J-S38004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DERRICK THOMPSON                           :
                                               :
                       Appellant               :   No. 174 WDA 2017

            Appeal from the Judgment of Sentence January 9, 2017
    In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0011538-2016


BEFORE:      BOWES, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                               FILED AUGUST 17, 2018

       Derrick Thompson appeals from the January 9, 2017 judgment of

sentence of eighteen months probation imposed after he was found guilty of

two counts of person not to possess a firearm and one count of use or

possession of electric or electronic incapacitation device. 1 We affirm in part

and reverse in part.

       The facts pertinent to our review are as follows. At approximately 6:30

p.m. on August 6, 2015, officers of the Allegheny County and Pittsburgh

Police, accompanied by state parole agents, proceeded to 2729 Shadeland

Avenue to serve an arrest warrant for Joshua Strayhorn. N.T., 9/29-10/3/17,

at 55-56. Detective Steven Hitchings knocked on the front door. Cassandra

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1 The court imposed a sentence of eighteen months probation at each count,
to run concurrently.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Good, one of the co-defendants and a resident of the home, answered.2 Id.

at 56-57, 61. After Detective Hitchings informed her that he had an arrest

warrant for Strayhorn, Strayhorn appeared in the dining-room area, located

near the stairs to the basement, and was taken into custody. Id. at 57.

       After arresting Strayhorn, Detective Hitchings asked Ms. Good for

permission to enter the home to search the area for police safety, and she

consented. Id. at 62-63, 118. Pittsburgh Police Officer Joseph Barna went to

the basement to clear the area of any possible persons for officer safety. Id.

at 118, 150.       The stairwell and basement were dark, so he utilized his

flashlight as he proceeded down the stairs. Id. at 146. As he reached the

bottom of the stairs, he turned right and saw Appellant through the entrance

of a small, closed-off, room within the basement, which he later determined

was a recording studio. Id. at 146, 158, 381. Appellant was seated at a desk,

his back to the entrance, and he was wearing headphones. Id. at 118, 131.

The studio contained a computer screen, some speakers, and one overhead

light. Id. at 124, 146. Officer Barna testified that he noticed a firearm on the




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2 The record reveals that Cassandra Good had been the lessee of the premises
at 2729 Shadeland Avenue home for three years as of the date of trial, and
that she resided there with her son, co-defendant Reginald Good, and
grandson, Darwin Good. N.T., 9/29-10/3/17, at 183, 190, 213, 215, 299,
329, 341. The record indicates that Darwin Good was initially charged, but
that those charges were dropped or dismissed.




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desk inches in front of Appellant.3 Id. The officer handcuffed Appellant for

safety purposes, removed him from the studio, and brought him upstairs. Id.

at 118-19.      Officer Barna testified that, as he walked Appellant up the

basement stairs, “due to his training and experience,” he could see the

extended magazine of a firearm protruding from the ceiling above the steps.4

Id. at 133. Officer Barna also confirmed that he did not notice the hole in the

dropped ceiling or the magazine protruding from it on his way down the stairs.

Id. at 147. Pittsburgh Police Officer Jeffrey Tomer testified that when he and

other officers were conducting a search of the residence pursuant to a warrant,

the firearm in the ceiling of the basement was not visible from the basement.

Id. at 158.



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3 Officer Barna testified that there was a light in the recording studio and that
he “could see [in the recording studio] without a flashlight, but a flashlight
definitely helped.” Id. Appellant confirmed that there was one overhead light
bulb in the recording studio, “but it’s not really that powerful.” Id. at 348-49.
Officer Tomer described the lighting in the studio as “dim.” Id. at 161. Officer
Paul Abel testified that, when they executed the warrant, the recording studio
desk was “much tidier” than it was depicted in the defense photograph. Id.
at 386. At trial, he placed a sticker on the photograph of the desk to indicate
the location of the silver handgun. Id. at 389. He also pointed to the place
on the desk where the stun gun was located that day. Id.

4 There was testimony from Officer Barna that it was dark in the basement
and that he needed his flashlight to see what was around him. N.T., 9/29-
10/3/17, at 146. He also testified that his flashlight was on as he was
escorting Appellant from the basement, but it was after he saw the gun
protruding from the ceiling that he illuminated it with his flashlight. Id. at
134.



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       At the time of the raid, Appellant, Cassandra Good, Strayhorn, and two

unnamed men were found in the home.              Id. at 56-62. In addition to the

aforementioned firearms, the police recovered a purple stun gun and a small

amount of marijuana from the desk in the recording studio. Appellant was

charged with offenses associated with those items. Police recovered several

bricks of heroin5 from the dropped ceiling adjacent to the basement stairs; a

brick of heroin, $7,448 cash, a handgun, a purse containing marijuana, and

indicia for Mr. Reginald Good from the third floor bedroom; and seven cellular

phones from various locations throughout the home. Id. at 58, 125, 127,

164, 177, 179, 186-89, 190.

       Appellant testified to the following uncontradicted facts. He was a self-

taught sound engineer and had a production set-up at his home in North

Versailles.    Id. at 335-40.        Appellant had a contract with Lake Street

Entertainment, which was operated by Darwin Good, to perform services for

the 2927 Shadeland Avenue Recording Studio, and he was given access to the

residence on a regular basis to work in the studio. Id. at 341-43, 367-71.

The contract term commenced on July 15, 2015, and was active at the time

the residence was searched. Id. at 343. Appellant was supposed to be paid

$2,000 for his services, but never received any compensation due to the raid.

Id. at 370. At trial, he testified that he was only present at the Shadeland

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5The jury acquitted Appellant of constructive possession of the heroin that
was discovered directly beside the firearm in the hole in the basement ceiling
adjacent to the stairwell. N.T., 9/29-10/3/17, at 519-20.

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Avenue home to fulfill his contract obligations.    Id. at 341-42.    Appellant

further testified that he did not see any weapons in the recording studio or

any guns or drugs in the ceiling adjacent to the basement stairs. Id. at 345-

46.

      According to Appellant, he arrived at the studio at 11:00 a.m. on August

6, 2015, and began mixing songs. Id. at 350-51, 367. At approximately 1:00

p.m., Strayhorn came into the basement to write a song, but he was “bouncing

in and out,” and Appellant did not take him seriously or pay attention to what

he was doing. Id. at 352-53, 371-73, 381. Strayhorn left approximately one-

half hour later. Id. at 372-73. Appellant did not see him bring a gun, or

anything else, into the studio. Id. Strayhorn returned to the basement a

second time and left around 1:45-2:00 p.m. and, once again, Appellant did

not notice that he brought anything with him into the studio. Id. at 373.

      Appellant was tried with co-defendants Cassandra and Reginald Good.

In addition to the aforementioned charges, Appellant was charged with two

counts each of carrying a firearm without a license and criminal conspiracy,

one count each of possession with intent to deliver a controlled substance,

possession of a controlled substance, possession of marijuana, and

use/possession of drug paraphernalia. These latter charges were heard by a

jury. At Appellant’s request, the two counts of person not to possess and one

count of possession of an electronic incapacitation device charges were

severed for a concurrent bench trial. Prior to the jury verdict, the trial court

found Appellant guilty of the severed charges; the jury found Appellant not

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guilty of all charges before it.6 On January 9, 2017, Appellant was sentenced

to eighteen months probation. Appellant’s timely-filed post-sentence motions

subsequently were denied.

       On January 20, 2017, Appellant filed a timely notice of appeal. The trial

court directed him to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. On March 23, 2017, after receiving an extension,

Appellant complied, and the trial court issued its Rule 1925(a) opinion.

       Appellant raises one issue: “Did the [t]rial [c]ourt err in finding

[Appellant] guilty of possession of a firearm [and electronic incapacitation

device] when the evidence presented at trial was insufficient as a matter of

law to sustain the conviction[s]?” Appellant’s brief at 3.

       In evaluating a challenge to the sufficiency of the evidence, our standard

of review is as follows:

              A claim impugning the sufficiency of the evidence presents
       an appellate court with a question of law. The standard an
       appellate court applies in reviewing the sufficiency of the evidence
       is whether, viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact-finder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, an appellate court
       may not weigh the evidence and substitute its judgment for the
       fact-finder. In addition the facts and circumstances established
       by the Commonwealth need not preclude every possibility of
       innocence . . .[T]he finder of fact, while passing upon the
       credibility of witnesses and the weight of the evidence produced,
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6 Both co-defendants were also found guilty by the court of all weapons
charges and acquitted by the jury of all drug charges, with the exception being
the charge of possession of a small amount of marijuana as to Ms. Good. N.T.,
9/29-10/3/17, at 517-20.

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       is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014) (citations

omitted).

       Absent an abuse of discretion, a reviewing court will not reverse a trial

court’s determination of credibility. Commonwealth v. Hughes, 908 A.2d

924, 928 (Pa.Super. 2006). “An abuse of discretion will not be found based

on a mere error of judgment, but rather occurs where the court has reached

a conclusion that overrides or misapplies the law, or where the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill-will.” Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015).

       At trial, Appellant stipulated to the fact that he was a person not to

possess a firearm.7 N.T., 9/29-10/3/17, at 22, 279. The three crimes of which

Appellant was convicted were possessory offenses.              See 18 Pa.C.S. §

6105(c)(1) (“A person who is a fugitive from justice . . . shall not possess,

use, control, sell, transfer or manufacture . . . a firearm in this

Commonwealth”); see also 18 Pa.C.S. § 908.1(c) (“No person prohibited

from possessing a firearm pursuant to section 6105 . . . may possess or use

an electronic incapacitation device”). Appellant challenges the sufficiency of



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7 Appellant’s status as a person not to possess a firearm was based on an
outstanding arrest warrant for a simple assault charge that was later
withdrawn. N.T., 9/29-10/3/17, at 279. The record does not reflect whether,
at the time of the events herein, Appellant was aware of the bench warrant or
its impact on his ability to lawfully possess a firearm.

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the evidence that he possessed the firearms and stun gun.

      The following principles inform our review.       Where, as herein, the

contraband was not found on Appellant’s person, the Commonwealth has the

burden of establishing that he had constructive possession of such

contraband, i.e., that he had both the ability and the intent to exercise control

over the contraband. See Commonwealth v. Dargan, 897 A.2d 496, 503,

504 (Pa.Super. 2006). As we explained in Commonwealth v. Brown, 48

A.3d 426, 430 (Pa.Super. 2012),

            Constructive possession is a legal fiction, a pragmatic
      construct to deal with the realities of criminal law enforcement.
      Constructive possession is an inference arising from a set of facts
      that possession of the contraband was more likely than not. We
      have defined constructive possession as conscious dominion. We
      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

(internal quotation marks and citations omitted). In addition, mere presence

in the vicinity of a recovered firearm is insufficient as a matter of law to

establish possession. Id. In order to find the requisite power to control and

the intent to exercise that control, the evidence must, at the very least, show

that the defendant knew of the existence of the item. Commonwealth v.

Gladden, 665 A.2d 1201 (Pa.Super. 1995) (citing Commonwealth v.

Hamm, 447 A.2d 962 (Pa.Super. 1982)).

      Constructive possession may also be proved by circumstantial evidence.

Commonwealth v. Carter, 450 A.2d 142, 144 (Pa.Super. 1982). Individual


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circumstances may not be decisive, but, in combination, they may justify an

inference that the accused had both the power to control and the intent to

exercise that control. Id. at 144. The concept of constructive possession is

necessary to prevent persons from having “a privileged sanctuary for the

storage of illegal contraband.” See Commonwealth v. Macolino, 469 A.2d

132, 136 (Pa. 1983).

         Herein, a handgun and stun gun were found on the desk in the recording

studio at which Appellant was seated.       Another handgun was found in the

dropped ceiling near the stairwell providing access to the unlit basement. For

ease of analysis, first we will discuss the items found in the recording studio.

         With regard to the handgun and stun gun located on the desk, Appellant

contends that the Commonwealth failed to prove that he had actual knowledge

that they were there or the ability to control them required to establish

constructive possession. He argues that the desk in the recording studio was

cluttered, the room was dark enough for Officer Barna to need a flashlight,

and “any number of people” had access to the studio. Appellant’s brief at 12-

13. Appellant maintains that, even though he was in close proximity to the

weapons, the evidence presented at trial did not establish that he was aware

of the existence of the weapons due to the lack of visibility in the room. Id.

at 13.

         In support of his argument, Appellant cites Commonwealth v.

Rodriguez, 618 A.2d 1007 (Pa.Super. 1993), wherein this Court held that


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mere access to and presence in an apartment in which contraband is located

is not enough, on its own, to demonstrate constructive possession without a

showing of actual knowledge. Appellant argues that the fact that he was found

in a home with illegal weapons does not, without proof of actual knowledge,

establish constructive possession. Appellant’s brief at 13. Appellant maintains

that, while the Commonwealth has demonstrated that he was in close

proximity to a recovered firearm, “no evidence was ever presented to suggest

that [Appellant] was aware of the firearm[,] much less that he had the power

and intent to control it.” Appellant’s brief at 10.

      In further support of his argument, Appellant cites Commonwealth v.

Boatwright, 453 A.2d 1058, 1059 (Pa.Super. 1982)(holding that mere

presence in the vicinity of a recovered firearm is insufficient as a matter of

law to demonstrate possession), and Hamm, supra (holding that evidence of

constructive possession was insufficient where there was not, at least, a

showing of actual knowledge). Appellant’s brief at 11. Appellant also relies

upon Commonwealth v. Stembridge, 579 A.2d 901, 906 (Pa.Super. 1990),

in which this Court held that where multiple people have access to recovered

contraband, constructive possession can be attributed to the person with the

greatest access to that contraband. Appellant points out that he was only one

of six people in the home, and it was undisputed that he did not live there.

He argues that Reginald Good or Ms. Good had greater access to any space of

the home because they lived there. Appellant’s brief at 13.


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       Further, Appellant notes that, in their examination of the recovered

weapons, the police did not discover any fingerprints or DNA8 matching his

own.    Id. at 14.     While not dispositive under Pennsylvania law, Appellant

argues that the presence of DNA is highly suggestive of possession and cites

Commonwealth v. McClellan, 178 A.3d 874 (Pa.Super. 2018), where this

Court sustained a conviction on a theory of constructive possession, which

was supported entirely by the presence of DNA on the firearm. In response

to these arguments, the Commonwealth points out that, when viewed in their

totality, the facts and circumstances in Appellant’s case supported the trial

court’s decision. Commonwealth’s brief at 15.

       The Commonwealth offered evidence that the firearm was in plain view

on the desk. Officer Paul G. Abel, Jr. testified that the desk was not cluttered

as depicted in photographs introduced by Appellant, and that the firearm and

stun gun were visible. Id. at 174, 386-89. Officer Barna testified that there

was sufficient light in the recording studio to enable him to see the firearm

even without a flashlight. Thus, there was evidence from which the fact finder

could reasonably infer that Appellant had knowledge of the firearm as it was

in plain view. In light of our standard of review, we may not reconsider this

credibility determination. Antidormi, supra.


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8 Several officers/agents testified concerning fingerprint analysis conducted
on the weapons. It appears that testing was completed, but the officers failed
to ascertain the results of the testing. It is unclear from the record whether
DNA analysis was requested. N.T., 9/29-10/3/17, at 111, 137, 225, 235, 267.

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      Furthermore, the trial court considered the possibility that Strayhorn

could have entered the studio and placed the weapons on the desk without

Appellant’s knowledge, but apparently rejected that notion.           Given our

standard   of   review,   we   are   bound    by   that   determination.   See

Commonwealth v. Muniz, 5 A.3d 345, 349 (Pa.Super. 2010) (concluding

that where trial court “no doubt considered the possibility” that another person

placed drugs in appellant’s room without his knowledge, but rejected that

notion, we are bound by that determination).

      Appellant argues further that the Commonwealth failed to prove the

second element of constructive possession, i.e., that he intended to control

the weapons. He relies on his own testimony that his intent was to fulfill a

work contract. Appellant’s brief at 14-15. He testified that he did not “root

through” anything or care what was in the recording studio because he was

“just there to work.” N.T., 9/29-10/3/17, at 348. At trial, he offered into

evidence a copy of his recording contract, signed by both parties, and

demonstrated familiarity with the recording software used in the studio. Id.

at 338, 341-42,

      The Commonwealth established that Appellant knew of the weapons

that were in plain view on the desk in front of him. Herein, the intent to

control reasonably could be inferred from that evidence, together with

evidence that they were located on the desk mere inches from Appellant’s

hands. See Commonwealth v. Flythe, 417 A.2d 633, 634 (Pa.Super. 1979)


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(“It strains the imagination to believe that [appellant] innocently entered this

vehicle having no knowledge of the items found therein when, the pistol at

least, was within a few inches of him and a portion of it was in plain view.”).

Thus, when viewed in their totality, the facts and circumstances support the

trial court’s determination that Appellant was in constructive possession of the

firearm and stun gun found on the desk in the studio.

      We find misplaced Appellant’s reliance upon Stembridge, supra.

Despite the fact that Appellant did not live in the Shadeland Avenue home, he

had the greatest access to the recording studio on the day of the raid. By his

own account, Appellant had been in the recording studio from 11:00 a.m. until

6:30 p.m. that day. N.T., at 350-51, 367. Although Strayhorn purportedly

entered the studio that day, Appellant testified that he did not see him carrying

any weapons. Furthermore, at the time of the raid, Appellant was alone in

the recording studio, and had exclusive control of that area. Id. at 118. Thus,

the reasoning in Stembridge, supra, tends to support the finding that

Appellant constructively possessed the handgun and stun gun located on the

desk as he had the greatest access to those weapons.

      With regard to the firearm retrieved from the dropped ceiling near the

stairwell, we find that the Commonwealth failed to prove beyond a reasonable

doubt that Appellant constructively possessed the firearm located in the ceiling

adjacent to the stairwell.   The pertinent evidence revealed that a second




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firearm9 was retrieved from the dropped ceiling adjacent to the stairwell that

Appellant utilized to enter the basement where the recording studio was

located. N.T., 9/29-10/3/17, at 133. It was undisputed that the basement

and stairwell were dark and Officer Tomer confirmed that the firearm was not

visible from the basement. Id. at 147, 158. Officer Barna noticed the firearm

when he ascended the stairs, but not on his initial trip down the stairs. Id. at

147. Appellant was alone in the studio at the time of the raid. Id. at 118.

The firearm was not dusty or covered in cobwebs. Id. at 147.

       The Commonwealth argues that the stairwell was the only access to the

basement.      Furthermore, the physical appearance of the firearm did not

suggest that it had been in the ceiling for an extended time. Moreover, since

Appellant did not see Strayhorn bring any firearms into the basement, the

Commonwealth contends that Appellant had both the capacity and intent to

exercise control over the firearm.         In support thereof, the Commonwealth

directs our attention to Commonwealth v. Hutchinson, 947 A.2d 800, 806-

07 (Pa.Super. 2008), where this Court vacated an order of judgment of

acquittal   on   what     the   Commonwealth       characterizes   as   similar   facts

demonstrating constructive possession.

       Absent herein is any evidence suggesting that Appellant knew or was


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9Police discovered that the gun in the ceiling was registered to a Jonathan
Hazley and that it had not been reported stolen. N.T., 9/29-10/3/17, at 196.
However, the officers admittedly never checked to see if the gun owner could
be reached for questioning. Id. at 197.

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aware of the presence of the gun in the ceiling. Even viewing the evidence in

the light most favorable to the Commonwealth, as verdict winner, the most

that can be inferred regarding that firearm is that Appellant may have been

able to see it when ascending the basement stairs. Several police officers

testified that the basement and stairwell were dark and the weapon was not

visible from the basement, let alone the enclosed recording studio.      Id. at

147, 158.

      No evidence was offered as to when the gun was placed in the ceiling,

although the Commonwealth maintained that the absence of cobwebs or dust

suggested that it had only recently been placed there. Id. at 150. Appellant

testified that he was in the recording studio from approximately 11:00 a.m.

until 6:30 p.m., and that he had not yet ascended the stairs that day. N.T.,

9/29-10/3/17, at 351. Therefore, Appellant could only have known of the gun

if he placed it there himself, or watched someone put it there, or if it was

present and visible on another occasion when he ascended the stairs. Such

inferences of knowledge cannot be fairly drawn from the Commonwealth’s

evidence. Furthermore, there is nothing upon which to base a reasonable

inference that Appellant had the ability, let alone intent, to control that

weapon.

      We find Hutchinson, supra, relied upon by the Commonwealth, to be

factually distinguishable. Therein, we found sufficient evidence of constructive

possession based on evidence that police officers saw the defendant count


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money in the park at night, reach into the beams of a pavilion from which

cocaine was later recovered, and then flee when he noticed the officers

approaching him.     On those facts, one could reasonably infer that the

defendant had the requisite knowledge and ability to control the cocaine, as

well as the intent to exercise it. Those facts are not present herein.

      Accordingly, we reverse Appellant’s conviction on one count of person

not to possess a firearm as related to the firearm in the basement ceiling,

vacate his sentence on that count, and affirm judgment of sentence in all other

respects. Since Appellant’s sentence on the one person not to possess count

ran concurrently to the sentence imposed at the other counts, our reversal

does not disturb the overall sentencing scheme, and no remand for

resentencing is required.

      Affirmed in part, reversed in part. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2018




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