Com. v. Kennedy, S.

J-A24015-21


                                   

2021 PA Super 249

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  SHAMON KENNEDY                               :
                                               :
                       Appellant               :   No. 441 EDA 2021

            Appeal from the PCRA Order Entered January 6, 2021
    In the Court of Common Pleas of Chester County Criminal Division at
                      No(s): CP-15-CR-0001545-2008


BEFORE:      LAZARUS, J., DUBOW, J., and PELLEGRINI, J.*

OPINION BY LAZARUS, J.:                             FILED DECEMBER 16, 2021

       Shamon Kennedy appeals pro se from the order, entered in the Court of

Common Pleas of Chester County, denying as untimely his fourth petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.

Upon careful review, we affirm.

       On April 1, 2009, Kennedy was sentenced to 25 years’ imprisonment in

federal court on unrelated charges. In July 2009, Kennedy was convicted, in the

instant case, of numerous charges, including aggravated assault, recklessly

endangering another person, conspiracy, and firearms offenses.1 On December

11, 2009, the trial court sentenced Kennedy to a term of 12 to 24 years’

imprisonment; his sentence was ordered to be served consecutively to the

____________________________________________


* Retired Senior Judge assigned to the Superior Court.


1 The jury found Kennedy not guilty of criminal attempt to commit homicide and

criminal conspiracy.
J-A24015-21



federal sentence that he was then-currently serving. Kennedy filed a motion to

modify sentence, which was denied by the trial court on April 15, 2010. On May

17, 2010, Kennedy filed a direct appeal; counsel sought to withdraw on appeal

under Anders.2        This Court affirmed Kennedy’s judgment of sentence and

granted counsel’s petition to withdraw.              See Commonwealth v. Kennedy,

1338 EDA 2010 (Pa. Super. filed Nov. 24, 2010) (unpublished memorandum

decision).    Kennedy did not seek allowance of appeal with the Pennsylvania

Supreme Court.

       Kennedy filed four PCRA petitions. His first petition, which was timely filed

on November 22, 2011, raised claims of ineffective assistance of counsel and a

claim that the court improperly permitted the Commonwealth to cross-examine

Kennedy about his prior federal drug conviction and related drug case.

Appointed PCRA counsel3 filed an amended petition raising claims of ineffective
____________________________________________


2 Anders v. California, 

386 U.S. 738

 (1967).


3 Originally, the court appointed Robert P. Brendza, Esquire, to represent Kennedy in

his first PCRA petition. Counsel petitioned for leave to withdraw as counsel pursuant
to Turner/Finley. See Commonwealth v. Turner, 

544 A.2d 927

 (Pa. 1988);
Commonwealth v. Finley, 

550 A.2d 213

 (Pa. Super. 1988) (en banc). In his no-
merit letter to Kennedy, counsel stated that because our Court on direct appeal had
found no legal merit to Kennedy’s claim that the trial court erred by permitting the
jury to hear testimony about Kennedy’s prior federal drug conviction, the claim had
been previously litigated under the PCRA. See Turner/Finley No-Merit Letter,
1/24/12, at 1; see also 42 Pa.C.S.A. § 9544(a)(2). With regard to Kennedy’s
remaining issue that trial counsel was ineffective for failing to question a defense
witness about Kennedy’s relationship with a third party, counsel stated that the
examination of witnesses “is largely a matter of trial strategy to be determined by
counsel and a defendant is not entitled to relief simply because the strategy may have
been unsuccessful.” See Turner/Finley No-Merit Letter, 1/24/12, at 2. However,
counsel subsequently was granted leave to withdraw due to a potential conflict of
interest and new PCRA counsel was appointed.

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assistance of counsel (failure to present defense witness; failure to file motion

in limine to exclude mention of federal conviction).       After the court issued

Pa.R.Crim.P. 907 notice of its intention to dismiss Kennedy’s first petition without

a hearing, Kennedy filed a pro se response and supplemental pro se response to

the PCRA court stating that appointed counsel did not amend his pro se petition

as he had requested. On October 15, 2012, the PCRA court dismissed Kennedy’s

petition.

       Kennedy filed a timely pro se notice of appeal; our Court ordered PCRA

counsel to file either a Rule 1925(b) concise statement of errors complained of

on appeal or a proper Anders4 brief. Counsel filed a “statement of intent to file

an Anders/McClendon brief in lieu of filing a Rule 1925(b) statement.” Despite

being advised that the court could not accept Kennedy’s pro se filings and would

forward any such filings to counsel of record, Kennedy filed his pro se Rule

1925(b) statement. In response, counsel filed a statement of her intent to file

an Anders brief, concluding that after “review[ing] the record . . . [she] has

concluded that there are no meritorious issues for review” and that the notice

was “filed in lieu of a [c]oncise [s]tatement of [e]rrors [c]omplained of on

[a]ppeal.”    Statement of Intent, 12/28/12, at 2.

____________________________________________


4  Technically, counsel was required to file a Turner/Finley letter and
accompanying petition to withdraw—not an Anders brief and accompanying
petition—in order to seek withdrawal from a collateral appeal. However, because
the bar to withdraw under Anders is higher than that under Turner/Finley, we
have permitted such briefs to be filed in collateral appeals.               See
Commonwealth v. Widgins, 

29 A.3d 816

, 817 n.2 (Pa. Super. 2011)
(“Because an Anders brief provides greater protection to a defendant, this Court
may accept an Anders brief in lieu of a Turner/Finley letter.”).
                                               -3-
J-A24015-21



       Subsequently, counsel filed an improper Anders brief, and our Court

remanded the case and denied counsel’s request to withdraw for failure to

comply with the withdrawal requirements. Although counsel ultimately filed an

advocate’s brief on Kennedy’s behalf, our Court found all of Kennedy’s issues

waived    due    to   counsel’s     failure     to    file   a   Rule   1925(b)   statement.

Commonwealth v. Kennedy, 3166 EDA 2012 (Pa. Super. filed Sept. 18, 2013)

(unpublished memorandum decision).                   PCRA counsel filed an unsuccessful

motion for reconsideration that our Court denied on October 1, 2013. On April

16, 2014, the Pennsylvania Supreme Court denied Kennedy’s petition for

allowance of appeal.

       On April 9, 2015, Kennedy filed a second PCRA petition alleging that PCRA

counsel: was ineffective for failing to re-plead all of the claims he presented in

his original, pro se petition; failed to file a Rule 1925(b) statement on collateral

appeal; and filed an improper Anders brief, even after being instructed by our

Court on remand how to properly proceed.                The second petition was denied as

untimely on May 7, 2015, after the PCRA court issued Rule 907 notice of its

intent to dismiss the petition without a hearing and Kennedy filed a pro se

response thereto.5 Kennedy filed a pro se appeal and Rule 1925(b) statement

from the denial of that second petition.




____________________________________________


5 In his Rule 907 response, Kennedy was clearly mistaken in his belief that he

had until one year from the date the Pennsylvania Supreme Court denied review
of his petition for allowance of appeal from his collateral appeal, on April 16,
2014, to file a timely second PCRA petition.
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J-A24015-21



       While his collateral appeal was pending, Kennedy filed a third pro se PCRA

petition on July 5, 2015,6 raising the newly-discovered facts and governmental

interference exceptions under the PCRA. Kennedy asserted the PCRA court, the

District Attorney, and “federal incarceration” were the entities that created

governmental interference.         See Pro Se 3rd PCRA Petition, 7/5/15, at 1-3.

However, on July 28, 2015, the court quashed Kennedy’s third petition, without

prejudice, “as premature because [his] appeal from the denial of his second

PCRA petition [was] still pending in the Superior Court of Pennsylvania.” Order,

7/28/15.     On October 15, 2015, at Kennedy’s request, our Court withdrew

Kennedy’s appeal, with prejudice. See Order, 10/15/15.

       On January 29, 2016,7 Kennedy filed, pro se, an “Amended 3rd PCRA

Petition,” seeking to resurrect the claims advanced in his prior, quashed petition.

This amended third petition was also dismissed as untimely. Kennedy filed a pro

se collateral appeal from that decision; the appeal was dismissed due to his

failure to file an appellate brief. See Order, No. 1183 EDA 2016, 10/13/16.

       Kennedy filed the instant petition, his fourth, on August 20, 2020. The

PCRA court issued its Pa.R.Crim.P. 907 notice of intent to dismiss Kennedy’s

petition on September 10, 2020. After receiving multiple extensions, Kennedy

filed a response to the court’s Rule 907 notice on December 14, 2020.           On

January 6, 2021, the court formally dismissed the petition. Kennedy timely filed


____________________________________________


6 The court received Kennedy’s third PCRA petition on July 13, 2015.


7 The court received Kennedy’s “Amended 3rd Petition” on February 5, 2016.

                                               -5-
J-A24015-21



a notice of appeal,8 followed by a court-ordered Rule 1925(b) statement.

Kennedy raises the following issues for our review:

       1. The PCRA court erred by holding Kennedy to an erroneous
       heightened standard of “diligence” in discovering unavailable
       evidence and law in aid[] to file a timely [and] proper appeal in state
       court in violation of Commonwealth v. Burton[, 

121 A.3d 1063

       (Pa. Super. 2015),] as it applies to prisoner[s] lacking access to
       public information[, thus] depriving him of due process.

       2.   The PCRA court’s err[or] of misapprehending Kennedy’s
       governmental interference claim that is brought against the PCRA
       court and the Superior Court—not against the federal prison[—]
       caused an erroneous analysis under [section] 9545(b)(1)(i) [of the
       PCRA,] resulting in a due process violation.

       3. The PCRA court’s failure to order an evidentiary hearing for a full
       and fair opportunity to be heard will cause[] a fundamental
____________________________________________


8 Kennedy’s pro se notice of appeal of the court’s January 6, 2021 order was not

docketed by the clerk of courts until February 22, 2021, more than thirty days
after the entry of the order. Accordingly, the notice of appeal is presumptively
untimely. See Pa.R.A.P. 903 (notice of appeal shall be filed within thirty days
of entry of order from which appeal is taken). On July 14, 2021, this Court
entered a rule to show cause why the appeal should not be quashed as untimely
filed. Kennedy filed a pro se response on July 21, 2021, followed by an amended
response on August 2, 2021. In his amended response, Kennedy attached a
copy of a postage order and receipt from the Department of Corrections
indicating that he paid for a certified mailing to the Chester County Clerk of
Courts on February 2, 2021. Kennedy also attached a copy of a certified mail
receipt bearing a postmark dated February 5, 2021. On August 16, 2021, this
Court entered an order informing the parties that the issue raised in the rule to
show cause would be referred to the panel assigned to decide the merits of this
appeal.

“[T]he prisoner mailbox rule provides that a pro se prisoner’s document is
deemed filed on the date he delivers it to prison authorities for mailing.”
Commonwealth v. DiClaudio, 

210 A.3d 1070, 1074

 (Pa. Super. 2019). Here,
the documentation Kennedy submitted demonstrates that he delivered his notice
of appeal to prison authorities on February 2, 2021, and it was postmarked on
February 5, 2021. Accordingly, pursuant to the prisoner mailbox rule, we
conclude that Kennedy’s notice of appeal was timely filed.

                                               -6-
J-A24015-21


      miscarriage of justice in violation of the state and federal
      constitution[s] under procedural and substantive due process.

Brief of Appellant, at 9.

      In reviewing the denial of PCRA relief, “we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 

86 A.3d 795, 803

 (Pa. 2014) (quotations and

citations omitted).

      Pursuant to the PCRA, any petition—including a second or subsequent

one—must be filed within one year of the date the judgment of sentence

becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Burton, 

158 A.3d 618

, 623 n.7 (Pa. 2017).      Section 9545(b)(3) provides a judgment of

sentence becomes final at the conclusion of direct review or at the expiration of

the time period for seeking the review. 

Id.

      Instantly, Kennedy’s judgment of sentence became final on December 24,

2010, thirty days after our Court affirmed his judgment of sentence, when

Kennedy’s time expired to seek discretionary appellate review in the Supreme

Court of Pennsylvania. See id.; see also Commonwealth v. Kennedy, 1338

EDA 2010 (Pa. Super. filed Nov. 24, 2010) (unpublished memorandum decision);

Pa.R.A.P. 1113. Thus, Kennedy had until December 24, 2011, to file a timely

PCRA petition. Kennedy’s instant petition, however, was not filed until August

28, 2020; thus, it is facially untimely.   In order to overcome the timeliness

requirements of the PCRA, Kennedy was required to plead and prove a section

9545(b)(1) exception under the PCRA. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).

Moreover, Kennedy’s petition had to have been “filed within one year of the date


                                      -7-
J-A24015-21



the claim could have been presented.” Id. at § 9545(b)(2).9 Because Kennedy

has failed to prove a timeliness exception, we conclude that the PCRA court

properly dismissed his petition.

       Kennedy asserts that he lacked access to public information that he was

only able to procure—after he finished serving a federal sentence—when he was

remanded to SCI Rockview in 2019. In state confinement, Kennedy claims he

had “access to state law [materials] and procedures” and that is where he

“signed up for sessions in the Law Library where [he] gained access to the Rules

of Criminal Procedure under the PCRA.”               Appellant’s Pro Se Brief, at 14-17;

Appellant’s Pro Se Reply Brief, at 2-3.              Additionally, Kennedy asserts that

because federal correctional institutions do not provide access to such state law

cases or rules of procedure, “all state appellate recourse w[as] unknown to [him]

from the time he was in federal custody from his start date of January 18, 2006[,

until he was transferred to Chester County Prison on August 27, 2019].”

Appellant’s Pro Se Brief, at 17.10
____________________________________________


9 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days

(Dec. 24, 2018), extending the time for filing from sixty days of the date the
claim could have been presented, to one year. The amendment applies to claims
arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24, P.L. 894,
No. 146, § 3. Here, Kennedy’s claims arose after December 24, 2017, thus, the
one-year time limit applies to his case.

10 Kennedy cites to Commonwealth v. Burton, 

121 A.3d 1063

 (Pa. Super.
2015), claiming that as a pro se incarcerated petitioner, he is not subject to the
strictures of the public record presumption. See 

id. at 1073

 (“the presumption
of access to information available in the public domain does not apply where the
untimely PCRA petitioner is pro se.”). Notably, in Commonwealth v. Small,

238 A.3d 1267

, 1268 (Pa. 2020), our Supreme Court recently “disavow[ed] the
(Footnote Continued Next Page)

                                               -8-
J-A24015-21



       The specific issue Kennedy asserts in his petition is that “[o]n his 1st PCRA

[petition], Kennedy’s attorney caused his appellate rights to be waived by

failing to file a 1925(b) statement [] while he was in federal custody without

access to state law and procedures[.]”               Appellant’s Brief, at 16 (emphasis

added). Kennedy claims he was unaware that he could have filed a serial PCRA

petition seeking reinstatement of his rights, still within the one-year time

strictures of the PCRA, until he was able to research Pennsylvania procedure and

case law in 2019.

       The Pennsylvania Supreme Court has unanimously held that the PCRA

“provides the exclusive remedy for post-conviction claims seeking restoration of

an appellant’s rights due to counsel’s failure to perfect a direct appeal.”

Commonwealth v. Eller, 

807 A.2d 838

 (Pa. 2002) (emphasis added). Here,

Kennedy did perfect a direct appeal. On appeal, our Court reviewed counsel’s

Anders petition and brief and conducted its own independent review of the case,

which included analyzing claims regarding the admission of expert testimony,

the overruling of a defense objection, and the propriety of the Commonwealth’s

cross-examination of Kennedy. See Commonwealth v. Kennedy, 1338 EDA

2010 (Pa. Super. filed Nov. 24, 2010) (concluding appeal frivolous, permitting

counsel to withdraw, and affirming judgment of sentence). On direct appeal,

our Court also deferred Kennedy’s claims of trial counsel’s ineffectiveness for
____________________________________________


public record presumption [and overruled any] earlier decisions, including [its]
own, [that] relied upon and applied that presumption to reject a petitioner’s
claim.” Thus, the presumption no longer exists for any PCRA petitioner, whether
incarcerated or not. However, as discussed infra, the holdings of Burton and
Small provide Kennedy no relief.
                                               -9-
J-A24015-21



failing to raise certain objections to the Commonwealth’s cross-examination

regarding one or more federal cases in which Kennedy was the defendant and

for not objecting to the court’s cautionary instruction and/or not requesting a

mistrial. See id. at *9; see also Commonwealth v. Grant, 

813 A.2d 726

 (Pa.

2002) (holding ineffectiveness claims must be raised in collateral proceedings

under PCRA, not on direct appeal).

      Instantly, PCRA counsel’s failure to file a Rule 1925(b) statement caused

Kennedy’s collateral appeal rights to be foreclosed. 

Id.,

 3166 EDA 2012 (Pa.

Super. filed Sept. 18, 2013). In Commonwealth v. Bennett, 

930 A.2d 1264

(Pa. 2007), our Supreme Court held that while “PCRA counsel’s ineffectiveness

cannot be advanced as a newly-discovered ‘fact’ for purposes of application of

the subsection 9545(b)(1)(ii) exception to the PCRA’s one-year time bar, [it] has

no application in cases where PCRA counsel's ineffectiveness per se completely

forecloses review of collateral claims.”      Id. at 1130.   See 42 Pa.C.S.A. §

9545(b)(1)(ii). In Bennett, the Court concluded that the petitioner was entitled

to an extension to file a collateral appeal since he established that counsel had

abandoned him by failing to file an appellate brief, granting the petitioner

reinstatement of his PCRA appeal rights nunc pro tunc in an untimely second

PCRA petition. Id. at 1266. Later, in Commonwealth v. Peterson, 

192 A.3d 1123

 (Pa. 2018), our Supreme Court similarly held that the section

9545(b)(1)(ii) exception applied where PCRA counsel filed an untimely PCRA

petition. Under such facts, the Court found that counsel’s actions amounted to

ineffectiveness per se as it “completely foreclosed [defendant] from obtaining


                                     - 10 -
J-A24015-21



review of the collateral claims set forth in his first PCRA petition[,]” likening it to

cases where counsel has failed “to file a notice of appeal, Rule 1925(b)

statement, brief, or petition for allowance of appeal.” 

Id. at 1131-32

 (emphasis

added).

      Here, counsel failed to file a Rule 1925(b) statement on appeal from the

denial of Kennedy’s first PCRA petition, after he unsuccessfully petitioned to

withdraw on appeal. In that petition, Kennedy reiterated several claims of trial

counsel’s ineffectiveness that were raised on direct appeal, but where review of

those claims was deferred to collateral proceedings pursuant to 

Grant, supra.

When Kennedy filed his second PCRA petition, pro se, the PCRA’s one-year filing

time limit had expired. Thus, his petition was dismissed as untimely. Kennedy

filed a pro se appeal from that dismissal, which he later withdrew. Kennedy filed

a third PCRA petition that was also dismissed as untimely.           Kennedy filed a

collateral appeal from that decision; the appeal was dismissed for failure to file

an appellate brief. Now, in his fourth petition, he alleges the newly-discovered

facts exception under section 9545(b)(1)(ii), claiming that until 2019 he was

unaware that he was entitled to have his collateral appeal rights reinstated nunc

pro tunc after his claims were found waived by our Court.

      Based on the case law cited herein, particularly Bennett, Kennedy was

presumably entitled to have his collateral appeal rights reinstated nunc pro tunc

when his first collateral appeal was dismissed in September of 2013. However,

because Kennedy’s current petition is untimely, in order to establish jurisdiction

under the PCRA, he must now plead and prove a PCRA timeliness exception.


                                        - 11 -
J-A24015-21



Kennedy has chosen to proceed under subsection 9545(b)(1)(ii), which requires

a petitioner to prove that the facts were “unknown” to him and that he could not

uncover them with the exercise of “due diligence.”

      Kennedy alleges that he “discovered [u]nknown [f]acts once a state

impediment was removed which denied him adequate access to the court[.]”

Appellant’s Brief, at 14. Those “unknown facts” amounted to “legal materials,

computer software or books pertaining to state law and procedure[,]” which he

did not have access to when he was incarcerated in a federal penitentiary. Our

Supreme Court has consistently held that judicial opinions do not amount to new

“facts” under section 9545(b)(1)(ii) of the PCRA. See Commonwealth v. Reid,

235 A.3d 1124

, 1148 (Pa. 2020); Commonwealth v. Watts, 

23 A.3d 980, 987

(Pa. 2011)      (subsequent decisional law does not amount to new fact under

section 9454(b)(1)(ii)). Similarly, we find rules of state procedure are not “facts”

for purposes of pleading the newly-discovered facts exception under the PCRA.

As the Court noted in Watts, a “fact” is distinguishable from the “law,” the latter

of which is “the embodiment of abstract principles applied to actual events.” 

Id. at 987

. See also Commonwealth v. Baroni, 

795 A.2d 1007

 (Pa. Super. 2002)

(defendant’s actual knowledge of obscure rule of law involving proper charge

under corpus delicti not considered “facts” as contemplated by section

9454(b)(ii)).

      Kennedy also raises the governmental interference exception, found in

section 9545(b)(1)(i), which provides that “the failure to raise the claim

previously was the result of interference by government officials with the


                                      - 12 -
J-A24015-21



presentation of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United States.” 42 Pa.C.S.A.

§ 9545(b)(1)(i). Specifically, Kennedy claims that the PCRA court and Superior

Court committed a due process violation where the courts “did not ascertain

[his] lack of access to Pennsylvania law” all the while knowing that PCRA counsel

“was ineffective for failing to preserve [Kennedy’s] appellate rights by failing to

file a 1925(b) statement.” Appellant’s Brief, at 30-31. Such actions, he asserts,

amounted to “a constructive interference with [Kennedy’s] right to file an

appeal.” Id. at 31.

      In order to establish the governmental interference exception, a petitioner

must plead and prove: (1) the failure to previously raise the claim was the result

of interference by government officials, and (2) the petitioner could not have

obtained   the   information   earlier    with    the   exercise   of   due   diligence.

Commonwealth v. Abu-Jamal, 

941 A.2d 1263, 1268

 (Pa. 2008).

      In essence, Kennedy complains that because our Court did not remand his

collateral appeal for the appointment of new counsel or for the filing of a nunc

pro tunc 1925(b) statement, he was effectively prevented from having his claims

addressed on their merits. Kennedy’s argument merely attempts to challenge

our Court’s October 1, 2013 decision to deny his motion to reconsider. We find

no merit to this claim where Kennedy fails to offer a reasonable explanation why,

with the exercise of due diligence, he did not ascertain this alleged interference

of governmental official earlier and seek redress in his prior PCRA petitions or

collateral appeals, especially where he was presumptively aware that this Court


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had   affirmed     the   order    dismissing       his   first   PCRA   petition   in   2013.

Commonwealth v. Rizvi, 

166 A.3d 344

 (Pa. Super. 2017).11

       Accordingly, because Kennedy has failed to plead and prove a PCRA

timeliness exception, we affirm the PCRA court’s dismissal of his petition as

untimely.

       Order affirmed.

       Judge Dubow joins this Opinion.

       Judge Pellegrini concurs in the result.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2021




____________________________________________


11 While we affirm the order dismissing Kennedy’s fourth, untimely PCRA petition

based upon a strict interpretation of the PCRA time bar provisions, we observe
that he has, by reasons of procedural defaults, lost his rule-based right to a
meaningful appeal from the dismissal of his first, timely PCRA petition. In short,
we have not yet had an opportunity to review the merits of Kennedy’s collateral
challenges to his convictions. “Nevertheless, the PCRA time requirements must
be strictly construed and do not permit equitable exceptions.” Commonwealth
v. Robinson, 

837 A.2d 1157, 1161

 (Pa. 2003).
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