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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS COFFEE, : No. 54 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, August 4, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010364-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS COFFEE, : No. 56 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, August 4, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010393-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS COFFEE, : No. 57 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, August 4, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010362-2013
J. S20024/17
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
THOMAS COFFEE, : No. 58 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, August 4, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0010379-2013
BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 16, 2017
Thomas Coffee appeals from the August 4, 2015 judgment of sentence
of life imprisonment plus a consecutive aggregate term of 50 to 100 years’
imprisonment imposed after a jury found him guilty of first-degree murder,
four counts each of robbery and possessing an instrument of crime (“PIC”),
three counts of carrying a firearm without a license, and two counts each of
criminal conspiracy and robbery of a motor vehicle.1 After careful review,
we affirm the judgment of sentence.
The trial court summarized the factual background of this case as
follows:
On June 7, 2013, Jose Ocana searched
Craigslist.com intending to trade his dirt bike for a
street motorcycle. Finding a motorcycle that he was
interested in buying, Ocana contacted the seller by
1
18 Pa.C.S.A. §§ 2502(a), 3701, 907, 6106, 903, and 3702, respectively.
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phone in order to set up a trade. Based on the voice
of the individual he contacted, Ocana believed the
seller to be a Hispanic male. After talking with the
seller multiple times on the phone, Ocana and the
seller agreed to make the trade at Ocana’s home on
the 3400 block of Emerald Street in Philadelphia.
That evening, Ocana brought his dirt bike in front of
his home and, seeing a Hispanic male walking down
the street, Ocana called the seller again to confirm
that the man he saw was the seller. The Hispanic
male on the street answered the phone. Ocana later
identified this Hispanic male as Joshua Gutierrez.
Ocana also saw two black males, one of whom was
[appellant], walking behind Gutierrez.
Ocana and Gutierrez met on the street, and
Ocana turned to retrieve an umbrella from the trunk
of his car. As Ocana retrieved the umbrella, the
unidentified black male pulled a gun and pressed it
against Ocana’s back. [Appellant] then went through
Ocana’s pockets, taking Ocana’s keys, wallet, and
cell phone. As Gutierrez drove off with Ocana’s dirt
bike, the unknown black male ordered Ocana to the
ground, to turn face up, and then placed the gun
against Ocana’s forehead. [Appellant] then got into
the driver’s seat of Ocana’s car, while the other black
male got into the passenger seat. [Appellant] and
the other black male then fled the scene in Ocana’s
vehicle. Ocana went to a neighbor’s home, where he
called police.
Ocana informed police of the phone number he
had used to contact Gutierrez. Detectives
subsequently investigated the Craigslist ad to which
Ocana responded and determined that the ad was
connected to the email address
joshuagutierrez772@yahoo.com and that the phone
number provided in the ad belonged to Gutierrez.
On June 8, 2013, Ben Booker responded to a
Craigslist ad, seeking to purchase a motorcycle. This
ad was the same ad to which Ocana had responded.
Booker offered to trade three legally purchased
firearms for the motorcycle. Booker negotiated the
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sale during a series of phone calls that he had placed
to the phone number listed in the ad. The seller
suggested that they meet at a location on the
4600 block of Stenton Avenue to conduct the trade.
Booker drove to the meeting in his Lexus RS 300
accompanied by his cousin, where he was flagged
down by Gutierrez.
While Booker and Gutierrez were talking,
[appellant] approached them. [Appellant] then
pulled two handguns and pointed one firearm each at
Booker and his cousin. [Appellant] ordered Booker
and his cousin to the ground while four other
individuals approached. [Appellant] gave one
firearm to Gutierrez, and the two continued to point
the firearms at Booker and his cousin while the other
individuals went through Booker’s pockets.
[Appellant] had his gun against Booker’s head.
[Appellant] and his associates took Booker’s wallet,
wedding ring, and personal firearm, and then got
into Booker’s Lexus and fled, along with the
additional firearms and ammunition that were inside
the car. Among the weapons stolen in Booker’s car
was a .40 caliber handgun. Booker contacted police
and provided the investigating detective with a fired
cartridge casing that had come from the .40 caliber
handgun stolen by [appellant].
On June 10, 2013, two days after being
robbed, Booker saw [appellant] on Church Street,
but [appellant] fled in a van before police could
arrive on the scene. Booker later identified
[appellant] in a photo array on June 24, 2013.
On June 17, 2013, at approximately 9:30 a.m.,
Malik Bivings was walking down the 7000 block of
Horrocks Street. There he encountered [appellant],
who had a firearm in hand and ordered Bivings into
an alley. [Appellant] directed Bivings to empty his
pockets. [Appellant] took Bivings’ iPhone, watch,
and wallet before leaving the area. Bivings
contacted the police and reported the robbery on
June 21, 2013. Bivings identified [appellant] in a
photo array on July 2, 2013.
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On June 21, 2013, Daniel Cook, a resident of
New Jersey, headed to a meeting to purchase a
Yamaha Banshee ATV vehicle that was offered for
sale in a Craigslist ad. Prior to that day, Cook had
agreed to pay $950 and a PlayStation 3 gaming
console in exchange for the ATV. [Appellant] had
posted this ad using his own email address and his
cell phone number. Cook and [appellant] had
contacted each other by phone call and text
messaging to arrange the deal. Cook arrived at the
location for the trade sometime around 11 p.m. with
his fiancée, Jessica Davis, and three friends who
would help transport the ATV. Upon arriving at the
location for the deal, Cook’s fiancée parked the car
and Cook exited without the other passengers,
meeting with a black male who was sitting on the
steps of 6704 Hollis Street wearing a white towel on
his head. Cook, in possession of the PlayStation 3,
and the black male walked around the corner of
Walnut Street. Shortly after they went around the
corner, Cook’s fiancée and friends heard three
gunshots. Cook’s friends went around the corner to
locate Cook and found him lying next to the curb a
few feet away from the corner where he and the
black male had gone. Cook’s pockets had been
turned inside out. Cook’s fiancée then called the
police.
Police arrived on the scene of the shooting and
found Cook on the street, unresponsive with multiple
gunshot wounds. Medical personnel arrived at the
scene and declared Cook dead at 11:23 p.m. Cook
had been shot once in the back and once in his lower
right leg. Three .40 caliber fired cartridge casings
were recovered at the scene. Cook’s fiancé gave
police the cell phone number that Cook had called to
contact the seller. The police obtained the
subscriber information for that number, which listed
as the subscriber’s address the address of
[appellant] on Lukens Avenue in Willow Grove,
Pennsylvania.
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Sometime after midnight on June 22, 2013,
[appellant] returned to his home in Willow Grove and
talked to his girlfriend, telling her that his phone,
from which he had just called her, had been stolen
and that he needed help cancelling the phone line.
Also shortly after midnight, [appellant] deleted the
Craigslist ad to which Cook had responded.
Working in association with the Abington Police
Department, Philadelphia Police arrived at
[appellant’s] home later that morning, while
[appellant] was in the house. While his home was
surrounded by police, [appellant] again asked his
girlfriend to lie about his phone being stolen. After
about 15 minutes, [appellant] exited the home and
was taken into custody.
[Appellant’s] cell phone records indicated that
around the time of the murder, [appellant’s] phone
was located in the coverage area of the cell tower
that included the location on Hollis Street where the
murder occurred. These records further indicated
that [appellant’s] cell phone traveled north, away
from the scene of Cook’s murder, in the minutes
immediately following the murder, ultimately
stopping in an area that included [appellant’s] home
address.
While searching [appellant’s] home, police
recovered multiple cell phones, including the cell
phone that had been stolen from Bivings on June 17,
2013. Police also located [appellant’s] cell phone,
recovered without a SIM card, as well as a bent
SIM card that had been removed from the phone.
On that phone police found pictures of the ATV from
the Craigslist ad to which Cook had responded, with
[appellant] astride it. Police also recovered a
.40 caliber bullet that matched the type of bullets
stolen from Booker and used to kill Cook.
Subsequent analysis revealed that Cook was shot
with the .40 caliber firearm stolen from Booker on
June 8, 2013.
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Trial court opinion, 3/29/16 at 2-7 (citations to notes of testimony and
footnotes omitted).
Appellant was charged with a litany of crimes in connection with these
incidents at four separate docket numbers. These cases were ultimately
consolidated, and appellant proceeded to a jury trial on July 27, 2015. On
August 4, 2015, appellant was found guilty of all charges except one count
of carrying a firearm without a license.2 That same day, the trial court
sentenced appellant to life imprisonment for first-degree murder plus a
consecutive aggregate term of 50 to 100 years’ imprisonment for the
remaining counts. On August 7, 2015, appellant filed post-sentence
motions, which were denied by the trial court on November 24, 2015. This
timely appeal followed on December 22, 2015. On December 23, 2015, the
trial court entered an order directing appellant to file a Pa.R.A.P. 1925(b)
statement within 21 days. Appellant filed a timely Rule 1925(b) statement
on January 13, 2016. Thereafter, on March 29, 2016, the trial court filed a
comprehensive, 15-page Rule 1925(a) opinion.
Appellant raises the following issues for our review:
2
Specifically, at CP-51-CR-0010379-2013, appellant was found guilty of one
count each of criminal conspiracy, robbery, robbery of a motor vehicle, and
PIC. At CP-51-CR-0010364-2013, appellant was found guilty of one count
each of criminal conspiracy, robbery, robbery of a motor vehicle, PIC, and
carrying a firearm without a license. At CP-51-CR-0010362-2013, appellant
was found guilty of robbery, carrying a firearm without a license, and PIC.
Lastly, at CP-51-CR-0010393-2013, appellant was found guilty of
first-degree murder, robbery, carrying a firearm without a license, and PIC.
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[1.] Is [appellant] entitled to an Arrest of Judgment
on the charges of Murder, Criminal Conspiracy,
Robbery and related offenses, where the
evidence is insufficient to establish that
[appellant] was a principal, conspirator or an
accomplice to the crimes in question; with
regard to Murder in the First Degree
specifically, the evidence is insufficient, in the
alternative, where the Commonwealth could
not prove that [appellant] acted with specific
intent to kill nor with premeditation?
[2.] Is [appellant] entitled to a new trial on the
charges of Murder in the First Degree together
with Robbery, Criminal Conspiracy and all
related offenses where the verdict is not
supported by the greater weight of the
evidence?
Appellant’s brief at 3.
Preliminarily, we note that in the “Argument” section of his brief,
appellant only challenges whether there was sufficient evidence to sustain
his conviction for the first-degree murder of Daniel Cook. (See appellant’s
brief at 10-15.) Accordingly, we will limit our sufficiency discussion to that
specific conviction. Specifically, appellant argues the evidence was
insufficient to support his convictions for first-degree murder because the
Commonwealth failed to prove he had a specific intent to kill Cook. (Id. at
10-11.) We disagree.
In reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial
and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
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not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal
denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).
It is the element of a willful, premeditated, and deliberate intent to kill
that distinguishes first-degree murder from all other types of criminal
homicide. “To convict a defendant of first-degree murder, the jury must find
that (1) a human being was unlawfully killed; (2) the defendant is
responsible for the killing; and (3) the defendant acted with a specific intent
to kill.” Commonwealth v. Montalvo, 956 A.2d 926, 932 (Pa. 2008),
cert. denied, 556 U.S. 1186 (2009) (citation omitted); 18 Pa.C.S.A.
§ 2502(a).
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, the record supports the trial court’s
conclusion that there was overwhelming evidence for the jury to find that
appellant shot and killed Cook on the evening of June 21, 2013. As the trial
court summarized in its opinion,
Commonwealth witness Darlene White, who
knew [appellant], testified that she saw a black male
sitting in front of [appellant’s] old home, wearing a
towel over his head, whose build and frame were
similar to that of [appellant]. [(Notes of testimony,
7/28/15 at 203-209.)] That the person whom White
saw was the killer was established by both Daniel
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Fortunato, Cook’s friend, and Jessica Davis, Cook’s
fiancé, who each testified that at the time of the
shooting, Cook was meeting with a black male,
wearing a towel on his head, who was sitting in front
of [appellant’s] old home. [(Id. at 185; notes of
testimony, 7/29/15 at 89-90.]
While none of the eyewitnesses could positively
identify [appellant] as the shooter, the additional
physical and forensic evidence establishing
[appellant’s] guilt was overwhelming. First, the
Craigslist ad to which Cook responded listed for the
seller’s contact information [appellant’s] personal
email address, thomascoffee6@gmail.com, and
[appellant’s] phone number. [(Notes of testimony,
7/30/15 at 141-143, 146.)] Second, Cook’s cell
phone showed that it had been used to communicate
repeatedly with [appellant’s] cell phone during the
time leading up to the murder. [Id. at 75-80.)]
Third, a forensic examination of [appellant’s] cell
phone revealed that [appellant’s] phone was in the
immediate area of Cook’s murder at the time of the
gunshots, and that the phone then rapidly traveled
north immediately following the murder, ultimately
stopping at the area of [appellant’s] home in Willow
Grove. [(Notes of testimony, 8/3/15 at 31, 33-36,
38-43.)] Fourth, a picture was found on
[appellant’s] phone, showing [appellant] astride the
ATV that Cook was attempting to purchase. [(Notes
of testimony, 7/30/15 at 103-104.)] Fifth, ballistics
evidence revealed that Cook was shot and killed with
one of the firearms that [appellant] stole from
[Ben] Booker thirteen days before the shooting.
[(Notes of testimony, 7/29/15 at 117-118, 162.)]
Finally, following [appellant’s] arrest, police found in
[appellant’s] home a round of Federal brand
.40 caliber ammunition, which matched the type of
ammunition that was both stolen from Booker and
used against Cook. [(Id. at 165-166; notes of
testimony, 7/30/15 at 88.)]
There was also compelling evidence
establishing [appellant’s] consciousness of guilt.
Immediately upon his return home after the
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shooting, [appellant] falsely claimed to his girlfriend,
Alexis Green, that his cell phone, from which he had
just called her, had been stolen earlier that day while
he was playing basketball. [(Notes of testimony,
7/29/15 at 208-211; notes of testimony, 7/30/15 at
50.)] [Appellant] further requested help from his
girlfriend in order to cancel the phone service.
[(Id.)] Additionally, [appellant] deleted the
Craigslist ad to which Cook had responded within an
hour of the shooting. [(Notes of testimony, 7/30/15
at 143-144).] The next morning, while police had
surrounded [appellant’s] home, [appellant] asked his
girlfriend to lie for him and tell police that his cell
phone had been stolen. [(Notes of testimony,
7/29/15 at 89, 95-97; notes of testimony, 7/30/15
at 51-52.)] Police found additional evidence of
[appellant’s] consciousness of guilt when they
recovered [appellant’s] cell phone, without its
SIM card, and then located the SIM card separately
in a plastic bag. The SIM card had been bent in an
apparent attempt to destroy it. [(Notes of
testimony, 7/30/15 at 89, 95-97.)]
Trial court opinion, 3/29/16 at 11-12 (citation formatting corrected).
The record further reflects that Cook was shot multiple times, once in
the leg and once in the back. (Notes of testimony, 7/29/15 at 190-193.)
Commonwealth witness Dr. Edwin Lieberman, the Philadelphia medical
examiner and expert in forensic pathology, testified that the gunshot to
Cook’s back penetrated his heart and left lung, ultimately resulting in his
death. (Id. at 193-195.) It is well settled that “[t]he firing of a bullet in the
general area in which vital organs are located can in and of itself be
sufficient to prove specific intent to kill beyond a reasonable doubt.”
Commonwealth v. Manley, 985 A.2d 256, 272 (Pa.Super. 2009), appeal
denied, 996 A.2d 491 (Pa. 2010) (citation omitted). Based on the
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foregoing, we find that appellant possessed the requisite intent to kill Cook
and that his claim that there was insufficient evidence to sustain his
conviction for first-degree murder must fail.
We now turn to appellant’s claim that the verdict was against the
weight of the evidence. (Appellant’s brief at 16.) Specifically, appellant
argues the that the guilty verdict for the first-degree murder of Cook “was
based on nothing more than speculation, conjecture and surmise” and that
“[t]he greater weight of the evidence only would have established that there
was a robbery set up and that the robbery went bad.” (Id. at 17.) We
disagree.
“An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court.” Commonwealth v. Galvin,
985 A.2d 783, 793 (Pa. 2009), cert. denied, 559 U.S. 1051 (2010) (citation
omitted).
[W]here the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against
the weight of the evidence. Rather, appellate review
is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation
omitted).
Because the trial judge has had the opportunity to
hear and see the evidence presented, an appellate
court will give the gravest consideration to the
findings and reasons advanced by the trial judge
when reviewing a trial court’s determination that the
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verdict is against the weight of the evidence. One of
the least assailable reasons for granting or denying a
new trial is the lower court’s conviction that the
verdict was or was not against the weight of the
evidence and that a new trial should be granted in
the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and
emphasis omitted).
Upon review, we discern no abuse of discretion on the part of the trial
court in rejecting appellant’s weight claim. (See trial court opinion, 3/29/16
at 13.) “[T]he trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe all, part or none
of the evidence.” Commonwealth v. Andrulewicz, 911 A.2d 162, 165
(Pa.Super. 2006) (citation omitted), appeal denied, 926 A.2d 972 (Pa.
2007). Here, the jury evidently found the 18 witnesses presented by the
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Commonwealth at trial credible, and elected not to believe appellant’s
version of the events. We are precluded from reweighing the evidence and
substituting our judgment for that of the fact-finder. Clay, 64 A.3d at 1055.
Accordingly, appellant’s weight claim must fail.
Appellant further contends the trial court abused its discretion in
precluding him from impeaching the detective initially assigned to
investigate the homicide of Cook, Detective Ronald Dove, with unrelated
allegations of misconduct.3 (Appellant’s brief at 17-21.) The record reflects
that appellant failed to include this specific claim in his “Statement of
Question[s] Involved.” (See id. at 3.) Accordingly, we deem it waived.
See Commonwealth v. Garland, 63 A.3d 339, 342 (Pa.Super. 2013)
(concluding that an issue not explicitly raised in appellant’s statement of the
questions involved is waived); Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is
fairly suggested thereby[]”).
In any event, even if appellant had not waived this claim, he would not
be entitled to relief. As recognized by the trial court, Detective Dove
provided no evidence of appellant’s guilt, and his testimony would not have
been helpful to either party. Specifically, the trial court reasoned as follows:
3
At the time of appellant’s trial, Detective Dove had been terminated from
the Philadelphia police force and was facing charges for allegedly helping his
girlfriend flee the city after she murdered her ex-boyfriend. (See trial court
opinion, 3/29/16 at 14; appellant’s brief at 7-8, 17-21.)
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[I]t was clear that Dove, who was not called as a
Commonwealth witness, had nothing to offer about
the case that was not cumulative of the testimony of
other witnesses, and did not state anything that was
helpful to the defense. As a result, it was apparent
to the [trial c]ourt that [appellant] wished to call
Dove as a witness for the sole purpose of offering
evidence about the charges pending against him in
order to unfairly prejudice the jurors against the
Commonwealth through the allegations regarding
Dove’s unrelated conduct.
Trial court opinion, 3/29/16 at 14-15 (citation to notes of testimony
omitted).
Moreover, there is no indication that Detective Dove acted improperly
in investigating appellant’s case, and the only conceivable purpose in
presenting Detective Dove’s alleged misconduct in an unrelated matter
would be to impeach his credibility. As discussed, given the overwhelming
evidence in this case, appellant cannot possibly show that the proffered
“evidence” of Detective Dove’s alleged misconduct would have led to a
different result. As such, his claim would fail.
Based on the foregoing, we find no abuse of the trial court’s discretion
and affirm appellant’s August 4, 2015 judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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