abused its discretion when it denied and 

rejected C.W.’s recanted testimony which was converted to an affidavit 

of materiality.

Law and Analysis

I. Motion for a New Trial

In his first assignment of error, Thompson argues that the court erred 

and abused its discretion when it denied his motion for a new trial. In his third 

assignment of error, he argues that the trial court erred and abused its discretion 

when it rejected C.W.’s recanted testimony that was presented in an affidavit 

attached to his motion for a new trial. Because both Thompson’s first and third 

assignments of error deal with the substance of his motion for a new trial, we will 

address them together.
Crim.R. 33(A)(6) provides that “[a] new trial may be granted on 

motion of the defendant for any of the following causes affecting materially the 

defendant’s substantial rights,” such as

[w]hen new evidence material to the defense is discovered which the 

defendant could not with reasonable diligence have discovered and 

produced at the trial. When a motion for a new trial is made upon the 

ground of newly discovered evidence, the defendant must produce at 

the hearing on the motion, in support thereof, the affidavits of the 

witnesses by whom such evidence is expected to be given, and if time is 

required by the defendant to procure such affidavits, the court may 

postpone the hearing of the motion for such length of time as is 

reasonable under all the circumstances of the case. The prosecuting 

attorney may produce affidavits or other evidence to impeach the 

affidavits of such witnesses.

Crim.R. 33(A)(6).

A Crim.R. 33(A)(6) motion for new trial on the ground of newly 

discovered evidence may be granted only if that evidence

‘‘(1) discloses a strong probability that it will change the result if a new 

trial is granted, (2) has been discovered since the trial, (3) is such as 

could not in the exercise of due diligence have been discovered before 

the trial, (4) is material to the issues, (5) is not merely cumulative to 

former evidence, and (6) does not merely impeach or contradict the 

former evidence.’’

State v. Gilbert, 8th Dist. Cuyahoga No. 106358, 2018-Ohio-3789, ¶ 24, quoting 

State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus.

The decision to grant or deny a motion for a new trial lies within the 

sound discretion of the trial court and will not be disturbed on appeal absent an 

abuse of that discretion. Id. at ¶ 25, citing State v. Schiebel, 55 Ohio St.3d 71, 76, 

564 N.E.2d 54 (1990). The term abuse of discretion connotes more than an error of 

law or judgment; it implies that the court’s attitude is unreasonable, arbitrary, or 
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 

(1983); Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d 463. 

“Generally, newly discovered evidence that purportedly recants 

testimony given at trial is ‘looked upon with the utmost caution.’” State v. Nunez, 

8th Dist. Cuyahoga No. 104917, 2017-Ohio-5581, ¶ 35, quoting State v. Nash, 8th 

Dist. Cuyahoga No. 87635, 2006-Ohio-5925, ¶ 10. An affidavit recanting witness 

testimony is “‘viewed with extreme suspicion because the witness, by making 

contradictory statements, either lied at trial, or in the current testimony, or both 

times.’” Id., quoting State v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, 

¶ 29. Therefore, “‘there must be some compelling reason to accept a recantation 

over testimony given at trial.’” Id., quoting State v. Fortson, 8th Dist. Cuyahoga No. 

82545, 2004-Ohio-5387, ¶ 13. 

When evaluating a motion for a new trial based upon a witness’s 

recanted testimony, the trial court must evaluate the credibility of the recanting 

witness. Nunez at ¶ 36, citing Toledo v. Easterling, 26 Ohio App.3d 59, 60, 498 

N.E.2d 198 (6th Dist.1985). If the court determines that the recantation is 

believable, it must then determine if the recanted testimony would have materially 

affected the outcome of the trial. Id., citing State v. Brown, 186 Ohio App.3d 309, 

2010-Ohio-405, 927 N.E.2d 1133, ¶ 47 (7th Dist.).

Here, the trial court concluded that it could not find that C.W.’s initial 

trial testimony was false, and further, that the jury “deserved the benefit of the doubt 

in weighing the credibility of each testifying witness at trial,” including C.W. 
Notably, the trial court did not make a determination as to the credibility of C.W.’s 

recantation. Instead, the trial court stated that it could not find that C.W.’s trial 

testimony, given at the tender age of seven, was false. 

The state of Ohio argues that C.W.’s recantation is not credible 

because of alleged discrepancies in his timeline of events. Specifically, the state 

refers to records from CCDCFS that would contradict C.W.’s recantation. The state 

alleges that these records would show that CCDCFS “began looking at C.W. because 

of allegations of another child being touched inappropriately.” Further, the state 

argues that there is no documented encounter in which C.W. would have made 

allegations against his cousin.

Having reviewed both the CCDCFS records and the 2000 trial 

testimony, we find the state’s arguments unpersuasive. As an initial matter, the 

agency records reflect at least one instance in which C.W. identified his cousin as the 

perpetrator of his sexual abuse. 

Moreover, to the extent that the state points to discrepancies in C.W.’s 

recantation, we note that our review requires courts to weight the credibility of the 

recanting witness and determine if the recantation is credible, “thereby impliedly 

finding the original testimony was not credible.” State v. Meek, 10th Dist. Franklin 

No. 16AP-549, 2017-Ohio-9258, ¶ 21, quoting State v. Woodward, 10th Dist.

Franklin No. 08AP-1015, 2009-Ohio-4213, ¶ 22. Comparing C.W.’s recantation to 

his 2001 trial testimony, we find that the recantation is extremely credible. Any 

expectation that C.W.’s recantation would be entirely in lockstep with his decades-
old trial testimony both contradicts the inherent nature of a recantation and imposes 

an unreasonable and arbitrary expectation on the witness. Further, the state’s 

assertion that there is nothing in the record to corroborate C.W.’s “timeline of 

events” in his recantation and corresponding 2022 testimony ignores the details of 

the CCDCFS investigations and C.W.’s own trial testimony. While the state would 

have us put aside the identity of the person “or perhaps persons” who sexually 

abused C.W., we note that with the exception of the critical fact that Thompson 

abused C.W., much of C.W.’s recantation is actually corroborated by the record in 

this case. Additionally, we note that with respect to the timeline in this case, 

Thompson’s original indictment alleged that the crimes occurred over one 24-hour 

period. State v. Thompson, 8th Dist. Cuyahoga No. 79334, 2002-Ohio-5957. At 

trial, however, the state’s case actually reflected three alleged incidents that occurred 

at some unknown point throughout the summer of 2000. If the state of Ohio was 

unable to provide a consistent timeline of events in the immediate aftermath of the 

incidents, as is entirely reasonable in child sexual abuse cases, it is unreasonable and 

arbitrary to expect a 29-year-old man to provide a consistent timeline, decades later, 

of events he is recanting.

Additionally, with respect to the state’s argument that records show 

that C.W. touched another child inappropriately, it is unclear how these allegations

— that a seven-year-old child was sexually “acting out” — tend to make C.W.’s 

recantation less credible. Finally, we find that any “discrepancies” between C.W.’s 

recantation and his trial testimony are the natural consequence of the imperfect 
nature of human memory. Expecting a witness to recall precise details of numerous 

interviews and aspects of an investigation that took place decades earlier in order to 

determine that the witness is credible is unreasonable, generally, and therefore 

amounts to an abuse of discretion in this case. It is particularly unreasonable when 

the details took place when the witness was seven years old and therefore unable to 

comprehend the significance of those details, and when the context of those details 

was — regardless of any alleged wrongdoing — undoubtedly traumatic for that 

witness. Our review of the record in this case reveals that numerous investigations 

took place that summer, with multiple parties making accusations against multiple 

individuals — neighbors, relatives, and friends alike. The timeline of events that 

precipitated this case is complex, and the allegations throughout the record are far 

from straightforward. 

Additionally, we note that this case is unique in that unlike many 

cases in which a recanting witness was in contact with, or received pressure from, 

family members and friends of the defendant or the defendant himself, C.W. made 

the decision to recant independently. This is highlighted by the fact that C.W. went 

to several trusted individuals and organizations before ultimately getting in contact 

with his father’s attorney. Further, while the recantation came after a significant 

length of time, this is not necessarily unusual or suspicious given the circumstances. 

C.W.’s thoughtful testimony reflected that his recantation was not based on a change 

of heart that happened overnight; it was instead the result of significant and 

prolonged introspection, because C.W. wrestled with his trial testimony for nearly 
20 years. C.W. came forward to recant his childhood testimony after coming of age, 

completing his education, and attempting to live with the burden of his childhood 

testimony. Not only does the record reflect that C.W. was not pressured to recant 

his testimony, it reflects the opposite; C.W. testified that as a child, he received 

pressure from multiple family members, including his claimed assailant and his 

aunt, to testify against his father.

Even viewing C.W.’s recantation with extreme suspicion, we find this 

to be the exceptional case in which the recantation of the victim-witness warrants 

reversal because it was unreasonable of the trial court to conclude that the 

recantation was not credible. C.W. provided a complete and unambiguous 

recantation of his trial testimony. While the trial court is correct that the jury was 

in the best position to judge the credibility of the witnesses at Thompson’s trial, 

including C.W., this fact does not relieve the trial court of its obligation to weigh the 

credibility of C.W.’s recantation. We find it unreasonable for the trial court to have 

concluded that the testimony of a seven-year-old child, facing threats from older 

family members, was more credible than the testimony of a 29-year-old teacher.

For these reasons, we sustain Thompson’s first and third assignments 

of error and reverse and remand the case for a new trial.

Because we have sustained Thompson’s first and third assignments

of error and reversed and remanded the case for a new trial, we need not address 

Thompson’s second assignment of error.

Judgment reversed and case remanded for new trial.
It is ordered that appellant recover from appellee 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 to carry this judgment into execution. 

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

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

ANITA LASTER MAYS, A.J., and

SEAN C. GALLAGHER, J., CONCUR