J. S17009/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                  :       IN THE SUPERIOR COURT OF
                                               :            PENNSYLVANIA
                          Appellee             :
                                               :
                    v.                         :
                                               :
PAUL GRAHAM,                                   :
                                               :
                          Appellant            :       No. 567 WDA 2014

             Appeal from the Judgment of Sentence March 12, 2014
              In the Court of Common Pleas of Washington County
               Criminal Division No(s).: CP-63-CR-0001468-2012

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                                 FILED JUNE 16, 2015

        Appellant, Paul Graham, appeals from the judgment of sentence

entered in the Washington County Court of Common Pleas after he was

convicted of numerous sexual offenses against a minor. He challenges the

sufficiency and weight of the evidence, the legality of the trial court’s

sentence, and the discretionary aspects of the court’s sentence. We affirm

the convictions, find partial sentencing relief is due, and remand for

resentencing.

        Appellant   was   charged     with,   inter   alia,   rape,1   four   counts   of

involuntary deviate sexual intercourse,2 two counts of aggravated indecent




*
    Former Justice specially assigned to the Superior Court.
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assault,3 three counts of statutory sexual assault,4 three counts of indecent

assault,5 and two counts of corruption of the morals of minors.6 The charges

arose from allegations he molested his then nine-year-old niece (“the

victim”) between 2003 and 2005.

        The trial court summarized the trial evidence as follows:

              A two-day jury trial began on September 16, 2013
           related to allegations of sexual assault committed by the
           Appellant against his niece when she was a child. At trial,
           the Commonwealth offered the testimony of the victim,
           her mother, and the arresting officer.

              At the time of trial, the victim was nineteen years old.
           The Appellant married the victim’s aunt when the victim
           was approximately nine years old.        The victim’s and
           Appellant’s famil[ies] were close, and the Appellant acted
           as the victim’s babysitter while her parents worked. The
           Appellant babysat the victim and her brother “pretty much
           every day.” Sometimes she would stay the night at the
           Appellant’s residence and he would assist her with getting
           ready for school the next morning. The victim enjoyed
           spending time with her uncle, because he would play
           games with her and “pretty much did whatever [the
           victim] wanted to do all the time.”


1
  18 Pa.C.S. § 3121(a)(6) (subsequently amended and renumbered 18
Pa.C.S. § 3121(c), effective Feb. 7, 2003).
2
  18 Pa.C.S. § 3123(a)(6) (subsequently amended and renumbered as 18
Pa.C.S. § 3123(c), effective Feb. 7, 2003).
3
    18 Pa.C.S. § 3125(a)(7).
4
    18 Pa.C.S. § 3122.1.
5
    18 Pa.C.S. § 3126(a)(7).
6
    18 Pa.C.S. § 6301(a)(1).



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          However, in February of 2003, when the victim was
       nine years old, the Appellant began to sexually abuse the
       child. While wrestling, the victim stuck her tongue out at
       the Appellant, and he warned her not to do it again. When
       she did, the Appellant licked the inside of the victim’s
       mouth and her tongue. In another episode, the Appellant
       stuck his fingers in the victim’s mouth and made her suck
       on them. He also made the victim lift up her shirt while he
       touched and licked her nipples. Similar events happened
       multiple times.

          The Appellant’s family eventually moved into the
       victim’s prior home, while the victim and her family resided
       three blocks away. The victim was close to ten years old
       at the time. The two residences were in walking distance
       to each other, and the Appellant continued to babysit the
       victim.

          The two often spent time in the Appellant’s bedroom.
       The victim testified that Appellant once removed two
       vibrators from a dresser drawer. He placed them on the
       victim’s legs and explained that it was supposed to make
       her feel good. He then removed the victim’s pants and
       rubbed the objects “between [her] vagina and push[ed]
       them on [her] clitoris.”     When asked if the objects
       penetrated her vagina, the victim responded, “they went in
       between the lips.”

           The Appellant would regularly remove the victim’s
       pants. In one episode he made the victim sit on top of his
       face and then placed his tongue in her vagina. Once, the
       Appellant made the victim bend over on all fours while he
       removed her pants. He then placed his finger into the
       victim’s anus. The act was extremely painful for the
       victim, who pulled away and ran to the bathroom. The
       victim was frightened when the event caused a “mucousy”
       discharge. The Appellant laughed and told the victim that
       it would be “okay.”

          The Appellant also forced the victim to perform oral sex
       on him. The victim recalled gagging and pulling away.
       These sexual assaults occurred almost every time the
       victim was at the Appellant’s residence.       On another
       occasion, the Appellant made the victim lay down on the
       bed, while he put his penis in between her thighs and then


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       ejaculated. The Appellant’s semen contacted the victim’s
       pants and thighs. Once, while sitting by the pool, the
       Appellant placed his fingers in the victim’s vagina. The
       victim recalled occasions where her and Appellant would
       be sitting on the couch while he would touch her vagina
       above her clothes or pinch her nipples.

          The victim also testified that on one occasion the
       Appellant removed the victim’s pants, forced her to lie on
       the bed, and placed his penis between the lips of her
       vagina. The Appellant ejaculated on the victim’s legs and
       vagina. The Appellant once inserted his penis into the
       victim’s anus. The victim was subjected to extreme pain
       and stated that it “felt like I had been ripped.” She ran to
       the bathroom and observed spots of blood on the toilet
       paper used to wipe the area.

           Because of the continuous systemic abuse, the victim
       testified that the acts were “kind of like a normal thing,
       like I was kind of used to it by then. [Appellant] always
       told me if I would ever tell anybody, he would go to jail for
       a long time. He was like my best friend, so I didn’t really
       want him to leave.”

          The victim also explained that the Appellant would tell
       her stories of his previous sexual encounters. She recalled
       that he once took her to a video rental business and rented
       a pornographic video tape.       The victim waited in the
       vehicle, while the Appellant “ran” into the store, acquired
       the tape, and then ran back to the vehicle.          At his
       residence, he and [the] victim watched the video. He
       provided wine to the victim and encouraged her to drink it,
       which she did on one occasion.           He also provided
       cigarettes to the victim and encouraged her to smoke
       them.

          After a family dispute in 2005, the Appellant and his
       family moved out of the residence when the victim was
       around twelve years old. Because the two families no
       longer interacted, the abuse ceased. The victim did not
       come forward at that time, because she did not want to
       cause more problems or fighting.

         However, the victim ultimately came forward with her
       abuse in the summer of 2012. She had spoken with a


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         close friend who encouraged her to disclose the abuse.
         The victim was concerned, because her cousin . . . had two
         young children, which she believed resided in the same
         home as the Appellant. With the encouragement from her
         friends, the victim told her mother. She later went to the
         Charleroi Police Department to report her abuse.

            The victim’s mother corroborated that between the
         years of 2003 and 2005 her and her husband had busy
         employment schedules and relied on the Appellant and his
         wife to babysit their children. The victim had explained to
         her mother that she had been sexually assaulted for a
         period of time between the ages of nine and twelve years
         old. During that time, the victim’s temper tantrums [ ]
         prompted mother and child to visit a medical doctor. Near
         the end of the two families’ relationship, the victim told her
         mother that she no longer wanted to go to the Appellant’s
         home, but she did not expand on her reasons.

            The final witness was Detective Lieutenant Eric Porter.
         Lt. Porter had been a member of the Charleroi Police
         Department for over fifteen years.       The victim was
         interviewed by Lt. Porter and a criminal complaint was
         prepared. Due to the length of time between the abuse
         and its reporting, there was no attempt to collect any
         physical evidence by means of a “rape kit” or other
         physical medical examination. He testified that it was
         common for minor children to not come forward for a long
         period of time.

Trial Ct. Op., 6/6/14, at 2-5.     Appellant did not testify or present any

exhibits or witnesses on his behalf. On September 17, 2013, the jury found

Appellant guilty on all counts.

      At sentencing on December 16, 2013, the trial court found Appellant

was a second-time offender and applied the twenty-five-to-fifty-year

mandatory sentence prescribed by 42 Pa.C.S. § 9718.2 to the convictions of

rape, involuntary deviate sexual intercourse, and aggravated indecent




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assault only. It structured its sentences on the remaining count to reach an

aggregate sentence of 142 to 284 years’ imprisonment.

      On December 26, 2013, Appellant filed timely post-sentence motions

seeking arrest of judgment, new trial, and reconsideration of sentence. The

trial court heard arguments on February 14, 2014, and on March 4, 2014,

denied Appellant’s requests for arrest of judgment and new trial, but granted

sentencing reconsideration based on its failure to apply Section 9718.2 to all

charges subject to a mandatory sentence.

      On March 12th, the trial court convened a resentencing hearing and

did not alter its prior, consecutive sentences of twenty-five to fifty years for

rape and four counts of involuntary deviate sexual intercourse.      The court

applied Section 9718.2 and sentenced Appellant to twenty-five to fifty years

on the counts of statutory sexual assault, indecent assault, and corruption of

the morals of a minor.    However, it ordered these new sentences and its

prior, consecutive sentences on the two counts of aggravated indecent

assault to run concurrently.      This resulted in an amended aggregate

sentence of 125 to 250 years’ imprisonment base on consecutive mandatory

sentences of twenty-five to fifty years on one count of rape and four counts

of involuntary deviate sexual intercourse.

      Appellant filed a timely notice of appeal on April 3, 2014, and a court-

ordered Pa.R.A.P. 1925(b) statement of matters complained of on appeal on




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April 17, 2014.    On June 6, 2014, the court issued its Pa.R.A.P. 1925(a)

opinion.7 This appeal followed.

      Appellant presents four issues on appeal:

         Did [the Commonwealth] present sufficient evidence, as a
         matter of law, for each of the counts for which [Appellant]
         was convicted?;

         Does the weight of the evidence require that the verdict on
         said counts be reversed and stricken?;

         Did the trial court err in sentencing by modifying its
         original sentence by imposing mandatory minimum
         sentences?; and

         Did the trial court abuse its discretion in sentencing
         [Appellant] to a term of a total of 125 to 250 years?

Appellant’s Brief at 5.

      Appellant first claims the evidence was insufficient to sustain the

instant convictions because the victim’s allegations were unworthy of belief.

He asserts that for the jury to credit the victim’s testimony, it “would have

to conclude that for approximately three (3) years the victim was abused

virtually every day, or close to 1,000 times with individuals present in the

home where the abuse had occurred for approximately 333 separate

incidents of abuse.” Id. at 13. According to Appellant, the victim’s lack of

prior disclosures, despite having opportunities to do so, further undermined




7
  The Commonwealth, after requesting two extensions of time, did not file a
brief with this Court.




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her testimony regarding the frequency of the abuse and her experiences of

physical pain. Id. We disagree.

      Preliminarily, we are compelled to observe Appellant failed to either

preserve or present a proper sufficiency of the evidence claim.    Specifically,

Appellant’s Pa.R.A.P. 1925(b) statement and brief to this Court baldly assert

the evidence was insufficient without identifying a specific basis in the

elements of the myriad crimes of which he was convicted.                    See

Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa. Super. 2014) (finding

waiver of defendant’s sufficiency claim where 1925(b) statement failed to

specify   element   of   offense    for   which   evidence   was   insufficient);

Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009) (finding

waiver where appellant’s brief presented vague, undeveloped sufficiency

challenge that did not specify allegedly unproven elements).         Moreover,

Appellant’s challenges to the credibility of victim’s allegations ignore our

well-settled standards of review.     See Commonwealth v. Palo, 24 A.3d

1050, 1054-55 (Pa. Super. 2011) (reiterating sufficiency review requires

viewing all evidence in light most favorable to verdict winner and respecting

trier of fact’s province to believe all, part, or none of evidence);

Commonwealth v. Jette, 818 A.2d 533, 534-35 (Pa. Super. 2003) (noting

uncorroborated testimony of victim sufficient to convict on sexual offenses).

Indeed, Appellant’s arguments are more properly directed to the weight of

the evidence, which we discuss below, and not the sufficiency of the



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evidence. See Palo, 24 A.3d at 1055 (claims directed to primary witness’s

credibility challenges weight, not sufficiency).     Accordingly, Appellant’s

sufficiency claim is subject to waiver. See id.

       In any event, were we to address Appellant’s general claim that no

probability of fact could be derived from the victim’s testimony, our review

of the record and the application of the proper standard of review would

compel the conclusion that Appellant’s argument is indeed frivolous. See id.

at 1055-56; Jette, 818 A.2d at 535.        Thus, Appellant’s challenge to the

sufficiency of the evidence warrants no relief.

      Appellant next contends the verdict is against the weight of the

evidence because the victim’s testimony was uncorroborated by third parties

or medical evidence. Appellant’s Brief at 14-15. He asserts the absence of

collaboration outweighs the victim’s allegations of abuse because (1) the

alleged abuse was systemic and occurred almost daily, (2) other people

were present in the home during “about one-third of the times she was

abused,” and (3) another person, Appellant’s wife, was in the same room at

other times. Id. Appellant emphasizes the victim did not promptly report

the abuse and, although the victim experienced physical pain, bleeding, and

discharge, a physician did not discover the abuse when he saw her for

“temper tantrums.” Id. at 15. No relief is due.

      This Court’s consideration of a weight of the evidence claim is

governed by the following principles:



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           Before a trial court may award a new trial on the ground
           that the verdict is against the weight of the evidence, it
           must appear that the verdict was so contrary to the
           evidence as to shock one’s sense of justice and make the
           award of a new trial imperative. After the trial court has
           ruled on the weight claim, however, our role, as an
           appellate court, is not to consider the underlying question
           of whether the verdict is against the weight of the
           evidence, but is limited to determining whether the trial
           court abused its discretion in ruling on the weight of the
           evidence claim.

Commonwealth v. Wall, 953 A.2d 581, 586 (Pa. Super. 2008) (citations,

quotation marks, and brackets omitted).

        Instantly, Appellant preserved his claim in the trial court.        See

Pa.R.Crim.P. 607(a)(3).     The trial court denied his request for a new trial,

opining:

              At trial, the victim testified at length to the continuous
           and systemic sexual abuse she endured as a young child at
           the hands of [Appellant].            Little to no evidence
           contradicted the victim’s testimony.         The jury alone
           determined the credibility of the witnesses.             After
           deliberation, they found [Appellant] guilty of all charges
           against him. The verdict was not contrary to the evidence
           and did not shock this Court’s sense of justice.

Trial Ct. Op., 3/4/14, at 2.

        Our review of the record reveals ample support for the trial court’s

reasoning.     The victim specifically described how Appellant abused her by

using vibrators in her vagina,8 performing oral sex on her,9 forcing her to


8
    N.T., 9/16/13, at 47.
9
    Id., at 48-49.



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perform oral sex on him,10 ejaculating on her,11 penetrating her anus with

his finger12 and penis,13 and penetrating her vagina with his finger14 and

with his penis.15 She testified such abuse occurred regularly.16 As the trial

court observed, no evidence contradicted these accounts.                       Thus, having

reviewed the record, we discern no abuse of discretion in the trial court’s

ruling on Appellant’s motion for a new trial and conclude no appellate relief

is due.

        Appellant     directs   his   final    two     challenges   to   the   legality   and

discretionary aspects of his sentence. We first address Appellant’s legality

challenge to the imposition of increased sentences for second-time sex

offenders, as prescribed by 42 Pa.C.S. § 9718.2.17 See Appellant’s Brief at


10
     Id. at 50-51.
11
     Id. at 52, 56.
12
     Id. at 49.
13
     Id. at 56.
14
     Id. at 54.
15
     Id. at 55-56.
16
     Id. at 51.
17
   We observe Appellant raised this claim for the first time in his brief.
Nevertheless, as discussed below, this case involves the trial court’s
statutory authority to apply a mandatory sentence and exceed an otherwise
proper maximum sentence. Thus, it falls within the types of sentencing
challenges that are not waivable and can be addressed sua sponte. See
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc).



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16-17.      He does not dispute he is a second time offender.18             Rather,

Appellant argues the trial court erred in applying Section 9718.2 because his

criminal acts occurred between 2003 and 2005, but the statute did not take

effect    until   January   1,   2007.       In   support,   Appellant   relies   on

Commonwealth v. Rose, 81 A.3d 123 (Pa. Super. 2013) (en banc), appeal

granted, 95 A.3d 275 (Pa. 2014). We conclude relief is due on this claim.

         We have stated:

           The scope and standard of review applied to determine the
           legality of a sentence are well established. If no statutory
           authorization exists for a particular sentence, that
           sentence is illegal and subject to correction. An illegal
           sentence must be vacated. In evaluating a trial court’s
           application of a statute, our standard of review is plenary
           and is limited to determining whether the trial court
           committed an error of law. A challenge to the legality of a
           sentence “is essentially a claim that the trial court did not
           have jurisdiction to impose the sentence that it handed
           down. . . . A trial court ordinarily has jurisdiction to
           impose any sentence which is within the range of
           punishments which the legislature has authorized for the
           defendant’s crimes.”

Melvin, 103 A.3d at 52 (citations omitted).

         In Rose, the defendant attacked the victim in July 1993, and was

sentenced in 1994 for his convictions for attempted murder, aggravated

assault, involuntary deviate sexual intercourse, and recklessly endangering

another person. Rose, 81 A.3d at 125. The victim remained in a vegetative

state until she died from her injuries in 2007. Id.

18
  In 1986, Appellant pled guilty to, inter alia, rape and involuntary deviate
sexual intercourse. N.T., 12/16/13, at 4.



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      A month after the victim’s death, the Commonwealth, in Rose,

charged the defendant with homicide, and he was found guilty of third-

degree murder in 2010.       Id. at 125-26.    At sentencing, the defendant

argued a twenty-year maximum applied based on law at the time of the

attack.   Id. at 126.   The Commonwealth asserted a forty-year maximum

applied based on 18 Pa.C.S. § 1102(d),19 which took effect in 1995, two

years after the attack, but more than a decade before the death of the

victim and completion of the homicide. Id. at 126. The trial court agreed

with the Commonwealth and sentenced defendant to twenty to forty years’

imprisonment. Id.

      On appeal, the defendant challenged the trial court’s application of

Section 1102(d). The Rose Court vacated the sentence, and concluded:

          Since the criminal acts that caused the victim’s death were
          completed prior to the passage of § 1102(d), and that
          statute increased the penalty for the acts causing the
          victim’s death, we find that Appellant was improperly
          sentenced in violation of the respective federal and
          Pennsylvania Constitution ex post facto clauses.

Id. at 136.

19
   Section 1102(d) sets the maximum penalty for murder of the third
degree:

          Notwithstanding section 1103, a person who has been
          convicted of murder of the third degree or of third degree
          murder of an unborn child shall be sentenced to a term
          which shall be fixed by the court at not more than 40
          years.

18 Pa.C.S. § 1102(d) (as amended in 1997 to include unborn children).



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     Now President Judge Gantman, joined by Judge Allen, dissented,

reasoning:

        [a]lthough the attack happened years before, there was no
        murder until the final element of the offense, the victim’s
        death, actually occurred. In my opinion, the court did not
        “retroactively apply” Section 1102(d); rather, the court
        utilized the sentencing statute in effect at the time of the
        murder. Therefore, the court’s sentence was proper
        because Section 1102(d) went into effect in 1995, before
        the murder occurred.

Id. at 137 (Gantman, J., dissenting).

     As noted above, Appellant’s current crimes occurred between 2003

and 2005. As enacted in 2006, Section 9718.2 provided, in relevant part:

        (a) Mandatory sentence.—

                (1) Any person who is convicted in any court of this
             Commonwealth of an offense set forth in section
             9795.1(a) or (b) (relating to sexual offenses and tier
             system) shall, if at the time of the commission of the
             current offense the person had previously been
             convicted of an offense set forth in section 9795.1(a) or
             (b) or an equivalent crime under the laws of this
             Commonwealth in effect at the time of the commission
             of that offense or an equivalent crime in another
             jurisdiction, be sentenced to a minimum sentence of at
             least 25 years of total confinement, notwithstanding
             any other provision of this title or other statute to the
             contrary. . . .

        (b) Mandatory maximum.—An offender sentenced to a
        mandatory minimum sentence under this section shall be
        sentenced to a maximum sentence equal to twice the
        mandatory minimum sentence, notwithstanding 18 Pa.C.S.
        § 1103 (relating to sentence of imprisonment for felony) or
        any other provision of this title or other statute to the
        contrary.




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42 Pa.C.S. § 9718.2(a)(1), (b) (subsequently amended Dec. 20, 2011,

effective Dec. 20, 2012, to comport with adoption of 42 Pa.C.S. § 9799.14

(relating to sexual offenses and tier system)). As noted above, the statute

took effect on January 1, 2007.

     Relying on this statute, the trial court imposed mandatory minimum

sentences of twenty-five to fifty years for rape, involuntary deviate sexual

intercourse, aggravated indecent assault, statutory sexual assault, indecent

assault, and corruption of the morals of minors. These mandatory sentences

exceed the sentences authorized by the sentencing statute in effect when

Appellant   committed   these   crimes.      Specifically,   the   former   statute

authorized maximum sentences of at least twenty, and up to forty years, for

rape and involuntary deviate sexual intercourse,20 ten years for aggravated

indecent assault and statutory sexual assault, and up to five years for

indecent assault and corruption of the morals of minors. See 18 Pa.C.S. §§

1103, 1104.

     The instant case does not raise the thorny issue of whether a statute

should apply based on the commission of the acts or the completion of the


20
   As noted above Sections 3121(a)(6) (rape) and 3123(a)(b) (involuntary
deviate sexual intercourse) were designated as Subsection (c) in the
respective statutes effective February 14, 2003. The General Assembly also
increased the maximum sentence to forty years.          See 18 Pa.C.S. §§
1103(a), 3121(e)(1) (effective Feb. 14, 2003). Given the narrow sentencing
issue raised in this appeal, we decline to consider whether a twenty or forty
year maximum sentence applies.




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crime. Instead, the narrower question before us is whether the trial court

properly applied Section 9718.2 when Appellant was convicted for crimes

completed between 2003 and 2005 and sentencing statute came into effect

in 2007. Under these circumstances, Rose compels the conclusion that the

trial court erred in relying on a sentencing statute that post-dates the

subject crimes. Thus, all sentences imposed based on Section 9718.2 must

be vacated.     See Melvin, 103 A.3d at 52.            As our decision affects a

fundamental aspect of the trial court’s sentencing scheme, we decline to

consider Appellant’s discretionary sentencing claims, vacate the judgment of

sentence   in   part,   and   remand     this   case   for   resentencing.   See

Commonwealth v. Williams, 997 A.2d 1205, 1210-11 (Pa. Super. 2010).

     Judgment of sentence affirmed in part and vacated in part.              Case

remanded for resentencing. Jurisdiction relinquished.

     Judge Shogan joins the memorandum.

     President Judge Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/16/2015




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