Opinion
A156415
06-30-2020
THE PEOPLE, Plaintiff and Respondent, v. DEROY TERRELL MOORE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51818160)
Deroy Terrell Moore was convicted of carrying a concealed firearm in a vehicle in violation of Penal Code section 25400, subdivision (a)(1) and carrying a loaded firearm in a vehicle in a public place in violation of Penal Code section 25850, subdivisions (a) and (c)(1). He contends the trial court erred by excluding third-party culpability evidence that he had a bad relationship with his uncle, his uncle had access to his vehicle, and his uncle knew the firearm was in the vehicle. Moore also argues the prosecutor committed misconduct by commenting on his failure to call his uncle as a witness when the trial court excluded the third-party culpability evidence relating to his uncle at the prosecutor's request. We conclude the trial court did not err in excluding the evidence and the prosecutor did not commit misconduct. We further conclude that even if there was error, it was harmless. We therefore affirm the judgment.
All statutory citations are to the Penal Code unless otherwise specified.
BACKGROUND
Deputy Sheriff Cesar Guerrero was on patrol in the city of Bay Point around noon one day in May 2018. He received a dispatch call that someone identifying himself as Michael had reported that a black man in a white sport utility vehicle (SUV) had brandished a gun sometime in the past twenty minutes. Guerrero responded to the area of the reported brandishing and did not find a white SUV or Michael. Using a contact number for Michael that dispatch provided, Guerrero spoke to Michael. Michael said that the person who brandished the firearm was a heavyset black man driving alone in a white Acura SUV. Michael further stated that he was not the victim of the brandishing but had overheard two white men talking about it and saw the white Acura SUV driving away. Guerrero searched for the two men but could not find them. After failing to locate the two men Michael identified, Guerrero chose instead to look for Moore, whom Guerrero had seen about five minutes earlier in the area driving a white Acura SUV. Guerrero knew Moore from prior interactions and had regularly seen him driving a white SUV over the prior two years.
Guerrero located Moore's white Acura SUV parked at a gas station pump. Moore was getting out of the car and was standing by the open driver's side door. Together with another sheriff's deputy in a separate car, Guerrero drove up behind Moore and turned on his lights. Moore cooperated with Guerrero's request for identification by pulling his wallet out of his front pocket. When he did so, with the wallet came a large wad of cash in various denominations, later determined to total over $800. Through the open door of the Acura, Guerrero could see a clear plastic bag of marijuana and noticed a strong marijuana smell. Guerrero also saw a small digital scale next to the marijuana.
Guerrero searched the Acura. In the center armrest compartment between the driver's and front passenger's seats, Guerrero found bank paperwork with Moore's name on it and, beneath the paperwork, a loaded Glock pistol. Guerrero also found two more bags of marijuana in the backseat. The total weight of marijuana, including the bags, was 635.5 grams.
Guerrero arrested and handcuffed Moore and placed him in the back of his police car. Moore was handcuffed behind his back using two sets of handcuffs joined together; he was a large man, and he was uncomfortable in the cramped backseat space. Guerrero could have taken Moore to the jail and recorded an interview with him, but instead chose to question Moore while standing outside the open rear door of the patrol car. The gun and duty weapons Guerrero wore at his waist were about at Moore's eye level. Moore said the Acura belonged to his wife, though he drove it every day and kept his belongings in it. When Guerrero asked him about the gun, Moore said at least twice that he did not know it was there. But when Guerrero continued to press him, Moore stated he found the gun a few days earlier and was planning on turning it in to the sheriff.
Moore was charged with being a convicted person carrying a concealed firearm in a vehicle in violation of section 25400, subdivision (a)(1); being a convicted person carrying a loaded firearm in a vehicle in a public place in violation of section 25850, subdivision (a); misdemeanor possession of marijuana for sale in violation of Health and Safety Code section 11359; and misdemeanor sale/offer to sell/transportation of marijuana in violation of Health and Safety Code section 11360, subdivision (a).
Moore was also charged with one additional count of violating section 25400, subdivision (a)(1) and an additional count of violating section 25850, subdivision (a) by carrying a loaded and unregistered firearm. The prosecution voluntarily dismissed those counts at trial.
Moore moved in limine to admit what he called third-party culpability evidence regarding Moore's uncle, Robert Lawrence Williams. Moore made an offer of proof that his family members could identify Williams as the person who made the call to police, falsely identified himself as Michael, and reported the alleged brandishing of the firearm. Williams had been staying with Moore and had access to the SUV. There was a conflict between Moore and Williams because Moore had been trying to get Williams to stop using his money and move out. Moore intended to use this evidence to argue that Williams planted the gun in the SUV and set Moore up by making a false report of a crime. Moore separately moved to impeach Williams by introducing evidence of Williams's (1) 1979 conviction for robbery; (2) 1982 conviction for assault to commit rape, robbery, and oral copulation by force; and (3) 1999 conviction for failure to register as a sex offender. The prosecution opposed the motion to admit third-party culpability evidence. The trial court denied both of Moore's motions.
At trial, the prosecution presented testimony from Guerrero and others, omitting any mention of Michael and beginning with Guerrero's contact with Moore at the gas station. The prosecution also presented expert evidence that the marijuana in the vehicle was worth between $2,000 and $3,000 and would have made Moore a target for robbery.
Moore called his girlfriend Natosha Powell, who testified that Moore was a heavy user of marijuana, she used it as well, and she had never known Moore to sell marijuana. She also testified that she owned the Acura SUV and regularly gave Williams permission to drive it. Moore also called his sister, who testified that Powell had allowed her to drive the car on four or five occasions, and that Williams also drove the car. Both Powell and Moore's sister denied placing the gun in the car.
In her closing argument, Moore's counsel sought to undermine the prosecution's showing that Moore knew of the gun in the car by emphasizing that Moore did not have exclusive access to the Acura SUV. After noting that Powell and Moore's sister had said several family members had access to the SUV, Moore's counsel remarked, "And specifically, that there was a particular person, who we did not hear from in this case, Mr. Moore's uncle who regularly drove this particular vehicle during the same time period." Counsel then noted that no law enforcement officer investigated whether anyone else with regular access to the car had placed the gun there. In the prosecution's rebuttal argument, the prosecutor argued, after Moore's objection and a discussion in chambers, that the defense's assertion that Williams's absence left a "gaping hole" in the prosecution's case was misleading. The prosecutor observed that Moore could have subpoenaed Williams to testify if he wanted to, but he chose not to do so.
The jury convicted Moore of the firearm charges but acquitted him of the charges of possession of marijuana for sale and transportation for sale of marijuana. The trial court sentenced Moore to three years' probation. Moore timely appealed.
DISCUSSION
Moore contends the trial court erred under California law by excluding his evidence that Williams had a bad relationship with Moore and made the report to police using the name Michael about Moore brandishing the gun. He further argues the exclusion violated his constitutional rights to due process, a fair trial, and confront witnesses, and was prejudicial. Moore also argues the prosecutor committed prejudicial misconduct by commenting on Moore's failure to call Williams because the prosecutor knew that the trial court's in limine ruling prevented Moore from calling Williams. We conclude the trial court did not err by excluding Moore's evidence regarding Williams, but even if it did, the error was harmless. We also conclude the prosecutor did not commit misconduct because the court's ruling did not completely bar Williams from testifying and Moore's counsel first commented on Williams's absence from the case, thereby opening the door to allow the prosecutor to rebut the argument. Moreover, even if there was misconduct, it was not prejudicial.
I. Third-Party Culpability Evidence
"An accused may defend against criminal charges by showing that a third person, not the defendant, committed the crime charged. He has a right to present evidence of third-party culpability where such evidence is capable of raising a reasonable doubt as to his guilt of the charged crime." (People v. Mackey (2015) 233 Cal.App.4th 32, 110.) " ' "[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." ' In other words, courts treat third party culpability evidence ' "like any other evidence: if relevant it is admissible," ' provided it is not otherwise rendered inadmissible by statute, and ' "unless its probative value is substantially outweighed by the risk of undue delay, prejudice, or confusion." ' We review the trial court's ruling for abuse of discretion." (People v. Young (2019) 7 Cal.5th 905, 937.)
Moore contends the trial court erred both in determining that his evidence regarding Williams was incapable of raising a reasonable doubt and that it was inadmissible under Evidence Code section 352 because its probative value was substantially outweighed by the risk of delay and confusion. On the question of reasonable doubt, Moore points out that his knowledge that the gun was in the car was the only element in dispute at trial and argues his proffered evidence regarding Williams would have created reasonable doubt about that crucial element of the gun charges. He argues the evidence of Moore's contentious relationship with Williams would have demonstrated Williams's motive to implicate Moore in a crime. He also argues that evidence that Williams regularly drove the car would have demonstrated Williams's opportunity to place the gun there. However, as Moore acknowledges, evidence of a third party's motive or opportunity to commit the crime a defendant is charged with is insufficient on its own to raise reasonable doubt. (People v. Hall (1986) 41 Cal.3d 826, 833; People v. McWhorter (2009) 47 Cal.4th 318, 368.) Moore therefore contends his evidence that Williams called the police using the false name Michael was the crucial piece that went beyond motive and opportunity. Moore argues that Williams's call shows Williams necessarily knew the gun was in the car at the time, and since knowledge is an element of the gun charges, this evidence ties Williams to the charges against Moore.
We are not persuaded. Moore's argument proceeds from the faulty premise that evidence of Williams's knowledge of the gun would have called into question Moore's knowledge of the gun. It is perhaps true that it would be more likely that Moore knew of the gun's presence if Williams, Powell, and Moore's sister all did not, since most likely one of those four drivers placed the gun there. But the converse is not true. Moore was not less likely to know of the gun merely because Williams knew of it. Both men could have independently known that a gun was kept in the car. For example, it could have been an open secret among one or more members of Moore's household that Moore often or regularly carried the gun in the car when he was driving. Alternatively, both men could have agreed to keep the gun in the car for either one's use when driving the car.
Evidence that Williams had a grudge against Moore and called the police to report him driving with the gun does not change the analysis. Williams's alleged plan to have Moore arrested would have succeeded if Williams planted the gun, as Moore contends. But it would have succeeded equally well if Williams simply knew that Moore usually carried the gun in the car or carried the gun in the car on the day in question. Either way, Williams could succeed in having Moore arrested by calling the police.
Thus, even if Moore could have proven that Williams knew of the gun in the car, he also needed some evidence that Williams placed the gun in the car, and, as importantly, he needed evidence that Williams put the gun in the car without Moore's knowledge. As Moore conceded below, however, he had no direct evidence connecting Williams to the gun beyond the evidence suggesting he knew of its existence. As a result, his proffered evidence regarding Williams's motive, opportunity, and call to the police did not undermine the proof that Moore knew the gun was in the car, and it was therefore incapable of creating reasonable doubt.
We find People v. Avila (2006) 38 Cal.4th 491 and People v. DePriest (2007) 42 Cal.4th 1 instructive. In Avila, the Supreme Court upheld the exclusion of the defendant's evidence that someone else committed the murders with which he was charged. (Avila, at p. 578.) The court relied in part on the fact that the evidence showed that more than one person was responsible for the murders, so that even if the defendant's evidence implicated a third party, it did not tend to exculpate the defendant. (Id. at p. 578.) In DePriest, the defendant sought to introduce evidence that he and the person he claimed was the actual murderer were in the victim's car after the murder. (DePriest, at pp. 14-15 & fn. 5, 43-44.) Even if this evidence was consistent with the defense's theory by connecting the third party to the victim's car in some fashion (see id. at p. 14, fn. 5), the Supreme Court held it was properly excluded because it was not inconsistent with the prosecution's evidence of the defendant's guilt. (Id. at p. 44.) The circumstances here are similar. Even if Moore's evidence regarding Williams helped support Moore's theory of the case, the trial court properly excluded it because it was not inconsistent with the charges against Moore.
In addition to finding that Moore's evidence did not create reasonable doubt as to his guilt, the court excluded the evidence under Evidence Code section 352, which allows a trial court to exclude evidence if the dangers of prejudice, confusion, or undue consumption of time substantially outweigh the evidence's probative value. (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1154 (Mehserle).) The trial court excluded the evidence regarding Williams based on its determination that the evidence would confuse the jury and require unreasonable time in relation to its probative value.
The court did not abuse its discretion in so concluding. Moore's trial was fairly straightforward. It involved a little more than a day of testimony, with one half of a day devoted to prosecution witnesses who were relevant only to the marijuana charges of which Moore was acquitted. Guerrero's testimony regarding his search of the Acura SUV and interactions with Moore occupied a little more than half of another day of testimony. Powell and Moore's sister together amounted to less than an hour of testimony.
By contrast with this efficient proceeding, Moore wanted to call Williams to testify about placing the call to the police, whether Williams was lying about overhearing two people discussing the brandishing of the weapon, Williams's access to the Acura SUV, and Moore's relationship with Williams. Williams might have denied being the caller by saying someone else used his phone and denied having a contentious relationship with Moore, so Moore's counsel was prepared to have Moore's sister establish those points. This would likely have required authentication and admission of the recording of the call Michael made to the police, so that the call could be played for Moore's sister to identify Michael's voice as belonging to Williams. As the prosecution argued in opposing Moore's motion to admit the evidence regarding Williams, such evidence would transform the short trial from one focused on whether defendant knowingly possessed a loaded firearm in his vehicle into one focused on Williams, his relationship with Moore, and his credibility with regard to the call to the police. We perceive nothing arbitrary or capricious in the court's determination that given the minimal probative value of Moore's proffered evidence regarding Williams, its admission would unreasonably confuse the jury and lead to an undue consumption of time. (See Mehserle, supra, 206 Cal.App.4th at p. 1154.)
Moore also moved to impeach Williams with various criminal convictions if he were called as a witness. The trial court indicated that it intended to deny that motion regardless of its ruling on Moore's motion to admit third-party culpability evidence, so there was no risk that the impeachment would contribute to the confusion or delay.
Moore contends that even if California law allowed the trial court to exclude his evidence regarding Williams, such exclusion was still improper because it violated his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution to due process, a fair trial, and to confront witnesses. He argues the evidence was admissible because it was relevant and material, central to his defense in conjunction with other evidence, not cumulative, and bore indicia of reliability. Moore relies principally on Holmes v. South Carolina (2006) 547 U.S. 319 (Holmes), which he argues abrogated state law authority that evidence of mere motive and opportunity is insufficient to create a reasonable doubt.
The principle that state evidence law may not be used to deprive a defendant of his constitutional right to a fair trial does not aid Moore. The federal cases cited by Moore, in which courts held defendants' constitutional rights required the admission of third-party culpability evidence, all involved unlawful killings in which defendants proffered probative evidence strongly suggesting that only a third party committed the crime. (Holmes, supra, 547 U.S. at p. 323 [defendant in murder case sought to admit four witnesses' testimony that a third party had acknowledged that the defendant was innocent or had admitted to committing the crimes]; Chambers v. Mississippi (1973) 410 U.S. 284, 298, 302-303 [same]; Lunbery v. Hornbeak (9th Cir. 2010) 605 F.3d 754, 761-762 [defendant in murder case sought to admit evidence that third party admitted the murder had been committed by his partners, as well as evidence corroborating that statement]; Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, 1004 [defendant in murder case sought to admit testimony of alleged co-conspirator that defendant did not participate and tried to dissuade the alleged co-conspirator from carrying out the crime].) That is not the case here. Regardless of its indicia of reliability or whether it was cumulative, Moore's evidence did not inculpate anyone else in the crimes with which he was charged and did not tend to demonstrate anything about his guilt because, as explained above, Williams's alleged knowledge of the gun would not undermine the prosecution's proof of Moore's.
Moreover, contrary to Moore's suggestion, Holmes did not cast doubt on the vitality of People v. Hall, supra, 41 Cal.3d 826 or the rule that evidence of mere motive or opportunity is insufficient to create reasonable doubt. Holmes held only that a state could not consider the strength of the prosecution's evidence when deciding whether to exclude third-party culpability evidence. (Holmes, supra, 547 U.S. at pp. 329, 331.) The Court explicitly stated that its holding did not affect state rules, including Hall, that allow for the exclusion of evidence that is " 'speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant's trial.' " (Id. at p. 327 & fn. *.) Applying Hall to conclude that the trial court properly excluded Moore's evidence regarding Williams does not rely on the strength of the prosecution's case, so it is consistent with Holmes.
Finally, even if the court erred in excluding Moore's evidence, any error was harmless under both the Chapman and Watson standards. (Chapman v. California (1967) 386 U.S. 18, 24 [court must determine whether constitutional error was harmless beyond a reasonable doubt]; People v. Watson (1956) 46 Cal.2d 818, 836 [for state law error, reversal required only if it is reasonably probable that a more favorable result would have been reached without the error]). After considering the strength of the prosecution's case, we conclude the outcome of the trial would not have changed if the court had admitted evidence of Williams's motive and knowledge of the gun.
Moore was found driving the Acura SUV with the gun in the easily accessible location of the center armrest compartment between the driver's and front passenger's seats. Both Guerrero and Powell testified that Moore had driven the car daily for the past two years. Moore admitted to Guerrero that he kept his belongings in the car, and Guerrero found the gun underneath bank paperwork on which Moore's name appeared. Moore was also carrying over $800 in cash and the marijuana in the car was worth between $2,000 and $3,000, all of which would have made him a target for robbery. The jury acquitted Moore of the marijuana charges, and we accept its determination that Moore was not selling the marijuana found in his vehicle. But even if the marijuana was for his and his girlfriend's consumption, the jury could have logically inferred that Moore was using the gun to protect himself against theft or robbery.
Moore's admission to Guerrero that he knew of the gun reinforces this conclusion. We recognize that Moore admitted knowing of the gun only after Guerrero pressured him repeatedly while Moore was in an uncomfortable position in the backseat of Guerrero's car, with Guerrero's gun at his eye level. There was also a possibility that Moore admitted to knowing of the gun solely to avoid implicating anyone else. We further acknowledge that Moore's statement to Guerrero was not recorded so the jury could have treated the statement with caution, as the trial court instructed. (CALCRIM No. 358; see also CALJIC No. 2.71.7) But, in light of the rest of the evidence connecting Moore with the vehicle and its contents, the jury likely would have accepted Moore's statement as an admission that he knew of the gun in the car. This seems especially likely given that the jury deliberated for only three hours, despite acquitting Moore on the marijuana charges. These short deliberations suggest the jury viewed the gun charges against Moore as straightforward.
In light of this evidence and the legitimate inferences therefrom, Moore is not entitled to reversal. Moore's proffered evidence suggesting that Williams also knew of the gun would not have overcome the strength of the prosecution's case, so the exclusion of such evidence, even if error, was harmless. (Cf. Hall, supra, 41 Cal.3d at p. 835 [without evidence limiting the number of perpetrators of a crime, exclusion of evidence that third party participated was harmless].)
II. Prosecutorial Misconduct
Moore also argues the prosecutor committed misconduct by commenting on Moore's failure to call Williams as a witness. Moore contends it was improper for the prosecutor to fault him for failing to call Williams as a witness when the prosecutor effectively barred Moore from calling Williams by successfully opposing the admission of evidence relating to Williams. We perceive no misconduct in the prosecutor's comments, and certainly none that prejudiced Moore.
"Under the federal Constitution, a prosecutor commits misconduct when his or her conduct 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citation.] Under California law, a prosecutor commits reversible misconduct when 'he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted.' " (People v. Clark (2016) 63 Cal.4th 522, 576-577.) "We review the trial court's rulings on prosecutorial misconduct for abuse of discretion." (People v. Peoples (2016) 62 Cal.4th 718, 792-793.)
Citing People v. Uribe (2011) 199 Cal.App.4th 836, 860, Moore asserts that claims of prosecutorial misconduct are subject to independent review. Uribe held that, where the trial court dismissed the charges against the defendant, its factual finding that government misconduct occurred was subject to a deferential standard of review but independent review applied to the primarily legal ruling that the government misconduct constituted outrageous conduct in the constitutional sense of violating the defendant's due process rights thereby warranting dismissal. (Uribe, at pp. 857-858.) The trial court did not dismiss the charges against Moore, so Uribe is inapposite. We also note that People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 445-446, declined to follow Uribe. In any event, the standard of review is immaterial here because, as our analysis makes clear, Moore's arguments would fail even under independent review.
The prosecutor's comments did not infect Moore's trial with such unfairness to constitute a denial of due process, nor were they deceptive or reprehensible. At the outset, we agree with the trial court that its order excluding Moore's evidence was not tantamount to an order excluding Williams entirely. The trial court excluded evidence that Williams was the individual who called the police, identified himself as Michael, and reported the brandishing of the weapon, as well as testimony about Williams having a falling out with Moore. The trial court at no point stated that Moore could not call Williams as a witness and attempt to tie him to the gun. Moore's counsel recognized that such a tactic would have been risky, given the possibility that Williams would simply deny placing the gun in the car. But if Moore had been able to tie Williams to the gun, the trial court's in limine ruling would not have barred Moore from calling Williams for this purpose.
Additionally, even if the trial court had prevented Moore from calling Williams as a witness, Moore's counsel herself first remarked on Williams's absence in her closing argument. Moore's counsel argued that Moore did not have exclusive access to the car and that law enforcement officials failed to follow up with the other known drivers. In the course of this argument, Moore's counsel highlighted the testimony from Powell and Moore's sister about Williams, stating, "specifically, that there was a particular person, who we did not hear from in this case, Mr. Moore's uncle who regularly drove this particular vehicle during the same time period." The implication, in context of counsel's broader argument that law enforcement failed to pursue the possibility that Williams placed the gun in the car, was that the prosecution purposefully chose not to call Williams. Because Moore opened the door to the issue of Williams not testifying, the prosecutor was within her rights to respond during her rebuttal argument by noting that Moore, too, could have called Williams as a witness.
Moore errs in relying on People v. Varona (1983) 143 Cal.App.3d 566. There, the prosecutor convinced the trial court to exclude evidence that the victim of a kidnapping and rape was a prostitute, but then argued in closing that the victim in fact was not a prostitute. (Id. at pp. 568, 570.) The court held this "went beyond the bounds of any acceptable conduct." (Id. at p. 570.) The court explained, "[I]n a proper case, a prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story. But we know of no case where such argument is permissible except where a defendant might reasonably be expected to produce such corroboration." (Ibid.) Moore also cites cases in which courts held that an error in excluding evidence was compounded when the prosecution commented on the absence of the evidence in closing argument. (People v. Daggett (1990) 225 Cal.App.3d 751, 757-758; People v. Castain (1981) 122 Cal.App.3d 138, 144, 146.)
These cases are inapposite. We have already concluded the trial court properly excluded Moore's third-party culpability evidence. Moreover, in the cases cited by Moore, the prosecution commented specifically on the absence of facts that the defendant had been barred from establishing. Here, the prosecutor did not argue that Williams had no motive to implicate Moore or that Williams knew nothing about the gun. The prosecutor's more general comment about Moore's ability to call Williams is thus distinguishable from the misconduct in the authorities Moore cites.
Finally, even if the prosecutor's argument was improper, it did not prejudice Moore under either constitutional or state law standards. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.) As we have discussed, the prosecution's case was simple and strong. On this record, it is exceedingly unlikely that any member of the jury would have voted to acquit Moore of the gun charges if the prosecutor had not commented on Moore's ability to call Williams.
DISPOSITION
The trial court's judgment is affirmed.
/s/_________
BROWN, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
STREETER, J.