Com. v. Reese, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

RYAN THOMAS REESE :

:

Appellant : No. 280 WDA 2017

Appeal from the Judgment of Sentence Entered January 25, 2017

In the Court of Common Pleas of Fayette County Criminal Division at

No(s): CP-26-CR-0001118-2015

BEFORE: BOWES, J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED MAY 23, 2018

Ryan Thomas Reese appeals from the judgment of sentence of nine to

twenty-four months incarceration imposed following his conviction for

corruption of minors, graded as a felony of the third degree. We affirm.

On October 3, 2013, S.L., then a fifteen-year-old girl, was in her

apartment along with her eighteen-year-old boyfriend Brandon White, and

one other individual. The apartment contained marijuana, drug

paraphernalia, and a gun. Connellsville Police Department officers arrived

and entered, eventually arresting White. Appellant, who was one of the

police officers, informed S.L. that she would be charged through juvenile

court for her possession of drug paraphernalia.

Shortly after that incident, Appellant, then thirty-five years old, spoke

to S.L. on the phone and invited her to the Connellsville Police gym. S.L.

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went, believing that the two would discuss the cases against her and White.1

Instead, Appellant engaged in casual conversation and showed her a weight

vest, which she tried on. S.L. stated that the vest was too heavy, and

Appellant slid his hand down her shirt and touched her nipple while helping

to remove the vest. S.L. assumed that the contact was accidental and

thought nothing further of it at the time.

In early November, Appellant appeared at S.L.’s apartment and told

her that White had to turn himself in on the charges from October 3.

Appellant indicated that S.L. might be able to help by becoming a

confidential informant (“CI”). Appellant turned sixteen years old shortly

thereafter, and received a Connellsville Police Department shirt from

Appellant as a gift, which he left on her porch.

In December, S.L. met Appellant in a parking lot. S.L. thought the two

would discuss the case against her and White. She entered his personal

vehicle and, after a short drive, Appellant parked and shut off the vehicle.

He asked her if she would like to have sex. S.L. said no. Appellant

responded by kissing her and putting his hands down her pants. Appellant

pulled his hand out, and asked S.L. to perform oral sex on him. She agreed,

thinking that “if I do this my charges will be gone, [White]’s charges will be

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1 S.L. could not remember if her boyfriend called Appellant, or if Appellant

called S.L.’s boyfriend. All parties had provided their personal information to

the officers at the crime scene.

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gone and everything will just disappear.” N.T. Trial, 11/7-9/16, at 42. After

Appellant ejaculated inside her mouth, she walked home.

Approximately one month later, White was released from jail.

Appellant thereafter enlisted S.L. to act as a CI for three drug buys, which

he indicated would result in all charges being dropped. She performed two

buys. On the way back from the second, Appellant told her there were other

ways to work off the charges and asked her to perform oral sex, which she

did.

The authorities learned of these events in February of 2014, when S.L.

and several others went to a Pennsylvania State Police barracks in

connection with an investigation into S.L.’s mother, who was suspected of

stealing jewelry. S.L.’s mother had previously spoken to the investigating

troopers, and had shared her knowledge about S.L.’s contact with Appellant.

As a result, a trooper asked S.L. about the allegations. S.L. told him what

had happened. The matter was then referred to Trooper James

Aughinbaugh for investigation.

Trooper Aughinbaugh interviewed S.L., who supplied details of the

sexual favors and undercover buys. He reviewed criminal dockets and

determined that her details were corroborated by criminal cases filed by

Appellant. He then arranged for S.L. to call Appellant in his presence. She

made approximately a dozen calls, but the conversations did not produce

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incriminating statements. In April, S.L. informed Trooper Aughinbaugh that

she no longer wished to cooperate and ceased contact.

On May 16, 2014, S.L.’s mother contacted Trooper Aughinbaugh and

related that she had overheard S.L. speaking to Appellant on the phone and

S.L. intended to meet him later that evening. Trooper Aughinbaugh and

several other troopers used multiple vehicles to surveil the Connellsville

Police Department’s building. They saw S.L. arrive and stand next to

Appellant’s personal vehicle. Shortly thereafter, Appellant exited the

building in street clothes and entered his vehicle. S.L. joined him, and the

two drove around for approximately twenty minutes. Appellant then pulled

into a gravel lot and parked his vehicle in a spot concealed from view. The

vehicle remained parked for twenty-one minutes. S.L. testified to this

meeting at trial, and said that she had sex with Appellant in the backseat of

the car.

The officers continued to observe the vehicle after it exited the lot, but

at some point the investigators suspected their cover had been blown based

on Appellant’s behavior. An officer consulted the Clean Network system,

which the police use to research registration information on vehicles. These

requests are logged. His investigation revealed that Appellant requested

information on a license plate that matched one of the vehicles used to tail

Appellant on May 16.

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At trial on these charges, Appellant testified and agreed that he used

S.L. as a CI. Additionally, he confirmed that he left her a birthday gift, and

agreed that he had consensual sex with S.L. in his vehicle. However, he

denied any other sexual encounters between the two, including the

allegations of oral sex.

The jury found Appellant guilty of corruption of minors, and not guilty

of involuntary deviate sexual intercourse (“IDSI”). The trial court imposed

the aforementioned sentence and Appellant filed a timely notice of appeal.

Appellant complied with the order to file a Pa.R.A.P. 1925(b) statement and

the trial court authored its opinion in response. The matter is ready for our

review of Appellant’s claims:

I. Whether the evidence was insufficient to sustain a guilty

verdict for corruption of minors when the Commonwealth

failed to prove beyond a reasonable doubt that Defendant,

by any course of conduct in violation of chapter 31 (of title

18) (relating to sexual offenses), corrupted or tended to

corrupt the morals of any minor?'

II. Whether the lower court erred in its denial of the motion

for recusal?

III. Whether the lower court erred in its denial of the motion

for change of venue/venire?

Appellant’s brief at 6.

Appellant's first argument challenges the sufficiency of the evidence.

Our standard of review is well settled.

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at trial in

the light most favorable to the verdict winner, there

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is sufficient evidence to enable the fact-finder to find every

element of the crime beyond a reasonable doubt. In applying the

above test, we may not weigh the evidence and substitute our

judgment for the fact-finder. In addition, we note that the facts

and circumstances established by the Commonwealth need not

preclude every possibility of innocence. Any doubts regarding a

defendant's guilt may be resolved by the fact-finder unless the

evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined

circumstances. The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt

by means of wholly circumstantial evidence. Moreover, in

applying the above test, the entire record must be evaluated and

all evidence actually received must be considered. Finally, the

trier of fact while passing upon the credibility of witnesses and

the weight of the evidence produced, is free to believe all, part

or none of the evidence.

Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)

(citation omitted).

Appellant was charged under the following subsection of the corruption

of minors statute:

Whoever, being of the age of 18 years and upwards, by any

course of conduct in violation of Chapter 31 (relating to sexual

offenses) corrupts or tends to corrupt the morals of any minor

less than 18 years of age, or who aids, abets, entices or

encourages any such minor in the commission of an offense

under Chapter 31 commits a felony of the third degree.

18 Pa.C.S. § 6301(a)(1)(ii).

As we explained in Commonwealth v. Kelly, 102 A.3d 1025

(Pa.Super. 2014) (en banc):

Subsection (a)(1)(ii) identifies two distinct offenses. The part at

issue addresses the application of the corruption of minors

statute to sexual offenses committed by the adult defendant.

The second part of subsection (a)(1)(ii) addresses the

application of the corruption of minors statute where the

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defendant “aids, abets, entices or encourages” a minor to

commit a sexual offense. 18 Pa.C.S. § 6301(a)(1)(ii). Considered

together, these provisions evidence a clear intent to provide

additional penalties when the act or acts that corrupt the morals

of a minor are sexual offenses, irrespective of whether the

sexual offense was committed by an adult defendant or a minor

victim.

Id. at 1030.

Presently, we are dealing with the former crime, pertaining to sexual

offenses committed by the defendant. As indicated by the statutory text,

the Commonwealth was required to establish that the Appellant committed a

course of conduct in violation of Chapter 31 (relating to sexual offenses),

which corrupted or tended to corrupt the morals of S.L. The Commonwealth

submits that Appellant committed multiple violations of indecent assault.

(a) Offense defined.--A person is 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:

....

(2) the person does so by forcible compulsion; [or]

(3) the person does so by threat of forcible compulsion that

would prevent resistance by a person of reasonable resolution[.]

....

18 Pa.C.S. § 3126. Furthermore, the definitions section defines the

pertinent terms as follows:

“Forcible compulsion.” Compulsion by use of physical,

intellectual, moral, emotional or psychological force, either

express or implied. The term includes, but is not limited to,

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compulsion resulting in another person's death, whether the

death occurred before, during or after sexual intercourse.

....

“Indecent contact.” Any touching of the sexual or other

intimate parts of the person for the purpose of arousing or

gratifying sexual desire, in any person.

18 Pa.C.S. § 3101.

Appellant’s argument that the evidence was insufficient attaches great

significance to the fact that the jury acquitted him of IDSI.

A careful review of the facts as fully set forth by the appellant

clearly indicate insufficiency as a matter of law. First, we can

all agree that the acquittal on the IDSI charge removes

that offense from consideration as part of "any course of

conduct." Once that is removed from the equation, what can we

find in the record that establishes a sexual offense? All that

remains is the consensual sexual intercourse between Mr. Reese

and [S.L.]. Said consensual intercourse cannot be considered as

a "sexual offense" under Chapter 31 so as to be an act that

would fall into a "course of conduct."

The "accidental touching" at the gym is not a sexual offense.

Assuming arguendo that we would view it as a sexual offense it

is one act: a single episode that does not constitute a "course of

conduct." Additionally, it is impossible for any argument to

prevail which posits that the oral sex as testified to by the

alleged victim can serve as a sexual offense since Officer Reese

was acquitted of the IDSI charge.

Appellant’s brief at 16-17 (emphasis added).

Next, Appellant cites Kelly, in which we held that the “course of

conduct” element of (a)(1)(ii) cannot be met by a single act.

Given the well-established meaning of the phrase, “course of

conduct,” we ascertain no ambiguity in its use in subsection

(a)(1)(ii) of the corruption of minors statute. Consequently, we

hold that the use of the phrase “course of conduct” in the first

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provision of subsection (a)(1)(ii) imposes a requirement of

multiple acts over time[.]

Kelly, supra at 1031.

Taken together, Appellant maintains that both oral sex incidents must

be removed from consideration, since the jury acquitted him of the facts

supporting the IDSI crime.2 Then, examining the remaining evidence, he

submits that the Commonwealth cannot meet its burden of proving a course

of conduct since all that remained was one act of consensual sexual

intercourse.

We begin with Appellant’s assertion that “acquittal on the IDSI charge

removes that offense from consideration[.]” Appellant’s brief at 16.

Appellant does not cite or discuss any case law in connection with that

argument. Preliminarily, we express our view that this argument is more

properly described as a challenge to the inconsistency of the jury’s verdict.

The United States Supreme Court has recognized that a court's

review of the evidentiary sufficiency of a particular conviction is

separate from its review of inconsistent verdicts, as sufficiency

review entails an assessment of whether the evidence was

sufficient for the jury to convict a defendant of a particular

offense and is “independent of the jury's determination that

evidence on another count was insufficient.” United States v.

Powell, 469 U.S. 57, 67, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).

Thus, the Supreme Court has explicitly cautioned that sufficiency

review “should not be confused with the problems caused by

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2 S.L. testified to performing oral sex twice. The Commonwealth’s

information indicated that the crimes alleged occurred between November 1,

2013, and June 15, 2014.

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inconsistent verdicts.” Id. Accordingly, in line with the high

Court, we emphasize that such challenges are more

appropriately characterized as challenges to the inconsistency of

the jury's verdict, rather than to the sufficiency of the evidence

to sustain a particular conviction.

Commonwealth v. Moore, 103 A.3d 1240, 1242 n.3 (Pa. 2014).

In Moore, our Supreme Court addressed whether a conviction for

possession of an instrument of a crime (“PIC”) could be upheld “when a

defendant has been otherwise acquitted of related offenses involving the use

of that instrument of crime[.]” Id. at 1241. Although the instant crimes at

issue are different, we find that the analysis is analogous.

The defendant therein was charged with murder, attempted murder,

and possession of an instrument of a crime, all relating to a shooting. Moore

testified that he fired the gun in self-defense. The jury acquitted him of

murder and attempted murder, but convicted him of PIC. Relying on

Commonwealth v. Gonzalez, 527 A.2d 106 (Pa. 1987), a panel of this

Court concluded that the jury’s acquittal of the charges involving use of the

firearm due to self-defense negated the criminality element of PIC. Moore

overruled Gonzalez, and reiterated that factual findings should not be

drawn from inconsistent verdicts:

Gonzalez is in substantial tension with the line of cases which

overwhelmingly permit inconsistent verdicts in a variety of

contexts, as we discuss below. As a result, we accept the

Commonwealth's invitation to revisit the validity of that decision.

Federal and Pennsylvania courts alike have long recognized that

jury acquittals may not be interpreted as specific factual

findings with regard to the evidence, as an acquittal does

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not definitively establish that the jury was not convinced

of a defendant's guilt. Rather, it has been the understanding

of federal courts as well as the courts of this Commonwealth that

an acquittal may merely show lenity on the jury's behalf, or that

“the verdict may have been the result of compromise, or of a

mistake on the part of the jury.” United States v. Dunn, 284

U.S. 390, 394, 52 S.Ct. 189, 76 L.Ed. 356 (1932); see

also Carter, 282 A.2d at 376. Accordingly, the United States

Supreme Court has instructed that courts may not make factual

findings regarding jury acquittals and, thus, cannot “upset”

verdicts by “speculation or inquiry into such

matters.” Dunn, 284 U.S. at 394, 52 S.Ct. 189.

It is because of the inability to ascertain the rationale behind a

jury's decision to acquit a defendant that the United States

Supreme Court has proclaimed that “[c]onsistency in the verdict

is not necessary,” expressly holding that a defendant may not

challenge his conviction on one count when it is inconsistent with

the jury's verdict of acquittal on another count. Id. at 393, 52

S.Ct. 189. This principle was first articulated by the United

States Supreme Court in the 1930s in Dunn, and was later

reaffirmed by the Court in Powell, wherein the Court—noting

that “[t]he rule established in Dunn v. United States has stood

without exception in this court for 53 years”—rejected an

appellant's request to adopt an exception to Dunn in cases

where a defendant is acquitted of a predicate offense, but

convicted of the compound offense. Powell, 469 U.S. at 69, 105

S.Ct. 471.

Id. at 1246–47 (emphasis added).

Moore noted that, in some particular contexts, the fact of acquittal

remains relevant. However, in those cases it is because the acquittal is

relevant as a matter of law, not fact. See Commonwealth v. Magliocco,

883 A.2d 479 (Pa. 2004) (evidence insufficient to support ethnic

intimidation, which at that time required proof of a predicate offense, where

jury acquitted defendant of the charged predicate offense). Moore

emphasized that in Magliocco, “[i]t was the fact of the jury’s acquittal—not

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any factual inference drawn from the acquittal—and the statutory elements

that drove our discussion.” Moore, supra at 1248.

Appellant herein seeks to use the fact of acquittal as precluding a

finding that Appellant’s course of conduct “violat[ed] . . . Chapter 31[.]” 18

Pa.C.S. § 6101(a)(1)(i). However, that acquittal simply means, at most,

that we cannot determine that IDSI crimes constituted the course of conduct

for a violation of Chapter 31. It does not mean that we must further find

that the jury would have similarly deemed Appellant not guilty of any other

Chapter 31 offense. Therefore, contrary to Appellant’s assertion, the jury’s

acquittal does not render it “impossible for any argument to prevail which

posits that the oral sex as testified to by the alleged victim can serve as a

sexual offense since Officer Reese was acquitted of the IDSI charge.”

Appellant’s brief at 17. That argument seeks to attach factual significance to

the acquittal, a proposition that Moore rejects. Inconsistent verdicts are

permissible and we must recognize “its corollary that factual findings may

not be inferred from a jury’s acquittal.” Moore, supra at 1248. We

therefore must examine the sufficiency of the evidence with the notion that

the jury could have credited S.L.’s testimony that she performed oral sex

despite the acquittal on the IDSI charge. That mercy was theirs to give, and

we cannot assume the jury determined that oral sex did not occur.

Properly characterized as a challenge to inconsistency of verdicts, we

find no merit to the sufficiency challenge. The jury was entitled to find a

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course of conduct from the events testified to by S.L, which included:

Appellant placing his hands on her nipples, placing his hand on her vagina,

asking her to perform oral sex twice, and having sex in Appellant’s vehicle.

The two oral sex incidents alone clearly qualify as crimes under indecent

assault, as those acts constitute indecent contact as defined in the statute.

Furthermore, S.L. explained that Appellant asked her to perform oral sex in

connection with promises to manipulate the criminal justice system in her

favor. Therefore, the jury was entitled to find that Appellant used

psychological coercion, both express and implied. Hence, we agree with the

Commonwealth that the evidence, when viewed in the light most favorable

to it as verdict winner, sufficed to establish a finding that S.L.’s participation

“was actually the product of coercion and manipulation resulting from

[Appellant]'s abuse of his position as a police officer. The obvious implication

in all of [Appellant]'s interactions with S.L. was that her favorable treatment

by the justice system was contingent on her willingness to submit to his

sexual advances.” Commonwealth’s brief at 9. We therefore reject

Appellant’s first claim.

Appellant’s second issue concerns the trial court’s denial of his motion

to recuse. Our Supreme Court has set forth the relevant principles and

considerations as follows:

The standards for recusal are well established. It is the burden of

the party requesting recusal to produce evidence establishing

bias, prejudice or unfairness which raises a substantial doubt as

to the jurist's ability to preside impartially. As a general rule,

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a motion for recusal is initially directed to and decided by the

jurist whose impartiality is being challenged. In considering a

recusal request, the jurist must first make a conscientious

determination of his or her ability to assess the case in an

impartial manner, free of personal bias or interest in the

outcome. The jurist must then consider whether his or her

continued involvement in the case creates an appearance of

impropriety and/or would tend to undermine public confidence in

the judiciary.

Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (citations

omitted).

The first portion, regarding the judge’s ability to assess the case in an

objective manner, is a subjective consideration on the part of the jurist that

is unreviewable. The latter portion, pertaining to whether the judge’s

involvement in the case creates an appearance of impropriety, is an

objective inquiry that we review for an abuse of discretion. See Goodheart

v. Casey, 565 A.2d 757, 764 (Pa. 1989) (the second consideration is

“whether [the judge]’s participation in the matter would give the appearance

of impropriety. To perform its high function in the best way, justice must

satisfy the appearance of justice.”) (quotation marks and citation omitted);

Lomas v. Kravitz, 130 A.3d 107, 136–37 (Pa.Super. 2015) (en banc)

(Stabile, J., concurring and dissenting) (tracing development of recusal

motions and appellate review thereof; “[W]hen confronted with a request for

judicial recusal, due process requires more than a jurist's examination of his

or her conscience for bias. Due process requires a more objective

standard.”).

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Initially, we note that the Commonwealth filed a motion seeking an

appointment of an out-of-county judge, due to the fact that Appellant

frequently appeared in Fayette County courtrooms in performing his job.

The Commonwealth stated that recusal “would eliminate the potential for

any real or apparent conflict of interest[.]” Motion, 9/9/15, ¶ 5. That

motion was denied shortly thereafter.

Appellant did not join this request. Instead, he filed his own motion

for recusal almost nine months later. The sole basis for that request was as

follows: “It has come to counsel’s attention that the Commonwealth plans to

call a witness who is a relative of President Judge Wagner during the

criminal proceeding. Counsel herein believes that this would create a

scenario where the Judge’s impartiality could be questioned by others.”

Motion for Recusal, 6/1/16, at 1.

On appeal, Appellant argues that the trial court erred by failing to

grant the recusal motion based on what the Commonwealth alleged

regarding the possible appearance of impropriety. However, Appellant did

not join the Commonwealth’s motion, and the sole basis for Appellant’s

independent motion was the possible conflict caused by a witness. Appellant

neither names that witness nor states that the witness actually testified.

Hence, we deem this claim waived.

Moreover, we would find no error in the denial. The trial court noted

that Appellant “has failed to establish any necessity for [recusal], and has

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not even attempted to demonstrate that there was any impropriety, or even

the appearance thereof . . . This Court had no doubts whatsoever about [its]

ability to preside fairly and [impartially].” Trial Court Opinion, 3/14/17, at 3.

Therefore, the trial court properly conducted the subjective inquiry regarding

the judge’s own ability to preside fairly, which is unreviewable. As to the

latter, objective inquiry, we agree that Appellant has failed to establish any

appearance of impropriety. There was no relationship between the judge

and Appellant other than the fact that their paths sometimes crossed when

performing their respective jobs. We would therefore find no abuse of

discretion in denying the recusal motion.

Finally, Appellant’s third issue alleges that the trial court abused its

discretion in denying his motion for a change of venue. The motion claimed

that this case received greater attention than normal in the media, thereby

prejudicing the ability to select an impartial jury. The trial court denied the

claim without prejudice to Appellant’s ability to raise the claim later should it

appear that selecting a jury proved difficult. Appellant did not renew the

motion.

As with the case with recusal, our system entrusts the trial court with

the initial decision on change of venue, recognizing that it “is in the best

position to assess the atmosphere of the community and to judge the

necessity of the requested change.” Commonwealth v. Karenbauer, 715

A.2d 1086, 1092 (Pa. 1998) (citation omitted). A defendant must show that

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“pre-trial publicity resulted in actual prejudice that prevented the impaneling

of an impartial jury.” Id. (citation omitted). Thus, the mere existence of

pre-trial publicity is not sufficient, and that is all that Appellant has

established. We find no abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/23/2018

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