J.   A19003/16

NON -PRECEDENTIAL DECISION                - SEE SUPERIOR COURT I.O.P.      65.37
COMMONWEALTH OF PENNSYLVANIA                  :    IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                     v.

MANFRED PHILLIP MAROTTA,                               No. 3407 EDA 2015

                              Appellant


            Appeal from the Judgment of Sentence, October 8, 2015,
                 in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP- 09 -CR- 0001335 -2015


BEFORE:      FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED NOVEMBER 08, 2016

         Manfred Phillip Marotta appeals from the October 8, 2015 aggregate

judgment of sentence of           4 to 23   months' imprisonment, followed by   a


consecutive term of       2    years' probation, after he was found guilty of two

counts of indecent assault-- without the complainant's consent.' After careful

review, we affirm.

         The trial court summarized the relevant facts and procedural history of

this case as follows:

                     The charges against [a]ppellant stemmed from
               his conduct towards two alleged victims; E.S., his
               niece, and H.M., a former manager at one of the
               Dunkin Donuts shops owned by [a]ppellant. At trial,


* Former Justice specially assigned to the Superior Court.

1    18 Pa.C.S.A. § 3126(a)(1).
J.   A19003/16

             both E.S. and H.M. testified       as to   [a]ppellant's
             conduct towards them.

                   E.S.  testified that [a]ppellant started giving
            backrubs and massages to her when she was 18 or
            19 years old, and that this eventually progressed
            into more intimate contact. (Notes of testimony,
            6/29/15 at 27 -28.) E.S. lived with [a]ppellant, and
            relied on him for income and stability, as she also
            worked at one of his Dunkin Donuts shops. (Id. at
            20 -21, 29 -35.) At the bench trial, E.S. testified:

                   I would come down after work and I
                   would be stressed out, and he would
                   want to calm me down or find an answer
                   to help me relax or de- stress, and he
                   would say, come over here, you look
                   stressed out, you need to relax. And
                   then he would rub my back, and then
                   progressively it got to [sic] pull my pants
                   down and he would rub my butt. And
                   then sometimes he would like spread my
                   legs apart and rub in between my thighs,
                   and a few of the times he had put his
                   fingers in my vagina and touched around
                   my vagina and inside of it.

             (Id. at 28.)   E.S. also stated  that she never wanted
             her uncle to touch her in a    sexual manner, and that
             she was intimidated by his physical size. (Id. at 29,
             32.) Further, E.S. stated that [a]ppellant touched
             her vagina about ten times and put his fingers inside
             of her between five and six times. (Id. at 34.)

                  E.S. decided to come forward about [a]ppellant
            touching her when she heard that he may have
            touched another worker at Dunkin Donuts, H.M., and
            felt that her coming forward could help prevent
            anyone else from being victimized in the future. (Id.
            at 36 -37.) E.S. testified that she never felt like her
            uncle's touching of her was okay or right. (Id. at
            44 -45.) Further, E.S. stated that she never wanted
            her uncle to touch her in a sexual way and there
            were times where she felt like she couldn't just get


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             up and   walk away, largely due to the potential
            consequences of her doing so, i.e. not having a place
            to live, not having a job, not having support, and
            losing her family. (Id. at 119 -120.)

                   H.M. also testified at trial on June 29, 2015.
             H .M.was a manager at Dunkin Donuts after E.S.
            held this position. (Id. at 132.) As manager of one
            of [a]ppellant's Dunkin Donuts, H.M. had to drop
            money off at [a]ppellant's house at the end of every
            shift, and she was not comfortable with this
            arrangement. (Id. at 139.) H.M. testified that there
            were two incidents where [a]ppellant touched her.
            (Id. at 140 -141.)    In regard to the first incident,
             H .M.   testified:

                     Well, the one night I went to his house
                     for training and I was sitting next to him
                     in front of the computer, and I felt really
                     uncomfortable because it was just me
                     and him at the house, first of all, so I felt
                     like    that was uncomfortable and
                     unnecessary.     And then I was sitting
                     training with him, and he was rubbing
                     the inside of my leg while I was sitting
                     next to him training.

             (Id.  at 141.) H.M. clarified that [a]ppellant was
             rubbing "the inside [of her legs] towards like where
             [her] vagina is." (Id.)

                  In regard to the second incident, H.M. testified
            that she went to [a]ppellant's house "to drop off the
            money after [her] shift at work, and [she] put it on
            the table, and then [[a]ppellant] looked at [her] and
            told [her] that [she] looked stressed out ... [and]
            then he pointed - he brought [her] over to his
            bedroom and pointed to his bed and said, lay (sic)
            down." (Id. at 145.) H.M. stated that she "didn't
            feel like [she] had a choice [but to listen to
            [a]ppellant] because [she was] much smaller than
            him and much weaker, so [she] was intimidated, and
            [she] did it." (Id.) H.M. went on to explain that
            after [a]ppellant told her to lay (sic) face down on


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            the bed, he asked to take her shirt off, asked to take
            her bra off, started massaging her, and eventually
            pulled her pants down and started massaging the
            skin of her butt under her underwear. (Id. at 146-
            149.) Appellant was breathing deeply in a sexual
            manner the entire time, and H.M. stated that she
            was "very intimidated" and "very scared." (Id. at
            148, 165, 176.) H.M. elaborated that:

                     [She] felt like if [she] would have gotten
                     up and ran out of the house, something
                     might have happened to [her]. [She]
                     didn't feel safe. It was only [her] and
                     [[a]ppellant] in the house, and [she] was
                     under pressure. [She] didn't know how
                     to act, [she] was only 19 years old
                     ...   [.]
             (Id.   at 147.)     It   was also noted by H.M.:

                     I didn't want any of that to ever happen
                     to me. I wouldn't have ever asked for
                     that, and I would never want some man,
                     who is that much older and who's my
                     boss to want to be treating me like that.
                     I would never want that.

             (Id.   at 183.)

                  The second day of trial was on June 30, 2015,
            and [a]ppellant's counsel, Mr. Geday, started off the
            proceedings by raising a corpus delicti issue in
            regard to evidence that he anticipated would be
            introduced by the Commonwealth.              (Notes of
            testimony, 6/30/15 at     4 -5.)   Appellant's  counsel
            argued that the evidence presented so far in the trial
            was insufficient to establish that the crimes charged
            had occurred, and therefore that no subsequent
            statements by [a]ppellant should be admissible and
            considered. (Id.) In response, the [trial c]ourt
            found that based on the record there was sufficient
            evidence to warrant testimony involving any
            statements that [a]ppellant may have made. (Id. at
            7.)


                                             -4
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                  On the second day of   trial there was testimony
            from Detectives David Kemmerer and Robert McLeod
            regarding statements made by [a]ppellant. (See id.
            at 2.) Detective McLeod read into the record an
            apology letter written by [a]ppellant to E.S., in which
            [a]ppellant stated that he admitted to touching her.
            (Id. at 50.) Further, Detective Kemmerer testified
            as to his interviews with [a]ppellant, during which
            [a]ppellant admitted to touching E.S.'s vagina and
            stated that he was sexually attracted to her. (Id. at
            78 -79.)

                   At the close of trial, before beginning
            argument, the [trial c]ourt, after hearing all of the
            evidence, asked if the Commonwealth was still
            alleging the same time frames as stated on the
            criminal information with respect to the charges
            brought in regard to H.M.        (Id. at 188.) The
            Commonwealth initially alleged a timeframe between
            January and the end of March of 2013. In response
            to the [trial c]ourt's inquiry, and based on H.M.'s
            testimony, the Commonwealth requested to be
            granted leave to amend the timeframe on the
            criminal information to include April of 2013. (Id.)
            Appellant's counsel objected to this, saying that it
            was too late for the Commonwealth to make
            modifications to the criminal information after
            evidence had closed, and that allowing amendment
            amounted to an impermissible retroactive change to
            the charges. (Id. at 188 -189.) The Commonwealth
            countered that criminal informations are typically
            broadly construed, that the change did not impact an
            element of the offense, and that the Commonwealth
            was not seeking to substantively change any of the
            crimes being charged.       (Id.) The [trial c]ourt
            ultimately stated that amendment of criminal
            informations is generally allowed as long as there is
            no inherent unfairness to the defendant and that
            under the circumstances the Commonwealth would
            be allowed to amend the criminal information to
            include April of 2013 as a potential time period with
            respect to the counts regarding H.M. (Id. at 190-
            191.)


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Trial    court opinion,      12/24/15, at          2 -5       (citation formatting   corrected;

footnotes omitted).

         Appellant was charged with multiple counts of aggravated indecent

assault and indecent assault in connection with these                          incidents.2       On

June 29, 2015, appellant waived his right to                  a   jury and proceeded to   a   bench

trial.   Following   a   two -day trial, appellant was found guilty of two counts of

indecent assault -- without the complainant's consent on June 30, 2015.

Appellant was found not guilty of the remaining charges.                             As       noted,

appellant was sentenced to an aggregate term of 4 to 23 months'

imprisonment, followed by           a   consecutive       2   years' probation, on October 8,

2015. At sentencing, the trial court directed that appellant:

              [(1)] have      contact with the victims or their
                               no
              families[;]      ...
                                 [(2)] obtain an independent
              psychological evaluation geared toward looking into
              predatory sexual behavior and                   ...
                                                    abide by all the
              treatment       conditions        following       that
              recommendation[; and (3)] have no contact with
              anyone under 22 years of age which is unsupervised
              and where you will be alone with that person.

Notes of testimony, 10/8/15 at 74 -75.




2 Specifically, appellant was charged with one count each of 18 Pa.C.S.A.
§§ 3125(a)(1) (aggravated indecent assault -- without the complainant's
consent), 3125(a)(2) (aggravated indecent assault -- forcible compulsion),
3125(a)(3) (aggravated indecent assault -- threat of forcible compulsion), and
two counts each of 18 Pa.C.S.A. §§ 3126(a)(1) (indecent assault -- without
the  complainant's consent), 3126(a)(2)          (indecent assault -- forcible
compulsion), and 3126(a)(3) (indecent assault -- threat of forcible
compulsion).

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J.   A19003/16

        Appellant did not file any post- sentence motions.       On November 9,

2015, appellant filed    a   timely notice of appeal. On November 16, 2015, the

trial court ordered appellant to file   a   concise statement of errors complained

of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant filed his Rule 1925(b) statement on December 7, 2015, and the

trial court issued its Rule 1925(a) opinion on December 24, 2015.

        Appellant raises the following issues for our review:

              I.     Whether the Honorable Trial Court erred by
                     finding [a]ppellant guilty of Indecent Assault
                     when the Commonwealth failed to Prove
                     Beyond a Reasonable Doubt all Requisite
                     Elements of Indecent Assault as Defined in
                     18 Pa.C.S.A. § 3126(a)(1), specifically that
                     [a]ppellant ever had indecent contact with the
                     complaining witness or that such contact was
                     without consent?

              II.    Whether the Honorable Trial Court erred by
                     admitting into evidence and considering
                     [a]ppellant's    statements      prior  to    the
                     Commonwealth        establishing    the   corpus
                     delicti of a crime, or the fact that a crime
                     occurred at all?

              III.   Whether the Honorable Trial Court erred by
                     permitting the Commonwealth to amend the
                     Bills of Information after the trial concluded to
                     conform to the evidence that was presented
                     during trial, i.e., to extend the permissible date
                     range by a month, especially because
                     [a]ppellant was never on notice of the new
                     date range prior to trial?

              IV.    Whether the Honorable Trial Court erred by
                     imposing a condition of sentence upon
                     [a]ppellant that he have no unsupervised
                     contact with anyone under the age of 22?


                                         -7
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Appellant's brief at 4 (numeration corrected).

        Appellant first argues that there was insufficient evidence to sustain

his conviction for two counts of indecent assault because the Commonwealth

failed to prove that he "had indecent contact with the complaining witnesses

without their consent." (Id. at 13, 15 -19.) This claim        is   meritless.

                    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
             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).

        A person will be found   guilty of indecent assault:

              if the person has indecent contact with the
              complainant, causes the complainant to have
              indecent contact with the person or intentionally
              causes the complainant to come into contact with
              seminal fluid, urine or feces for the purpose of
              arousing sexual desire in the person or the
              complainant and    ...
                                   the person does so without the
              complainant's consent[.]




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18 Pa.C.S.A. § 3126(a)(1). The phrase "indecent contact" is defined as "any

touching of the sexual or other intimate parts of the person for the purpose

of arousing or gratifying sexual desire, in either person."             Id. §   3101.

        Viewing       the    evidence     in     the   light    most    favorable       to   the

Commonwealth, the verdict winner, we find that there was ample evidence

for the trial court, as fact -finder, to conclude that appellant was guilty of

indecent assault -- without the complainant's consent. At trial, E.S. testified

that appellant touched her vagina on approximately ten occasions, and "put

his fingers inside of       [her]" between five or six times. (Notes of testimony,
6/29/15 at 34.) E.S. indicated that she did not want appellant to touch her

in   this sexual manner and did not feel it was "okay."                 (Id.   at 29, 44 -45.)

H.M., in turn, testified that appellant had rubbed or massaged the inside of

her legs, back, and buttocks on multiple occasions.                 (Id.   at 140 -141, 148-

149.)      H.M.    further testified that she did not want appellant to engage                in

such "inappropriate" conduct, noting that              "I would never want some man,
who is that much older and who's my boss to want to be treating me like

that[.]"    (Id.   at 183.) Moreover, both E.S. and H.M. testified that they were

intimidated by appellant because he was larger in size and held                  a   position of

authority over them.         (Id.   at 30 -32, 176, 183 -184.)

        Additionally,       the     Commonwealth        introduced      the     testimony     of

Detectives         David    Kemmerer       and      Robert     McLeod   regarding       various

inculpatory statements appellant made following his arrest.                       Specifically,



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Detective McLeod read into the record an apology letter written by appellant

to E.S., wherein he stated that he touched E.S.                 (Notes of testimony,

6/30/15 at 50.)          Detective Kemmerer, in turn, testified that during his

interview of appellant, appellant acknowledged touching E.S.'s vagina and

stated that he was sexually attracted to her. (Id. at 78 -79.)

        It   is   well established that the testimony of        a   complainant, even

standing alone, is sufficient to convict in sex offense prosecutions.               See

Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.Super. 2005).
Based on the         totality of evidence presented    in the case    sub judice, we

conclude that appellant's claim that there was insufficient evidence to

sustain his convictions for indecent assault must fail.

        Appellant next argues that the trial court erred in admitting his

inculpatory statements because the Commonwealth failed to establish "the

corpus delicti of         a   crime, or the fact that     a   crime occurred at all."

(Appellant's brief at 20.) We disagree.

        Our standard of review for       a    challenge to the corpus   delicti   rule is

well settled.

                          The corpus delicti rule is a rule of evidence.
                  Our standard of review on appeals challenging an
                  evidentiary ruling of the trial court is limited to a
                  determination of whether the trial court abused its
                  discretion.    The corpus delicti rule places the
                  burden on the prosecution to establish that a crime
                  has actually occurred before a confession or
                  admission of the accused connecting him to the
                  crime can be admitted.        The corpus delicti is
                  literally the body of the crime; it consists of proof


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              that a loss or injury has occurred as   a   result of the
              criminal conduct of someone.

Commonwealth v. Hernandez, 39 A.3d 406, 410 -411 (Pa.Super. 2012),
appeal denied, 63 A.3d 1244          (Pa.   2013) (citation, internal quotation

marks, and emphasis omitted).

        Courts in this Commonwealth have recognized that Pennsylvania law

requires courts to apply the corpus   delicti   rule in two distinct phases:

              In the first phase, the court determines whether the
              Commonwealth has proven the corpus delicti of the
              crimes charged by a preponderance of the evidence.
              If so, the confession of the defendant is admissible.
              In the second phase, the rule requires that the
              Commonwealth prove the corpus delicti to the
              factfinder's satisfaction beyond a reasonable doubt
              before the factfinder is permitted to consider the
              confession in assessing the defendant's innocence or
              guilt.

Commonwealth v. Otterson, 947 A.2d 1239, 1249 (Pa.Super. 2008),
appeal denied, 958 A.2d 1047        (Pa. 2008),   cert. denied, 556 U.S. 1238
(2009), quoting Commonwealth v. Reyes, 870 A.2d 888, 894 n.4 (Pa.

2005).

        Instantly, we discern no abuse of discretion on the part of the trial

court in rejecting appellant's corpus delicti claim. The record establishes

that the corpus delicti of the indecent assaults was sufficiently proven by

the Commonwealth prior to the admittance of appellant's inculpatory

statements.      As discussed, the Commonwealth sought to            introduce the

inculpatory statements at issue, over appellant's objection, on June 30,
J.   A19003/16

2015, the second day of trial.      Prior to this time period, the trial court had

already heard extensive testimony from both E.S. and H.M. on the first day

of trial that was consistent with the indecent assaults having occurred.

        Accordingly, we conclude that the corpus        delicti of the indecent
assaults was sufficiently proven and the trial court did not abuse its

discretion in admitting appellant's inculpatory statements into evidence.

Additionally, as the evidence was sufficient to establish beyond     a   reasonable

doubt that appellant had indecent contact with both E.S. and H.M. without

their consent, we conclude that the trial court did not abuse its discretion     in

considering appellant's admissions in reaching its verdict.       See Otterson,

947 A.2d at 1249.

        Appellant next argues that the trial court "erred by permitting the

Commonwealth to amend the Bills of Information after the trial concluded to

conform to the evidence that was presented during trial, i.e., to extend the

permissible date range by     a   month, especially because [he] was never on

notice of the new date range prior to trial." (Appellant's brief at 21.)

        Amendments to   a   criminal information are governed by Pennsylvania

Rule of Criminal Procedure 564, which provides as follows:

             The court may allow an information to be amended
             when there is a defect in form, the description of the
             offense(s), the description of any person or any
             property, or the date charged, provided the
             information as amended does not charge an
             additional or different offense. Upon amendment,
             the court may grant such postponement of trial or
             other relief as is necessary in the interests of justice.


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Pa.R.Crim.P. 564.

        We have explained that the purpose of Rule 564 is to inform a

defendant of the charges filed against him so that he may properly prepare      a


defense.    Commonwealth v. Sinclair, 897 A.2d 1218, 1223 (Pa.Super.
2006).     Allowing the amendment of the information is not proper where

doing so prejudices the defendant.   Id.
        This court must consider the following factors in determining whether

an amendment results in prejudice to the defendant:

             (1) whether the amendment changes the factual
             scenario supporting the charges; (2) whether the
             amendment adds new facts previously unknown to
             the defendant; (3) whether the entire factual
             scenario was developed during a preliminary
             hearing; (4) whether the description of the charges
             changed with the amendment; (5) whether a change
             in defense strategy was necessitated by the
             amendment; and (6) whether the timing of the
             Commonwealth's request for amendment allowed for
             ample notice and preparation.

Commonwealth v. Veon, 109 A.3d 754, 768 (Pa.Super. 2015), appeal
granted in part,    121 A.3d 954 (Pa. 2015) (citation omitted).

        Upon review, we agree with the trial court's determination            that

appellant was not prejudiced by the Commonwealth's decision to amend the

bill of information in this case. The trial court's December 24, 2015 opinion

comprehensively discusses and        properly   disposes   of this   issue,   and

therefore, we adopt the following rationale of the trial court as our own:




                                     - 13 -
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                      Here,   it was not error to allow the
              Commonwealth to amend the bill of information to
              extend the timeframe in which the incidents were
              alleged to have occurred by a period of one month,
              because the amendment did not change or add any
              charges brought against [a]ppellant, and therefore
              did not prejudice [a]ppellant as he was always on
              notice of the charges against him.          Just as in
              [Commonwealth v. 1.F., 800 A.2d 942 (Pa.Super.
              2002), appeal denied, 812 A.2d 1228 (Pa. 2002)],
              in the present case the Commonwealth amended the
              bill of information to "merely change[] the date" by a
              period of one month, and "neither additional charges
              nor a different set of events were added to the
              information   ...  [and] the offenses set forth in the
              amendment[] involved the same      ...   elements and
              the same factual situations as specified in the
              original information[]." [Id. at 945.] Accordingly,
              we suggest that it was not error to allow the
              Commonwealth to amend the bill of information to
              extend the time frame alleged in regard to the
              incidents involving H.M. by a period of one month.

Trial court opinion, 12/24/15 at 13 (citation formatting amended).

        Lastly, appellant argues that the trial court "erred by imposing        a


condition of sentence upon [a]ppellant that he have no unsupervised contact

with anyone under the age of 22."        (Appellant's brief at 23 (capitalization

omitted).) Appellant avers this condition "is unreasonable because it       is so

broad, unrelated to [his] rehabilitative needs    ...,   and unduly restricts his

liberty."    (Id. at 25.)    Where an appellant challenges the discretionary

aspects of his sentence, as is the case here, the right to appellate review is

not absolute.      See Commonwealth v. Allen, 24 A.3d 1058,                 1064

(Pa.Super.    2011).    Rather,   an   appellant challenging the discretionary




                                       - 14 -
J.   A19003/16

aspects of his sentence must invoke this court's jurisdiction by satisfying the

following four -part test:

                (1) whether the appeal is timely; (2) whether
                Appellant preserved his issue;          (3) whether
                Appellant's brief includes a concise statement of the
                reasons relied upon for allowance of appeal with
                respect to the discretionary aspects of sentence; and
                (4) whether the concise statement raises a
                substantial question that the sentence is appropriate
                under the sentencing code.

Commonwealth v. Carrillo -Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).

        "[I]ssues challenging the discretionary aspects of sentence must be

raised in   a   post- sentence motion or by presenting the claim to the trial court

during the sentencing proceedings.          Absent such efforts, an objection to    a


discretionary aspect of          a   sentence   is   waived."    Commonwealth v.
Barnhart, 933 A.2d 1061, 1066 -1067 (Pa.Super. 2007) (citations                   and

internal quotation marks omitted); see also Pa.R.A.P. 302(a) (stating,

"[i]ssues not raised     in the lower   court are waived and cannot be raised for

the first time on appeal[] ").

        Instantly, appellant failed to file     a    post- sentence motion raising his

sentencing claim, or point to the place in the record that indicates he

objected to the sentencing condition that he was to have no unsupervised

contact with anyone under the age of 22.                  Consequently, we find that

appellant's final claim    is   waived. See Barnhart.

        Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 11/8/2016




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