J-S06044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                      Appellant              :
                                             :
                                             :
                v.                           :
                                             :
                                             :
  TERRENCE BUTLER                            :   No. 1187 EDA 2017

                Appeal from the PCRA Order March 30, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0001837-2013,
            CP-51-CR-0001838-2013, CP-51-CR-0001839-2013


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY BOWES, J.:               FILED SEPTEMBER 14, 2018

         I respectfully dissent, as I would find that Appellee failed to rebut the

presumption of effectiveness. Although Appellee asserted that trial counsel,

Susan Buck, Esquire, ineffectively failed to object to prejudicial testimony, a

review of the record establishes that her inaction was a reasonable strategic

choice designed to bolster the overall defense strategy. Since counsel was

constitutionally effective, the PCRA court erred by granting relief. Additionally,

I would find that Appellee was not prejudiced as he failed to establish a

reasonable probability that the outcome of the proceeding would have

changed had counsel objected. I would therefore reverse the award of a new

trial.

         On October 21, 2012, a vehicle with two occupants was stopped by

Philadelphia Police Officer George Dilworth for a minor traffic violation. Officer
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Dilworth testified that the driver, whom he identified as Appellee, complied

with his request for a driver’s license, insurance, and vehicle registration,

which listed Appellee as the owner. Officer Dilworth returned to his police

vehicle to run a standard criminal background check, the results of which

caused him to request backup.1             Officer Eric Romanczuk arrived shortly

thereafter and went to the passenger side of the vehicle, while Officer Dilworth

approached Appellee. In response to Officer Dilworth’s request that he step

out of his vehicle, Appellee put the car into drive and accelerated. Officer

Dilworth did not have the chance to return Appellee’s documents, including

his license.

       The two officers went to their respective vehicles and chased Appellee,

who crashed into a car, leading to various injuries to its three occupants. Both

cars were disabled by the crash, but by the time the officers arrived the

occupants of Appellee’s vehicle were gone. Officer Dilworth attended to the

medical needs of the injured citizens, and radioed a flash description of the

fleeing individuals. The officer testified that he could not recall exactly what

he stated, “but I did give the description for both males.”          N.T. Vol. I,

12/17/14, at 74.

       Officer Dennis Cary testified that he was responding to the crash scene

when Officer Dilworth’s description was transmitted. After surveying the area

____________________________________________


1 Appellee had an arrest warrant for rape, which the judge ruled pre-trial was
inadmissible. This point becomes relevant to the ineffective assistance of
counsel claim, as discussed in the body infra.

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for approximately ten to fifteen minutes, he noticed a man boarding a bus.

The man was wearing a white hooded sweatshirt with black sweatpants, which

matched the flash description. Officers Cary and Dilworth boarded the bus,

and Officer Dilworth identified the man, Shawn Kennedy, as the passenger in

the vehicle he had stopped earlier.     Officer Cary arrested Kennedy and

transported him to the police station. Appellee was arrested approximately

one month later.

      Detective Francis McClain interviewed Officer Dilworth that evening, who

informed him that Kennedy was the passenger. Officer Dilworth also turned

over Appellee’s driving license and other documentation, and identified him as

the driver.     Additionally, Detective McClain interviewed Kennedy, who

provided a statement to police on the night of the incident; the detective’s

testimony regarding that statement provided the basis for the PCRA’s grant of

a new trial, as counsel did not object to the following exchange:

      Q. Detective, you mentioned that Officer Dilworth             was
      interviewed. Were you present for that interview?

      A. Yes.

      Q. Was Shawn Kennedy or any other person involved in this case
      present for that interview?

      A. No. He was in the interview room.

              ....

      Q. You mentioned Shawn Kennedy. How did you come into contact
      with Shawn Kennedy?

      A. One of the officers had located him getting on a SEPTA bus and
      they transported him to Central Detectives.

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       Q. Did you have the opportunity to interview him as a result of
       this investigation?

       A. Yes. On the same day of the incident, I interviewed him. He
       corroborated everything Officer Dilworth said.

              ....

       Q. Detective, you mentioned that Shawn Kennedy, his statement,
       it corroborated or cooperated [sic] Officer Dilworth’s?

       A. Everything Officer Dilworth said was the same as the
       statement taken from Shawn Kennedy.

N.T. Vol. II, 12/18/14, at 43-45 (emphasis added).

       As emphasized, Detective McClain’s recitation of Kennedy’s statement

provided the jury with another witness who placed Appellee in the driver’s

seat. Appellee’s PCRA petition alleged that the failure to object was ineffective

because mistaken identification was his entire defense.

       That is indisputable, as counsel’s opening informed the jury that

Appellee was not present. “Now there is no question that on the night of

October 21, 2012, these people were injured . . . the problem is, is that my

client wasn’t driving. He wasn’t even there.” N.T. Vol. I, 12/17/14, at 32.

Counsel argued that Kennedy took Appellee’s vehicle and documentation, and

that Officer Dilworth’s in-court identification was unreliable because it was

based on those documents.2 Id. at 76 (“And let’s be honest; the only reason



____________________________________________


2Counsel added that Kennedy and Appellee were similar in appearance. N.T.,
Vol. I, 12/17/14, at 33.

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you are identifying my client at all throughout this whole process is because

you have his license in your hand; right?”).      Relatedly, counsel suggested

that the officers did not sufficiently observe the driver, given that the traffic

stop was unremarkable until the driver fled. Therefore, the officers had little

reason to remember the physical appearance of the driver.

      Yet mistaken identification was not the entire defense, and counsel

suggested that something more sinister may have occurred. “Whether [the

misidentification] was a result of an honest human error or whether it was a

result of a vindictive motive, I don’t know; you will be the judge of that.” Id.

at 32. As it turned out, Kennedy was the son of a Philadelphia Police Inspector,

and while Kennedy was arrested on the evening of the crash, he was released.

Counsel suggested that the officers covered for their colleague’s son by

implicating Appellee, who represented an easy target, given they had

Appellee’s license and vehicle. For instance, during his cross-examination,

Officer Cary agreed that “[Kennedy] wanted to get out of this[.]” Counsel

then asked, “And that is why you guys let him go?” Id. at 136. On cross-

examination of Detective McClain, counsel asked if he placed a call to

Inspector Horn, which he denied.            N.T. Vol. II, 12/18/14, at 47.

Unsurprisingly, these themes appeared in counsel’s closing argument:

      I submit to you that Shawn Kennedy is the guy who should be
      sitting in that chair today. Shawn Kennedy borrowed my client’s
      car, got pulled over my [sic] Officer Dilworth, gives my client’s
      license, takes off. We know that he was driving because Officer
      Dilworth at the time puts out flash information for the guy he
      wants to find, the driver, the guy who he had just spoken to.

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Id. at 120.   Counsel later remarked, “[T]hey let Shawn Kennedy go . . .

because his dad is one of them. He is a police officer. You got to cover up for

a police officer’s son and they got somebody else to pin it on, so they don’t

need Shawn Kennedy[.]” Id. at 125.

      Since trial counsel suggested that the officers conspired to cover for

their colleague and his son, I agree with the Commonwealth that counsel had

a reasonable strategic basis for failing to object to the aforementioned

testimony. “[Counsel] believed Kennedy’s statement was useful to advance

her theory that the police had fabricated [Appellee]’s role in the crime.”

Commonwealth’s brief at 13.

      The PCRA court, however, disagreed and granted a new trial based on

this failure to object. “Our standard of review for issues arising from the denial

of PCRA relief is well-settled. We must determine whether the PCRA court’s

ruling is supported by the record and free of legal error.” Commonwealth

v. Spotz, 171 A.3d 675, 678 (Pa. 2017) (citing Commonwealth v.

Washington, 927 A.2d 586, 593 (Pa. 2007)). “The PCRA court’s credibility

determinations are binding on this Court when they are supported by the

record. However, this Court applies a de novo standard of review to the PCRA

court’s legal conclusions.” Commonwealth v. Rivera-Rodriguez, 39 A.3d

439, 441 (Pa.Super. 2012) (citing Commonwealth v. Chmiel, 30 A.3d 1111,

1127 (Pa. 2011)).     Counsel is presumed effective, and Appellee bore the




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burden of establishing otherwise. Commonwealth v. Rivera, 10 A.3d 1276,

1279 (Pa.Super. 2010) (citation omitted).

      To satisfy this burden, [petitioner] must plead and prove by a
      preponderance of the evidence that: “(1) his underlying claim is
      of arguable merit; (2) the particular course of conduct pursued by
      counsel did not have some reasonable basis designed to effectuate
      his interests; and, (3) but for counsel’s ineffectiveness, there is a
      reasonable probability that the outcome of the challenged
      proceeding would have been different.” Commonwealth v.
      Fulton, 574 Pa. 282, 830 A.2d 567, 572 (2003). Failure to satisfy
      any prong of the test will result in rejection of the [petitioner]’s
      ineffective assistance of counsel claim. Commonwealth v.
      Jones, 571 Pa. 112, 811 A.2d 994, 1002 (2002).

Commonwealth v. Smith, 167 A.3d 782, 787–88 (Pa.Super. 2017).

      I find that the PCRA court’s legal conclusion regarding the second prong

was erroneous. At this juncture, I set forth counsel’s reason for not objecting,

as testified to at the PCRA hearing:

      A. So do you want to go back to the original, one of the first
      questions you asked. Why I didn’t object to him saying that what
      Dillworth corroborated --

      Q. Yes.

      A. -- everything Shawn Kennedy had to say?

      Q. Yes.

      A. Well, first of all, because he didn’t ask a specific question like,
      you know, isn’t it true that he corroborated that Mr. Butler was
      driving. I didn’t want to highlight it for the jury, but also, and I
      had a chance to reread this, I wanted Shawn Kennedy’s
      statement to come in. It would be helpful for my client if
      the jury would hear everything that Shawn Kennedy
      actually said in his statement.

      So if you look on Page 49 or I guess when I start my cross, I ask
      for a sidebar, so I can go into specific detail with the Judge and

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       the DA about why I wanted to use the statement and why I
       thought it wasn’t hearsay, the portions I wanted to use. And
       because that opened up the door for my client’s rape warrant, I
       choose not to go into those details. So that’s why I didn’t object
       this time because I wanted to use it.

       Q. So you thought that the statement of Mr. Kennedy was
       beneficial to your defense?

       A. Parts of it, yeah.

N.T. PCRA Hearing, 1/13/17, at 13-14 (emphasis added).

       The PCRA court’s opinion largely responds to the Commonwealth’s

averment that there was no arguable merit to any hearsay objection. 3 With

respect to the remaining two prongs, this is the sum of its analysis:

       A blatant statement by Detective McClain that Kennedy’s
       statement exactly corroborated Officer Dilworth’s is not
       admissible. Likewise, counsel’s stated reasons for not objecting
       is [sic] not valid. That it was Shawn Kennedy, and not her client,
       who was the driver of the vehicle was the core of counsel’s
       defense. Under these circumstances, this court cannot
       accept trial counsel’s expressed reasons for failing to
       object to the harmful hearsay statements of Detective
       McClain.

              ....

       Counsel admitted to not objecting to the testimony of Detective
       McClain wherein he, three times, told the jury that Shawn
       Kennedy’s statement corroborated Officer Dilworth’s. The entirety
____________________________________________


3 The Commonwealth continues to assert that there was no arguable merit to
any objection because the testimony was not hearsay. The Commonwealth
maintains that the statement was relevant to course of conduct, i.e., it
explained why Detective McClain let Kennedy go that evening. This position
imagines that counsel objected to the testimony, but the trial court then
instructed the jury that the statement could be used for a limited purpose.
Obviously, that did not occur, and I fully agree with the Majority that there
was arguable merit to the ineffectiveness claim.

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      of the defense was that Shawn Kennedy was the driver of the
      vehicle and that Mr. Kennedy was released from custody because
      his father was a high ranking police official. For counsel to have
      allowed the testimony from Detective McClain, that Kennedy’s
      statement corroborated Officer Dilworth’s was without sound,
      informed and reasonable strategy or tactic, and there is a
      reasonable probability, that but for counsel’s ineffectiveness the
      outcome very well could have been different.

PCRA Court Opinion, 8/29/17, at 7-8 (citation omitted).

      My colleagues accept the PCRA court’s conclusion that counsel’s desire

to introduce Kennedy’s statement was not a reasonable strategic decision,

which is apparently based on a deference to credibility findings:

      Additionally, we emphasize that the PCRA court did not credit
      counsel’s testimony that she had a reasonable basis for not
      objecting to the hearsay testimony regarding Kennedy’s
      statement:

            [C]ounsel’s stated reasons for not objecting [are] not
            valid. That it was [] Kennedy, and not her client, who
            was the driver of the vehicle was the core of counsel’s
            defense. Under these circumstances, this court cannot
            accept trial counsel’s expressed reasons for failing to
            object to the harmful hearsay statements of Detective
            McClain.

Majority Memorandum at 5 (quoting opinion).       I submit that this analysis

misapprehends the reasonable strategic basis test, which is a conclusion of

law that we review de novo. The Majority claims that the PCRA court “did not

credit counsel’s testimony that she had a reasonable basis for not objecting”

to Detective McClain’s testimony. However, the pertinent legal question is




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whether the proffered explanation was or was not a reasonable strategic

decision, which does not turn upon credibility.4

       I do not suggest that credibility is irrelevant with respect to strategic

choices. However, in this particular situation, counsel’s explanation at the

PCRA hearing for her inaction is consistent with everything that occurred at

trial. Therefore, had the PCRA court resolved this question as a matter of

credibility, i.e. that counsel was not truthful when she explained that her

failure to object was a strategic choice, those findings would not be supported

by the record.       It would be rather remarkable to conclude as a matter of

credibility that trial counsel did not want Kennedy’s statement to come in when

the trial transcript disproves that point. As trial counsel said at the evidentiary

hearing, she tried to introduce more portions of the statement beyond what

the Commonwealth introduced. I now quote the relevant portion of counsel’s

cross-examination of Detective McClain at trial:

       Q. Now you said you took a statement of Shawn Kennedy that night?

       A. Correct.

       MS. BUCK: Actually, can we see you at sidebar.

       THE COURT: Yes.
____________________________________________


4 In other words, whether counsel believed that her strategy was a reasonable
strategic decision is irrelevant. Indeed, the presumption of effectiveness
demands that we view an attorney’s decision as strategic. The test does not
ask us to credit or discredit whether counsel thought she had a reasonable
basis to object, nor does our standard of review require us to defer to the
PCRA court’s opinion on that question.


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     (Sidebar discussion was held.)

     (Discussion in chambers as follows:)

     THE COURT: We are out of the presence of the jury. Ms. Buck,
     you have an objection to the proposed –

     MS. BUCK: Well, I mean, obviously, I don’t want to open the door
     to that, but I think it does.

     THE COURT: For the record, Ms. Buck has asked whether she is
     allowed to inquire into the, ask the detective specifically the
     wording of the witness Shawn Kennedy in a statement. Mr.
     Kennedy has not been presented in court and I will let you put
     your reasons on the record.

     MS. BUCK: I wanted to use it for the purpose of not the truth, that
     it is the opposite, that the words used were fed to him by
     police officers, if not totally written by police officers, and
     that the fact that he denies seeing any weapons or narcotics and
     then goes on to say that when he identifies my client as the driver,
     he puts gun not mine underneath it, which I think is relevant to
     show or I think it is not hearsay because I think it shows his
     knowledge of a gun in the car, that only somebody who is guilty
     would know. I mean –

     THE COURT: Mr. Krouse.

     MR. KROUSE: Your Honor, I would object. This is exactly what
     hearsay is. Mr. Kennedy is not here; it is not for a lack of due
     diligence from the Commonwealth. . . . .

     Additionally, if counsel is permitted to ask a question about how
     the idea of a gun came up, then I believe that that would open
     the door for me on redirect to ask questions about why they chose
     to ask about a gun and why they chose to or whatever. I mean,
     obviously, it depends on the detective’s answer to that question,
     but the fact that there was an open rape warrant and, again, I am
     not bringing up his prior convictions, I absolutely understand that
     is not allowed, but that also could factor into why, but I can
     obviously speak with my detective to make sure it didn’t come up,
     but it was rape by handgun and that was, he was potentially
     armed and dangerous, that was the warrant, and I have a copy of

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       the warrant, of the actual warrant to show when it was issued,
       and then the detectives would testify to what they knew and I
       could also recall Officer Dilworth or Officer Romanczuk to testify
       to their knowledge of that open warrant and that he was
       considered armed and dangerous and that would be why they
       asked about the gun to Shawn Kennedy, to see if he had any
       knowledge of it.

N.T. Vol. II, 12/18/14, at 48-51 (emphasis added).5 The trial court ruled that

questioning could “open the door as to the reason a warrant was obtained or,

and the reason for the stop[.]” Id. at 51.

       The fact that counsel was limited from introducing other portions of

Kennedy’s statement does not detract from the strategic validity in declining

to object to the portions the Commonwealth introduced. I find that counsel’s

reason for not objecting was a strategic choice designed to advance the overall

strategy.    Appellee therefore failed to establish ineffective assistance of

counsel. Counsel explicitly stated at trial that she wished to establish that




____________________________________________


5 The Commonwealth’s position at trial that Kennedy’s statement was hearsay
when introduced by the defense undermines its current position that it was
not hearsay for purposes of the arguable merit prong.         Just like the
Commonwealth, trial counsel sought to use the statement for a purpose other
than truth, since Kennedy implicated Appellee in the crimes.

Furthermore, the Commonwealth’s position that Kennedy’s knowledge of the
gun was relevant to whether Appellee was armed and dangerous could equally
be used to establish that the Commonwealth was, in fact, treating Kennedy
favorably. Kennedy’s knowledge of the gun’s whereabouts raises the specter
of constructive possession of the firearm.      In this respect, Kennedy’s
knowledge supplies an additional motivation for him to lie and implicate
Appellee, which is precisely what counsel sought to establish.


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Kennedy’s words were “fed to him” by the police and her explanation at the

PCRA hearing for her failure to object is consistent with that strategy.

      The PCRA court, in contrast, focuses on the mistaken identification

defense without recognizing that Kennedy’s statement did not necessarily

undermine the defense. That strategic choice was doubtlessly valid. “Counsel

will not be deemed ineffective where the strategy employed had some

reasonable basis designed to effectuate his or her client’s interests.”

Commonwealth v. Perry, 128 A.3d 1285, 1290 (Pa.Super. 2015) (citation

omitted). Trial counsel’s decision was clearly designed to effectuate Appellee’s

interests, and the fact that the PCRA court appears to disagree with her

decision does not establish ineffectiveness. Strickland v. Washington, 466

U.S. 668, 689 (1984) (“There are countless ways to provide effective

assistance in any given case. Even the best criminal defense attorneys would

not defend a particular client in the same way

      Furthermore, the PCRA court appears to opine that an objection was

necessary simply because Kennedy identified Appellee as the driver.          That

conclusion fails to consider that Kennedy clearly had a motive to lie if, in fact,

he was the driver as trial counsel argued. Counsel did not care if the jury

heard that Kennedy implicated Appellee, because under Appellee’s theory of

the case, Kennedy was a corrupt source. “The other guy did it” is perhaps the

most common defense of all. The PCRA court, for whatever reason, appears

to believe that the jury would blindly accept Kennedy’s statement as true in


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the absence of an immediate objection. Counsel was entitled to weigh that

risk, especially in the heat of the moment when she had to make a quick

decision.

      [Our Supreme] Court has recognized that counsel are not
      constitutionally required to forward any and all possible objections
      at trial, and the decision of when to interrupt oftentimes is a
      function of overall defense strategy being brought to bear upon
      issues which arise unexpectedly at trial and require split-second
      decision-making by counsel. Under some circumstances, trial
      counsel may forego objecting to an objectionable remark or
      seeking a cautionary instruction on a particular point because
      objections sometimes highlight the issue for the jury, and curative
      instructions always do.

Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa.Super. 2014) (citation

omitted). For the foregoing reasons, I find that Appellee failed to establish

counsel’s ineffectiveness.

      Additionally, even if counsel’s strategy was unreasonable, I would find

Appellee failed to establish that he was prejudiced. Appellee must show that

      there is a reasonable probability that, but for counsel’s error or
      omission, the result of the proceeding would have been different.
      A reasonable probability is a probability that is sufficient to
      undermine confidence in the outcome of the proceeding. A failure
      to satisfy any one of the three prongs of the test for
      ineffectiveness requires rejection of the claim.

Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008) (citation omitted).

      These circumstances concern the outcome of trial. “When a defendant

challenges a conviction, the question is whether there is a reasonable

probability that, absent the errors, the factfinder would have had a reasonable

doubt respecting guilt.” Hinton v. Alabama, 571 U.S. 263, 275 (2014) (per


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curiam) (quotation marks and citation omitted).      “It is not enough for the

defendant to show that the errors had some conceivable effect on the outcome

of the proceeding. Virtually every act or omission of counsel would meet that

test[.]” Strickland, supra at 693 (citation omitted).

      Appellee has failed to establish a reasonable probability that the

outcome of trial would have been different but for the failure to object. In

Commonwealth v. Gibson, 951 A.2d 1110, 1142 (Pa. 2008), Gibson

asserted, inter alia, that counsel rendered ineffective assistance by failing to

request a jury instruction “that his statement to the police could only be

considered against him if it had been given voluntarily.” Our Supreme Court

concluded that Gibson was not prejudiced by any failure to do so for these

reasons:

      In any event, it is also clear that, as the PCRA court concluded,
      [Gibson] has not demonstrated prejudice arising out of the
      absence of a voluntary statement instruction. The purport of
      [Gibson]’s presentation was that his statement was untrue as it
      was coerced, and the jurors were free to accept this proposition
      had they credited [Gibson]’s evidence. Even if the jury had
      disregarded [Gibson]’s confession in its entirety in light of his
      evidence, given the extent of the evidence demonstrating his
      guilt, including eyewitness testimony correlated with the physical
      evidence, there is no reasonable probability that the outcome of
      [Gibson]’s trial would have been different.

Id. at 1143 (citations omitted).

      That same logic applies herein. The jury was free to accept counsel’s

theory that Kennedy was the true culprit, and, as set forth supra, Kennedy’s

statement implicating Appellee was consistent with the defense version of


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events. Nor did the jury have to credit Kennedy’s statement in order to find

Appellee guilty, as two police officers identified Appellee as the driver. The

police   had   Appellee’s   driver’s   license,   registration,   and   his   vehicle.

Additionally, Officer Dilworth testified that he immediately identified Kennedy

as the passenger when Kennedy was apprehended by Officer Cary. Therefore,

the evidence of Appellee’s guilt is overwhelming, and Appellee’s conspiracy

theory does not supply a conceivable basis to say otherwise even if counsel’s

strategy was ineffective, which it was not. I therefore respectfully dissent.




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