J-S23029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    RANDY DIAZ                                  :
                                                :
                       Appellant                :    No. 3168 EDA 2017

                Appeal from the PCRA Order September 7, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0011777-2013


BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                                    FILED JULY 17, 2018

        Appellant Randy Diaz appeals from the order dismissing his first timely

petition filed pursuant to the Post Conviction Relief Act1 (PCRA). Appellant

claims that the PCRA court erred in denying his claims regarding the

ineffective   assistance     of   counsel,     the   imposition   of   an   illegal   and

unconstitutional life sentence without parole, and the ineffective assistance of

PCRA counsel. We affirm.

        The underlying facts of this matter were summarized by this Court in

Appellant’s direct appeal:

        On the evening of December 15, 2011, [Appellant], Christopher
        Martinez and Alex Torres were together in a schoolyard parking
        lot with Amanda Cooper and Marcus Jones. Torres and [Appellant]
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.
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       were discussing that they had a problem with Juan Cruz because
       he owed Torres money for dealing drugs. Torres, who weighed
       over 400 pounds, asked [Appellant] to murder Cruz for him
       because Torres was too big and could not move fast enough to
       murder Cruz himself. [Appellant] agreed and Torres provided him
       with a gun.

       Torres and some friends, including Jones, drove ahead to look out
       for the police, while Martinez, who was driving [Appellant’s] black
       BMW with [Appellant] in the passenger’s seat, followed behind
       them. When they reached Coral Street, near Frankford Avenue,
       [Appellant] told Martinez to stop but to keep the car running.
       [Appellant] took the gun, exited the vehicle and walked up the
       block. Martinez heard four gunshots and a few seconds later
       [Appellant] ran back to the car, jumped in, and yelled for Martinez
       to drive. Martinez and [Appellant] drove to Martinez’s house,
       where [Appellant] left Martinez.

       Cooper testified that prior to the shooting she heard Torres tell
       [Appellant] “you better shoot him before he shoots you,” and saw
       Martinez and [Appellant] drive around the block in [Appellant’s]
       car. Cooper went into her house and came out five or ten minutes
       later, observing that [Appellant’s] car was parked with the engine
       running at the intersection of Coral and Rush Streets. Cooper then
       saw [Appellant] walk out of sight and heard about four to five
       gunshots from the area nearby. Cooper then saw [Appellant] run
       down the street holding his pocket and get into the passenger seat
       of his BMW. She watched Martinez drive away and went toward
       the area where the gunshots were fired. She saw Cruz, who was
       injured.

       That same evening, Jones heard [Appellant] say that Cruz owed
       him money and that if he did not pay [Appellant], he was going to
       kill Cruz. Jones drove away with Torres, who later received a
       phone call informing him that Cruz had been shot.[2]

       On December 15, 2011, at about 6:45 p.m., Police Officer Curt
       McKee received a radio call, and was dispatched to 2036 East
       Auburn Street, where he found Cruz lying on the ground suffering
       from multiple gunshot wounds. Officer McKee placed Cruz into his
       vehicle and transported him to a nearby hospital.

____________________________________________


2The record reveals that Appellant’s birthday was July 25, 1993. Therefore,
he was over 18 years of age at the time of the shooting.

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        At the scene of the shooting, Detective Gina Chestang recovered
        five nine-millimeter cartridge casings and two projectile fragments
        from the 2800 Block of North Coral Street. According to Officer
        Raymond Andrejczak, an expert in ballistics, all five of the
        cartridge casings recovered from the scene were fired from the
        same unrecovered firearm. Both projectiles recovered from Cruz’s
        body were nine millimeters.

        On December 18, 2011, at about 10:40 p.m., Police Officer Jill
        Kerstetter came into contact with [Appellant], who was exiting his
        black BMW. [Appellant] identified himself as Randy Marshal to
        Office[r] Kerstetter. Office[r] Kerstetter recovered a Daily News
        article dated December 16, 2011, regarding the shooting of Cruz,
        in [Appellant’s] pocket, and also recovered thirty-three packets of
        heroin and cocaine.

        On January 12, 2012, at 12:29 a.m., Cruz died of his injuries.
        According to the Medical Examiner, Cruz’s cause of death was
        multiple gunshot wounds suffered on December 15, 2011.

Commonwealth v. Diaz, 3204 EDA 2014, 2015 WL 6111505, at *1–*2 (Pa.

Super. filed Aug. 26, 2015) (unpublished mem.) (citation and footnotes

omitted).

        Appellant was charged with first-degree murder, conspiracy, carrying a

firearm without a license, carrying a firearm in Philadelphia, and possession

of an instrument of crime (PIC).3 Appellant filed a pretrial motion seeking, in

part, to suppress evidence recovered before and after his arrest, which took

place when Appellant was observed exiting his black BMW.            The record,

however, does not contain an order disposing of Appellant’s suppression

motion.




____________________________________________


3   18 Pa.C.S. §§ 2502(a), 903, 6106(a)(1), 6108, and 907, respectively.


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      Jury selection began on October 6, 2014. The following day, Appellant’s

trial counsel (trial counsel) raised two motions in limine. N.T., 10/7/14, at 6-

8.   First, trial counsel asserted that the evidence that Appellant was in

possession of drugs at the time of his arrest should be excluded if the

description of the vehicle used in the shooting did not match the description

of the BMW Appellant was exiting on the day of his arrest. Id. at 11. The

Commonwealth responded that the information regarding the recovery of the

drugs was revealed during discovery and relevant to support its theory that

Appellant killed Victim over a drug debt.      Id. at 9.   Trial counsel did not

challenge the Commonwealth’s assertion that the evidence had been revealed

in discovery before trial.    See id. at 9, 11.   The trial court ruled that the

evidence was relevant and admissible. Id. at 11-12.

      Second, trial counsel challenged the admissibility of evidence that

Appellant previously committed a robbery during which he possessed a

firearm. Trial counsel argued that the Commonwealth only provided notice of

this evidence the week before trial, the Commonwealth failed to provide

formal notice of its intent to admit the evidence, and Appellant was prejudiced

by the unfair surprise.      The trial court found that, because the failure to

provide notice was not prejudicial, the evidence was admissible to show

Appellant had access to firearms. See N.T., 10/8/14, at 7-15.

      As noted above, during trial, Officer Kerstetter testified that she

recovered thirty-three bags of suspected narcotics from Appellant during the

traffic stop.   N.T., 10/7/14, at 125.    The trial court immediately issued a

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cautionary instruction informing the jury that Appellant was not on trial for

possessing the narcotics and the evidence was being admitted “only to show

the relevance to the shooting.”                Id. at 125-26.   Additionally, the

Commonwealth elicited testimony from a witness that before the shooting of

Cruz, she saw Appellant in her home carrying a firearm.4

       On October 9, 2014, the jury found Appellant guilty of all charges. That

same day, Appellant was sentenced to life imprisonment for first-degree

murder and concurrent terms of imprisonment of six to twelve years for

conspiracy, one to two years for carrying a firearm without a license, and six

to twelve months each for carrying a firearm in Philadelphia and PIC.

       Appellant filed post-sentence motions raising a weight of the evidence

claim and asserting that the trial court erred in admitting evidence related to

Appellant’s involvement in a home invasion prior to the date of the homicide

for which he was on trial. Post-Sentence Mot., 10/14/14, at 1 (unpaginated).

On October 15, 2014, the trial court denied Appellant’s post-sentence

motions.

       Trial counsel filed a timely direct appeal on Appellant’s behalf. Appellant

raised the following issues: (1) sufficiency of the evidence; (2) weight of the

evidence; (3) the trial court erred in “permitting extraneous [Pennsylvania

Rule of Evidence] 404(b) evidence [to be admitted,] which was not particularly

relevant and, if relevant, was far outweighed by unfair prejudice[, including
____________________________________________


4The witness did not testify to the fact that a robbery had taken place, which
was the reason Appellant possessed the gun in her home.

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that] the defense was prejudiced by a lack of fair notice as to the issue[;]”and

(4) the prosecutor’s allegedly inflammatory closing argument.       See Diaz,

2015 WL 6111505, at *5 (citing Appellant’s Pa.R.A.P. 1925(b) statement in

his direct appeal).

       This Court affirmed Appellant’s judgment of sentence on August 26,

2015. On December 22, 2015, the Pennsylvania Supreme Court denied

Appellant’s petition for allowance of appeal. Commonwealth v. Diaz, 131

A.3d 103 (Pa. 2015) (table).

       Of relevance to the present appeal, this Court suggested in resolving

Appellant’s direct appeal that he waived his challenges to the admissibility of

other bad acts evidence by filing a vague Pa.R.A.P. 1925(b) statement. 5

Nevertheless, we concluded that Appellant’s challenge to the evidence that he

was in possession of controlled substances at the time of his arrest was

meritless because that evidence was relevant to establish Appellant’s motive

to kill Victim over a drug debt and there was no indication that he suffered

prejudice. Id. at *5.

       Further, this Court found Appellant’s weight claim waived in Appellant’s

direct appeal for failure to develop a proper argument. Id. at *4. Although
____________________________________________


5 This Court, in Appellant’s direct appeal, noted that the trial court was
required to guess whether Appellant was challenging the evidence that
Appellant was in possession of a gun before the murder or the evidence of his
possession of drugs. Although the trial court addressed the evidence of
Appellant’s possession of the gun in its Rule 1925(a) opinion, Appellant
challenged his possession of the drugs in his direct appeal brief. As noted
below, Appellant’s present claim of ineffective assistance of counsel focuses
on the evidence that he possessed drugs.

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the trial court addressed Appellant’s weight claim in its Pa.R.A.P. 1925(a)

opinion, see Trial Ct. Op., 1/12/15, at 14, this Court did not address the merits

of Appellant’s weight claim in the alternative.

       On September 27, 2016, Appellant filed the timely pro se PCRA petition

that gives rise to this appeal. Appellant raised numerous issues including (1)

trial counsel’s failure to develop a proper weight of the evidence claim in the

direct appeal; (2) trial counsel’s failure to file a clear Rule 1925(b) statement

to preserve his challenge to the admission of prior bad acts; (3) trial counsel’s

failure to respond to “late discovery”; (4) trial counsel’s refusal of an

“instruction offer”; and (5) trial counsel’s failure to challenge the legality and

constitutionality of his sentence of life imprisonment without parole.

Appellant’s Pro Se PCRA Pet., 9/27/16, at 3.

       The PCRA court appointed counsel to represent Appellant. On June 3,

2017, PCRA counsel filed a Turner/Finley6 “no-merit” letter and a motion to

withdraw from representation.

       Appellant apparently mailed to the PCRA court a pro se petition for writ

of habeas corpus, which the PCRA court received on June 13, 2017, but which

was not filed.7 See PCRA Ct. Op., 9/7/17, at 2. Appointed PCRA counsel

____________________________________________


6 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

7See Pa.R.Crim.P. 576(A)(4)-(5) (prescribing rules regarding the filing of pro
se motions). Appellant’s pro se habeas petition was not made part of the
certified record.


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subsequently filed an additional no-merit letter addressing the petition.

Counsel concluded that there was no merit to Appellant’s claim that his

confinement was unlawful because the Pennsylvania Constitution did not

permit the passage of any new laws after it was adopted. See Letter Re:

Commonwealth vs. Randy Diaz, 8/2/17, at 2.

       On August 3, 2017, the PCRA court issued a notice of intent to dismiss

pursuant to Pa.R.Crim.P. 907. Apparently, on August 21, 2017, Appellant sent

a letter to the PCRA court requesting an extension of time to respond to the

Rule 907 notice, which was not filed, but which the PCRA court purported to

deny.8 See PCRA Ct. Op., 9/7/17, at 2. On September 7, 2017, the PCRA

court dismissed Appellant’s PCRA petition and granted PCRA counsel’s motion

to withdraw.

       Appellant filed a timely pro se notice of appeal. The PCRA court did not

order Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

       Appellant raises the following questions for our review:

       1. Whether trial counsel was ineffective for failing to respond to
          late discovery; declining t[he c]ourt’s [jury] instruction offer;
          and failing to challenge [the] illegal mandatory life sentence?

       2. Whether [a]ppellate counsel was ineffective for failing to
          develop [a] weight of [the] evidence claim and [] not

____________________________________________


8 See supra note 7. Neither Appellant’s request for an extension of time nor
an order denying such a request were docketed or made part of the certified
record. Appellant does not challenge the denial of his motion for extension of
time.

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         challeng[ing the] denial of [a p]ost [t]rial motion raising [the]
         weight of [the] evidence claim?

      3. Whether Appellant is entitled to relief in the form of a new
         sentencing hearing as a result of after-discovered mitigating
         [b]rain [s]cience and [s]ocial [s]cience evidence?

      4. Whether PCRA counsel was ineffective for filing a no-merit
         letter when the pro se claims possessed merit?

Appellant’s Brief at 3.

      1. Ineffective Assistance of Counsel

      Appellant, in his first two issues, contends that the PCRA court erred in

dismissing several of his ineffective assistance of counsel claims.          The

following principles govern our review:

      We must examine whether the record supports the PCRA court’s
      determination, and whether the PCRA court’s determination is free
      of legal error. The PCRA court’s findings will not be disturbed
      unless there is no support for the findings in the certified record.

                                     ***

      It is well-established that counsel is presumed to have provided
      effective representation unless the PCRA petitioner pleads and
      proves all of the following: (1) the underlying legal claim is of
      arguable merit; (2) counsel’s action or inaction lacked any
      objectively reasonable basis designed to effectuate his client’s
      interest; and (3) prejudice, to the effect that there was a
      reasonable probability of a different outcome if not for counsel’s
      error.

Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations

omitted). We may affirm the PCRA court’s ruling on any basis apparent in the

record. Commonwealth v. Wiley, 966 A.2d 1153, 1157 (Pa. Super. 2009).




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            A. “Late discovery” and a cautionary instruction

         Appellant argues that trial counsel erred by not responding to “late

discovery.”     Appellant’s Brief at 11.        By his reference to “late discovery,”

Appellant appears to refer to the Commonwealth’s notice of intent to introduce

prior bad acts evidence that Appellant was in possession of drugs at the time

of his arrest. Id. Specifically, Appellant asserts that the Commonwealth did

not make a “timely disclosure” of the narcotics evidence or its intent to

introduce it.        Id.     Appellant suggests that had trial counsel properly

“responded,” the trial court would have excluded the evidence or “cautioned

the jury to ignore the evidence admitted without notice.” Id.

         At the outset, we reiterate that although this Court previously suggested

that Appellant’s Rule 1925(b) statement in his direct appeal was vague, we

concluded that Appellant’s claim that evidence that he was in possession of

drugs at the time of his arrest was relevant and not unduly prejudicial. See

Diaz, 2015 WL 6111505, at *5. Our prior conclusion in Appellant’s direct

appeal is the law of the case. See Commonwealth v. Reed, 971 A.2d 1216,

1220 (Pa. 2009).

         Moreover,     the    record   belies     Appellant’s   argument   that   the

Commonwealth failed to timely disclose the evidence that Appellant was in

possession of drugs at the time of his arrest.           Appellant filed a motion to

suppress that evidence recovered from stop approximately one year prior to

trial.   See Mot. to Suppress, 10/11/13.            Additionally, Appellant’s counsel

litigated a motion in limine seeking to exclude the evidence before trial began,

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which the trial court denied. See N.T., 10/6/14, at 8-12. Lastly, Appellant

provides no support for his further suggestion that he was entitled to a

cautionary instruction for the jury to ignore the evidence based on the alleged

“late discovery.”9 Thus, Appellant’s assertions with respect to the admission

of the evidence of the drugs recovered at the time of his arrest lack arguable

merit. See Franklin, 990 A.2d at 797.

          B. Failure to object to the lack of a “minimum term”

       Appellant next claims that trial counsel was ineffective for not arguing

that Appellant received an illegal sentence of life imprisonment without parole.

Without a supporting citation, Appellant baldly argues that “such a sentence

without a minimum which would set [h]is parole eligibility date is illegal and

must be modified to include the setting of a minimum sentence.” Appellant’s

Brief at 12. Appellant also attempts to distinguish Commonwealth v. Yount,

615 A.2d 1316 (Pa. Super. 1992), from the instant matter by arguing that it

“involved a life sentence [but] is distinguishable because it involved a

conviction of first[-]degree murder.” Appellant’s Brief at 12. Appellant’s claim

is frivolous.

       First, Yount is not distinguishable on the basis upon which Appellant

relies, since Appellant, like Yount, was convicted of first-degree murder.

Yount, 615 A.2d 1317. Secondly, Yount specifies that when a trial court

____________________________________________


9 Moreover, the trial court gave a cautionary instruction to the jury that
Appellant was not on trial regarding any narcotics violations. See N.T.
10/7/14, at 125-26.

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does not sentence an individual convicted of first-degree murder to death, the

court must sentence the person to life imprisonment. Id. at 1321. Indeed,

the sentencing court “may not sentence a first[-]degree murderer to a lesser

term” than life imprisonment. Id. Accordingly, we agree with the PCRA court

that Appellant’s claim is without merit, and trial counsel was not ineffective

for failing to object to the lack of a “minimum term” in Appellant’s sentence.

See Franklin, 990 A.2d at 797.

         C. Ineffectiveness of trial counsel in the direct appeal.

      In his next issue, Appellant asserts that trial counsel was ineffective for

failing to develop a weight of the evidence claim, arguing that “counsel only

relied on case law that fail[ed] to distinguish his argument from his sufficiency

of the evidence claim.”     Appellant’s Brief at 14.    Additionally, Appellant

contends that appellate counsel “failed to challenge whether the trial court

abused its discretion in denying his post[-]trial motion raising a weight of the

evidence claim.” Id. Appellant argues that he was prejudiced because this

Court did not consider the issue on direct appeal based upon appellate

counsel’s errors. Id. at 15. Because these arguments are closely related, we

address them together.

      The following principles govern a review of challenges to the weight of

the evidence:

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence, concedes that there is sufficient
      evidence to sustain the verdict. Thus, the trial court is under no
      obligation to view the evidence in the light most favorable to the
      verdict winner. An allegation that the verdict is against the weight

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      of the evidence is addressed to the discretion of the trial court. A
      new trial should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. A trial judge must do more than
      reassess the credibility of the witnesses and allege that he would
      not have assented to the verdict if he were a juror. Trial judges,
      in reviewing a claim that the verdict is against the weight of the
      evidence do not sit as the thirteenth juror. Rather, the role of the
      trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,

quotation marks and footnote omitted).        Additionally, “[t]he trial court will

award a new trial only when the jury’s verdict is so contrary to the evidence

as to shock one’s sense of justice.” Commonwealth v. Diggs, 949 A.2d 873,

879 (Pa. 2008). Our review is limited to determining whether the trial court

abused its discretion. Id.

      As the trial court noted regarding the weight of the evidence during

Appellant’s direct appeal:

      The Commonwealth presented ample evidence as to [Appellant’s]
      guilt. Three eyewitnesses, Jones, Martinez, and Cooper, credibly
      testified that [Appellant] planned to murder Cruz over a drug debt.
      Martinez saw [Appellant] leave the vehicle with a firearm. He then
      heard four gunshots and saw [Appellant] run into his vehicle.
      Cooper’s testimony was consistent with Martinez’s testimony as
      she saw [Appellant] walk towards the area where Cruz was
      murdered shortly before she heard four or five gunshots. Cooper
      then saw [Appellant] run from the area where Cruz was murdered.
      All testimony was consistent with the physical evidence. Martinez
      testified that he heard four gunshots and Cooper testified that she
      heard four or five gunshots. Five fired cartridge casings were
      recovered from the scene of the murder and Cruz suffered four
      gunshot wounds. This [c]ourt’s conscience is not shocked where
      the evidence was overwhelming as to [Appellant’s] guilt. This
      claim is meritless.


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Trial Ct. Op., 1/12/15, at 14.       Additionally, the PCRA court succinctly

concluded that “there would be little to no chance for relief on a weight of the

evidence claim on direct appeal as the verdict was consistent with the

evidence and a far cry from shocking one’s sense of justice.” PCRA Ct. Op.,

9/7/17, at 5.

      Accordingly, although this Court found the weight of the evidence claim

to be waived in Appellant’s direct appeal, this challenge does not give rise to

ineffectiveness of appellate counsel. Appellant does not establish any abuse

of discretion in the trial court’s assessment of his intended weight of the

evidence claim or in the PCRA court’s conclusion that trial counsel’s failure to

properly argue this claim did not result in actual prejudice. Thus, we agree

with the PCRA court that no relief is due. See Franklin, 990 A.2d at 797.

      2. New Sentencing Hearing

      Appellant next asserts that he is entitled to a new sentencing hearing

as a result of allegedly after-discovered “brain science” and social science that

indicate that individuals between 18 and 25 years of age do not have fully

developed brains and do not have the psychosocial maturity to be sentenced

to life imprisonment without parole. Appellant’s Brief at 16. Appellant argues

that because he was 18 years of age at the time of the crime, the Eighth

Amendment protects him from the cruel and unusual punishment of life

imprisonment without parole. Id. However, Appellant cites no authority in

support of his position.




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      We note that in Miller v. Alabama, 567 U.S. 460 (2012), the United

States Supreme Court held that “mandatory life [imprisonment] without

parole for those under the age of 18 at the time of their crimes violates the

Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’” Id. at

465. Significantly, the Miller decision “applies to only those defendants who

were ‘under the age of 18 at the time of their crimes.’” Commonwealth v.

Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (quoting Miller, 567 U.S. at

465). Moreover, “nothing in Montgomery undermines [this Court’s] holding

[in Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013)] that

petitioners who were older than 18 at the time they committed murder are

not within the ambit of the Miller decision[.]” Id.

      Here, because Appellant was over the age of 18 at the time he

committed first-degree murder, he is not entitled to relief, and the PCRA court

properly dismissed this claim.

      3. PCRA Counsel Ineffectiveness

      In his final issue, Appellant asserts that PCRA counsel was ineffective

for filing a “no-merit” letter rather than pursuing the foregoing claims.

Appellant’s Brief at 19. Appellant raises this issue for the first time in the

instant PCRA appeal.

      We note that a PCRA petitioner is precluded from raising ineffective

assistance of PCRA counsel “for the first time after a notice of appeal has been

taken from the underlying PCRA matter.” Commonwealth v. Ford, 44 A.3d

1190, 1201 (Pa. Super. 2012). Accordingly, Appellant has waived this issue.

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     Even if Appellant had properly preserved the claim of ineffectiveness of

PCRA counsel, Appellant would be entitled to no relief as he failed to

demonstrate that any of his underlying PCRA claims warranted relief.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/18




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