J-A29017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RODNEY ALLEN WILLIAMS,

                        Appellant                  No. 1902 WDA 2013


      Appeal from the Judgment of Sentence entered August 2, 2013,
           in the Court of Common Pleas of Allegheny County,
          Criminal Division, at No(s): CP-07-CR-0002700-2011
                       and CP-07-CR-0001025-2012


BEFORE: BOWES, ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                      FILED NOVEMBER 07, 2014

     Rodney Allen Williams (“Appellant”) appeals from the judgment of

sentence imposed after a jury found him guilty at Docket No. 2700-2011 of

possession with intent to deliver cocaine, and at Docket No. 1025-2012 of

three counts of possession with intent to deliver cocaine, and one count each

of dealing in proceeds of unlawful activity, corrupt organizations, criminal

conspiracy to deliver, criminal use of a communication facility, and criminal

attempt. We affirm.

     The pertinent facts may be summarized as follows: Between July and

November of 2011, agents from the Pennsylvania Office of Attorney

General’s Bureau of Narcotics Investigation and Drug Control (“NIDC”)

conducted a series of controlled purchases of cocaine and intercepted



* Retired Senior Judge assigned to the Superior Court.
J-A29017-14


numerous telephone calls from the telephone of an individual named

Jermaine Samuel, in which Mr. Samuel arranged the purchase, delivery, and

sale of cocaine between Altoona, Pennsylvania and Baltimore, Maryland.

Affidavit of Probable Cause, 11/4/11; N.T., 5/6/13, at 178-205; N.T.,

5/7/13, at 32-161; N.T., 5/8/13, at 1-110.          In collaboration with the

Pennsylvania   NIDC    agents,   members     of   the   Baltimore   City   Police

Department traced the telephone number of one of the recipients of

Jermaine Samuel’s telephone calls to the area of Thornfield Avenue in

Maryland, where they conducted physical and electronic surveillance. N.T.,

5/9/13, at 84-87.      By monitoring and tracking telephone records and

telephone signals as well as the suspects’ physical movements, the agents

developed a belief that Appellant, who resided on Thornfield Avenue, was

involved in drug trafficking with Jermaine Samuel. N.T., 5/9/13, at 84-87.

Maryland police officers then subjected Appellant to a traffic stop in an effort

to verify his identity by viewing his driver’s license. N.T., 5/9/13, at 84-87.

Based on the foregoing electronic phone tracking and physical surveillance,

Appellant was arrested and charged with the aforementioned crimes.

Officers additionally identified several other people involved in drug

trafficking with Jermaine Samuel, including Natasha Miller, Shonda Hicks,

Damion Floyd, Brian Stroh, Lieesha Samuel Green, Glenn Piner, Stephen

Piner and Kenneth Piner. Testimony at trial indicated that Jermaine Samuel

distributed cocaine from the Corner Bar in Altoona, Pennsylvania, that

Appellant supplied him with cocaine from Baltimore, and Damion Floyd
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facilitated the purchases of cocaine and its transportation to Altoona, while

Shonda Hicks and Natasha Miller were involved in driving the cocaine and

money between Baltimore and Altoona. N.T., 5/9/13, at 157-159. Steven

and Kenneth Piner participated in distributing the cocaine obtained from

Jermaine Samuel. N.T., 5/6/13, at 112-113.

        The jury trial commenced on May 6, 2013, and on May 10, 2013, the

jury rendered its verdicts. The trial court convened a sentencing hearing on

August 2, 2013, when it sentenced Appellant to an aggregate term of

imprisonment of 22 to 44 years.          Appellant filed timely post-sentence

motions, which the trial court denied on November 14, 2013. This appeal

followed.      Both Appellant and the trial court have complied with Pa.R.A.P.

1925.

        Appellant raises the following issues on appeal:


        I.     WHETHER THE TRIAL COURT ERRED IN DENYING
               APPELLANT RODNEY WILLIAMS’ SEVERAL MOTIONS FOR
               MISTRIAL AFTER THE COMMONWEALTH INTENTIONALLY
               ELICITED    INADMISSIBLE    EVIDENCE   REGARDING
               APPELLANT’S PRIOR CRIMINAL HISTORY THROUGH AGENT
               ALBERT ADAMS’ TESTIMONY.

        II.    WHETHER THE TRIAL COURT ERRED IN DENYING
               APPELLANT’S MOTION FOR A MISTRIAL BASED ON THE
               COMMONWEALTH’S    IMPROPER   STATEMENT  DURING
               CLOSING ARGUMENT THAT THE JURY SHOULD “SEND A
               MESSAGE” BY RETURNING A GUILTY VERDICT.


        III.   WHETHER THE TRIAL COURT ERRED IN DENYING
               APPELLANT’S MOTION TO SUPPRESS ALL THE EVIDENCE
               OBTAINED FROM THE TRAFFIC STOP OF APPELLANT THAT
               WAS CONDUCTED AS PART OF A MANUFACTURED RUSE

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            AND UNDER FALSE PRETENSES FOR THE SOLE PURPOSE
            OF ASCERTAINING HIS IDENTIFICATION IN ORDER TO
            UNDERTAKE THE INVESTIGATION THAT ULTIMATELY LED
            TO THE CRIMINAL CHARGES FILED AGAINST APPELLANT.

Appellant’s Brief at 4.

      In his first issue, Appellant argues that the trial court erred in denying

his motion for a mistrial after the Commonwealth intentionally elicited

inadmissible   testimony    regarding     Appellant’s   prior   criminal   history.

Appellant’s Brief at 15-16. Our Supreme Court recently explained:

      A trial court is required to grant a mistrial only where the alleged
      prejudicial event may reasonably be said to have deprived the
      defendant of a fair and impartial trial. It is well-settled that the
      review of a trial court's denial of a motion for a mistrial is limited
      to determining whether the trial court abused its discretion.

      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias or ill-will ... discretion is abused. A
      trial court may grant a mistrial only where the incident upon
      which the motion is based is of such a nature that its
      unavoidable effect is to deprive the defendant of a fair trial by
      preventing the jury from weighing and rendering a true verdict.
      A mistrial is not necessary where cautionary instructions are
      adequate to overcome prejudice.

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013) (internal

quotation marks and citations omitted).

      Appellant    takes   issue   with    the   testimony      elicited   by   the

Commonwealth from NIDC Agent Albert Adams, when questioned about

Appellant’s interaction with Damion Floyd, who was incarcerated at SCI

Camp Hill. Specifically, Appellant challenges the following testimony:


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      Deputy Attorney General:       With regards to these various
                                     individuals, as far as Shawn and
                                     Rocco, [Appellant] and Jermaine
                                     Samuel, would they, quote, have
                                     been allowed to visit Mr. Floyd in
                                     prison?

      Agent Adams:                   They wouldn’t have been able to.
                                     If you’re a prisoner ... Some of the
                                     restrictions in place as a state
                                     prisoner, if you have criminal
                                     histories or prior felony arrests,
                                     etc., they restrict you from
                                     visiting people in there.

N.T., 5/6/13, at 188 (emphasis added).

      Appellant’s counsel objected and requested a mistrial, asserting that a

curative instruction would serve only to highlight the statement, that the

prejudice was incurable, and that a mistrial was the only remedy.            N.T.,

5/7/13, at 2-20.    The trial court denied Appellant’s motion for a mistrial,

explaining that it “believe[d] the jury can follow a curative instruction” and

that “the more specific the curative instruction the more likely that the jury

will understand the instruction ... and follow it correctly.”   Id. at 27.    The

trial court then issued the following curative instruction:

      Ladies and gentlemen, let me be clear to you. Yesterday, [the
      Commonwealth] asked this question: with regards to these
      various individuals as far as Shawn and Rocco, [Appellant] and
      Jermaine Samuel, would they, quote, have been allowed to visit
      Mr. Floyd in prison. The response by Agent Adams was: They
      wouldn’t have been able to. If you are a prisoner, some of the
      restrictions in place as a state prisoner, you have a criminal
      history or prior felony arrest, etc. they restrict you from visiting
      people in there. Ladies and gentlemen, both the question and
      the answer were improper and yesterday I should not have
      allowed them to be entered into the record. You may not

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J-A29017-14


      consider either the question or the response at all from this point
      forward.

N.T, 5/7/13, at 31-32.

      Appellant   argues    that   Agent    Adams’   statement   directly   and

unmistakably informed the jury that Appellant had a criminal history, and

was therefore highly prejudicial and warranted a mistrial. Appellant’s Brief

at 17-20. Appellant maintains that the prejudice could not be cured by the

trial court’s curative instruction, and asserts that Appellant thus was

deprived of a fair trial.   Id.    In rebutting this assertion, the trial court

offered the following rationale:

                  Agent Adams’ testimony was ... a passing reference
            to Appellant’s criminal activity. A mere passing reference
            to [Appellant] having “some dealings” with the police
            department does not necessarily indicate a prior criminal
            record. Commonwealth v. Banks, 521 A.2d 1 (1987).
            As such, Agent Adams’ statement was not so prejudicial
            that a curative instruction could not remove the taint of
            such reference.

                  [The trial court] chose the route of a curative
            instruction to cure any lingering prejudice. A mistrial is
            not automatically required if the inference of prior
            criminality was innocuous and an effective curative
            instruction was immediately given. Commonwealth v.
            Bruner, 564 A.2d 1277 (Pa. Super. 1989).           All the
            circumstances must be considered in determining whether
            an instruction can cure the exposure of improper evidence
            to the jury. Commonwealth v. Richardson, 437 A.2d
            1162, 165 (1981). This includes examining whether the
            Commonwealth intentionally elicited the remark and
            exploited the reference, whether a responsive answer was
            given, and whether significant curative instructions were
            given. Commonwealth v. Gaerttner, 484 A.2d 92 (Pa.
            Super. 1984). The curative instructions must be clear and
            specific and instruct the jury to disregard the improper

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J-A29017-14


          evidence. Commonwealth v. Hudson, 955 A.2d 1031,
          1034 (Pa. Super. 2008).

               ... The Commonwealth did not exploit the reference
          to Appellant’s prior criminal history throughout the
          remainder of trial.

                The [trial court] determined that a curative
          instruction was appropriate [and] on the morning of the
          second day of trial, the [trial court] instructed the jury –
          not once but twice – not to consider either the question or
          answer regarding Appellant’s visiting privileges.

                                         ***

                The [trial court] emphasizes that although the
          Commonwealth        elicited the  testimony    on  direct
          examination at the end of the first day of the trial,
          Appellant’s counsel reiterated this information in his
          closing argument. You’ve got the Attorney General who
          knowingly asked the question that you were told to
          disregard in violation of just about everything we stand
          for. [N.T., 5/10/13 at 32-33]. In response, the [trial
          court] issued an additional curative instruction during
          closing jury instructions:

                     Ladies and gentlemen, I was not going to
               bring this back up, but because [Appellant’s
               counsel] included it in his closing, I am
               repeating what I told you Tuesday morning ...
               You may not consider that question. You may
               not consider the answer. It was inappropriate
               evidence to be put before you. You cannot do
               that. You just simply can’t. If you would do
               that, it would be improper and you would not
               be doing your responsibilities correctly. Ladies
               and gentlemen, if there is any juror that
               cannot follow that instruction, I need you to
               tell me right now.     Is there anybody who
               cannot follow it? Again, you cannot consider
               the question or answer of that at all.

          [N.T., 5/10/13, at 81-82.]


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J-A29017-14


     Appellant should not benefit from the acts of his counsel in
     reviving Agent Adams’ prejudicial remark.         The [trial court]
     issued several clear and specific curative instructions to disregard
     both [the Commonwealth’s] question and Agent Albert Adams’
     prejudicial answer; these multiple curative instructions were
     capable of removing any taint caused by the passing reference to
     Appellant’s prior criminal history. Furthermore, the law presumes
     that the jury will follow the [trial court’s] curative instructions;
     consequently, a mistrial was not warranted. Commonwealth v.
     Spotz, 896 A.2d 1191, 1224 (Pa. 2006).

Trial Court Opinion, 11/14/13, at 5-11.

      We have explained that a mistrial may be warranted when a juror

could reasonably infer from the facts presented that the accused had

engaged in prior criminal activity.   Commonwealth v. Parker, 957 A.2d

311, 319 (Pa. Super. 2008) (citations and internal quotations omitted).

“When the statement at issue relates to a reference to past criminal

behavior, [t]he nature of the reference and whether the remark was

intentionally elicited by the Commonwealth are considerations relevant to

the determination of whether a mistrial is required.”       Id.   “A singular,

passing reference to prior criminal activity is usually not sufficient to show

that the trial court abused its discretion in denying the defendant's motion

for a mistrial. When the trial court provides cautionary instructions to the

jury in the event the defense raises a motion for mistrial, [t]he law

presumes that the jury will follow the instructions of the court.” Id. Thus,

“[i]n a criminal case, the possible prejudicial effect of a witness's reference

to prior criminal conduct of the defendant may, under certain circumstances,




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J-A29017-14


be    removed     by   an    immediate         cautionary   instruction    to   the    jury.”

Commonwealth v. Richardson, 437 A.2d 1162, 1164 (Pa. 1981).

       Here, Appellant argues that the challenged statement by Agent Adams

was    deliberately    elicited   and    unmistakably       informed      the   jury   about

Appellant’s criminal history.           Appellant challenges the Commonwealth’s

question to Agent Adams as to “[whether] Shawn and Rocco, [Appellant]

and Jermaine Samuel would ... have been allowed to visit Mr. Floyd in

prison?” to which Agent Adams responded: “They wouldn’t be able to. ... [I]f

you have criminal histories or prior felony arrests ... they restrict you from

visiting people in there.” N.T., 5/6/13, at 188. Although the reference to

Appellant’s prior criminal history was made in response to a question by the

Commonwealth, the record does not indicate that the reference was

deliberately elicited to establish Appellant’s prior record.              Additionally, the

agent’s comment that in general individuals with criminal histories cannot

visit prisons did not implicate Appellant alone as having a criminal record,

and the Commonwealth did not thereafter attempt to exploit the single

reference to highlight Appellant’s criminal history.1

       More importantly, the curative instructions issued by the trial court –

both at the time the challenged statements were made and again during
____________________________________________


1
 As the trial court observed, it is significant that Appellant’s counsel, during
closing arguments, emphasized to the jury that the Commonwealth
“knowingly asked [a] question that you were told to disregard in violation of
just about everything we stand for”, and that in so doing, Appellant sought
to capitalize on the statement he now challenges. N.T., 5/10/13, at 32-33.


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J-A29017-14


closing arguments – were direct, unequivocal, and strong, informing the jury

that they were not to consider Agent Adams’ statement, and were sufficient

to expunge any taint and assure Appellant a fair trial.           Under the

circumstances of this case, and for the above reasons, we find no abuse of

discretion in the trial court's determination that Agent Adams’ testimony did

not warrant a mistrial.

      In his second issue, Appellant argues that the trial court erred in

denying his motion for a mistrial based on the Commonwealth’s statement

during closing argument that the jury should “send a message” by returning

a guilty verdict. Appellant’s Brief at 26-29. In considering such a claim of

prosecutorial misconduct, once again, our standard of review is limited to

whether the trial court abused its discretion. “It is within the discretion of

the trial court to determine whether a defendant has been prejudiced by

misconduct or impropriety to the extent that a mistrial is warranted.”

Commonwealth v. Baez, 720 A.2d 711, 729 (1998). “Not every unwise

remark on a prosecutor’s part constitutes reversible error. Indeed, the test

is a relatively stringent one. Generally speaking, a prosecutor’s comments

do not constitute reversible error unless the unavoidable effect of such

comments would be to prejudice the jury, forming in their minds fixed bias

and hostility toward appellant so that they could not [weigh] the evidence

objectively and render a true verdict.”    Commonwealth v. Harris, 884

A.2d 920, 927 (Pa. Super. 2005). “Prosecutorial misconduct ... will not be

found where the comments were based on evidence or proper inferences
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J-A29017-14


therefrom or were only oratorical flair.” Id. “[O]ur attention is focused on

whether the defendant was deprived of a fair trial, not a perfect one. ... A

prosecutor's statements to a jury do not occur in a vacuum, and we must

view them in context.” Commonwealth v. Lewis, 39 A.3d 341, 352 (Pa.

Super. 2012) (citations and internal quotations omitted).

     Appellant challenges the following statement by the Commonwealth:

     By your verdict today you can tell [Appellant] that no matter if
     you’re in Baltimore, sitting in your house providing drugs or
     Shonda Hicks transporting the drugs or Jermaine Samuel selling
     the drugs out of the Corner Bar or Steve and Kenny Piner, we
     will find you. We will investigate --

N.T., 5/10/13, at 75.

     Appellant’s counsel objected to this comment and moved for a mistrial,

or in the alterative, a curative instruction. Id. at 76. The trial court then

permitted the Commonwealth to conclude its closing statement, and the

Commonwealth clarified its statement as follows:

     Assistant District Attorney:   Ladies and gentlemen of the jury,
                                    we’re     only     talking     about
                                    [Appellant] here and he’s the only
                                    one before you today. I ask you to
                                    tell him that his business is closed
                                    and you tell him that by finding
                                    him guilty of each and every
                                    charge.

N.T., 5/10/13, at 76-77.

     The trial court then issued the following curative instruction:

     Ladies and gentlemen, before I give you a break, I need to tell
     you something. What [the Commonwealth] said there about
     sending a message is not appropriate. This is not about sending
     the message on other issues. ... That cannot be part of any
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J-A29017-14


      consideration of what you’re doing. We’re here for this trial, for
      the trial of [Appellant] only. Your deliberations have to be just
      about the facts that have been presented to you over the last
      four or five days. You cannot have any consideration beyond
      what you have heard here. So for [the Commonwealth] to tell
      you that you need to send a message to anyone other than
      [Appellant] is inappropriate and wrong and you should not
      consider it.

Id. at 77.

      Our courts have explained that while a prosecutor’s invitation to the

jury to “send a message” to others through its verdict is not per se

prejudicial    in   non-capital   cases,   such   statements   are   nevertheless

“inherently dangerous” in a criminal case because “the jury's role is to

render a verdict based on the evidence, not based on the effect of that

verdict.”     Commonwealth v. Patton, 985 A.2d 1283, 1288 (Pa. 2009).

“[The Pennsylvania Supreme Court] has stridently condemned prosecutorial

statements urging a criminal jury to ‘send a message’ to the community or

the criminal justice system. ... [and] [e]ven when [it has] found such

remarks to be harmless, [it has] admonished all parties in criminal matters

before any court in the Commonwealth to refrain from such exhortation in

the future.” Id., at 1287.

      Here, the prosecutor invited the jury to “tell [Appellant] that no matter

if you’re in Baltimore sitting in your house providing drugs or Shonda Hicks

transporting the drugs or Jermaine Samuel selling the drugs out of the

Corner Bar or Steve and Kenny Piner, we will find you ... [w]e will

investigate.” N.T., 5/10/13, at 76-77. Immediately thereafter, though, the

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J-A29017-14


Commonwealth modified its statement, clarifying to the jury that “we’re only

talking about [Appellant] here and he’s the only one before you today.” Id.

The trial court then promptly issued a curative instruction, directing the jury

to disregard the Commonwealth’s invitation to send a message of any sort.

N.T., 5/10/13, at 76-77.      As the trial court explained, “[the] curative

instruction was clear and specific in ordering the jury to disregard [the

Commonwealth’s] entreaty to send a message and [instead] consider only

the evidence that had been presented to them.”           Trial Court Opinion,

11/14/13, at 13.      We agree with the trial court that again, under the

circumstances of this case, the curative instruction, which Appellant himself

requested as an alternative to a mistrial and to which he did not object, was

sufficient to mitigate any prejudice to Appellant resulting from the

Commonwealth’s closing statement.

        Furthermore, the challenged statement did not invite the jury to send

a message to the public at large, but rather to Appellant and those involved

in Appellant’s crime syndicate. In Commonwealth v. Patton, 985 A.2d at

1289,     our   Supreme   Court   reasoned   that   “[p]rosecutorial    remarks

encouraging a jury to ‘send a message’ to the defendant or a witness, rather

than the community or criminal justice system at large, do not invite

consideration of extraneous matters and are not misconduct.”           Here, the

prosecutor’s remark asking the jury to “tell Appellant” that his crimes and

those of his associates would be investigated, did not invite the jury to send

a message to the wider community or to the judicial system, and did not
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J-A29017-14


incite such a degree of prejudice against Appellant as to deny him a fair trial.

See also Commonwealth v. Hall, 701 A.2d 190 (Pa. 1997) (Where

prosecutor, during closing arguments asked the jury “to send a message,

[that if] you come out here [to Coatesville] from Philadelphia... and shoot

someone like the defendant did ... you are guilty of first degree murder”,

such prosecutorial remarks provided a short synopsis of the crime which

originated in Philadelphia and ended with a shooting in Coatesville, and the

prosecutor’s exhortations were an accurate summary of the facts and were

proper since they neither caused the jury to form a fixed bias or hostility

towards appellant, nor did they ask the jury to send a message to the

judicial system or the residents of Philadelphia who commit crimes in a

surrounding county).

      In his third and final issue, Appellant asserts that the trial court erred

in denying his motion to suppress evidence obtained from the traffic stop of

Appellant in Maryland. Appellant’s Brief at 30-32. Appellant argues that the

traffic stop was conducted as part of a manufactured “ruse” and under false

pretense and was therefore unconstitutional.      Id.   Appellant contends that

Detective Vigue of the Baltimore City Police testified that, in an effort to

verify Appellant’s identity after determining through surveillance and

communication with the NIDC agents that Appellant was involved in drug

trafficking, Maryland police officers used the pretext of there being

unsecured debris on the bed of Appellant’s truck as a “ruse” to conduct a

traffic stop of Appellant’s vehicle and obtain his driver’s license to verify his
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J-A29017-14


name. N.T., 5/9/13, at 107-113. Appellant claims that because the officers

employed a “ruse” to stop him and obtain his identity, the traffic stop was

illegal. Id. This claim is meritless.

      First, it is unclear from our review of Appellant’s brief, precisely what

evidence Appellant is seeking to suppress as a result of the allegedly illegal

traffic stop. “The remedy for an illegal arrest in Pennsylvania is suppression

of the fruits of the illegal arrest.” Commonwealth v. Shaffer, 710 A.2d 89

(Pa. Super. 1998). In his brief, however, while Appellant asserts that the

motion to suppress the illegal stop should have been granted, Appellant fails

to articulate what evidence, other than his name, was obtained as a result of

the search, and what precisely he seeks to suppress. See Appellant’s Brief

at 30-32; N.T., 5/9/13, at 104-113.

      Moreover, our review of the record contradicts Appellant’s assertion

that the traffic stop in Maryland was “a ruse.” Rather, testimony elicited by

the Commonwealth over five days of trial (which included voluminous

telephone surveillance records and testimony of numerous law enforcement

officers involved in the investigation) indicates that the traffic stop of

Appellant was the result of the joint efforts of the officers from the

Pennsylvania Office of Attorney General’s Bureau of Narcotics Investigation

and Drug Control, and the Baltimore City Police Department who, prior to

the traffic stop, together conducted extensive electronic and geographical

surveillance of Appellant’s telephone calls and Appellant’s physical location,

leading them to believe that Appellant was involved in drug trafficking.
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Thus, to the extent that Appellant argues that the officers lacked reasonable

suspicion to stop his vehicle, and that the stop was based on a “ruse” that

Appellant had an unsecured load in his truck, this claim is meritless.

      Finally, our review of the notes of testimony reveals that the law

enforcement officers did in fact observe debris fall from Appellant’s vehicle

prior to the traffic stop. See N.T., 5/9/13, at 108. Thus, Appellant’s claim

that the officers fabricated the falling debris is belied by the record and

meritless.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2014




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