J-S15009-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                   v.

JOHN VALENZUELA

                        Appellant                   No. 3489 EDA 2015


           Appeal from the Judgment of Sentence June 26, 2015
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0007911-2011


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 27, 2017

     John Valenzuela appeals from the judgment of sentence of eleven and

one-half to twenty-three months incarceration followed by a consecutive

period of five years probation, which was imposed following his jury

conviction of one count each of statutory sexual assault and corruption of

minors. His sole claim on appeal challenges the sufficiency of the evidence

establishing that the victim was under sixteen years of age for purposes of

the statutory sexual assault crime. We affirm.

     The Commonwealth adduced the following facts at trial.      S.R., born

October 16, 1993, testified that she lived with her biological father and

stepmother from age nine until 2008, her freshman year of high school,

when she moved in with her mother, Blanco Soto.         N.T., 7/16/14 (a.m.
J-S15009-17



session), at 75. She started her freshman year at Maryanne Academy but

transferred early in the school year after moving to her mother’s residence

on Phillips Street.   Id. at 74.   S.R. began taking classes at Edison High

School, and graduated from that institution in June of 2012. Id. Appellant,

who was Ms. Soto’s boyfriend, lived in the Phillips Street home.

      S.R. stated that she got along with Appellant at first, but one day he

kissed her “kind of like [how] you give a hand shake” at the end of a

conversation. Id. at 80. She thought this was strange, but wrote it off as

an accident. However, Appellant’s behavior escalated. He would rub against

her, grab her buttocks, and profess his love for her. Id. at 82. One day,

while S.R. was on her bed, he asked her to have sex. She refused, and he

offered her $100. She again refused, so he put the money under her pillow,

took off her clothes, and inserted his penis into her vagina. Id. at 84-86.

He ejaculated into a towel and left the room. This incident occurred when

she was fifteen years old.   Appellant thereafter had sex with her “at least

twice a month . . . mainly whenever he got the chance.” Id. at 89. S.R.

stated that these incidents started after her mother quit working. Id. at 84.

      Appellant later moved to a home on Hurley Street. Sometime between

the age of sixteen and seventeen, S.R. and her mother moved in as well.

S.R. stated that the abuse continued to occur at Hurley Street, and ended

sometime in February of 2011, when she was a junior in high school. Id. at

92.

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      The allegations came to the attention of authorities on May 2, 2011,

when one of S.R.’s friends, in whom S.R. confided, reported the allegations

to Sarah Broder, a counselor at the high school. Ms. Broder spoke to S.R.,

who initially denied that anything happened, but eventually confirmed that

Appellant had abused her. Id. at 53. Ms. Broder called the Department of

Human Services, who sent a social worker to interview S.R. Following that

interview, the social worker called the police. Officer Sean Burnett testified

that he prepared an incident report on May 2, 2011, in which S.R. related

that “[Appellant] had been raping her and sexually assaulting her for

approximately two years.” N.T., 7/17/14 (p.m. session), at 77-78.

      Appellant was charged with rape by forcible compulsion, involuntary

deviate sexual intercourse by forcible compulsion, statutory sexual assault,

sexual assault, and corruption of minors. The jury returned guilty verdicts

at the counts of statutory sexual assault and corruption of minors, and not

guilty verdicts at all other counts. Appellant received a sentence of eleven

and one-half to twenty-three months incarceration for the sexual assault,

and a consecutive five year period of probation at the corruption of minors

count.

      Appellant filed a timely notice of appeal, and Appellant and the trial

court complied with Pa.R.A.P. 1925. He raises one issue for our review:

      Where the complainant advised a worker from the Department
      of Human Services and a school counselor that she was sixteen
      years old when her complaint of sexual abuse was first made

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      and her trial testimony was equivocal on this point, did the
      Commonwealth fail to prove the age element in a statutory
      sexual assault case, pursuant to 18 Pa.C.S. § 3122.1?

Appellant’s brief at 2.

      Appellant’s offense was graded as a felony of the second degree. The

statutory language for that crime reads:

      (a) Felony of the second degree.--Except as provided in
      section 3121 (relating to rape), a person commits a felony of the
      second degree when that person engages in sexual intercourse
      with a complainant to whom the person is not married who is
      under the age of 16 years and that person is either:

            (1) four years older but less than eight years older
            than the complainant; or

            (2) eight years older but less than 11 years older
            than the complainant.

18 Pa.C.S. § 3122.1. The only element challenged in this appeal is the age

requirement. Thus, Appellant does not contend that the jury could not credit

S.R.’s testimony that sex occurred; rather, he maintains that the jury could

not credit her testimony regarding when that sex first occurred.        “As is

obvious from a brief review of the definitions, the offenses require proof that

the victim was less than 16 years of age at the time the offense was

committed.” Commonwealth v. Hooks, 921 A.2d 1199, 1202 (Pa.Super.

2007) (holding that person reaches age of sixteen on anniversary of

birthday, not the day before the birthday as under common law). Since S.R.

was born on October 16, 1993, the Commonwealth was required to prove

that Appellant had sex with S.R. on or before October 15, 2009.

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      Whether the evidence was sufficient to support the conviction presents

a matter of law; our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016)

(citation omitted). In conducting our inquiry, we

      examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury's finding of all the elements of the offense beyond a
      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). As a general

proposition, evidence is sufficient to prove an element of a crime if a witness

credibly testifies to the existence of that element. Thus, the testimony of a

sex crime victim, standing alone, is sufficient to convict.    “This Court has

long-recognized ‘that the uncorroborated testimony of a sexual assault

victim, if believed by the trier of fact, is sufficient to convict a defendant,

despite contrary evidence from defense witnesses.’”       Commonwealth v.

Charlton, 902 A.2d 554, 562 (Pa.Super. 2006) (quoting Commonwealth

v. Davis, 650 A.2d 452, 455 (Pa.Super. 1994)). The Commonwealth urges

us to apply this familiar principle by holding that the jury could credit S.R.’s

testimony that sex occurred when she was fifteen.

      Appellant counters that this principle does not apply herein because of

what our Supreme Court has described as an exception to our normal mode

of review. “We have, however, made exception to the general rule that the



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jury is the sole arbiter of the facts where the testimony is so inherently

unreliable that a verdict based upon it could amount to no more than

surmise or conjecture.” Commonwealth v. Smith, 467 A.2d 1120, 1122

(Pa. 1983).       “Following this principle, courts of this jurisdiction have

recognized that where evidence offered to support a verdict of guilt is so

unreliable and/or contradictory as to make any verdict based thereon pure

conjecture, a jury may not be permitted to return such a finding.”           Id.

(quoting Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976)).

          Appellant points to the following circumstances in support of a finding

that the evidence establishing when sex occurred was so unreliable and/or

contradictory as to make any verdict unlawful. With respect to the first time

Appellant kissed her, S.R. was asked, “Do you remember what grade you

were in when that happened?”, she replied, “I think I was still in ninth

grade.”     The prosecutor then asked, “Okay.      So you’re still 15, right?” to

which S.R. replied, “Yes.” N.T., 7/16/14 (a.m. session), at 80.        After S.R.

discussed the first time she and Appellant had sex, she was asked a similar

set of questions and gave similar answers.

     Q. And do you remember what grade you were in when that
     incident that you just told us about happened?

     A. I believe I was still in ninth grade.

     Q. So you’re still 15?

     A. Yes.



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      Q. And the incident that you just described is that the first
      actual sexual intercourse that happened?

      A. Yes.

Id. at 85.

      On     cross-examination,   Appellant   impeached     S.R.   with   prior

inconsistent statements. S.R. agreed that she told Officer Graham that the

first time Appellant had sex with her was when she was fourteen.          N.T.,

7/16/14 (p.m. session), at 21. She explained this discrepancy by saying she

was “a year off.” Id. Appellant also agreed that when Dr. McColgan asked

her when the first time anything sexual happened, she responded, “I can’t

remember the first time it happened.”      Id. at 23.   Additionally, Appellant

introduced S.R.’s preliminary hearing testimony given under oath.         S.R.

reviewed the transcript and agreed she testified that the first time she had

sex with Appellant was in the summer of 2009. Id. at 24. Finally, Appellant

points to the following exchange on redirect examination:

      Q. [S.R.], talking about this case, and everything, are you clear
      on the dates that any of this happened?

      A. No.

      Q. You talked today about you were 15 years when it started?

      A. Yes.

      Q. Are you certain you were 15 when you moved into the house
      on Phillip Street?

      [APPELLANT]: Objection.



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      THE COURT: Overruled.

      The witness: I don’t remember.

Id. at 49.

      Appellant does not rely solely on S.R.’s own testimony in making this

claim.   He notes that the social worker who interviewed S.R. at the high

school related that S.R. said the first time anything sexual happened was in

October of 2009. N.T., 7/17/14 (a.m. session), at 17.       He also highlights

that S.R.’s mother, Ms. Soto, was not certain when S.R. moved in to the

Phillips Street home. Moreover, he points out that Ms. Soto was uncertain

when she quit working, and, since S.R. stated the abuse occurred only after

Ms. Soto stopped working, the Commonwealth could not pinpoint when the

abuse started. Taken together, Appellant maintains that the inconsistencies

and uncertainties within S.R.’s own testimony, paired with these other

points, demonstrate that she was not certain if sex occurred before she

turned sixteen. In short, he avers that if the victim herself was not certain

when sex first occurred, the jury certainly could not be.

      Turning to the law, Appellant relies upon Commonwealth v. Woong

Knee New, 47 A.2d 450 (Pa. 1946), and Commonwealth v. Karkaria,

626 A.2d 1167 (Pa. 1993), cases which discharged convictions on sufficiency

grounds by applying the exception and discarding our normal deference to

jury’s determinations of credibility.   We examine each before reviewing

Appellant’s arguments in light of these authorities.

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      In Knee New, supra our Supreme Court discharged a homicide

conviction on the grounds that the evidence was so unreliable that it could

not support guilt. Therein, a Chester County laundromat owner named Lee

Joe was found dead in a pool of blood on his bedroom floor at 9:15 a.m. on

June 24, 1945. Woong Knee New was friendly with Lee Joe and visited him

once or twice a week. Knee New was arrested in New York the day after the

murder and told detectives that he had left Chester on June 24. Knee New

further told the police that he had last seen Lee Joe on June 24 around 4:00

a.m. A jury convicted Knee New of homicide.

      The only concrete facts that the Commonwealth offered to justify the

conviction were Knee New’s admitted presence with Lee Joe the night before

the murder, and testimony that Lee Joe’s time of death was between 2:30

a.m. and 4:30 a.m.     The Court found that the latter fact was not actually

established, as the testifying physician admitted that the timeframe was an

approximation and was largely conjecture based on rigor mortis. Therefore,

the Court found no firm support for the time of death. Turning to the former

fact, the Court stated, “If it is accepted as a fact that this appellant was at

Lee Joe's habitation at 4:00 A.M. June 24, 1945, and since there is no

evidence that anyone else was seen with the victim between 4:00 A.M. and

the time his body was discovered, suspicion naturally falls upon this

appellant, but suspicion is never accepted in a court of justice as a substitute

for proof.” Id. at 457.

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        We now address Karkaria. Therein, Karkaria was convicted by a jury

of   forcible   rape   pursuant     to   a     private   complaint   approved   by   an

administrative judge after the Allegheny County District Attorney declined to

file charges.    Karkaria was alleged to have raped his stepsister, S.F., who

was fourteen years old at the time of trial. The criminal charges specifically

required the Commonwealth to prove that a rape occurred sometime

between April 9, 1984 and September 19, 1984.1

        The rapes allegedly started in 1981 when Karkaria, then sixteen years

old, would babysit S.F., then eight. The victim testified that Karkaria raped

her over 300 times, that the rapes always occurred on the weekend when

Karkaria acted as babysitter, and that the rapes always took the same exact

form.    She also testified that the appellant’s biological brother, who lived

with Karkaria’s biological mother, was never present for these rapes. The

evidence established that Karkaria’s father and S.F.’s mother had a troubled

and distant relationship, and S.F. admitted that she did not like her

stepfather.

        The Karkaria Court found that the evidence was so inherently

unreliable as to preclude a conviction. The Court noted that other evidence

proved that Karkaria and his brother were together every weekend pursuant

____________________________________________


1
  These dates were selected because Karkaria turned eighteen on April 9,
1984 and could be prosecuted as an adult.



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to a custody agreement. S.F. agreed that was true, but then explained that

the rapes occurred at some other time, yet failed to specify when.          The

Court identified a number of other problems with the evidence:

     In order for the jury in this case to have concluded that [S.F.]
     was forcibly raped by [Karkaria], the jury would have had to
     conclude that the child had been forced to submit to sexual
     intercourse at least once between April 9, 1984 and September
     19, 1984. Since there was no direct evidence of sexual
     intercourse between those dates, the jury in order to convict,
     would have had to conclude, beyond a reasonable doubt, that
     the child had been forced to submit to sexual intercourse over
     300 times, without ever feeling pain, without any physical
     evidence to support the contention that she was so victimized,
     and without any specific recollection by [S.F.] as to a date
     certain upon which even one of the several hundred assaults
     occurred.

         ....

     [S.F.]'s testimony as to when any particular act of rape occurred
     is disturbingly vague. She initially insisted that the assaults only
     occurred on Friday or Saturday evenings. She also maintained
     that [the brother] was never present when the assaults
     occurred. However, when confronted with her own testimony
     that [he] was in her home every other weekend from Friday
     evening to Sunday evening and that on the alternate weekends
     [Karkaria] was not in the home, she testified that the assaults
     occurred at another time. However she failed to specify when
     that particular opportunity arose. [S.F.] steadfastly maintained
     that the assaults only occurred when [Karkaria] was babysitting,
     and, as she testified that her parents only went out on Friday or
     Saturday evenings, that would have been the only opportunity
     for [Karkaria] to have assaulted her.

     The most striking inadequacy in the Commonwealth's
     case however, is the fact that [S.F.] insisted that the
     assaults only occurred when [Karkaria] was babysitting
     and yet she also admitted that during the time period
     charged in the indictment (April through September
     1984), [Karkaria] no longer acted as the babysitter. This

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     point is extremely troublesome when considered along with
     [S.F.]'s description of the numerous rapes.

Id. at 1171 (emphasis added).

     We find that the inconsistencies and discrepancies cited by Appellant

herein fall well short of the extraordinary circumstances examined in Knee

New and Karkaria.        Knee New is readily distinguishable, as the

Commonwealth lacked any direct evidence linking Knee New to the crime.

The only testimony placing Knee New with the victim on the day of the

murder came from Knee New’s answers to police officers in New York. In

this regard, we note that Knee New predates Miranda v. Arizona, 384

U.S. 436 (1966). As quoted supra, the Court hesitated to accept that Knee

New was actually with Lee Joe at 4:00 a.m. on June 24, since the source of

that fact was Knee New’s responses to questions posed by police officers.

The Court explained at some length its skepticism that Knee New, an

immigrant who had been in the United States less than two years, actually

understood the questions asked of him:

     The record raises a substantial doubt whether this defendant
     made to the officers in New York the admissions attributed to
     him, with an intelligent comprehension of the questions asked
     him. In saying this, no reflection is cast upon the honesty of the
     officers. They testified to an unrecorded interview with the
     defendant seven months after it occurred. Detective Horris, who
     did most of the questioning, was asked as to what the
     defendant's attorney said to him on July 28th at the extradition
     proceedings and he said he ‘would have to refresh his
     recollection from the minutes of that proceeding.’ Yet, the same
     officer testified as to the interrogation a month earlier, without
     any ‘minutes' of that proceeding. Detective Allen testified that


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     Detective Horris ‘seemed to understand him [Knee New] better
     than anyone else and we told him to talk to him.’ This would
     indicate that there was considerable difficulty about the
     questioning. Detective Horris may have had to resort to leading
     questions in order to obtain the answers and Knee New may
     have nodded assent to these questions without realizing their
     import. It frequently appears in this record that witnesses
     testified to Knee New's assent to a question merely because he
     nodded his head. Foreigners who do not understand our
     language frequently nod their heads to indicate that they are at
     least trying to understand.

         ....

     The interrogation of a man charged with a crime, and
     particularly a capital crime, by officers who speak a language
     which the interrogated subject only partially understands,
     without notifying the accused of his rights, without anyone
     being present to protect his interests, and without there being a
     stenographic record made of the questions and answers, is a
     practice which degrades the administration of justice and
     we condemn it.

Id. at 462-65 (emphases added). Indeed, Knee New’s employer confirmed

that the company employed an interpreter and that Knee Knew could not

speak English. Since this case predates Miranda, the Court obviously did

not apply that case and did not deem the confession inadmissible as the

product of an involuntary statement, but its condemnation certainly tracks

the broad outline of Miranda. Therefore, the evidence linking Knee New to

the crime was so extraordinarily weak that the conviction could not stand. It

is self-evident that the facts sub judice do not come close to those extreme

circumstances and the case is inapposite.

     Karkaria represents a closer case since the conviction, like the one at

issue herein, involved a sex crime.         Furthermore, unlike Knee New,

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Karkaria did involve direct evidence that, if credited, would sustain a

conviction. However, we find that the facts herein are distinguishable. The

Karkaria Court observed that the “most striking inadequacy” in the

Commonwealth’s case was the fact that the victim insisted all of the rapes

occurred only when the defendant was acting as babysitter, yet she

simultaneously admitted that the defendant had stopped babysitting her by

1984, the time alleged in the criminal complaint. Karkaria, supra at 1171.

Thus, the victim’s own testimony affirmatively disproved the allegations of

rape for the dates charged in the criminal information.              Additionally,

Karkaria deemed the timing of S.F.’s complaints relevant to its unreliability

analysis.   “The timing of these initial complaints to law enforcement

authorities coincide precisely with the pending reconciliation of her mother

and stepfather. This fact is important in light of [S.F.]'s repeated expressions

of hatred for her stepfather.” Id. at 1171.

      S.R., in contrast, did not testify that sex occurred only after she was

sixteen. Moreover, S.R.’s allegations came to the attention of the authorities

because S.R.’s classmate, to whom S.R. confided, informed a school

counselor. Hence, Karkaria is similar in kind, but remarkably different in

degree.

      Having   concluded    the   cases       relied   upon   by   Appellant   are

distinguishable, we now review Appellant’s arguments to determine if

extraordinary circumstances nevertheless justify our departure from our

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normal mode of sufficiency analysis.               Appellant emphasizes that S.R.

admitted that she gave contradictory answers to the authorities who initially

investigated these crimes, some of which would render the conviction invalid

if true.   However, the Commonwealth offered a sensible explanation for

these inconsistencies in that S.R. was unexpectedly called upon to

repeatedly revisit the incidents with multiple people in a short timeframe and

gave varying answers as a result of those circumstances.

       Appellant also notes that when S.R. was asked when the first act of

sex occurred, S.R. replied, “I believe I was still in ninth grade.”           He

emphasizes the phrase “I believe” is proof of her uncertainty. Contrary to

Appellant’s interpretation, we do not read this prefatory remark as an

admission that she was unsure as to when the sex occurred, as opposed to

an inartful answer made under the stress of testifying in a courtroom

setting. Furthermore, to the extent there is any ambiguity, the prosecutor

immediately dispelled it by asking a follow-up question: “Okay. So you’re

still 15, right?” to which S.R. replied, “Yes.” N.T., 7/16/14 (a.m. session), at

80.2

       Appellant also attaches significance to the following exchange on

redirect examination:
____________________________________________


2
  Appellant avers that we must discard such testimony as unreliable due to
the “leading and objectionable question from the prosecutor.” Appellant’s
brief at 12. However, Appellant did not object to the question or response.



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     Q. [S.R.], talking about this case, and everything, are you clear
     on the dates that any of this happened?

     A. No.

     Q. You talked today about you were 15 years when it started?

     A. Yes.

     Q. Are you certain you were 15 when you moved into the house
     on Phillip Street?

     [APPELLANT]: Objection.

     THE COURT: Overruled.

     The witness: I don’t remember.

N.T., 7/16/14 (p.m. session), at 49. He maintains that her negative answer

proves she was uncertain regarding when any of these events occurred, and

hence her testimony is unreliable as a matter of law.

     We disagree. The first question posed, while perhaps poorly phrased,

specifically asked S.R. if she remembered specific dates.   Appellant reads

this statement as if it stated, “Are you clear on the years that any of this

happened?” Additionally, her lack of certainty regarding her age when she

moved is not fatal. S.R. clearly testified that she moved in with her mother

early in her freshman year of high school. S.R.’s birth month, October, is

quite early in the normal school year.       Thus, in context, S.R. simply

professed that she was unsure whether she had already turned fifteen when

she moved in with her mother.




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      Finally, we note that this trial occurred in July of 2014, over three

years after the preliminary hearing which took place July 7, 2011. On cross-

examination, Appellant confronted S.R. with a prior inconsistent statement

given under oath at that proceeding in which she related that the abuse

occurred sometime during the summer of 2009. In assessing the sufficiency

of the evidence, we examine all of the evidence presented.      Hence, while

Appellant used this statement to generally discredit S.R., i.e., by showing

she gave multiple different versions of the events and was therefore not

believable en toto, the fact remains that S.R. made a prior statement under

oath much closer in time to the actual allegations.    This statement firmly

establishes that sex occurred well before October of 2009.       We see no

reason to ignore that statement when determining whether or not the

evidence is so unreliable as to require discharge. C.f. Commonwealth v.

Brown, 52 A.3d 1139 (Pa. 2012) (where witnesses to homicide recanted at

trial, prior out-of-court statements reduced to writing and adopted by said

witnesses were admissible as substantive evidence and therefore sufficient

to convict).

      That there are inconsistencies in S.R.’s account is unquestionable. We

simply do not agree that these contradictions render her trial testimony so

unreliable as a matter of law that it cannot be credited for sufficiency

purposes. We therefore apply the normal method of review, and conclude

that the jury was entitled to weigh all the testimony and credit or discredit

                                   - 17 -
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the inconsistencies as it saw fit.      We have no license to reweigh its

determinations, and we therefore must defer to its finding that S.R. was

fifteen years old when the first act of sex occurred. Hence, we affirm the

conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2017




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