Filed 6/17/14 P. v. Featherson CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                   IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135299
v.
DARNELL FEATHERSON,                                                  (Contra Costa County
                                                                     Super. Ct. No. 051118256)
         Defendant and Appellant.


         Darnell Featherson was convicted by a jury of shooting at an inhabited dwelling.
He contends the trial court erred when it found witness Shontise Luckett was legally
unavailable to testify and admitted her preliminary hearing testimony at trial. He further
asserts the admission of various witnesses’ prior inconsistent statements violated his due
process right to a fair trial and that his trial counsel was ineffective for failing to consult
with or retain an expert on eyewitness identification. None of his contentions have merit,
so we affirm the judgment.
                                                 BACKGROUND
         Luckett identified defendant as the assailant who fired shots through her bedroom
window in a 911 call, to police officers who responded to the 911 dispatch, and to a
detective several days after the incident. She disavowed her identification at the
preliminary hearing and subsequently invoked the Fifth Amendment and refused to
testify at trial. During trial, her account of the shooting emerged primarily from her 911
call and her preliminary hearing testimony, which were introduced as substantive


                                                             1
evidence, and her disavowed prior statements to police, which were introduced for
impeachment.
       Defendant and Luckett were previously in a romantic relationship and have twin
children together. However, their relationship ended and in the spring of 2011 Luckett
became involved with Damon Black. Defendant was jealous of Black and the breakup
was difficult for him. For several weeks before the shooting he called and texted Luckett
every day, threatening her, calling her “bitch this, bitch that,” and warning “I’m going to
get you and your nigga.” A day or two before the shooting, Black called defendant, told
him that he and Luckett were now a couple, and asked him to stop bothering her.
       On August 13, 2012, Luckett, Black, and Luckett’s two-year-old son Darnell were
asleep in Luckett’s master bedroom. At approximately 3:20 a.m. Luckett awoke to the
sound of gunshots. When she looked out the bedroom window she saw defendant firing a
weapon into the window from the backyard. He had removed the screen and opened the
window. He cursed at Luckett and Black, saying something like “Bitch. Bitch nigga” or
“Where that bitch ass nigga at?”
       Black fled. Luckett grabbed Darnell and called 911. In the 911 call, she identified
defendant as the shooter. When the 911 operator asked Luckett how she knew defendant
was the assailant, Luckett responded “I’m—he shot through my window. I looked right
at him, screaming and hollering. I looked at him.” Cell phone data placed defendant
approximately five and one half miles from Luckett’s house 18 minutes before she called
911. Several hours after the shooting, Luckett sent defendant a text message that said
“you grazed me with a bullet.”1 Defendant texted back, “you is the biggest liar.”
       Officer Adrian Gonzalez responded to the 911 call. Luckett told Officer Gonzalez
that she woke up to a loud crash and the sound of gunshots. When she looked to the
source of the sound, she saw defendant at the window shooting a black semiautomatic
handgun in her direction and into the ceiling, saying “Bitch, I told you.” The officers
found a bullet hole in the ceiling above Luckett’s bed, an expended nine millimeter shell

       1
       Luckett was not actually hit by a bullet. These text messages were admitted only
for impeachment.
                                             2
casing in a laundry basket beneath the master bedroom window, and four additional shell
casings in the backyard outside the window. The bedroom window was wide open and
the screen lay on the ground outside.
       Officer Marty Hynes arrived within minutes of the 911 dispatch call and
encountered Black, clad only in undershorts, in front of Luckett’s house. Black told him
he was asleep in bed next to Shontise and Darnell when he was awakened by the sound of
the window screen being removed. He saw defendant standing outside of the window
pointing a gun into the house, then heard and saw the gun discharge five or six rounds.
At trial, Black recanted his previous identification of defendant and testified that he was
in the garage, not the bedroom, when he heard the shots. He said he did not see
defendant that night and, in fact, had never seen him. Luckett asked him what was going
on and whether he’d heard fireworks; she did not tell Black she recognized defendant’s
voice or that he shot into the window. Black denied having recently asked defendant to
leave him and Luckett alone.
       Officer Hynes also spoke with Luckett’s oldest daughter, Wilnesha Featherstone.
Featherstone said she awoke to the sound of someone trying to open the patio door. She
heard gunshots and saw defendant shooting a gun into the house. She did not see his
face, but recognized his voice. At trial, Featherstone testified that she “never said
anything about” defendant to police, remembered nothing about her conversations with
police, did not remember seeing defendant the night of the shooting, and could not have
seen him because she was not wearing her glasses.
       On August 16, Luckett’s 11-year-old daughter Aiyana Henderson told Detective
Michael Mellone that on the night of the shooting she heard someone trying to get in the
back door, followed by the sound of blinds and then gunshots. Henderson said she knew
defendant was the culprit because he had done the same thing before. At trial, Henderson
testified that she heard her mother tell police defendant was the shooter, but that Luckett
later said she had been mistaken and defendant was not the culprit.
       Detective Mellone interviewed Luckett and Black on August 17. Luckett
described the events of August 13 in detail and again identified defendant as the

                                              3
perpetrator. Black said that he could not see the shooter’s face, but that Luckett told him
it was defendant.
       At the preliminary hearing, Luckett recanted her identification. In addition, she
and Black both wrote letters in which they said defendant was not the assailant. Luckett
wrote that she didn’t see him at the house, merely assumed the voice she heard was his,
and “was only trying to teach [defendant] a lesson” when she told police he was the
shooter. She also wrote that Black lied about the shooting because he was jealous of
defendant and afraid Luckett would resume her relationship with him. Black wrote that
Detective Mellone “bamboozled” and coached him into identifying defendant as the
culprit. Excerpts of both letters were read to the jury for impeachment.
                                          DISCUSSION
               I. The Admission of Luckett’s Preliminary Hearing Testimony
                                          A. Background
       Luckett recanted her initial identification of defendant at the preliminary hearing
and, at a hearing in limine at the outset of the trial, invoked her Fifth Amendment
privilege against self-incrimination and refused to answer questions. The court
conducted an in camera hearing with Luckett and her attorney outside the presence of the
prosecutor and defense counsel. After the in camera hearing, the court found an adequate
basis for Luckett’s invocation of her Fifth Amendment privilege and ruled over defense
objections that her preliminary hearing testimony was admissible. The court also
admitted a recording of Luckett’s 911 call, as well as her incriminating statements to
police the night of the shooting. Luckett’s preliminary hearing testimony and 911 call
were admitted for their truth, while her statements to police were admitted only for
impeachment.
                       B. The In Camera Transcripts Must Remain Sealed
       Prior to filing his opening brief on appeal, defendant asked this court to unseal the
transcript of the in camera hearing. We denied his request without prejudice to his right
to raise the issue in his appellate briefing. Our order explained that “[a]s a general
matter, an appellant is not entitled to gain access to information on appeal that it was

                                              4
denied at the trial court level. The right to appellate review is limited to a determination
as to whether the lower court’s ruling was correct. This court may generally make its
determination by reviewing the transcript of the in camera proceedings. (People v. Price
(1991) 1 Cal.4th 324, 493; People v. Collins (1986) 42 Cal.3d 378, 395, fn. 22; Herrera
v. Superior Court (1985) 172 Cal.App.3d 1159, 1163; cf. Evid. Code, §§ 915, subd. (b),
1042, subds. (b), (d); Cal. Rules of Court, rule 8.328(b)(6).)”
       Defendant renewed his request in his opening brief, but provides no reason for us
to alter our ruling. He attempts to distinguish the above cited authorities and others that
support the denial of access to Luckett’s in camera statements on the ground that the
authorities address statutorily-protected information, e.g., the identity of confidential
informants, police records, trade secrets, and attorney work product, not a witness’s
invocation of the Fifth Amendment privilege. The essence of his position is that the
fundamental constitutional privilege against self-incrimination embodied in the Fifth
Amendment (see Withrow v. Williams (1993) 507 U.S. 680, 692; Evid. Code, §940) is
entitled to lesser protection than privileges created by statute. Plainly, that cannot be so.
We are not insensitive to the frustration of appellate defense counsel who cannot
personally review testimony sealed to protect a witness’s Fifth Amendment privilege, but
the prohibition is compelled by Luckett’s invocation of her constitutional right not to
incriminate herself. Where disclosure to appellate counsel could reveal such privileged
information, the Supreme Court counsels that parties “ ‘must do the best they can with
the information they have, and the appellate court will fill the gap by objectively
reviewing the whole record.’ ” (People v. Price, supra, 1 Cal.4th at p. 493, quoting
People v. Collins, supra, 42 Cal.3d at p. 395, fn. 22.) We have conducted that review,
which must suffice.
        C. The Trial Court Properly Permitted Luckett To Invoke the Fifth Amendment
       Defendant contends the court erred when it found Luckett entitled to assert the
Fifth Amendment. He argues Luckett failed to establish that the testimony the prosecutor
sought to elicit was incriminating, and that the trial court failed to ascertain whether


                                              5
something less than a blanket assertion of the privilege would suffice to protect her.
Neither argument has merit.
       The relevant facts are not disputed, so we review the trial court’s ruling
independently. (People v. Seijas (2005) 36 Cal.4th 291, 304.) The Fifth Amendment
privilege is properly invoked if “the witness has reasonable cause to apprehend danger
from a direct answer.” (Hoffman v. United States (1951) 341 U.S. 479, 486.) The initial
burden is on the witness claiming the privilege to show that the requested answer might
tend to incriminate her. (People v. Ford (1988) 45 Cal.3d 431, 440.) It is then the
court’s responsibility to determine whether an answer might tend to incriminate. (Id. at
p. 441.) “ ‘The witness is not exonerated from answering merely because he declares that
in doing so he would incriminate himself—his say-so does not of itself establish the
hazard of incrimination.’ ” (People v. Seijas, supra, 36 Cal.4th at p. 304, quoting
Hoffman v. United States, supra, at p. 486.) Rather, “the privilege is properly invoked
whenever the witness’s answers ‘would furnish a link in the chain of evidence needed to
prosecute’ the witness for a criminal offense.” (People v. Cudjo (1993) 6 Cal.4th 585,
617, quoting Hoffman v. United States, supra, 341 U.S. at p. 486.) In determining
whether this standard has been met, the court may consider the implications of the
question and the setting in which it is asked, since even an explanation of the reasons for
fearing prosecution could result in injurious disclosure. (People v. Cudjo, supra, at p.
617.) Thus, “when a witness grounds a refusal to testify on the privilege against self-
incrimination, a trial court may compel the witness to answer only if it ‘clearly appears to
the court’ that the proposed testimony ‘cannot possibly have a tendency to incriminate
the person claiming the privilege.’ ” (Id. at p. 617; People v. Seijas, supra, 36 Cal.4th at
pp. 304–305.)
       The court should make a particularized inquiry as to whether a claim of privilege
is properly invoked, tailored to the circumstances of the case. (People v. Lucas (1995) 12
Cal.4th 415, 454; Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 429.) Factors
it may consider include: “ ‘1) the nature of the information sought to be disclosed, 2)
implications derived from the questions asked, 3) the nature and verifiability of any

                                              6
investigation or proceeding claimed to justify the fear of incrimination, or the possibility
that any such investigation or proceeding may be commenced, 4) matters disclosed by
counsel in argument on the claim of privilege, and 5) evidence previously admitted.’ ”
(Blackburn v. Superior Court, supra, at p. 429) The privilege “must be accorded liberal
construction in favor of the right it was intended to secure.” (Hoffman v. United States,
supra, 341 U.S. at p. 486.)
       Here, defendant asserts that “it is unclear exactly what Ms. Luckett believed would
expose her to danger should she testify at trial” and there is “no indication . . . the trial
court even considered narrowing” her assertion of privilege. (See Warford v. Medeiros
(1984) 160 Cal.App.3d 1035, 1045–1046 [ “blanket” assertion is generally insufficient;
court should conduct inquiry into whether the privilege is justified as to specific areas of
questioning].) We disagree. The unsealed transcript, without reference to the sealed
proceeding, indicates Luckett had reason to believe she could be incriminated by
testifying at trial. At the outset of her testimony at the preliminary hearing, Luckett asked
the court, “Do I have the right to request an attorney? I have been threatened so much
from the district attorney and the police that I don’t want to say the wrong thing and land
in jail and my children removed from my home.” Under questioning by both sides just
before trial, she asserted her Fifth Amendment privilege when asked whether she struck
an investigator who tried to serve her with a subpoena the previous week; whether she
lied at the preliminary hearing; whether she had received text messages from defendant
about resuming their romantic relationship; and whether in June 2011 she reported to
police that he had fired a gun at her house. The court then conducted the in camera
hearing. Our review of the sealed transcript of that hearing leaves no doubt that the court
adequately probed Luckett’s reasons for refusing to testify and, based on her responses,
correctly determined her testimony could be incriminating and permitted her to invoke
the Fifth Amendment. (See, e.g., People v. Farmer (1983) 145 Cal.App.3d 948, 951
[witness unavailable where record showed she would refuse to testify as to any matter to
which she had testified at preliminary examination]; People v. Hollinquest (2010) 190


                                               7
Cal.App.4th 1534, 1547–1548.) Defendant’s suggestion of error is refuted by the record
surrounding Luckett’s refusal to testify and the court’s inquiry.
           D. The Court Properly Admitted Luckett’s Preliminary Hearing Testimony
       Defendant alternatively asserts the court erred when it admitted Luckett’s
preliminary hearing testimony because his motive and opportunity to cross-examine her
in the preliminary hearing was insufficiently similar to his aims at trial. Specifically, he
contends that his purpose at the preliminary hearing was to elicit information about a
possible third-party shooter and “an exonerating recantation” from Luckett, while his
goal at trial was to “completely discredit[]” her before the jury. The contention is
unpersuasive.
       Prior testimony of an unavailable witness is not made inadmissible by the hearsay
rule if, at the time the unavailable witness gave testimony, “the cross-examination was
made ‘with an interest and motive similar’ to that of the prior proceeding.” (People v.
Harris (2005) 37 Cal.4th 310, 332; Evid. Code, § 1291, subd. (a)(2).) The “ ‘ motives
need not be identical, only “similar.” ’ [Citation.] ‘Both the United States Supreme
Court and this court have concluded that “when a defendant has had an opportunity to
cross-examine a witness at the time of his or her prior testimony, that testimony is
deemed sufficiently reliable to satisfy the confrontation requirement [citation], regardless
whether subsequent circumstances bring into question the accuracy or the completeness
of the earlier testimony.” ’ ” (People v. Harris, supra, at p. 333.) The admission of
former testimony under such circumstances complies with constitutional requirements
“ ‘not because the opportunity to cross-examine the witness at the preliminary hearing is
considered an exact substitute for the right of confrontation at trial [citation], but because
the interests of justice are deemed served by a balancing of the defendant’s right to
effective cross-examination against the public’s interest in effective prosecution.’ ”
(People v. Samayoa (1997) 15 Cal.4th 795, 850.)
       Defendant’s motive and interest in questioning Luckett at the preliminary hearing
were fundamentally the same as at trial: to undermine her initial identification of
defendant as the perpetrator, and to explain and bolster her subsequent renunciation of

                                              8
that identification. Defendant’s claim that he had no reason to cross-examine Luckett at
the preliminary hearing because she had withdrawn her accusation is wrong. Once
Luckett renounced her earlier identifications, defense counsel knew at the preliminary
hearing that the prosecution would likely rely on her inculpatory statements.
Accordingly, the defense had the same motive in the preliminary hearing as at trial, to
undermine the validity of those early statements.
       Defendant maintains he “had no prior opportunity to question Ms. Luckett about
the statements allegedly given the night of the shooting, to confront the testimonial
statement taken by Detective Mellone, or delve into her recantation of the accusations she
made.” Here too, we disagree. Defense counsel was perfectly free to question Luckett
about those topics at the preliminary hearing. “[A] prior opportunity to cross-examine a
witness who has become unavailable is considered an adequate substitute for present
cross-examination at trial.” (People v. Jones (1998) 66 Cal.App.4th 760, 766.) Thus, “ ‘
“[A]s long as a defendant was provided the opportunity for cross-examination, the
admission of preliminary hearing testimony under Evidence Code section 1291 does not
offend the confrontation clause of the federal Constitution simply because the defendant
did not conduct a particular form of cross-examination that in hindsight might have been
more effective.” [Citations.]’ ” (People v. Hollinquest, supra, 190 Cal.App.4th at pp.
1548–1549, italics omitted.)
       In a related argument, defendant also contends the admission of Luckett’s
statements to Detective Mellone on August 17 violated his Sixth Amendment right to
confrontation. But those statements were admitted only for purposes of impeachment,
not for their truth. “[T]he confrontation clause does not prohibit the prosecution from
impeaching the former testimony of its own unavailable witnesses with their inconsistent
statements, provided those statements are admitted only for impeachment purposes.”
(People v. Blacksher (2011) 52 Cal.4th 769, 808.) Accordingly, Luckett’s out of court
statements to Mellone were properly admitted.




                                             9
             II. The Admission of Prior Inconsistent Statements Did Not Violate
                             Defendant’s Due Process Rights
       Defendant contends that the admission, as prior inconsistent statements, of
Luckett’s, Black’s, and Featherstone’s statements to police officers the night of the
shooting and Luckett’s and Black’s statements to Detective Mellone several days later
deprived him of a fair trial. This is so, as we understand the argument, because the
prosecutor was aware these witnesses had repudiated their initial identification of
defendant, but nonetheless called them to testify (or, as to Luckett, introduced her
preliminary hearing testimony) solely to present their prior, unsworn identifications as
impeachment evidence. Defendant seems to acknowledge the admission of these
statements did not violate his Sixth Amendment right of confrontation and, apparently,
that the evidence thus admitted was sufficient to support his conviction. But he contends
that “[f]undamental elements of fairness were lacking” because his “conviction rested
completely on unsworn and repudiated testimony” presented by the prosecution as a
subterfuge to get otherwise inadmissible evidence in front of the jury “ ‘in the name of
impeachment.’ ”
       There was no due process violation. Preliminarily, defendant did not object to
admission of these statements on due process grounds at trial, so he forfeited the issue for
appeal. (See In re Sheena K. (2007) 40 Cal.4th 875, 880; People v. Vera (1997) 15
Cal.4th 269, 275–276.) “Ordinarily, a criminal defendant who does not challenge an
assertedly erroneous ruling of the trial court in that court has forfeited his or her right to
raise the claim on appeal.” (In re Sheena K., supra, 40 Cal.4th at p. 880.) Nonetheless,
in view of defendant’s claim that his counsel was ineffective for failing to raise a due
process objection, we will address the substance of his contention.
        First, the “unsworn and repudiated testimony” was far from the sole evidence of
guilt. For example, Featherstone admitted at trial that she heard Luckett say “Darnell”
shortly after the shots were fired. Defendant was linked to the crime by the cell phone
data that placed him near the crime scene at 3:00 a.m., shortly before the shooting. The
prosecution introduced a series of incriminating phone and text message records that

                                              10
tended to prove both the jealousy that incited the shooting and subsequent efforts by
Luckett, defendant and, to some extent, Black, to keep defendant from “going down for
this.” His contention that his conviction rests completely on the repudiated prior
statements is thus more hyperbole than it is an accurate description of the record.
       Defendant’s argument also fails to acknowledge that, while Luckett’s inconsistent
statements to police were admitted only for impeachment because she did not testify at
trial (see Evid. Code, § 1235; California v. Green (1970) 399 U.S. 149), her 911 call and
Black’s and Featherstone’s nontestimonial statements to responding officers minutes
after the shooting were admitted for the truth as spontaneous declarations. (Evid. Code, §
1240) The court admitted these statements only after it determined at a contested
Evidence Code section 402 hearing that they fell within the traditional hearsay exception
and were nontestimonial for purposes of the Confrontation Clause (see Michigan v.
Bryant (2011) ___ U.S. ___, 131 S.Ct. 1143, 1154, 1157). That finding substantially
undermines defendant’s argument that the evidence on which he was convicted was so
unreliable as to affront his due process right to a fair trial. (See In re Daniel W. (2003)
106 Cal.App.4th 159, 167 [“ ‘Our precedents have recognized that statements admitted
under a “firmly rooted” hearsay exception are so trustworthy that adversarial testing
would add little to their reliability’ ”].)
        Moreover, the witnesses’ prior identifications of defendant as the shooter were
not introduced in a vacuum. Black and Featherstone testified at trial, so the jury had the
opportunity to assess the credibility of their different versions of the shooting. In this
situation, “the ‘[d]efendant retains the opportunity to question the declarant as to the
circumstances surrounding the prior statement[ ] and to elicit from the declarant an
explanation for the inconsistencies in his prior statement and his on-the-stand testimony.
Through such questioning, the defendant can test the credibility of the witness’
statements on the witness stand before the trier of fact.’ ” (People v. Cuevas, 12 Cal.4th
252, 273.) Quoting Judge Learned Hand, Cuevas observes that “juries are capable of
determining the credibility of out-of-court statements that are inconsistent with a
witness’s trial testimony by observing the witness’s in-court demeanor: ‘If, from all that

                                              11
the jury see of the witness, they conclude that what he says now is not the truth, but what
he said before, they are none the less deciding from what they see and hear of that person
and in court. There is no mythical necessity that the case must be decided only in
accordance with the truth of the words uttered under oath in court.’ ” (Id. at p. 273.)
“ ‘The witness who has told one story aforetime and another today has opened the gates
to all the vistas of truth which the common law practice of cross-examination and re-
examination was invented to explore. The reasons for the change of face, whether
forgetfulness, carelessness, pity, terror, or greed, may be explored by the two questioners
in the presence of the trier of fact, under oath, casting light on which is the true story and
which the false. It is hard to escape the view that evidence of a prior inconsistent
statement, when declarant is on the stand to explain it if he can, has in high degree the
safeguards of examined testimony.’ ” (Ibid, italics added.)
       We are satisfied that the admission of the eyewitness identifications in these
circumstances did not deprive defendant of a fair trial.
III. Counsel Was Not Ineffective For Failing To Call An Eyewitness Expert
       Defendant argues his trial counsel’s failure to consult with and provide an expert
witness to educate the jury on the pitfalls of eyewitness identifications constituted
ineffective assistance of counsel. Again, we disagree.
       In examining claims of ineffective assistance of counsel, we give great deference
to counsel’s reasonable tactical decisions. (People v. Hinton (2006) 37 Cal.4th 839, 876.)
To establish ineffective assistance of trial counsel on appeal, a defendant has the burden
of proving both that his counsel’s performance was deficient under an objective standard
of professional responsibility and that there is a reasonable probability that, but for
counsel’s errors, he would have obtained a more favorable result at trial. (Strickland v.
Washington (1984) 466 U.S. 668, 687 (Strickland).) If the record fails to shed light on
why counsel acted or failed to act, we reject a claim of ineffective assistance unless
counsel was asked for an explanation and failed to provide one, or no satisfactory
explanation exists. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)


                                              12
       In People v. Datt (2010) 185 Cal.App.4th 942, as here, the defendant claimed his
trial counsel provided ineffective assistance by failing to present an eyewitness
identification expert. The court held defendant’s contention “fail[ed] at its origin. He has
not shown that his trial counsel could have presented any favorable expert testimony.”
(Id. at p. 952.) The court further explained that even though the defendant had produced
testimony at a motion for a new trial “that a reasonably competent attorney would have
consulted an expert on eyewitness identification,” he produced no evidence that his trial
counsel had not done so. (Id. at p. 953.)
       So, too, here. The record does not disclose what actions, if any, trial counsel
undertook to consult an expert witness. Nor has defendant shown that an expert on
eyewitness identifications would have provided favorable testimony. Indeed, counsel
could reasonably have felt that putting an identification expert on the stand might do
more harm than good given the presence of certain factors generally acknowledged to
increase the reliability of eyewitness identifications, e.g., the certainty with which
Luckett initially identified defendant, that she did so immediately on the heels of the
shooting, and that all three percipient witnesses were closely acquainted with defendant.
(See, e.g., CALCRIM No. 315 [considerations relevant to evaluating identification
testimony].) In short, defendant has not shown his trial counsel’s performance was
deficient.
                                            DISPOSITION
       The judgment is affirmed.




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                                 _________________________
                                 Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




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