J-S19034-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LAVONNE T. WILLIAMS : : Appellant : No. 250 WDA 2020
Appeal from the Judgment of Sentence Entered September 23, 2019 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000032-2018
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 13, 2021
Lavonne T. Williams (Williams) appeals the judgment of sentence
entered by the Court of Common Pleas of Washington County (trial court).
Following a jury trial, Williams was convicted of several drug and firearm
related offenses. He was sentenced to an aggregate prison term of 16 to 32
years. Williams’ appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and petitioned this Court to withdraw from
the case. Williams responded that the petition to withdraw should be denied
because his counsel failed to brief issues which would arguably support an
appeal. Upon our review of the record and the applicable law, we grant
counsel’s petition to withdraw and affirm the judgment of sentence.
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* Retired Senior Judge assigned to the Superior Court. J-S19034-21
I.
In June 2017, police began investigating the fatal drug overdose of a
woman who had purchased heroin at the Jollick Manor apartment complex
from a dealer named “Bo” who could be reached by phone at the number
(724) 731-8977. Using that number, police arranged two controlled buys with
a confidential informant, both times from the individual referred to as “Bo.”
In all, police purchased ten bags of heroin from him. Before and after the
transactions, this person was seen going in and out of Unit 171 at the complex.
This information was used to obtain a search warrant at that address
and the search was executed on June 9, 2017. The individuals who were
present in the home at the time of the search included Christine Fedd, the
lessee, Thomas Ford, their two children, Nahje Patterson, and Williams, who
was later identified as the “Bo” who had sold drugs in the controlled buys.
During the search, police recovered several items that suggested the
home was being used for drug sales. Specifically, police found digital scales,
large amount of cash, two operable firearms, ammunition, heroin, cocaine,
marijuana and crushed pills. Both firearms were found inside one of two safes
in the apartment, and one of those firearms had an obliterated serial number.
A wallet containing Williams’ identification was also found in that same safe,
which had been kept in the living room closet.
The police linked documents found in the apartment directly to Williams.
A Western Union receipt was found hidden in one of the safes, and Williams’
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name appeared on it as the “sender/remitter” who could be reached at the
phone number, (724) 731-8977. In fact, when speaking to officers during the
search, Williams stated that this same number could be used to call him on
his personal cell phone.
One of the residents of 171 Jollick Manor, Thomas Ford, admitted to
police that he had been using the residence to sell heroin, cocaine and other
drugs. Ford claimed that one of the safes kept in the closet of the apartment’s
living room belonged to Williams. The lessee of the apartment, Christine Fedd,
also claimed that Williams’ and his family had stayed in her living room for a
few months prior to the search. Fedd corroborated Ford’s claim that the safe
kept in the living room closet belonged to Williams.
Detectives testified at trial that the items seized from the apartment
were consistent with the home being used for narcotics sales and an intent to
deliver drugs. There was little evidence of drug usage in the home, and the
weight scales, packaging materials, firearms, cash and large drug quantities
were all common means of high-scale drug distribution.
All of the suspected controlled substance seized in the home except for
the marijuana were sent to a crime laboratory, where testing confirmed that
the seized substances included cocaine, alprazolam, crack cocaine, fentanyl
and heroin. The defense did not object to the identification of any of those
substances at trial by the Commonwealth’s expert. Nor did the defense object
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when a detective explained at trial that it was unnecessary to lab test the
marijuana because it could be identified by its smell and texture alone.
The day of the search, on June 9, 2017, a criminal complaint was filed
against Williams. It included two counts of possession with the intent to
deliver a controlled substance; two counts of possession of a controlled
substance, two counts of possession of a firearm by a prohibited person; and
one count of possession of a firearm with an altered manufacturer number.
The Commonwealth filed a bill of information against Williams on
February 22, 2018. An amended information was filed on March 9, 2018,
containing essentially the same counts as the initial criminal complaint.
On March 6, 2018, Williams was scheduled for plea court on April 3,
2018. However, defense counsel requested a continuance and plea court was
rescheduled for May 29, 2018. Williams filed an omnibus pretrial motion on
April 16, 2018, and a hearing was scheduled for August 13, 2018.
On August 2, 2018, Williams’ defense counsel sought a continuance of
the omnibus pretrial motion hearing and a continuance was granted.
However, on August 23, 2018, Williams’ counsel withdrew and new counsel
was appointed to represent him. Another continuance was granted at the
defense’s request, and the hearing was again delayed until September 21,
2018.
On September 18, 2018, the Commonwealth amended the bill of
information to more accurately reflect the results of lab testing of the
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controlled substances. At the hearing on the omnibus pretrial motion, the trial
court denied Williams’ motion for a writ of habeas corpus and a motion to
suppress the evidence obtained from the search of 171 Jollick Manor. As to
the suppression motion, Williams’ counsel conceded it had no merit. Plea
court was rescheduled for October 30, 2018.
On that latter date, Williams declined to enter a guilty plea and instead
requested a jury trial in the January 2019 trial term. On December 13, 2018,
the Commonwealth filed a request for discovery, and on December 18, 2018,
the Commonwealth filed a motion in limine to include evidence of prior bad
acts at trial pursuant to Pa.R.E. 404(b), and the motion was granted following
oral argument on January 2, 2019.
On January 3, 2019, Williams’ counsel moved to withdraw from the case
and the motion was granted. That same day, a new attorney was appointed
to represent Williams and trial was rescheduled for March 18, 2019. The trial
was again delayed on March 6, 2019, due to the trial court’s unavailability,
moving the trial date to the April 2019 term. On April 5, 2019, Williams’
counsel filed on his behalf a motion to dismiss the case pursuant to Pa.R.C.P.
600, which the trial court denied on April 8, 2019.
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Williams’ trial began on April 11, 2019. The next day, once the trial had
concluded, Williams was found guilty of eight of nine counts.1 He was
sentenced within the standard range of the statutory guidelines on each of
those counts as follows:
(Count 1) possession with intent to deliver a controlled substance, heroin, 35 P.S. § 780-113(a)(30), 3 to 6 years;
(Count 3) possession with intent to deliver a controlled substance, fentanyl, 35 P.S. § 780-113(a)(30) 3 to 6 years, consecutive to the term imposed for Count 1;
(Count 4) possession of a controlled substance, alprazolam, 35 P.S. § 780-113(a)(16), 1 to 2 years, concurrent to the terms imposed for Counts 1 and 3;
(Count 5) possession of a controlled substance, cocaine, 35 P.S. § 780-113(a)(16), 1 to 2 years, concurrent to the sentences imposed for Counts 1, 3, and 4;
(Count 6) possession of a controlled substance, marijuana, 35 P.S. § 780-113(a)(16), 1 to 2 years, concurrent to the sentences imposed for Counts 1, 3, 4, and 5;
(Count 7) person not to possess a firearm, 18 Pa.C.S. § 6105(a)(1), 5 to 10 years consecutive to the sentences imposed for Counts 1 and 3;
(Count 8) person not to possess a firearm, 18 Pa.C.S. § 6105(a)(1), 5 to 10 years, concurrent to the terms imposed for Counts 1, 3, 4, 5, 6, and 7; and
(Count 9) possession of a firearm with an altered manufacturer’s number, 18 Pa.C.S. § 6117, 5 to 10 years, consecutive to the terms imposed for Counts 1, 3, and 7.
1 The jury acquitted Williams of one count of possession with intent to deliver
cocaine.
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The trial court summarized its sentencing considerations, including
“Pennsylvania’s sentencing guidelines, the presentence investigation report
. . ., the rehabilitative needs of [Williams], the particular circumstances and
gravity of the offense, and the impact on the community[.]” Sentencing
Transcript, 9/23/2019, at pp. 14-15. The trial court took special note of
Williams’ extensive criminal history and status as a repeat criminal offender.
A timely post-sentence motion was filed on Williams’ behalf challenging
the sufficiency and weight of the evidence and the aggregate length of the
sentence on grounds of excessiveness. The post-sentence motion was denied
in its entirety.
Williams timely appealed, and as discussed above, his counsel filed an
Anders brief, as well as a petition to withdraw from the case on the grounds
that there were no issues of arguable merit to raise on appeal. Disputing his
counsel’s petition, Williams contended in his pro se reply to counsel’s Anders
brief that there were, in fact, several meritorious appellate issues that should
preclude counsel’s withdrawal from the case.
The two issues Williams’ appellate counsel listed in the Anders brief as
having arguable merit concerned the sufficiency of the evidence as to all of
Williams’ convictions and the length of the aggregate sentence. Williams has
responded, however, that several additional issues have arguable merit:
The jury was instructed that he could be found guilty of the drug possession counts if he was part of a conspiracy, despite that he was not charged with conspiracy and he had no co-defendants;
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The prosecutor misled the jury by stating that the substances police obtained, including marijuana, were indisputably illegal, despite that the marijuana had not been lab tested;
The prosecutor inflamed the passions of the jury by stating that Williams was involved in a fatal overdose, despite that the incident was unrelated to the charged offenses;
The trial court erred in denying his motion to suppress the incriminating contents of a safe which were obtained pursuant to a residential search;
The trial court erred in denying Williams’ motion to dismiss based on the prompt trial provisions of Pa.R.Crim.P. 600.
See Reply to Anders Brief, 5/14/2021, at Paragraphs 5-10.2
II.
When an Anders brief is filed and accompanied by a petition to
withdraw, we may not review the merits of the underlying issues unless
counsel has met all the procedural requirements for withdrawal. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007). The
Anders brief accompanying the petition must:
(1) provide a summary of the procedural history and facts, with citations to the record;
2 Williams also appears to raise a claim of ineffective assistance of counsel based on counsel’s reference in the Anders brief to “three guns,” despite that only two firearms were introduced into evidence at trial. See Anders Brief, at p. 31. It is not clear why Williams believes that this reference could have had any bearing on his case, but regardless, claims of ineffectiveness must be raised at the post-conviction stage, not on direct appeal. See Commonwealth v. Crosby, 844 A.2d 1271, 1272 (Pa. Super. 2004).
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(2) refer to anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).
Counsel must also provide a copy of the Anders brief to her client.
Along with the brief, counsel must attach a letter that advises the client of his
right to: “(1) retain new counsel to pursue the appeal; (2) proceed pro se on
appeal; or (3) raise any points that the appellant deems worthy of the court[’]s
attention in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007); see also
Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014).
After determining that counsel has satisfied the technical requirements
of Anders and Santiago, this Court may then “conduct a simple review of
the record to ascertain if there appear[s] on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, Williams’ appellate counsel has submitted an Anders brief that
substantially complies with the above-stated requirements. Her submission
includes a summary of the relevant factual and procedural history, refers to
portions of the record that could arguably support an appeal, and sets forth
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her conclusion that Williams’ appeal is frivolous. She also explains her reasons
for reaching that determination and supports her rationale with references to
the record. See Anders Brief, at 29-31.
Moreover, counsel states in her petition to withdraw that she has
supplied Williams with a copy of the Anders brief, and she attached a letter
directed to Williams in which she informs him of his appellate rights. Thus,
the technical requirements for withdrawal have been met.
III.
We will now independently review the record to determine if Williams’
issues are arguably meritorious and to ascertain if there are any other non-
frivolous claims he could pursue on appeal. The two issues raised in counsel’s
Anders brief concern the sufficiency of the evidence and the alleged
excessiveness of the sentence. Williams seems to concede in his pro se reply
to the Anders brief that the sufficiency ground has no merit.3 It is, therefore,
unnecessary for this Court to comprehensively address the sufficiency of the
evidence as to all of Williams’ convictions.4
3 Williams stated in his pro se reply that his counsel had raised two issues in
the Anders brief, and that he found “the only viable claim raised was the excessiveness of the sentence[.]” Reply to Anders Brief, at Paragraph 3.
4 To the extent Williams does challenge the sufficiency of the evidence, we adopt the sound reasoning of the trial court and the abundant record evidence cited in its discussion of that issue. See 1925(a) Opinion, 4/9/2020, at 23- 33.
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However, because Williams asserts in his reply that the excessiveness
claim is a viable issue of arguable merit, we will address it here.
An excessive sentence claim is a challenge of a discretionary aspect of
sentencing which does not entitle an appellant to review as of right. See
Commonwealth v. Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016);
Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015). A
substantial question only exists where an appellant has presented a “colorable
argument that the trial judge’s actions were either: (1) inconsistent with a
specific provision of the Sentencing Code; or (2) contrary to the fundamental
norms which underlie the sentencing process.” Commonwealth v. Prisk, 13
A.3d 526, 533 (Pa. Super. 2011).
Bald claims of excessiveness, including those based on the imposition of
a consecutive term, usually do not raise a substantial question. See
Commonwealth v. Dodge, 77 A.3d 1263, 1269-70 (Pa. Super. 2013).
“[T]he imposition of consecutive rather than concurrent sentences will present
a substantial question in only the most extreme circumstances, such as where
the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa. Super. 2012).
An appellant challenging the discretionary aspects of a sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly
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preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[ ] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Here, Williams has satisfied the first requirement by timely filing a notice
of appeal. He satisfied the second requirement by seeking reconsideration of
his sentence in a post-sentence motion. Although neither Williams nor his
counsel included a statement pursuant to Pa.R.A.P. 2119(f) outlining the
discretionary aspects of the sentence in dispute, this Court may still review
the claim where counsel has filed an Anders brief. See Commonwealth v.
Lilley, 978 A.2d 995 (Pa. Super. 2009). Accordingly, we do not consider the
failure to submit a Rule 2119(f) statement as precluding review of whether
Williams’ excessiveness claim is non-frivolous.
The sentencing issue nevertheless lacks arguable merit because a
substantial question has not been presented. Williams’ counsel argued in the
Anders brief that the sentence is excessive because Williams received
consecutive, rather than concurrent, terms on Counts 1 and 3. Williams, in
turn, argued in his pro se reply that the sentence is excessive because the
trial court took into consideration the fatal overdose of an unidentified
individual at the Jollick Manor apartment complex.
Both assertions are bald, undeveloped claims of excessiveness that do
not raise a substantial question. Merely stating that sentencing terms should
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have been concurrent rather than consecutive, without more, is insufficient.
Further, Williams’ ground for excessiveness finds no support in the record, as
there is no indication that the overdose referred to offhand by a prosecution
witness was ever a sentencing consideration of the trial court.
Even if this excessiveness issue were preserved or otherwise reviewable
on direct appeal, it would be of no avail because the record does not establish
any issue of arguable merit with respect to the sentence. A sentence may not
be disturbed on appeal unless it is shown that the trial court committed a
“manifest abuse of discretion.” Commonwealth v. Raven, 97 A.3d 1244,
1253 (Pa. Super. 2014). To obtain relief, “the appellant must establish, by
reference to the record, that the sentencing court “ignored or misapplied the
law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,
or arrived at a manifestly unreasonable decision.” Id.; see also Caldwell,
117 A.3d at 770 (same).
Williams and his counsel have failed to cite any instance in the record
that would arguably support a claim that the trial court abused its discretion
at sentencing. Further, our independent review of the record in this case
reveals no indication that the trial court abused its discretion when imposing
sentence. Thus, the excessive sentence claims raised by Williams and counsel
are frivolous.
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IV.
We now turn to the additional issues Williams raised in his reply to
counsel’s Anders brief.
A.
Williams argues first that the trial court erred in instructing the jury that
he could be found in constructive possession of the subject contraband if he
was part of a conspiracy, despite that he had no co-defendants and he was
not charged with any conspiracy counts.
When charging the jury on the elements of constructive possession, the
trial court stated in part that “a defendant may be found guilty of possession
for an item that he or she did not personally hold if it is proved that the
defendant was part of a conspiracy, another conspirator knowingly possessed
drugs, or that the possession occurred while the conspiracy was in existence
and in furtherance of the conspiracy.” Trial Transcript, 4/12/2019, at p. 444.
“[I]t is axiomatic that issues are preserved when objections are made
timely to the error or offense.” Commonwealth v. Baumhammers, 960
A.2d 59, 60 (Pa. 2008). A “failure to offer a timely and specific objection
results in a waiver” of the claim. Commonwealth v. Bruce, 916 A.2d 657,
671 (Pa. Super. 2007). “No portions of the charge nor omissions therefrom
may be assigned as error, unless specific objections are made thereto before
the jury retires to deliberate.” Pa.R.Crim.P. 647(C); see also
Commonwealth v. Knight, 241 A.3d 620, 634 (Pa. 2020).
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Here, Williams did not challenge the trial court's jury charge or the
verdict slip before the jury retired to deliberate. In fact, the above instruction
mirrors the instruction proposed by defense counsel, so any error therein
would have been clearly waived and unpreserved for appellate review.
Even if the issue were preserved, it has no arguable merit because the
trial court read an accurate and valid instruction on the possession offenses.
The Commonwealth does not need to specifically allege a count of conspiracy
in order for a defendant to be found in constructive possession of contraband.
The evidence in the record supports the jury’s conclusion that Williams
constructively possessed controlled substances and firearms kept in the home
of Thomas Ford, who admitted that he and Williams sold drugs in the
residence. For all of these reasons, the claim lacks arguable merit.
B.
Next, Williams contends that his counsel overlooked an arguably
meritorious issue concerning the prosecutor’s statement to the jury that one
of the substances recovered from his home was indisputably marijuana,
despite that it had never been lab tested.
Williams’ trial counsel did not object to this comment or otherwise
dispute the identity of the substance as marijuana. The claim was, therefore,
waived for purposes of direct appeal and the issue has no arguable merit that
would preclude Williams’ appellate counsel from withdrawing from the case.
See Bruce, 916 A.2d at 671.
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C.
Another instance of an improper comment Williams raises is a
Commonwealth witness’s reference to a fatal overdose of an unidentified
individual. When discussing why the police began investigating drug
trafficking in the Jollick Manor apartment complex, an officer testified that
they discovered that an overdose victim had purchased narcotics at that
location in 2017. See Trial Transcript, 4/11/2019, at pp. 35-43. The victim
had called a telephone number of a resident of Jollick Manor, a man identified
as “Bo.”
This fact gave context to the controlled drug buy which would eventually
support the search warrant for 171 Jollick Manor. The execution of that search
warrant and the items recovered pursuant to the search later implicated
Williams and resulted in his arrest.
Williams argues that the reference to the overdose was so irrelevant and
inflammatory that it warrants a new trial. Yet, again, Williams’ trial counsel
did not object to this comment or otherwise preserve the issue for appellate
review, so the issue is waived for purposes of direct appeal and the issue has
no arguable merit.
D.
The evidence suppression issue Williams raises is also waived, in
addition to being frivolous. Prior to trial, Williams’ counsel sought to exclude
from trial the incriminating contents of a safe which were obtained pursuant
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to a search warrant for 171 Jollick Manor. However, Williams later conceded
at a pre-trial hearing that the grounds for suppression were frivolous because
he did not reside at that address. See Hearing Transcript, 9/21/2018, at pp.
3-5. As such, he had no standing to assert a violation of a constitutional right
to privacy, and the contents of the safe were admissible at Williams’ trial. See
id. Thus, this suppression issue has no arguable merit.
E.
Williams’ final issue is that the trial court erred in denying his motion to
dismiss the case on prompt trial grounds. While this claim is preserved for
review, the record establishes that it is wholly without merit.
The prompt trial provisions of Pa.R.Crim.P. 600 require a defendant to
be brought to trial within 365 days of the filing of a complaint against him.
However, that period is subject to the computational provisions of the rule.
“[P]eriods of delay at any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed to exercise due diligence
shall be included in the computation of time within which the trial must
commence. Any other periods of delay shall be excluded from the
computation.” Pa.R.Crim.P. 600(C)(1).
The Commonwealth filed a criminal complaint against Williams on June
26, 2017. For present purposes, then, one year from that point (June 26,
2018) became the “technical run date” on which Williams had to be tried.
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However, the defense was granted continuances that delayed the
proceedings from October 18, 2017, to November 1, 2017 (15 days); April 3,
2018 to August 13, 2018 (133 days); September 12, 2018, to September 21,
2018 (10 days); October 30, 2018, to March 18, 2019 (140 days).
Accordingly, a total of 298 days of delay are attributable to the defense.
This resulted in an adjusted run date of April 20, 2019. Williams’ trial began
prior to that date, on April 11, 2019. Accordingly, the prompt trial ground
raised in Williams’ reply has no arguable merit.
In sum, both Williams and his counsel have failed to present an arguably
meritorious issue. Further, after completing our own independent review of
the record, this Court is unable to identify any non-frivolous grounds for
appellate relief. Thus, Williams’ counsel may withdraw from the case, and the
judgment of sentence must be upheld.
Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 07/13/2021
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