J-S42009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                              Appellee

                         v.

ANTHONY DAVID BOATRIGHT,

                              Appellant                No. 844 WDA 2015


                    Appeal from the PCRA Order April 23, 2015
               In the Court of Common Pleas of Allegheny County
    Criminal Division at No(s): CP-02-CR-0006318-2009, CP-02-CR-0009340-
                                      2009


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED AUGUST 11, 2016

        Appellant, Anthony David Boatright, appeals from the order denying

his first petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We previously summarized the relevant factual underpinnings of the

case and the procedural history, as follows:

        In 2009, two female relatives of Appellant, A. and M., reported
        that he sexually assaulted them during the summer of 2004
        when they were nine and seven years of age, respectively.1 The
        trial court summarized the evidence as follows.
                     1
                       Appellant was previously tried in April
                     2010. On appeal, this Court remanded
                     the case for an evidentiary hearing to
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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                 determine if the court erred in refusing
                 to allow Appellant to introduce evidence
                 that the victims had also made other
                 allegations of sexual assault against
                 three other individuals around the same
                 time as the allegations against Appellant.
                 [Commonwealth v. Boatright, 38 A.3d
                 916,] No. 1831 WDA 2010 [Pa. Super.
                 filed November 9, 2011 (unpublished
                 memorandum)].          The   trial  court
                 concluded that it had erred, ordered a
                 new trial, and this appeal followed. In
                 the interim, two of the other individuals
                 pled guilty to crimes involving A., and
                 were serving their sentences. The third
                 individual was awaiting sentencing. N.T.,
                 10/17/12, at 4.

           After the death of their mother, A. and M. had a
           transient living situation with their father and several
           girlfriends. One of the girlfriends had a teenage son
           who was mean to the girls, particularly A., who was
           then 9 years old, and used to taunt her and try to
           get her to jump out of the window and kill herself.
           When A. would not, the boy cut her wrists with a
           kitchen knife and threatened to kill M., then 7 years
           old, if she told. A. was hospitalized at Western Psych
           for some period of time and when she was released,
           the girls went to live with their paternal
           grandmother. Their grandmother took good care of
           the girls, but eventually became very ill with cancer.
           When her illness had progressed, the girls’ uncle, the
           Appellant, moved in, purportedly to help his mother.
           When their grandmother was either receiving
           chemotherapy treatment or was in bed too ill to
           move, the Appellant touched the girls on their breast
           and vaginal areas with his hands and mouth and
           attempted sexual intercourse with A. He told the
           girls that if they told, they would all go to jail.

     Trial Court Opinion, 7/11/13, at 2.

          After a jury trial on October 17 and 18, 2012, Appellant
     was found guilty of the aforementioned charges and sentenced

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       to twenty-five to fifty years imprisonment. Appellant filed a
       timely post-sentence motion asserting, inter alia, that the verdict
       was against the weight of the evidence, which the trial court
       denied on December 18, 2012. Appellant filed the within appeal,
       complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
       concise statement of errors complained of on appeal, and the
       trial court issued its Rule 1925(a) opinion.

Commonwealth v. Boatright, 129 WDA 2013, 93 A.3d 506 (Pa. Super.

filed December 10, 2013) (unpublished memorandum at *1).             This Court

affirmed the judgment of sentence, id., and our Supreme Court denied

further review. Commonwealth v. Boatright, 16 WAL 2014, 92 A.3d 810

(Pa. filed May 21, 2014).

       On September 3, 2014, Appellant filed a timely pro se PCRA petition.

The PCRA court1 appointed counsel, who filed a petition to withdraw and a

Turner/Finley2 no-merit letter on November 7, 2014.          On November 13,

2014, the PCRA court filed an order permitting counsel to withdraw and

entered notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the PCRA

petition without a hearing. On April 23, 2015, the PCRA court dismissed the

PCRA petition.      Appellant, pro se, filed a timely notice of appeal.      Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.3

____________________________________________


1
    The PCRA judge was also the trial judge.
2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
3
  We note that Appellant filed both a Pa.R.A.P. 1925 (b) statement and an
amended statement.     Both statements are a hodge-podge of nearly
(Footnote Continued Next Page)


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      Appellant raises the following six issues on appeal:

        I.   Did the trial court [err] in upholding the sufficiency of
             evidence for [Appellant’s] convictions against victim “M”
             when the record and testimony clearly show that
             [Appellant] was not named during any interviews or
             preliminary hearing testimony?

       II.   Did the trial court [err] in upholding the sufficiency of
             evidence for [Appellant’s] convictions against victim “AK”
             when the record and testimony demonstrate many
             inconsistant [sic] statements to include a complete denial
             of the sexual intercourse?

      III.   Was appellate counsel ineffective for failing to raise the
             issue of jury bias?

      IV.    Was the trial court biased in this case and should she have
             recused herself based on specific comments made and the
             failure to declare a mistrial when evidence came to light
             that Appellant was not getting a fair trial?

       V.    Did the trial court [err] by not allowing the Appellant to
             appear at his evidentiary hearing?


                       _______________________
(Footnote Continued)

undecipherable phrases, general references to case law, and unclear
purported record citations. The PCRA court stated the following:

      Both documents are a combination of handwritten notes, Case
      Headnotes,     typewritten    documents     and   word-processed
      documents—literally cut-and-pasted together.        There is no
      discernible format or identification of issues to be raised. The
      text is nearly unintelligible and appears to be in the nature of
      stream-of-consciousness ramblings. Nevertheless, this [c]ourt
      has done its best to decipher the pleadings and has identified
      eight (8) claims of error to be reviewed.

PCRA Court Opinion, 1/14/16, at 3 (footnote omitted). Like the PCRA court,
to the extent we are able to identify issues, in relation to the statement of
questions in Appellant’s brief, they will be addressed.



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      VI.     Did the trial court violate [Appellant’s] constitutional rights
              by sentencing him to three consecutive mandatory
              minimum sentences?

Appellant’s Brief at 8 (full capitalization omitted).

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”     Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.     Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).        “There is no absolute right to an evidentiary

hearing on a PCRA petition, and if the PCRA court can determine from the

record that no genuine issues of material fact exist, then a hearing is not

necessary.”     Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super.

2008) (quoting Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super.

2003)).

      To be entitled to PCRA relief, an appellant must establish, by a

preponderance of the evidence, that 1) his conviction or sentence resulted

from one or more of the enumerated errors in 42 Pa.C.S. § 9543(a)(2);


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2) his claims have      not been previously litigated or        waived,   id. at

§ 9543(a)(3); and 3) the failure to litigate the issue prior to or during trial or

on direct appeal could not have been the result of any rational, strategic, or

tactical decision by counsel. Id. at § 9543(a)(4).

      Appellant’s first two issues assert that there was insufficient evidence

to support the verdicts. Appellant has not raised the issues in the context of

ineffective assistance of counsel. As Appellant could have raised the claims

in his direct appeal to this Court but did not do so, they are waived.

Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001) (PCRA

petitioner’s issues that could have been raised on direct appeal but were not,

are waived under 42 Pa.C.S. § 9544(b)).

      Additionally, even if not waived, the claims were previously litigated.

While Appellant labels the issues as assailing the sufficiency of the evidence,

the arguments in his brief, instead, focus on the credibility of the witnesses

and challenge the evidence as inconsistent.          It is well settled that a

challenge to the credibility of a witness is a challenge to the weight of the

evidence and not to the sufficiency of the evidence.        Commonwealth v.

Lopez, 57 A.3d 74, 80 (Pa. Super. 2012); see also Commonwealth v.

Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014) (evidence challenged as

incredible attacks the weight, not the sufficiency of the evidence);

Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (stating that




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J-S42009-16


although the appellant phrased his claim as a challenge to the sufficiency of

the evidence, the challenge actually concerned the weight of the evidence).

      This Court, in Appellant’s direct appeal, addressed the weight of the

evidence and the claim that the victims’ testimony was “uncorroborated,

inconsistent, [and] questionable.” Boatright, 129 WDA 2013 (unpublished

memorandum at 2).         These are the same claims asserted by Appellant

herein.   See, e.g., Appellant’s Brief at 14 (“there is enough reasonable

doubt as to the credibility of this alleged victim”); Appellant’s Brief at 20

(“the testimony is so inherently unreliable that a verdict based upon it could

amount to no more than surmise and conjecture”).          We concluded in our

prior appeal that the trial court properly determined that “all of the credible

evidence” supported the verdicts and that the verdict was not against the

weight    of   the   evidence.   Boatright,   129   WDA    2013   (unpublished

memorandum at 3) (citing Trial Court Opinion, 7/11/13, at 4).            Thus,

additionally, these claims were previously litigated and cannot be addressed

again. 42 Pa.C.S. § 9543(a)(3); see also Commonwealth v. Blakeney,

108 A.3d 739, 749 (Pa. 2014) (An issue has been previously litigated if “the

highest appellate court in which the petitioner could have had review as a

matter of right has ruled on the merits of the issue.” 42 Pa.C.S. §

9544(a)(2)).




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      Appellant’s third issue alleges that prior counsel were ineffective for

failing to assert the issue of jury bias.      It appears that the Rule 1925(b)

predicates for this issue are the following:

      38.03 Legal Ruleings affecting juries [2] (5)
      Thus when atrial judge discharges a sworn juror and substitutes
      him/her with an alternate. (7) grounds for overturning a verdict
      may once again exist. Makeing full record with respect to all
      legal rulings affecting the jury may arise during trial.

      I was never told that a juror was removed and went I learned of
      it –I asked but was never told why –and it was never brought up
      during my trial

      Members of the jury was asked if they would give an unbias
      verdict or could they the answer was no.
      ReD FLAG )then the prosecutor asked if they could follow the
      judges direction and they answer yes . but this did not mean
      that they were’nt still bias and the verdict would’nt reflect their
      prejudice.

Pa.R.A.P. 1925(b) Statement, 7/28/15, at unnumbered 5 (verbatim).            In

addressing this issue in his brief, in addition to asserting a general claim of

jury bias, Appellant avers that a juror was removed without his knowledge.

He does not define the claim in terms of ineffective assistance of counsel,

however, and contends the court gave an incorrect jury instruction.

      To plead and prove ineffective assistance of counsel, a petitioner must

establish:   (1) that the underlying issue has arguable merit; (2) counsel’s

actions lacked an objective reasonable basis; and (3) actual prejudice

resulted from counsel’s act or failure to act. Commonwealth v. Stewart,

84 A.3d 701, 706 (Pa. Super. 2013) (en banc). Failure to establish any one




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of these prongs will defeat an ineffectiveness claim.     Commonwealth v.

Mason, 130 A.3d 601, 618 (Pa. 2015).

       We first note that Appellant did not advance an issue of an incorrect

jury instruction in his initial or amended Pa.R.A.P. 1925(b) statements.

Therefore, that issue is waived.           Commonwealth v. Riggle, 119 A.3d

1058, 1070 (Pa. Super. 2015). Regarding the general issue of jury bias, the

PCRA court stated that Appellant “appears to be averring that the guilty

verdicts are proof that the jury was biased and prejudiced against him.

Rather, to the contrary, the guilty verdicts are a function and result of

[Appellant’s] guilt, not proof that the jury was biased against him.” PCRA

Court Opinion, 1/14/16, at 6. We concur.

       Regarding the claim that prior counsel were ineffective for failing to

raise the claim that a juror was removed without Appellant’s knowledge, that

issue lacks arguable merit.4 Our review of the record reveals that at trial,

after the close of the Commonwealth’s case and immediately after the

luncheon recess on October 17, 2012, it was brought to the trial court’s

attention that Juror Number Two had overheard defense counsel talking to a

colleague in the hallway.5 N.T., 10/17/12, at 107. The trial court addressed

____________________________________________


4
  The PCRA court did not address Appellant’s contention that a juror was
removed without his knowledge.
5
   There is absolutely no record support for Appellant’s suggestion that the
colleague was the prosecutor in the case. See Appellant’s Brief at 24.



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J-S42009-16


the allegation with the juror, who stated, “I only heard something in regards

to a sure thing. Good luck, it’s a sure thing, something like that.” Id. The

juror did not reveal this information to any other juror.          Id. at 107–108.

The juror advised the court that overhearing the discussion might influence

his ability to be a fair and impartial juror.       Id. at 108.   Given the juror’s

equivocal response that he could not perform his duty as a fair and impartial

juror,     the   trial   court   properly   excused   and     replaced   the     juror.

Commonwealth v. Marshall, 633 A.2d 1100, 1104 (Pa. 1993).

         [T]he test of disqualification is the juror’s ability and willingness
         to eliminate the influence of his scruples and render a verdict
         according to the evidence. This determination is to be made by
         the trial judge based on the juror’s answers and demeanor and
         will not be reversed absent a palpable abuse of discretion.

Commonwealth v. Penn, 132 A.3d 498, 502 (Pa. Super. 2016) (quoting

Commonwealth v. DeHart, 516 A.2d 656, 663 (Pa. 1986)).

         The issue of counsel’s ineffectiveness related to Appellant’s absence

during the juror-substitution process lacks arguable merit.           Here, the trial

court properly dismissed and replaced Juror Number Two. The replacement

juror was an alternate who presumably was seated in Appellant’s presence.

Appellant has not demonstrated that his presence was required; indeed,

case law supports the conclusion that his presence was not necessary. See

Commonwealth v. Tharp,               101    A.3d   736, 763    (Pa.   2014)    (citing

Commonwealth v. Proctor, 585 A.2d 454, 460 (Pa. 1991) (rejecting claim

that trial counsel was ineffective for failing to object when the trial court


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questioned a juror in chambers with trial counsel present but without the

defendant being present)). Appellant is not entitled to relief on this issue.

      Fourth, Appellant asserts the trial judge was biased against him and

should have recused herself.     Appellant’s Brief at 28.    Appellant has not

raised the issue in the context of ineffective assistance of counsel. Id. As

Appellant could have raised this issue in his direct appeal to this Court but

did not do so, it is waived.    See Lambert, 797 A.2d at 240 (issues that

could have been raised on direct appeal but were not are waived under the

PCRA); 42 Pa.C.S. § 9544(b) (issue is waived if petitioner failed to raise it,

and it could have been raised before trial, at trial, on appeal, in habeas

corpus proceeding, or in prior proceeding under PCRA).

      In addition to waiver for failure to raise the issue on direct appeal,

Appellant asserts allegations of bias in his brief that he did not raise in his

Pa.R.A.P. 1925(b) statement.      This issue is also waived for that reason.

Riggle, 119 A.3d at 1070.

      Even if not waived, the claim lacks merit.         Regarding Appellant’s

statement of the issue in his Pa.R.A.P. 1925(b) statement, as reiterated in

his brief, Appellant asserts that the trial court told the jury as they broke for

lunch recess during the trial, “If you come back with a decision I like, I will

take you all to lunch.” Appellant’s Brief at 30. The PCRA court addressed

the allegation and stated as follows:

      [Appellant] argues that this [c]ourt demonstrated a bias against
      him by telling the jury “If you come back with a decision I like I

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      will take you all to lunch” (Concise Statement, 4/28/15, p. 3). A
      careful review of the record reveals that this [c]ourt never made
      any such statement and that [Appellant] has completely
      fabricated this allegation. The record as a whole demonstrates
      that this [c]ourt was appropriately impartial and treated
      [Appellant] fairly. This claim is meritless.

PCRA Court Opinion, 1/14/16, at 4.       We have reviewed the record, and it

does not support Appellant’s allegation.

      Appellant also avers that the trial court was “continually biased against

him,” and that upon retrial, the case should have been conducted by a

different judge.   Appellant’s Brief at 29.          In connection with this claim,

Appellant underscores the trial court’s comment at sentencing that it

believed Appellant should “spend the rest of [his] life in jail.” Id. at 30, 31

(emphasis added).         Appellant avers that “[s]uch biases, prejudice and

hostility” mandated the trial judge to “immediately call[] for a mistrial.” Id.

at 31, 33–34.

      We discern nothing in the record to suggest that the trial court was

biased against Appellant such that he was deprived of a fair trial “by

preventing   the   jury    from   weighing     and    rendering   a   true   verdict.”

Commonwealth v. Fortenbaugh, 69 A.3d 191, 193 (Pa. 2013). No relief

is warranted on this claim.

      Appellant’s fifth issue asserts that the trial court erred by not allowing

him “to appear at his evidentiary hearing.”           Appellant’s Brief at 35.    The

PCRA court responded to this allegation as follows:




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            Initially, [Appellant] argues that this [c]ourt erred in not
      allowing him to appear at the evidentiary hearing even though
      he “was there at court house” (Concise Statement 4/28/15, p.
      3).

            This [c]ourt does not understand [Appellant’s] claim.
      There was no evidentiary hearing conducted in this case.
      [Appellant] was present for the entirety of trial, and in fact
      engaged in a colloquy with this [c]ourt prior to the
      commencement of trial (See Trial Transcript Vol. I, p. 3 -5).
      Insofar as the record reflects that [Appellant] was present for all
      parts of trial, this claim is meritless.

PCRA Court Opinion, 1/14/16, at 4.

      We reproduce the Commonwealth’s explanation, which we find entirely

plausible.

      [Appellant] accuses the [PCRA] court of attempting to mislead
      your Honorable Court by stating that no evidentiary hearing was
      held (Brief for Appellant at 36); the Commonwealth suggests
      that [the PCRA court] apparently believed that [A]ppellant was
      referring to an evidentiary hearing on his PCRA petition—on
      which, in fact, no hearing was held—rather than, as it appears
      through the development of this claim in the Brief for Appellant,
      the evidentiary hearing held upon remand from your Honorable
      Court after his first appeal (see Docket Entry 54). Appellant’s
      statement of this claim in his Concise Statement (Docket Entry
      113 at page 4 under heading “Evidentiary Hearing”) is so
      unparticularized that the [PCRA] court’s inability to discern the
      nature of the claim is unsurprising. This claim has been waived.
      Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa.
      Super. 2001); Commonwealth v. Hansley, 24 A.3d 410, 415
      (Pa. Super. 2011).

Commonwealth’s Brief at 29.




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       In addition, Appellant cannot prove prejudice relating to his alleged

absence from the hearing on remand.6 Appellant suggests that his presence

at any such hearing was mandated because he had “an absolute right” to

“voice, and make record of the reasons why he believed his case should

have been dismissed, and thrown out . . . .”             Appellant’s Brief at 36.

Appellant is mistaken.

       On November 9, 2011, this Court vacated Appellant’s judgment of

sentence and remanded to the trial court:

       to conduct an in camera hearing to assess the relevancy and
       admissibility of the evidence of A.B.’s and M.B.’s allegations of
       sexual assaults against other individuals. If after conducting
       that hearing, the trial court concludes that this evidence should
       have been admitted, then it shall proceed with a new trial for
       Appellant. On the other hand, if the court determines that the
       evidence was properly excluded, then it shall reinstate
       Appellant’s judgment of sentence . . . .

Boatright, 38 A.3d 916, 1831 WDA 2010 (unpublished memorandum at 17)

(internal citation omitted).      Clearly, the only options before the trial court

were to proceed with a new trial or reinstatement of the judgment of

sentence. The trial court had no option to “throw out” Appellant’s case. This

issue lacks arguable merit.



____________________________________________


6
   The Commonwealth asserts that a transcript of proceedings from June 8,
2012, that was filed of record, has not been located. Commonwealth’s Brief
at 29 n.5. Such proceedings would have been held after remand from this
Court on November 9, 2011, and Appellant’s retrial in October of 2012.



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       Finally,   Appellant     asserts        that   the   trial   court   violated   his

“[c]onstitutional right by sentencing him to three consecutive madatory [sic]

minimum sentences” in violation of Alleyne v. United States, ___ U.S.

___, 133 S.Ct. 2151 (2013).7

       The record does not contain a Commonwealth notice that it was

seeking any mandatory minimum sentences.                        Further, the Guideline

Sentencing Forms prepared in connection with the December 5, 2012

sentencing are not marked to indicate the applicability of mandatory

minimum sentences (Docket Entry 73).                  Lastly, the trial court made no

mention at sentencing of any mandatory minimum sentences (Docket Entry

84). Appellant is not entitled to relief. This issue lacks arguable merit.

       Order affirmed.


____________________________________________


7
   “[A] challenge to a sentence premised upon Alleyne . . . implicates the
legality of the sentence and cannot be waived on appeal.” Commonwealth
v. Newman, 99 A.3d 86,90 (Pa. Super. 2014) (en banc); but see
Commonwealth v. Barnes, 122 A.3d 1034, 1035 (Pa. 2015):

       (“[T]he Petition for Allowance of Appeal is GRANTED LIMITED TO
       the issues set forth below.       Allocatur is DENIED as to all
       remaining issues. The issues, rephrased for clarity, are: (1)
       Whether a challenge to a sentence pursuant to Alleyne v.
       United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
       (2013), implicates the legality of the sentence and is therefore
       non-waivable.”).

Moreover, this Court may address the legality of a sentence sua sponte.
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc),
appeal denied, 95 A.3d 277 (Pa. 2014).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2016




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