Com. v. Adams-Smith, R.

J-S02043-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 RASHEED ADAMS-SMITH                       :
                                           :
                    Appellant              :   No. 4080 EDA 2017

              Appeal from the PCRA Order November 20, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0003263-2013


BEFORE: GANTMAN, P.J.E., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                       FILED OCTOBER 14, 2020

      Rasheed Adams-Smith appeals pro se from the order denying his first

petition filed pursuant to the Post Conviction Relief Act. 42 Pa.C.S.A. §§ 9541-

9546. We affirm.

      When disposing of Adams-Smith’s direct appeal, this Court summarized

the pertinent facts and partial procedural history as follows:

            On April [4], 2014, following trial before the [trial court]
         and a jury, [Adams-Smith] was convicted of rape of a child
         under the age of thirteen, involuntary deviate intercourse
         [(“IDSI”)] with a child under the age of thirteen, indecent
         assault of a child under the age of thirteen, and indecent
         exposure.

            At trial, the Commonwealth presented evidence that
         [Adams-Smith] - a close friend of the victim's family - began
         improperly touching the victim (A.G.) at a time when A.G.
         was approximately five (5) years old and [Adams-Smith]
         was a teenager. [At the time of trial, A.G. was ten (10)
J-S02043-19


       years old and Adams-Smith was twenty (20).]             This
       improper contact continued over a period of years,
       beginning with repeated touching by [Adams-Smith] of
       A.G.'s bare buttocks and ultimately escalating to, [inter
       alia], [Adams-Smith] exposing himself and masturbating to
       ejaculation in front of A.G. and repeatedly penetrating
       A.G.'s anus with [his] penis. A.G. testified that these anal
       penetrations occurred "too many times to count."

          [Adams-Smith] was charged with and convicted of
       crimes he committed after his eighteenth birthday,
       specifically the period between 2011 and September 2012.
       Evidence of [Adams-Smith’s] earlier improper conduct with
       [A.G.] was admitted - upon the Commonwealth’s motion -
       solely to provide the jurors the complete background and
       history of the case.

           On August 1, 2014, [Adams-Smith] appeared before the
       [trial court] for a hearing to determine whether [he] would
       be classified as a sexually violent predator [(“SVP”)].
       Following hearing, the [trial court] accepted the
       recommendation of the Sexual Offenders Assessment Board
       and determined that [Adams-Smith] was, in fact, [an SVP].

          The case then proceeded immediately to sentencing.
       Following hearing, the [trial court] imposed a standard
       range sentence of not less than ten (10) nor more than
       twenty (20) years['] imprisonment on [Adams-Smith's]
       conviction for rape of a child. The [trial court] imposed a
       consecutive standard range sentence of not less than ten
       (10) and not more than twenty (20) years['] imprisonment
       on [his] conviction for [IDSI] with a child. The [trial court]
       further imposed a concurrent sentence of not less than one
       (1) nor more than two (2) years['] imprisonment on
       [Adams-Smith's] conviction for indecent assault, and a
       sentence of two (2) years['] probation on his conviction for
       indecent exposure.

          [Adams-Smith] thus received an aggregate sentence of
       not less than twenty (20) nor more than forty (40) years[']
       imprisonment, with the [trial court] explaining the reasons
       for the sentences imposed at some length on the record.




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Commonwealth v. Adams-Smith, 134 A.3d 503 (Pa. Super. 2015),

unpublished memorandum at 2-3 (footnote omitted).

      At sentencing, the trial court also notified Adams-Smith of his

requirement to register and report for life as a Tier III sexual offender and

SVP under the Sexual Offender Registration and Notification Act (“SORNA”).

Adams-Smith filed a timely appeal to this Court.         In an unpublished

memorandum filed on November 24, 2015, we affirmed Adams-Smith

judgment of sentence. Adams-Smith, supra. Adams-Smith did not seek

further review.

      Adams-Smith timely filed a pro se PCRA petition on November 18, 2016,

and the PCRA court appointed counsel. On July 7, 2017, PCRA counsel filed a

"Petition for Permission to Withdraw as Counsel" on July 7, 2017, to which he

attached a "no-merit" letter pursuant to Commonwealth v. Turner, 518 Pa.

491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 550 A.2d 213

(Pa. Super. 1988) (en banc). Adams-Smith filed a pro se response to PCRA

counsel’s filing. On October 23, 2017, the PCRA court issued a Pa.R.Crim.P.

907 notice of its intent to dismiss Adams-Smith’s PCRA petition without a

hearing. In addition, the PCRA granted PCRA counsel’s request to withdraw.

Adams-Smith filed a timely response. By order entered November 22, 2017,




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the PCRA court dismissed Adams-Smith’s PCRA petition. This timely appeal

followed.1

       Adams-Smith raises the following issues on appeal:

          1. Whether [Adams-Smith] is entitled to a new trial or
             dismissal of the charges where trial counsel was
             ineffective for failing to conduct a proper cross-
             examination of Commonwealth witness Dr. [Philip]
             Scribano [and] move to strike his testimony as non-
             relevant pursuant to [the Pennsylvania Rules of
             Evidence?]

          2. Whether [Adams-Smith] is entitled to a new trial or
             dismissal of the charges where trial counsel was
             ineffective for failing to present any counter arguments
             prior to or during, or failing to object to the
             [C]ommonwealth’s introduction at trial of prior bad
             acts[?]

          3. Whether [Adams-Smith] is entitled to a new trial or
             dismissal of the charges were trial counsel was
             ineffective for failing to pursue pretrial interview to
             explore the taint of [A.G.] in accordance with 42
             Pa.C.S.A. §5985.1 & Pa.R.E. 601[?]




____________________________________________


1 In an opinion filed on May 7, 2019, this Court originally granted Adams-
Smith post-conviction relief insofar as we found his registration and
notifications requirements pursuant to SORNA were illegal in light of our
Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), and that his classification as an SVP was illegal in light of this Court’s
decision in Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017).
See Commonwealth v. Adams-Smith, 209 A.3d 1011 (Pa. Super. 2019).
Our Butler decision was later reversed by our Supreme Court.                See
Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (“Butler II”). By per
curiam order entered on September 1, 2020, our Supreme Court granted
Adams-Smith’s petition for allowance of appeal and remanded this matter for
reconsideration in light of Butler II.


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         4. Whether [Adams-Smith] is entitled to a new trial or
            dismissal of the charges due to the cumulative nature of
            the errors in this case.

         5. Whether the PCRA court erred as a matter of law, when
            it dismissed the PCRA Petition without a hearing[?]

Adams-Smith’s Brief at 2 (reordered for ease of disposition).

      Preliminarily, we observe that appellate briefs must conform in all

material respects to the briefing requirements set forth in the Pennsylvania

Rules of Appellate Procedure. Pa.R.A.P. 2101. See also Pa.R.A.P. 2114-2119

(addressing specific requirements of each subsection of brief on appeal).

Regarding the argument section of an appellate brief, Rule 2119(a) provides:

         Rule 2119. Argument

         (a) General rule. The argument shall be divided into as
         many parts as there are questions to be argued; and shall
         have at the head of each part—in distinctive type or in type
         distinctively displayed—the particular point treated therein,
         followed by such discussion and citation of authorities as are
         deemed pertinent.

Pa.R.A.P. 2119(a). "[I]t is an appellant's duty to present arguments that are

sufficiently developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with citations to legal

authorities."   Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.

2007) (internal citations omitted). "This Court will not act as counsel and will

not develop arguments on behalf of an appellant."       Id. If a deficient brief
hinders this Court's ability to address any issue on review, we shall consider
the issue waived.   Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super.

2006) (holding appellant waived issue on appeal where he failed to support

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claim with relevant citations to case law and record). See also In re R.D., 44

A.3d 657, 674 (Pa. Super. 2012) (holding appellant waived issue, where

argument portion of appellant's brief lacked meaningful discussion of, or

citation to, relevant legal authority regarding issue generally or specifically;

appellant's lack of analysis precluded meaningful appellate review).

       Instantly, Adams-Smith did not properly develop his argument section

for his first appellate issue, concerning the Commonwealth's expert witness,

Dr. Scribano. He notes several reasons why he thinks Dr. Scribano was an

unreliable witness, but Adams-Smith does not discuss how this relates to

ineffective assistance of counsel or cite to relevant case law. See Pa.R.A.P.

2119(a). We decline to make Appellant's argument for him. See Hardy,

supra. Accordingly, Adams-Smith waived his first appellate issue regarding

Dr. Scribano's testimony. See In re R.D., supra; Gould, supra.2

       Adams-Smith essentially asserts that the PCRA court improperly relied

on counsel's Turner/Finley no-merit letter when the court dismissed his

PCRA petition without an evidentiary hearing.3      In support of this claim,


____________________________________________


2We decline the Commonwealth’s assertion that we should quash this appeal
because Adams-Smith’s remaining issues suffer the same deficiencies. See
Commonwealth’s Brief at 7-11. Although his supporting argument for each
consists of one paragraph, we will not quash Adams-Smith’s appeal on this
basis.

3 In the argument portion of his brief, Adams-Smith argues that the PCRA
court should have allowed him to amend his PCRA petition. See Appellant’s



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Adams-Smith raises three instances when trial counsel was ineffective. In

addition, he asserts that these claims of ineffectiveness amount to

cumulative error.

       Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court's determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101, 109 (Pa. Super. 2011). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those findings.

Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa. Super. 2007). We give no

such deference, however, to the court's legal conclusions. Commonwealth

v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). Further, a petitioner is not

entitled to a PCRA hearing as a matter of right; the PCRA court can decline to

hold a hearing if there is no genuine issue concerning any material fact, the

petitioner is not entitled to PCRA relief, and no purpose would be served by

any further proceedings. Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.

Super. 2012); Pa.R.Crim.P. 907.

       The    law   presumes      counsel      has   rendered   effective   assistance.

Commonwealth v. Williams, 950 A.2d 294, 299 n.3 (Pa. 2008). Under the

traditional analysis, to prevail on a claim of ineffective assistance of counsel,



____________________________________________


Brief at 3-4. Because this claim was not raised in his statement of issues, it
is waived. See generally, Pa.R.A.P. 2116(a).


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a petitioner bears the burden to prove his claims by a preponderance of the

evidence.     Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super.

2007).   The petitioner must demonstrate: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable strategic basis for the asserted

action or inaction; and (3) but for the errors and omissions of counsel, there

is a reasonable probability that the outcome of the proceedings would have

been different. Id. See also Commonwealth v. Kimball, 724 A.2d 326,

333 (Pa. 1999). "A reasonable probability is a probability that is sufficient to

undermine confidence in the outcome of the proceeding." Commonwealth v.

Spotz, 84 A.3d 294, 312 (Pa. 2014) (citation omitted). "Where it is clear that

a petitioner has failed to meet any of the three, distinct prongs of the...test,

the claim may be disposed of on that basis alone, without a determination of

whether the other two prongs have been met." Commonwealth v. Steele,

961 A.2d 786, 797 (Pa. 2008).

      "The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit[.]" Commonwealth

v. Pierce, 645 A.2d 189, 194 (Pa. 1994).             "Counsel cannot be found

ineffective   for   failing   to   pursue   a   baseless   or   meritless   claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa. Super. 2004).

         Once this threshold is met we apply the 'reasonable basis'
         test to determine whether counsel's chosen course was
         designed to effectuate his client's interests. If we conclude
         that the particular course chosen by counsel had some

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         reasonable basis, our inquiry       ceases   and    counsel's
         assistance is deemed effective.

Pierce, 645 A.2d at 194-95 (internal citations omitted).

         Prejudice is established when [a defendant] demonstrates
         that counsel's chosen course of action had an adverse effect
         on the outcome of the proceedings. The defendant must
         show that there is a reasonable probability that, but for
         counsel's unprofessional errors, the result of the proceeding
         would have been different. A reasonable probability is a
         probability sufficient to undermine confidence in the
         outcome. In [Kimball, supra], we held that a "criminal
         defendant alleging prejudice must show that counsel's
         errors were so serious as to deprive the defendant of a fair
         trial, a trial whose result is reliable."

Commonwealth v. Chambers, 807 A.2d 872, 883 (Pa. 2002) (some internal

citations and quotation marks omitted).

      "Where matters of strategy and tactics are concerned, counsel's

assistance is deemed constitutionally effective if he chose a particular course

that had some reasonable basis designed to effectuate his client's interests.”

Commonwealth v. Sneed, 45 A.3d 1096, 1107 (Pa. 2012).

         A finding that a chosen strategy lacked a reasonable basis
         is not warranted unless it can be concluded that an
         alternative not chosen offered a potential for success
         substantially greater than the course actually pursued. A
         claim of ineffectiveness generally cannot succeed through
         comparing, in hindsight, the trial strategy employed with
         alternatives not pursued.

Id. (internal citations and quotation marks omitted).      Numerous claims of

ineffective assistance of counsel will not cumulatively warrant relief if the

claims fail individually. Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa.

2012). See also Commonwealth v. Washington, 927 A.2d 586, 617 (Pa.

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2007) (stating claim of cumulative error fails if individual claims do not

warrant relief).

      In his second issue, Adams-Smith contends that trial counsel was

ineffective for failing to object at trial to the admission of evidence of his prior

bad acts, specifically related to Adams-Smith’s acts of abuse of A.G., which

occurred before his eighteenth birthday.

      Questions regarding the admission of evidence are left to the sound

discretion of the trial court, and the Superior Court, as an appellate court, will

not disturb the trial court’s rulings regarding the admissibility of evidence

absent an abuse of that discretion. Commonwealth v. Pukowsky, 147 A.3d

1229, 1233 (Pa. Super. 2016).

      Generally, character evidence is not admissible to prove conduct.

PA.R.E. 404(a). Pennsylvania Rule of Evidence 404(b) provides, in pertinent

part, as follows:

           (b) Crimes, Wrongs or Other Acts.

           (1) Prohibited Uses. Evidence of a crime, wrong, or other
         act is not admissible to prove a person’s character in order
         to show that on a particular occasion the person acted in
         accordance with the character.

           (2) Permitted Uses. This evidence may be admissible for
         another purpose, such as proving motive, opportunity,
         intent, preparation, plan, knowledge, identity, absence of
         mistake, or lack of accident. In a criminal case this evidence
         is admissible only if the probative value of the evidence
         outweighs its potential for unfair prejudice.

           (3) Notice in a Criminal Case. In a criminal the prosecutor
         must provide reasonable notice in advance of trial, or during
         trial if the court excuses pretrial notice on good cause

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         shown, of the general nature of any such evidence the
         prosecutor intends to introduce at trial.

Pa.R.E. 404(b).

      However, there are limited exceptions to the admission at trial of

evidence of other crimes or prior bad acts, one of which arises in prosecutions

for sexual offenses:

         Evidence of prior sexual relations between defendant and
         his . . . victim is admissible to show a passion or propensity
         for illicit sexual relations with the victim. This exception is
         limited, however. The evidence is admissible only when the
         prior at involves the same victim and the two acts are
         sufficiently connected to suggest a continuing course of
         conduct. The admissibility of the evidence is not affected
         by the fact that the prior incidents occurred outside of the
         statute of limitations.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (emphasis

in original).   Evidence that provides the factfinder with the res gestae, or

complete history, of a crime holds special significance. Commonwealth v.

Wattley, 880 A.2d 682, 687 (Pa. Super. 2007). As this Court summarized in

Wattley:

            The trial court is not required to sanitize the trial to
         eliminate all unpleasant facts from consideration where
         those facts are relevant to the issues at hand and form part
         of the history and natural development of the events and
         offenses for which the defendant is charged.

            Res gestae evidence is of particular import and
         significance in trials involving sexual assault. By their very
         nature, sexual assault cases have a pronounced death of
         independent witnesses, and there is rarely any
         accompanying physical evidence. [In these] cases the
         credibility of the complaining witness is always an issue.


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Wattley, 880 A.2d at 867 (emphasis and citations omitted some formatting

altered).

       Here, beginning when Adams-Smith was fifteen years old he abused

A.G., and the abuse continued over an approximate four-year period. Based

on this conduct, the Commonwealth charged Adams-Smith with numerous

sexual offenses, which occurred from July 2011 to September 2012, a period

of   time   after   Adams-Smith        had     turned   eighteen.   Before   trial,   the

Commonwealth filed a motion in limine to introduce evidence of Adams-

Smith’s abuse of A.G., which occurred before Adams-Smith’s eighteenth

birthday. The court granted the motion in limine for the limited purpose of

providing the jury with the res gestae or a complete history of the case, as

well as Adams-Smith’s course of conduct. Wattley, supra.4 The evidence

was necessary for the jury to appreciate Adams-Smith’s lengthy period of

steady grooming and escalation of sexual conduct toward A.G. and to furnish

context for the charges actually pending against him.

       Moreover, following A.G’s testimony, the trial court gave the jury a

comprehensive cautionary instruction regarding Adams-Smith’s prior conduct.

Specifically, the court instructed the jury that the evidence, if believed, was

admitted for the limited purpose of the jurors receive the full history of the
____________________________________________


4   Although Adams-Smith challenged the trial court’s grant of the
Commonwealth’s motion in limine, we found it waived because trial counsel
failed to challenge and/or object to the admission of the prior bad acts at trial.
See Adams-Smith, supra, unpublished memorandum at 8-9.



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case, and that the jury must not consider the evidence as showing that

Adams-Smith was a person of bad character. See N.T., 4/2/14, at 98-99.

The trial court reiterated this instruction during its closing charge to the jury.

See N.T., 4/3/14, at 72-73. A jury is presumed to follow the trial court’s

instructions. Commonwealth v. Faurelus, 147 A.3d 905, 915 (Pa. Super.

2016).

      In sum, because any opposition raised by trial counsel would have been

meritless, Adams-Smith’s ineffectiveness claim fails.

      In his third issue, Adams-Smith claims that he is entitled to a new trial

or dismissal of the charges because trial counsel was ineffective for failing to

pursue a pretrial interview of A.G. Adams-Smith claims trial counsel should

have explored whether A.G.’s testimony was tainted, in accordance with 42

Pa.C.S.A. § 5985.1 and Pennsylvania Rule of Evidence 601.

      “The general rule in Pennsylvania is that every person is presumed

competent to be a witness.” Commonwealth v. Delbridge, 855 A.2d 27,

39 (Pa. 2003).    “A decision on the necessity of a competency hearing is

addressed to the discretion of the trial court.” Id.

         A competency hearing concerns itself with the minimal
         capacity to of the witness to communicate, to observe an
         event and accurately recall that observation and to
         understand and accurately recall that observation, and to
         understand the necessity to speak the truth. A competency
         hearing is not concerned with credibility. Credibility involves
         an assessment of whether . . . what the witness says is true;
         this is a question for the fact finder. An allegation that the
         [child witness’] memory of the event had been tainted raises
         a red flag regarding competency, not credibility. Where it


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          can be demonstrated that a [witness’] memory has been
          affected so that their recall may not be dependable,
          Pennsylvania law charges the trial court with the
          responsibility to investigate the legitimacy of such an
          allegation.

Delbridge, 855 A.2d at 40.

          In order to trigger an investigation of competency on the
          issue of taint, the moving party must show some evidence
          of taint. Once some evidence is taint is presented, the
          competency hearing must be expanded to explore this
          specific question. During the hearing the party alleging the
          taint bears the burden of persuasion to show taint by clear
          and convincing evidence.        Pennsylvania has always
          maintained that since competency is the presumption, the
          moving party must carried under the burden of overcoming
          that presumption.

Id.   See also 42 Pa.C.S.A. § 5985.1 (providing for in camera hearing to

determine admissibility of statements by child victims); Pa.R.E. 601 (involving

competency of witnesses).

      Here, our review of the record establishes that a hearing regarding

A.G.’s competency was held and transcribed. See N.T., 4/1/15. In support

of his third issue, Adams-Smith makes no more than bare assertions. Absent

specifics, these allegations are mere conjecture and constitute waiver on

appeal.    His brief fails to support his claims with pertinent discussion,

references to the record, and citations to relevant legal authorities. Hardy,

supra. Thus, we will not consider it further.

      Based    upon   the   foregoing,   Adams-Smith’s   claims   of   individual

ineffectiveness claims are either waived or without merit.        Therefore, he

cannot succeed on his fourth issue claiming cumulative error.          Koehler,

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supra.5 Finally, because Adams-Smith was not entitled to relief, based on

the issues raised in his PCRA petition, the PCRA court properly issued Rule

907 notice and denied post-conviction relief without a hearing. Thus, Adams-

Smith fifth issue is without merit. Wah, supra. Accordingly, we affirm the

PCRA court’s decision to deny relief on Adams-Smith’s ineffectiveness of

counsel claims.6

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2020




____________________________________________


5 In arguing cumulative prejudice, Adams-Smith claims trial counsel was
ineffective for failing to advise him of the importance of character witnesses.
See Adams-Smith’s Brief at 6. Once again, as he failed to raise this claim in
his statement of issues, it is waived. Pa.R.A.P. 2116(a).

6 As noted above, the Pennsylvania Supreme Court remanded this case for
reconsideration in light of Butler II. See n. 1, supra. See Butler II, supra
(concluding process for determining SVP status is constitutional);
Commonwealth v. Lacombe, ___ A.3d ___, 2020 WL ________ (35 & 64
MAP 2018) (Pa. 2020) (filed July 21, 2020) (holding Subchapter I of SORNA,
which applies to defendants who committed their crimes prior to SORNA’s
enactment, does not constitute criminal punishment; thus there is no ex post
facto violation).


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