J-A28022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DARRYL WILLIAMS

                            Appellant                      No. 3261 EDA 2013


         Appeal from the Judgment of Sentence of September 16, 2013
              In the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0007305-2012


BEFORE: GANTMAN, P.J., WECHT, J., and JENKINS, J.

MEMORANDUM BY WECHT, J.:                                 FILED JANUARY 16, 2015

      Darryl Williams appeals his September                16, 2013   judgment of

sentence.     On the merits of Williams’ claims, we adopt the trial court’s

comprehensive opinion as our own, and deny relief upon Williams’ stated

bases.     Nonetheless, because the mandatory minimum sentence that was

imposed upon Williams was illegal, we vacate the judgment of sentence, and

remand for resentencing.

      In    its   opinion   pursuant    to   Pa.R.A.P.   1925(a),   the   trial   court

summarized the pertinent factual and procedural history of this case as

follows:

      On September 26, 2012, Trooper Timothy Greene was driving a
      State Police vehicle in a westerly direction on 9th Street
      approaching Upland Street in Chester, Pennsylvania.        He
      observed a blue Chevrolet Impala with dark tinted windows
      driving slowly. Believing that the tinted windows violated 75
J-A28022-14


       Pa.C.S. § 4524(e)(1),[1] he activated his overhead lights and
       signaled the driver to stop.

       After the Impala stopped, Trooper Greene got out, approached
       the driver’s side and asked that the driver, later identified as []
       Darry Williams, produce his license and registration. Greene
       returned to the police vehicle, made inquiries from the computer
       system and learned of a warrant from Williams’ arrest for
       charges of terroristic threats and retaliation against a witness or
       victim. Greene returned to the Impala and arrested [Williams].

       Greene then asked that the passenger, later identified as Derek
       Richardson, step outside of the car. Richardson alerted Greene
       to the presence of a gun in the car. Greene looked inside and
       saw a gun on the passenger side floor and glassine bags in the
       center console, both in plain view. The gun was seized and was
       later found to be operable.        However, it had no usable
       fingerprints.

       Trooper Joseph Yingling arrived at the scene and transported
       [Williams] to the State Police barracks, where a search of his
       person revealed 15 bags of a substance, later identified as crack
       cocaine, in his right sock. Richardson was also taken to the
       barracks, where he denied ownership of the gun. Both men
       were charged with various offenses. Richardson pled guilty to
       conspiracy to possess a firearm in exchange for testimony
       against Williams.

       The matter proceeded to trial before [] a jury, which found
       [Williams] guilty of [possession with intent to deliver, possession
       of a controlled substance, possession of drug paraphernalia,
       persons not to possess a firearm, and carrying a concealed
       firearm without a license.2] On September 16, 2013, [the trial
       court] sentenced [Williams] to an aggregate term of
____________________________________________


1
     Section 4524(e)(1), entitled , provides that “[n]o person shall drive
any motor vehicle with any sun screening device or other material which
does not permit a person to see or view the inside of the vehicle through the
windshield, side wing or side window of the vehicle.”             75 Pa.C.S.
§ 4524(e)(1).
2
     35 P.S. §§ 780-113(a)(30), (16), and (32); 18 Pa.C.S. §§ 6105, and
6106, respectively.



                                           -2-
J-A28022-14


     incarceration of 168 to 336 months. On September 23, 2013,
     [Williams] filed a Motion for a New Trial and/or an Arrest of
     Judgment, which [the trial court] denied on October 23, 2013.
     [Williams] filed a Notice of Appeal and, in his Statement of
     Matters Complained of on Appeal, asserted various errors.

Trial Court Opinion (“T.C.O.”), 2/21/2014, at 1-2 (citations to notes of

testimony omitted). On February 21, 2014, the trial court issued an opinion

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

     Williams presents the following five issues for our consideration:

     Did not the trial court err in denying [Williams’] motion to
     suppress evidence because the search of [Williams], his vehicle
     and other areas was illegal as effectuated without probable
     cause and the evidence seized and introduced at the hearing and
     trial [was] the fruit of the wrongful [] seizure, all in violation of
     the Fourth and Fourteenth Amendments [to] the U.S.
     Constitution and Article I Section 8 of the Pennsylvania
     Constitution?

     Did not the trial court err in precluding [Williams] from
     presenting evidence of his co-defendant’s prior criminal record
     for possession with intent to deliver controlled substances?

     Did not the court abuse its discretion in sentencing [Williams] to
     an unreasonable and excessive term in light of the
     circumstances of the case, most significantly the consecutive
     sentences for several overlapping gun charges, its failure to set
     forth its reasons for the sentence imposed as required, and the
     court’s apparent vindictiveness towards [Williams] for exercising
     is right to a jury trial?

     Did not the court err in permitting the testimony of the
     Commonwealth’s expert witness to exceed the appropriate scope
     of such testimony pursuant to Pa.R.E. 704, as he improperly
     testified on the ultimate issue that [Williams] was not a drug
     user but was guilty of being a drug dealer while in possession of
     a firearm?

     Did not the lower court err in finding [Williams] guilty 1)
     possession with intent to deliver while in possession of a firearm;
     2) [persons not to possess a firearm] and 3) [carrying a

                                     -3-
J-A28022-14


       concealed firearm without a license] as the evidence was
       insufficient of a matter of law to establish these charges and/or
       was so against the weight of the evidence to warrant a new trial?

Brief for Williams at 5.

       In its Rule 1925(a) opinion, the trial court thoroughly addressed each

of Williams’ claims. Ultimately, the court concluded either that Williams had

waived certain issues3 or that the non-waived issues had no merit. We have

reviewed the record, the parties’ respective briefs, and the arguments and

citations to pertinent authorities raised by the parties. Moreover, we have

reviewed the cases and statutes cited by the trial court, and have performed

an independent consideration of the applicable law.        Having done so, we

conclude that the trial court has correctly and comprehensively addressed

Williams claims. We agree with the trial court that Williams is not entitled to

relief on those claims. Because we have nothing substantive to add to the

trial court’s discussion, we adopt the trial court’s analysis of Williams’ claims

as our own.       A copy of the trial court’s opinion is attached hereto for

convenience.


____________________________________________


3
       We differ with the trial court on only one point. In its opinion, the trial
court sets forth the general standards applicable to a weight of the evidence
claim, and ultimately concludes that “[t]here were no facts that were so
clearly of greater weight that to ignore them or to give them equal weight
with all the facts would be a denial of justice.” T.C.O. at 17-18. Unlike the
trial court, we express no opinion on the merits of Williams’ weight of the
evidence claim. Rather, we conclude that the claim is waived because
Williams did not raise it in the first instance in his post-sentence motion.
See Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).



                                           -4-
J-A28022-14



      However, our independent review of the record has revealed an issue

pertaining to the legality of Williams’ sentence. Although Williams has not

raised a specific challenge to the legality of his sentence, such a challenge

“can be raised sua sponte by this Court,” Commonwealth v. Edrington,

780 A.2d 721, 723 (Pa. Super. 2001), and cannot be waived by an

appellant.   Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super.

1998).

      For his conviction for possession of a controlled substance with intent

to deliver, Williams was sentenced to five to ten years’ imprisonment

pursuant to the mandatory minimum sentencing provision set forth at 42

Pa.C.S. § 9712.1.   Subsection (a) of section 9712.1 provides, in pertinent

part, as follows:

      Any person who is convicted of a violation of [35 P.S. § 780-
      113(a)(30) of] the Controlled Substance, Drug, Device and
      Cosmetic Act, when at the time of the offense the person or the
      person’s accomplice is in physical possession or control of a
      firearm, whether visible, concealed about the person or the
      person’s accomplice or within the actor’s or accomplice’s reach
      or in close proximity to the controlled substance, shall likewise
      be sentenced to a minimum sentence of at least five years of
      total confinement.

42 Pa.C.S. § 9712.1(a).    However, in Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014), this Court held that section 9712.1 was

unconstitutional in light of the United States Supreme Court’s decision in

Alleyne v. United States, 133 S.Ct. 2151 (2013), because the statute

requires the facts that trigger the application of the mandatory sentence be


                                    -5-
J-A28022-14



found by a judge, and not a jury, in violation of the Sixth Amendment to the

United States Constitution. Newman, 99 A.3d at 98, 103. Consequently,

the application of the mandatory sentence in this case likewise was

unconstitutional, and Williams must be resentenced without regard to

section 9712.1. Id. at 103.

      Judgment of sentence vacated.      Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2015




                                   -6-
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  IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                        CRIMINAL DIVISION

     COMMONWEALTH OF PENNSYLVANIA                         )
                                                          )
                                                          )
             YS.                                          )
                                                          ) No. CP-23-CR-7305-2012
     DARRYL WILLIAMS                                      )
                                                          ) Superior Court Docket 3261 EDA 2013
                                                         )



                                              OPINION

                   STATEMENT OF FACTS AND PROCEDURAL HISTORY

        On September 26, 2012, Trooper Timothy Greene was driving a State Police vehicle in a
                          th
 westerly direction on 9 Street approaching Upland Street in Chester, Pennsylvania. He

observed a blue Chevrolet Impala with dark tinted windows driving slowly. Believing that the

tinted windows violated 75 Pa.C.S. § 4524(e)(l), he activated his overhead lights and signaled

for the driver to stop.

        After the Impala stopped, Trooper Greene got out, approached the driver's side and asked

that the driver, later identified as defendant, Darryl Williams, produce his license and

registration. Greene returned to the police vehicle, made inquiries from the computer system and

learned of a warrant for Williams' arrest for charges of terroristic threats and retaliation against a

witness or victim. [N. T. 3/27/13, p. 28-31] Greene returned to the Impala and arrested

defendant.

        Greene then asked that the passenger, later identified as Dereck Richardson, step outside

of the car. [N.T. 3/27/13, p. 32] Richardson alerted Greene to the presence ofa gun in the car.

Greene looked inside and saw a gun on the passenger side floor and glassine bags in the center

console, both in plain view. (lei. at 32-34; See also N.T. 6/17/13, p. 52] The gun was seized and
                                                                                Circulated 11/26/2014 11:04 AM




 was later found to be operable. [N.T. 6/17/13, p. 68] However, it had no usable fingerprints.

 [Jd at 79, 101]

         Trooper Joseph Yingling arrived at the scene and transpOlied defendant to the State

Police barracks, where a search of his person revealed 15 bags of a substance, later identified as

crack cocaine, in his right sock. [N.T. 3/27/13, p. 49] Richardson was also taken to the barracks,

where he denied ownership of the gun. [N.T. 6/17/13, p. 60] Both men were charged with

various offenses. Richardson pled guilty to conspiracy to possess a firearm in exchange for

testimony against Williams. [Id at 122-125]

         The matter proceeded to a trial before this Court and a jury, which found defendant

guilty of aU charges. On September 16,2013, this Court sentenced defendant to an aggregate

term of incarceration of 168 to 336 months. On September 23, 2013, defendant filed a Motion

for a New Trial andlor an Arrest of Judgment, which this Court denied on October 23, 2013.

Defendant filed a Notice of Appeal and, in his Statement of Matters Complained of on Appeal,

asserted various errors.




                                               2
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                                                DISCUSSION

 I.      The suppression motion was properly denied.

         The Superior Court should affIrm the denial of thc suppression motion because Trooper

 Greene properly stopped defendant's vehicle, arrested him on an outstanding warrant and seized

 a gun and drugs found in the car. In his Omnibus Pretrial Motions, defense counsel asserted that:

 the search/seizure of Williams was illcgal and unconstitutional, [Omnibus Pretrial Motion, ~ 26]

 Trooper Greene did not have cause to stop the Impala, [Id., 27] Williams should have been

 released after providing valid operating information, [ld,       ~   28] the search was not a "custodial

 inventory search." [Id.,   ~   29] and the stop and seizure violated defendant's rights under the

United States and Pennsylvania Constitutions. [Id.,       ~   30] These assertions lack merit.

        Where a motion to suppress has been filed, the burdcn is on the Commonwealth to

establish by a preponderance of the evidence that the challenged evidence is admissible.

Pa.R.Crim.P. 323(h). See Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert.

denied, 474 U.S. 830 (1985).

        It is well established that a forcible stop of a motor vehicle by the police constihltes a

seizure triggering the constihltional protections of the Fourth Amendment. Commonwealth v.

Clinton, 905 A.2d 1026, 1030 (Pa.Super. 2006) citing Commonwealth v. Campbell, 862 A.2d

659, 663 (Pa.Super. 2004). See Commonwealth v. Knolls, 663 A.2d 216, 218 (Pa.Super. 1993)

("When police stop a vehicle in tlus Commonwealth for investigatory purposes, the velucle, and

its occupants, arc considered seized and the seizure is subject to constitutional constraints.").

Therefore, the decision to stop defendant's Impala constihlted a seizure. This Court must

evaluate the lawfiJlness of that seizure and determine whether the Trooper had either probable

cause or reasonable suspicion to hutiate it.



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         "Probable cause exists if the facts and circumstances within the knowledge of the police

 at the time of the stop are sufficient to justify a person of reasonable caution in the belief that an

 offense has been or is being committed." Commonwealth v.       LIIV,   735 A2d 87, 90 (Pa. 1999)

 (quoting Commonwealth v. Gibson, 638 A2d203, 206 (Pa. 1994»; see Commonwealth v. Oppel,

 754 A2d 711, 713 (Pa. Super. 2000).

         Police can initiate an investigatory stop when they have reasonable suspicion of a Vehicle

 Code violation. Commonwealth v. Chase, 960 A.2d 108, 120 (Pa. 2008); Commonwealth v.

 Mllhammed, 992 A.2d897, 900 (Pa.Super. 2010). The constitution does not prevent the police

 fi'om "stopping and questioning motorists when they witness or suspect a violation of traffic

laws, even if it is a minor offense." Chase, 960 A2d at 113. "Reasonable suspicion sufficient to

stop a motorist must be viewed from the standpoint of an objectively reasonable police officer. ..

A finding of reasonable suspicion does not demand a meticulously accurate appraisal of the

facts. Indeed, even stops based on factual mistakes generally are constitutional if the mistake is

objectively reasonable." Id. (internal citations and quotation marks omitted). "Further, where an

officer observes a Motor Vehicle Code equipment violation from a vantage point at which he is

entitled to be and subsequently conducts a tralIic stop, the Fourth Amendment is not violated."

Commol1ll'ealth v. SteinlJletz, 656 A.2d 527, 528-29 (Pa. Super. 1995) (citation omitted). A police

officer need not stop the vehicle only when he or she intends to issue a citation; he may

effectuate a stop solely to issue a warning. COlJlmonwealth v. Benton, 655 A2d 1030, 1033 (Pa.

Super. 1995) (citing Commonwealth v. Fishel', 294 Pa. Super. 486, 440 A.2d 570, 572 (Pa.

Super. 1982».

       A police officer who observes a vehicle with excessive tinting on its windows is

permitted to effectuate a traffic stop because such tinting constitutes a violation of 75 Pa.C.S. §



                                                  4
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    4524(e)(1)1. COllllllonwealth v. Kemp, 961 A.2d 1247, 1250 (Pa. Super. 2008). See also:

    COllllllonwealth v. Dales, 820 A.2d 807 (Pa. Super. 2003). lvloreover, a technical violation of the

    Motor Vehicle Code legitimizes a stop, even if it is a pretext for some other investigation.

    COllllllol11l'ealth v. Jiggelfs, 15 Pa. D. & C. 5th 225 (Com. PI. Lehigh 2010) (citing Arkansas v.

    Sullivan, 532 U.S. 769, 772, (2001); Whren v. United States, 517 U.S. 806, 812-13 (1996);

    United States v. Robinson, 414 U.S. 218 (1973); United States v. Mosley, 454 FJd 249, 252 (3d

    Cir. 2006)). The subjective motivations of the officers, "play no role in ordinary probable-cause

    Fourth Amendment analysis." Wlu'en, 517 U.S. at 813; Commonwealth v. Chase, 960 A.2d 108,

    120 (Pa. 2008) ("[I]f police can articulate a reasonable suspicion of a Vehicle Code violation, a

constitutional inquiry into of1icer's motive for stopping vehicle is unnecessary."). This Court

holds that Trooper Greene did, in fact, reasonably suspect that Williams was driving the vehicle

in violation of75 Pa.C.S. § 4524(e)(l).

           After stopping defendant's vehicle, Trooper Greene asked for his driver's license.

Greene was permitted to do under Section 6308 of the Vehicle Code, which provides:

                  Whenever a police of1icer is engaged in a systematic program of checking
          vehicles or drivers or has reasonable suspicion that a violation of this title is occUlTing or
          has occurred, he may stop a vehicle, upon request or signal, for the purpose of checIdng
          the vehicle's registration, proof of financial responsibility, vehicle identification number
          or engine number or the driver's license, or to secure such other information as the
          officer may reasonably believe to be necessary to enforce the provisions of this title.


75 Pa.C.S. § 6308(b) (emphasis added). Greene then "ran" the license tlll'ough "CLEAN NCIC"

and found that there was an outstanding wanant for defendant's arrest. [N.T. 3127113, p. 28-31]



1   That subsection provides:
           (e) SUN SCREENING AND OTHER MATERIALS PROHlBITED.--

          (1) No person shall drive any motor vehicle with any sun screening device Of other material which does not
          permit a person to see or view the inside of the vehicle through the windshield, side wing or side window of
          the vehicle.

                                                          5
                                                                                    Circulated 11/26/2014 11:04 AM




          After learning of the outstanding warrant, Grcene was certainly at libcliy to arrest the

 defendant. Defense counsel advances the curious argument that Williams should have bcen

 released without further search after providing valid operating information. [Omnibus Pretrial

 Motion, ~ 28] Any suggestion that the Trooper should have released a man with an outstanding

 warrant for his arrest is untenable.

          During the ensuing investigation, Trooper Greene asked that the passenger step outside

 of the car. [N.T. 3/27113, p. 32] Police may request that both drivers and passengers "alight"

 from a lawfully stopped car without reasonable suspicion that criminal activity is afoot.

COllllllonwealth v. Prall, 930 A.2d 561, 564 (Pa.Super. 2007). Trooper Greene testified that the

passenger advised him of the presence of a gun in the car. Greene looked inside and saw a gun

and drug paraphernalia in plain view. [ld. at 32-34)

        Even if looking inside a car window were to be considered a "search," it would have

nevertheless been reasonable. The law is clear that no expectation of privacy exists with respect

to an item that is in plain view in a vehicle. COlllmonwealth v. Clark, 802 A.2d 658, 660

(Pa.Super. 2002). The plain view exception to the warrant requirement contains three prongs: (I)

the police must be at a lawful vantage point; (2) the incriminating character of the object must be

immediately apparent; and (3) the police must have a lawful right of access to the object.

Commonwealth v. lv1cCree, 924 A.2d 621, 625 (Pa. 2007).

        The incriminating character of a gun in the possession of a man with an outstanding

arrest warrant for terroristic threats and retaliation against a witness or victim is obvious.

Although counsel may argue that the incriminating character of plastic baggies was not

"immediately apparent," the law provides that although a particular type of container may have

lawful purposes, the circumstances under which a trained narcotics detective views their use may



                                                  6
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 be tantamount to a view of actual contraband. Commonwealth        1'.   Burnside, 625 A,2e! 678, 681

 (Pa. Super. 1993). In Commonwealth    1'.   MallO/)', 614 A,2d 1174 (Pa. Super. 1992), the comi held

 that the veteran officer, having been involved with more than a hundred criminal instances of

 narcotics in plastic bags, was justified in thinking that the object he saw contained drugs. See

 also: Comlllonwealth 1'. Chamberlain, 480 A.2d 1209 (Pa. Super. 1984) (holding that envelopes

 were recognizable as a common drug-packaging device). In the case at bar, defense counsel

 stipulated that Greene was qualified to know what drug paraphernalia-specifically glassine

 baggies-look like. [Id at 33] Greene was, therefore, at liberty to seize the baggies.

        Even if Greene was not, he was certainly authorized to impound the vehicle and have it

 towed. His authority to do so is found in 75 Pa.C.S. § 3352(c), which provides:

        § 3352. Removal of vehicle by or at direction of police.

        (c) Removal to garage or place of safety. --Any police officer may remove or cause to be
        removed to the place of business of the operator of a wrecker or to a nearby garage or
        other place of safety any vehicle found upon a highway under any of the following
        circumstances:



               (2) The person or persons in charge of the vehicle are physically unable to provide
               for the custody or removal of the vehicle.

               (3) The person driving or in control of the vehicle is arrested for an alleged
               offense for which the officer is required by law to take the person arrested before
               an issuing authority without unnecessary delay.


75 Pa.C.S. § 3352.

       The state police were at liberty to impound the car under subsection (c)(3) because

defendant, the driver, was arrested on a warrant. See: Commonwealth          1'.   Bailey, 986 A.2d 860

(Pa. Super. 2009) (holding that because the police arrested the driver on an outstanding arrest

warrant, they were at liberty to impound his care and conduct an inventory search). They could


                                                   7
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 have impounded the car under subsection (c )(2) because neither defendant nor the passenger,

 who was also arrested, could have driven it away. See: Commonwealth v. 11;[(lI'tinson, 533 A.2d

 750,754 (Pa. Super. 1987); United Stales v. Smith, 2005 U.S. Dist. LEXIS 25011 (E.D. Pa. Oct.

 24,2005)

          Since the state police had lawfully impounded the vehicle, they were permitted to

 conduct an inventory search2 . Trooper Greene testified that the State Police has an inventory

 policy that provides that they search any vehicle they intend to tow for valuables. [Id. at 34] His

 testimony is sufficient to establish that the inventory search was conducted pursuant to standard

 police procedure and in good faith. Commonwealth v. Gallas, 76 AJd 44, 59-60 (Pa. Super.

 2013). Therefore, the search of the interior of the vehicle and seizure of the gun and baggies

 were permissible under the "inventory search" exception to the warrant requirement of the

Fom1h Amendment.

         Defense counsel asserted that the search was not a "custodial inventory search" pursuant

to legitimate procedures. [Omnibus Pretrial Motion,             ~   29] This Court holds that it was, and it

credits Trooper Greene's testimony in that regard. Even if it was not, the gun and drugs would

have been inevitably discovered at a later date. With regard to the inevitable discovery rule,

under Pennsylvania law, "[i]f the prosecution can establish by a preponderance of the evidence

that the illegally obtained evidence ultimately or inevitably would have been discovered by

lawful means, the evidence is admissible. The purpose of the inevitable discovery rule is to block

setting aside convictions that would have been obtained without police misconduct." See



2 "Four goals underlie such searches. First, they protect the defendant's property while he is in custody; second,
police arc protected against then claims when defendants are given their property upon release; third, they serve to
protect the police fi'om physical harm due to hidden weapons; and fourth, when necessary they ascertain or verify
the identity of the defendant. Intrusions into impounded vehicles or personal effects taken as part of the booking
process are reasonable where the purpose is to idcntif)' and protect the seized items," Commonwealth v. Nal1ce, 57l
A.2d 1389, 1391 (Pa. 1990)

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 Commonwealth v. Bailey, supra., 986 A.2d at 862 (Pa. Super. 2009), quoting Commonwealth v.

 Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009).

         The Trooper lawfully searched the car and seized the gun and baggies. It is, therefore,

 recommended that the denial of the suppression motion be upheld.



 II.     The cross-examination of Dereck Richardson was properly limited.

         The Superior Court should reject defendant's argument that his cross-examination of Dereck

 Richardson was improperly limited. At the beginning of trial, defense counsel announced that his

 defense was that Richardson, the passenger, sold drugs to the defendant. Therefore, he should be

permitted to introduce the drug dealing convictions to prove that Richardson was, in fact, a drug

dealer. [N.T. 7117/13, p. II] This Comt ruled that defense counsel could ask Richardson whether he

was a drug dealer, but counsel would have to be content with any answer. [Id. at 19]

        During his cross-examination, defense counsel never asked whether Richardson was a drug

dealer or made any attempt to show that he sold defendant dl11gs. In fact, as the District Attorney

noted, he never even made mention of Richardson's crimen falsi convictions. [N.T. 7119/13, pp.

15, 17] It is clear that defense counsel abandoned his theory that defendant was a hapless victim of a

drug dealer who shamelessly preyed upon an unfortunate addict. Counsel has, therefore, waived his

argument that his cross-examination was unduly limited.

        Even ifhe did not waive the argument, it is without merit. Pa.R.Evid. 609(a) provides that

for the "purpose of attacking the credibility of any witness, evidence that the witness has been

convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, shall be admitted if

it involved dishonesty or false statement." A determination as to whether an offense is a cl'imenj(tlsi

may not be based solely upon its statutory title as that "does not place it in proper perspective in



                                                   9
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 terms of meaningfulness and as an aid to the trier of fact. " Commonwealth v. Williams, 573 A,2d

 536, 540 (1990) (Zappala concurring). Even if the definition itself does not include a crimen falsi

 element, an offense may still be considered for purposes of impeachment under Pa. R.E. 609 if the

 facts of its commission render it such in a particular case. Commonwealth v. Cascardo, 981 A,2d

 245, 255 (Pa. Super. 2009); Commonwealth v. Coleman, 664 A,2d 1381, 1383-84 (pa. Super.

 1995); Commonwealth v. Harris, 658 A,2d 811 (Pa. Super. 1995).

          Convictions for possession or sale of dmgs are generally not crimen/ct/si. Commonwealth v.

Callsey, 833 A,2d 165, 169 (Pa. Super. 2003); Commonwealth v. Coleman, Sllpra, 664 A,2d at

 1385 (Pa. Super. 1995); Commonwealth v. Rhodes, 592 A,2d 1360, 1362 (Pa. Super. 1991).

Convictions for drug possession are not crimen falsi. See Comlllonwealth v. Hernandez, 862

A,2d 647 (Pa. Super. 2004). Counsel made no attempt to show that Richardson's convictions for

sale of controlled substances could be considered crimen jct/si. Therefore, his argument-even if

not waived-has no merit.

          The Superior Court should reject tlus argument.



III.      Dcfense counsel waivcd his arguments that Corporal Slmhill's testimony exceeded
          the scope of his expertise and was "speculative."


          In his Statement of Matters Complained of on Appeal, defense counsel asserts that this

COUli erroneously permitted the Commonwealth's expert witness, IVlichael Skahill, to "exceed[]

the appropriate scope of expeli testimony pursuant to Pa.R.E. 704" and to "offer[] his speculative

opiluon that defendant was guilty and a drug dealer." [Statement of Matters Complained of on

Appeal,   ~   2] The central difficulty with defendant's assignment of error is that he waived any




                                                   10
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 arguments that Skahill exceeded the scope of his expertise and offered "speculative" opinions by

 failing to raise them at trial.

         Counsel stipulated that Corporal Skahili was qualified to testify as an expert in drug

 investigations and drug activity. [N. T. 7/18113, p. 19] Counsel objected early in Skahili's

 testimony to the question "what happens when your answer is not possession with intent?" [lei.

 at 27-28] This Court overruled that objection. After some additional questioning, the prosecutor

 asked Skahili whether he was "able to render an opinion of whether the 15 bags of crack cocaine

 seized off the Defendant's person in this case were possessed for personal use or possessed with

 intent to deliver to another person?" [Id. at 33] Corporal Skahill testified that defendant

possessed the cocaine with the intent to deliver it. [lei.] Defense counsel did not object either to

the question or to the answer. Furthermore, he made no objection to any question or answer in

the balance of the direct examination. [lei. at 33-46] In fact, he agreed that this Comt has been

"very, very fair." [Id. at !O3]

        On re-redirect examination, counsel did object to Skahili's comments about "what

Defense Counsel would like to suggest ... " [Id. at 139] He asselted that they "went way

beyond giving an expert opinion," arguing that the witness overstepped his expertise by making

a "reference to" him and "intelject[ing] personality" into the case. [ld. at 142 -146] Tllis Court

denied defendant's mistrial motion and instructed the jury that Corporal Skahill's remarks

"should not be interpreted as any kind of an adverse connnent about Mr. Jolmson," defendant's

counsel. [Id. at 150]

       Counsel never argued that Corporal Skahili lacked the expertise to offer an opinion as to

whether defendant possessed the 15 bags of crack cocaine with the intent to deliver them. He

never asserted that such an opillion would be "speculative." Rather, he merely objected to a



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 personal cOlllment, arguing that this retOli "intelject[ed] personality" into the case. To the extent

 that the witness cast an aspersion upon defense counsel, this Court properly dealt with it by

 giving the jury an appropriate instruction. To the extent that counsel now contends that Skahill's

 entire testimony was speculative, beyond his expertise or otherwise improper, he waived the

 arguments by failing to raise them at trial.

        The Superior Court should, therefore, reject these arguments.



 IV,    This Court did not err by failing to dismiss the gun chal'ges at trial

        The Superior Court should reject defendant's third assignment of error because defendant

did not request a dismissal of the gun charge at trial. Furthermore, defendant cannot claim the

benefit of a bargain he never made.

        His counsel asserts the following:

               3. The trial court erred in failing to dismiss prior to trial the information(s) filed
        charging defendant with 18 PaCSA 6105 and 6106 as these charges were intended to be
        withdrawn by agreement of the parties at defendant's preliminary hearing.

[Statement of Matters Complained of on Appeal, '13] Although counsel raised tlus argument in

the Omnibus Pretrial motion, he abandoned it long before trial. Furthermore, it lacks any merit.

       At the Preliminary Hearing held on October 23, 2012, the Commonwealth withdrew the

charge of 18 Pa.C.S. § 6106(a)(l), possessing a firearm without a license, contingent upon a

"non-trial disposition at the Court ofColllmon Pleas." [N.T. 10/23/12, p. 3] However, the

parties were not able to negotiate a plea agreement. On February 28, 2013, defense counsel filed

an Omnibus Pretrial Motion in wluch he detailed a breakdown in negotiations between the

parties. He asked that the new gun charge under 18 Pa.C.S. § 6105 be dismissed because it

constituted "vindictive prosecution" and because it violated Pa.R.Crim.P. 565.



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            At the hearing held on March 27, 2013, counsel did not advance his dismissal motion.

    Rather, he and the Assistant District Attorney discussed the possibility of a plea. The

    negotiations broke down, and the case proceeded to trial. Now, atter the defendant has been

    sentenced, defense counsel renews his motion to dismiss.

            Counsel has waived the issue by failing to advance it at any point during trial. In addition,

    the argument is without merit. It is apparent that the defendant and the Commonwealth were

    unable to negotiate a deal that was satisfactory to all. This Court has no authority to impose a

    resolution. The Commonwealth offered to withdraw the gun charges, but its offer was

    "contingent" on a "non-trial disposition." The parties could not agree on a disposition, so the

    Commonwealth withdrew its offer and proceeded to trial. Defendant has no right to claim the

    benefit of a bargain that was never reached.

           The Superior Comi should, therefore, reject tlus argument.




V.          This Court properly charged the jury.

            The Superior Comi should reject defendant's objection to the jury charge because he

waived it. Furthermore, it is without merit. Defense counsel asselis that defendant "is entitled to

a new trial because the trial court elTed in instructing the jury concerning the charge of criminal

conspiracy for Possession with Intent to Deliver a Controlled Substance (pWID)3 that the jury

could convict defendant on this charge because co-defendant Richardson pled guilty to the

charge of Conspiracy to PWID4 " [Statement of Matters Complained of on Appeal, ~ 4] This

asscliion mischaracterizes the jury charge.


3   Richardson pled guilty to conspiracy to possess a gUll, not conspiracy to distribute controlled substances.
4   See preceding footnote.

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          This Court explained to the jurors that they could find-as a result of his pleading guilty

 to conspires with defendant to possess a gun-that Richardson was defendant's "accomplice"

 and, therefore, his testimony was from a "corrupt or polluted source." [N.T. 7/19/13, p. 99-101]

 Defense counsel then raised some questions about the charge. [Id at 118-124] He did not,

 however, make any formal objection to the charge. The jury then retired.

          After some deliberations, the jury requested a more detailed explanation of Count 5 and

 the law concerning possession and control. [Id at 126] This Court then re-instructed the jUl)' on

 those issues, explaining that the parties could have "joint possession" of a firearm under certain

 scenarios, including if they possessed it as co-conspirators. [Id. at 127-130]

         Defense counsel then objected to the use of the word "conspiracy" on the ground that

 defendant was never charged with conspiracy. He asked that the jury be told that Defendant "has

not been charged with Conspiracy ... " [Id. at 132] This Court obliged him and instructed the

jury that "the Defendant has not been charged with Conspiracy ... " [Id. at 133] Counsel made

no further objections or exceptions.

         The law provides that "[ a]n appellate court must assess the jury instructions as a whole to

determine whether they are fair and impmtial." COllllllonwealth v. Collins, 687 A.2d 1112, 1113


          s This Court explained:




                  In view of the evidence of Mr. Richardson's criminal involvement, and I remind you that his
        testimony included the fact that he pleaded guilty to conspiring with the Defendant to possess a
        firearm, you must decide whether Mr. Richardson was an accomplice in the first place in the crime
        charged. If after considering ali the evidence you find that he was an accomplice, then you must apply the
        special rules to his testimony. Otherwise, ignore those rules. Use this test to determine whether Mr.
        Richardson was an accomplice. Again, an accomplice is a person who is a person who knowingly and
        voluntarily cooperates with or aids another person in the commission of a crime.




[N.T. 7119113, p. 100-101 (emphasis added)]

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 (Pa. 1996). "The trial court has broad discretion in phrasing its instructions, and may choose its

 own wording so long as the law is clearly, adequately, and accurately presented to the jury for its

 consideration.... We will not rigidly inspect a jury charge, finding reversible error for every

 technical inaccuracy, but rather evaluate whether the charge sufficiently and accurately apprises

 a lay jury of the law it must consider in rendering its decision." Commonwealth 1'. Hanniba/, 753

 A.2d 1265, 1269 (Pa. 2000) (quoting C011l11lonwealth          1'.   Prosdoci11lo, 578 A.2d 1273, 1274, 1276

 (Pa. 1990). "For [an] appellant to be entitled to a new trial, the jury instruction must have been

 fundamentally in error, or misled or confused the jury." Com11lonwea/th            1'.   Wright, 961 A.2d 119,

 145 (Pa. 2008).

         Defense counsel docs not contend that the charge as given contained any legal error.

Rather, he appears to suggest that it contained extraneous information. Assuming that we

understand it correctly, the additional explanation or revision cured defense counsel's objection.

He waived the issue by failing to object once again after this Court explained to the jury that the

Commonwealth had not charged defendant with conspiracy. The Superior Court should,

therefore, find that counsel waived the issue by failing to preserve it at trial. Under Criminal

Procedural Rules 603 and 647(B), there must be a specific objection or exception to the charge.

COI/I/J/Ol1\l'ea/th   1'.   Pressley, 887 A.2d 220, 225 (Pa. 2005). This rule "serves the salutary

purpose of affording the court an opportunity to avoid or remediate potential error, thereby

eliminating the need for appellate review of an otherwise correctable issue." Jd. at 225. Even if

the charge contained extraneous information, tlils Court properly corrected it. Defendant did not

object to the correction, so he waived the issue.




                                                        IS
                                                                                    Circulated 11/26/2014 11:04 AM




          Furthermore, the instl11ction, even before the requested clarification, was not in error. It

 correctly set forth the matmer in which Williams and Richardson might have jointly possessed

 the gun. The Superior Court should, therefore, reject the argument.



 VI.      There was sufficient evidence to support the cOllvictions, and the verdict was not
          against the weight of the evidence.


          The Superior COUlt should reject defendant's sufficiency challenge because there was

 ample evidence to SUppOlt the convictions. Furthermore, the verdict was not against the weight

 of the evidence.

          A claim challenging the sufficiency of the evidence is a question of law. Evidence will be

deemed sufficient to support the verdict when it establishes each material element of the crime

charged and the commission thereof by the accused beyond a reasonable doubt. COllllllol1ll'eallh

V.   Widlller, 744 A.2d 745, 751-752 (Pa. 2000), citing COllllllonwealth v. Karkaria, 625 A.2d

1167 (Pa. 1993). Where the evidence offered to SUppOlt the verdict is in contradiction to the

physical facts, in contravention to human experience and the laws of nature, then the evidence is

insufficient as a matter of law. COlllmonwealth v. Santana, 333 A.2d 876 (Pa. 1975). When

reviewing a sufficiency claim the court is required to view the evidcnce in the light most

favorable to the verdict wilmer giving the prosecution the benefit of all reasonable inferences to

be drawn from thc evidence. COllllllonwealth v. Challlbers, 599 A.2d 630 (Pa. 1991).

         A motion for new trial on the ground that the verdict is contrary to the weight of the

evidence concedes that there is sufficient evidence to sustain the verdict. COllllllonwealth v.

Whitelllan, 485 A.2d 459 (Pa. Super. 1984). Thus, the trial COUlt is under no obligation to view

the evidence in the light most favorable to the verdict winner. An allegation that the verdict is



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 against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth

 v. Brown, 648 A.2d lin (Pa. 1994). A new trial should not be granted because of a mere

 conflict in the testimony or because thc judge on the same facts would have arrived at a different

 conclusion. Widmer, supra. 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 \vere a juror. Trial

judges, in reviewing a claim that the verdict is against the weight of the evidence do not sit as the

 thitteenth juror. Rather, the role of the trial judge is to determine that "notwithstanding all the

 facts, certain facts are so clearly of grcater weight that to ignore them or to give them equal

weight with all the facts is to deny justice." Widmer, supra. at 752.

        When arrested, defendant had in his right sock 15 baggies containing a total amount of.7

grams of crack cocaine. There is no serious issue as to whether he possessed the drugs. The

only issue is whether he did so with the intent to distribute them. lfthe quantity of the controlled

substance is not dispositive as to the intent, the court may look to other factors, including: the

manner in which the controlled substance was packaged, the behavior of the defendant, the

presence or absence of drug paraphernalia, the presence of cash found in possession of the

defendant, the presence of a gun, the location of the arrest, and expelt testimony.

Commonwealth v. Ra/samy, 934 A.2d 1233, 1237-1238 (Pa. 2007) "Expert opinion testimony is

admissible concerning whether the facts surrounding the possession of controlled substances are

consistent with an intent to deliver rather than with an intent to possess it for personal use."

ComlJlonwealth v. Jackson, 645 A.2d 1366, 1368 (Pa. Super. 1994).

        Defense counsel assails the expert testimony of Skahill as "incredible, ull1'eliable and

unsupported by independent evidence." [Statement of Matters Complained of on Appeal, ,; 8]

Tllis Court holds that Skallill's opinions were competent, and a reasonable juror could rely upon



                                                  17
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 them and find defendant guilty. Skahill testified that defendant was not a serious crack cocaine

 user. He did not have a crack pipe or other smoking device in his possession or his car. He

 possessed a handgun, which is one of the tools of the drug-trafficking trade. These facts led him

 to the conclusion that defendant possessed the crack cocaine with the intent to distribute it. [NT.

 7118113, pp. 33-46]

        Since being released from federal prison in August 2011 until being arrested for the

 instant offenses in September 2012, defendant was repeatedly and randomly subject to urine

 testing, but he never once tested positive for cocaine. (lei at 115-136] Defendant's assertion that

he was a "user" not a "dealer" of crack cocaine flies in the face of the drug test results. Although

defendant's expert testified that he was a "user," it appears that the jury did not believe her. The

finding that he possessed the crack cocaine with the intent to distribute it is reasonable and fully

suppOlied by the evidence.

        There is also no question but that a gun was located under the passenger seat of the car.

The only issue was whether defendant "possessed" it. Dereck Richardson testified that the gun

belonged to defendant, who, after being pulled over, pulled it out of his waistband and attempted

to put it in the glove compaliment. The gun fell to the floor, and Richardson pushed it under the

passenger seat with his foot. [N.T. 6/1713, pp. 110-132] Although Richardson testified pursuant

to a plea agreement, the jury was certainly at liberty to believe his account.

       There was sufficient evidence support the verdicts in tIus case. There were no facts that

were so clearly of greater weight that to ignore them or to give them equal weight with all the

facts would be a delua1 of justice. This COUli properly denied the post-trial motions, and the

Superior Court should affirm the verdicts.




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 VII.    The sentences were proper.

         The Superior Court should reject the challenge to the sentences because the aggregate

 sentence is not, on its face, manifestly excessive. The imposition of sentence is vested in the

 discretion of the trial court, and should not be disturbed on appeal for a mere error of judgment

 but only for an abuse of discretion and a showing that a sentence was manifestly unreasonable.

 COlllmonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). Issues challenging the discretionary

 aspects of sentence must be raised in a post -sentence motion or by presenting the claim to the

 trial court during the sentencing proceedings. "Absent such effOlis, an objection to a

discretionary aspect of a sentence is waived." Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.

Super. 2004) (citation omitted), appeal denied 580 Pa. 695, 860 A.2d 122 (2004).

        All of the sentences were well within the guideline ranges:

        (l) Count One: The jury found defendant guilty of possession with the intent to deliver

under 2.5 grams of cocaine. The law provides for a mandatory minimum sentence of 5 years (60

months). Defendant was sentenced to the mandatory minimum term of 5 years (60 months), so

he received the lowest possible sentence.

        (2) Count Two merged with Count One for sentencing purposes.

        (3) Count Three: The jury found defendant guilty of possession of drug paraphernalia.

The standard sentencing range is 3 - 6 months. This Comi sentenced defendant to a 6-month

period of incarceration, which is at the high end of the guidelines range, but still within the

guidelines.

        (5) Count Five: The jury found defendant guilty of possession of a firearm by an

ineligible person. This Court sentenced defendant to the mandatory period of 60 - 120 months

incarceration, the only available option.



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        (6) Count Six: The jury found defendant guilty of possession of an unlicensed firearm.

 This Court sentenced defendant to the mandatory period of 42 to 84 months incarceration, the

 only available option.

        The only issue, then, is the propriety of imposing the sentences consecutively rather than

 concurrently. Defendant did not file a post-trial motion for reconsideration of sentence, so he

 has waived any challenge to the imposition of consecutive sentences.

        Even if he did not waive the argument, it has no merit. The imposition of consecutive

rather than concurrent sentences lies within the sound discretion of the sentencing court.

Challenges to the exercise of this discretion ordinarily do not raise a substantial question.

Commonwealth v. Pass, 914 A.2d 442,446-47 (Pa. Super. 2006); Commonwealth v. Lloyd, 878

A.2d 867, 873 (Pa. Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005) (citing

Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995). The sentencing statute, 42

Pa.C.S. § 9721, affords the sentencing court discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at the same time or to sentences already

imposed. Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (citing Commonwealth

v. Graham, 661 A.2d 1367, 1373 (Pa. 1995)). "In imposing a sentence, the trial judge may

determine whether, given the facts of a pmiicular case, a sentence should l'lIn consecutive to or

concurrent with another sentence being imposed." Commonwealth v. Pen)', 883 A.2d 599 (Pa

Super. 2005), quoting Commonwealth v. Wright, 832 A.2d 1104, 1107 (Pa.Super.2003); see also

Commonwealth v. L.N, 787 A.2d 1064, 1071 (Pa.Super.2001), appeal denied 569 Pa. 680, 800

A.2d 931 (2002). As the Superior Comi stated in Commonwealth v. Mas/romarino, 2 A.3d 581,

587 (Pa.Super. 2010), "[tlhus, in our view, the key to resolving the preliminary substantial

question inquiry is whether the decision to sentence consecutively raises the aggregate sentence



                                                20
                                                                                    Circulated 11/26/2014 11:04 AM




 to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in

 the case."

         The aggregate sentence-168 to 336 months or 14 to 28 years-is not, on its face,

 manifestly excessive. Four factors must be considered when fashioning an appropriate sentence:

 punishment, rehabilitation, the safety of the community and deterrence.

        Punishment. Drug trafficking is a very serious offense that strikes at the heart of civilized

 society. The offense of possession with intent to distribute is serious, and defendant should be

punished. Possession of an unlicensed gun by a felon is a serious offense. Defendant must be

punished for his callous disregard of public safety.

        Rehabilitation. The difficulty with rehabilitation is that defendant has shown little

interest in it. At the sentencing hearing, defendant testified that he was gainfully employed, had

finished a course in truck driving and was looking forward to starting a new career. [N.T.

9/16/13, p. 7] However, only one year after being released from his federal bank robbery

sentence, defendant was arrested for the instant offenses. Defendant may have skills and the

ability to be gainfhlly employed, but he supplements those earnings with illegal drug sales. He

has little interest in giving up his felonious pursuits, despite his ability to make an honest living.

Therefore, this COUli cannot consider the prospect for rehabilitation by teaching him new skills.

Defendant has plenty of skills, but he has chosen to engage in criminal pursuits.

       The sentencing court is in the best position to judge the "defendant's character, [and his]

displays of remorse, defiance or indifference." Commonwealth v. Eicher, 605 A.2d 337, 354 (Pa.

Super.), appeal denied, 533 Pa. 598,617 A.2d 1272 (1992). It is recommended that the Superior

Court defer to tlus Court's assessment of defendant's character and his defiant insistence on

engaging in crime.



                                                  21
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         The safety of the community. As previously noted, defendant imperiled the safety of the

City of Chester by his drug trafficking. [See discussion at N.T. 9116/13, p. 23-24] The

community's safety is enhanced each time a drug dealer, particularly one who is illegally armed,

is taken off its streets. This Court believes that defendant should be removed from the streets for

an extended period. Were he to be released in the near future, he would, in short order, resume

his threats to the community's safety.

Deterrence. A long sentence is appropriate to deter this defendant and others so inclined from

engaging in these activities. If this Court were to impose a lenient sentence, the message would

go out to the members of the drug-dealing community that they can continue to ply their trade

with impunity. The courts must send to drug dealers the message that the potential consequences

of their activities are momentous. If a drug dealer puts the safety of the public at risk, he is likely

to spend a significant amount of time behind bars.

         The Superior Court should, therefore, affirm the sentence of this Court.



                                          CONCLUSION

         The Superior Court should, therefore, affirm the convictions and the sentence of this

Court.




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