J-S02027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    MARK T. STORMS                              :
                                                :
                        Appellant               :   No. 1860 EDA 2017

             Appeal from the Judgment of Sentence April 18, 2017
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0004007-2016


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                                   FILED MARCH 13, 2018

        Appellant Mark T. Storms appeals from the judgment of sentence

imposed after       a   jury   found    him    guilty   of   voluntary manslaughter–

unreasonable belief that killing was justifiable1 and recklessly endangering

another person (“REAP”).2            Appellant contends that the evidence was

insufficient to sustain his conviction for voluntary manslaughter because the

Commonwealth failed to disprove his self-defense claim. He also challenges

the discretionary aspects of his sentence. We affirm.

        We state the facts as set forth by the trial court:


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S. § 2503(b).
2   18 Pa.C.S. § 2705.
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         [Appellant] shot and killed 27-year-old Robert E. Braxton, III
     [(“Decedent”)], on April 24, 2016, during a Sunday morning
     service at Keystone Fellowship Church in Montgomery Township,
     Montgomery County. The events leading to the shooting, which
     occurred in the midst of numerous parishioners, began when
     [Decedent] entered the church in an agitated state shortly after
     the service had begun and moved into a row of chairs in the
     overflow seating area. A fellow parishioner in the row behind
     tapped [Decedent] on the back to alert him that he may be in a
     section of seats already occupied by others who had momentarily
     left. [Decedent] told the person not to touch him, using obscene
     language, and created a verbal disturbance that prompted ushers
     to try to calm him down.[fn2] During this time, [Decedent] told
     anyone who attempted to intervene to leave him alone. An
     associate pastor, seeing that the ushers’ efforts only exacerbated
     [Decedent]’s agitation, had them back away and directed
     someone to call the police.

        [fn2] [Appellant] told investigators he saw [Decedent]
        pushing the parishioner, but the parishioner testified at trial
        that [Decedent] never touched him nor got close to him.

        [Appellant], who was sitting nearby with his wife and young
     son, did not believe enough was being done and decided to
     intervene.[fn3] He was armed at the time with a loaded 9-
     millimeter semi-automatic pistol concealed in a holster on his right
     hip.[fn4] [Appellant] had observed [Decedent] become agitated
     each time someone addressed him and believed [Decedent] would
     not leave the church without violence.[fn5]        He admittedly
     approached [Decedent] not with the intent to calm him down but
     to get him out of the church.

            [Appellant] had no position of authority with the church
        [fn3]

        at the time and was not a law enforcement officer.
        [fn4][Appellant] had a permit to carry a concealed weapon.
        As soon will become relevant, he also obtained a gold
        concealed weapon permit “badge.” The unofficial badge is
        not issued in connection with the permit but can be obtained
        on the Internet.
        [fn5]While [Appellant] attempted in his trial testimony to
        distance himself from his statement to investigators that he
        did not think [Decedent] would leave without violence, the


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         jury as fact-finder was free to disbelieve his self-serving
         testimony.

         With the two separated by a row of chairs, [Appellant] asked
      [Decedent] to go outside with him. When [Decedent] refused,
      [Appellant] flashed his unofficial concealed weapon permit badge.
      [Decedent] recognized it as a fake, telling [Appellant] as much in
      colorful language. [Appellant] then revealed his 9-millimeter
      pistol. The victim reacted by punching [Appellant] in the face and
      proceeding toward him. [Appellant] absorbed the blow and,
      rather than retreat down the open aisle behind him or call for help
      from the hundreds of people in church, squared himself into a
      ready fire stance and shot the unarmed [Decedent] twice.[fn6] One
      of the bullets pierced [Decedent]’s heart and he died soon
      thereafter despite life-saving efforts by fellow parishioners and
      emergency medical responders.

         [fn6][Appellant] testified that [Decedent] did not have a
         visible weapon and no trial witness stated they ever saw
         [Decedent] in possession of a weapon.

Trial Ct. Op., 8/7/17, at 1-3 (citations and footnote omitted).

      Appellant was arrested and charged with voluntary manslaughter and

REAP in reference to the other parishioners. At the three-day jury trial, the

following testimony was elicited.    After the ushers backed away and left

Decedent alone, one of the pastors, Rusty S. Williams, III, testified that he

was not yelling.    N.T., 11/1/16, at 288-89.       However, after Appellant

approached and asked Decedent to go outside, Williams testified he could see

Decedent starting to yell and that “things were escalating again.”          N.T.,

11/1/16, at 289-90; see also N.T., 11/2/16, at 16-17, 19 (Joseph McDevitt,

another witness, testified that Decedent had calmed down prior to Appellant

speaking with him).    Williams’ police statement, which the Commonwealth

used to refresh his recollection and was admitted into evidence without


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objection, also reflected Williams’ belief that Appellant’s “actions escalated the

situation more than what it had to be.”               N.T., 11/1/16, at 315;

Commonwealth’s Ex. 30.

      When the incident escalated and Decedent punched Appellant, Appellant

shot Decedent from a distance of about eight feet. N.T., 11/1/16, at 133.

Lauren Hendrie, another witness, testified that no one and nothing impeded

Appellant’s ability to retreat from the situation. Id. at 46. Jeffrey Lemon

similarly testified that no person and no thing was impeding Appellant from

leaving the area. Id. at 166.

      Appellant claimed self-defense.         Appellant testified he had no

opportunity to retreat after being punched. N.T., 11/2/16, at 59. Appellant

also believed that Decedent was “younger, bigger, faster, and stronger” than

him, could kill him, and would take his gun and use it. Id. at 57.

      The jury found Appellant guilty and the court ordered a pre-sentence

investigation and held a hearing, which we discuss in further detail below. The

court imposed its sentence of ten to twenty years’ imprisonment for voluntary

manslaughter, followed by two years’ probation for REAP. The court denied

Appellant’s post-sentence motion.

      Appellant timely appealed and timely filed a court-ordered Pa.R.A.P.

1925(b) statement. He raises the following issues, which we have reordered

for ease of disposition:

      1. Whether the evidence was insufficient to disprove, beyond a
      reasonable doubt, Appellant’s affirmative defense of self-defense?

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      2. Whether the sentencing court abused its discretion in deviating
      above the applicable standard and aggravated guideline range to
      impose a sentence of ten to twenty years for voluntary
      manslaughter without providing any statement of reasons for its
      extreme departure from the guideline range?

      3. Whether the sentencing court abused its discretion in imposing
      a manifestly unreasonable sentence above the applicable
      guideline range for the charge of voluntary manslaughter based
      solely upon factors already taken into account by the guidelines,
      without giving adequate consideration to mitigating factors such
      as Appellant’s clear remorse, his cooperation with law
      enforcement, and witness descriptions of Appellant as an
      otherwise peaceable man of good character?

Appellant’s Brief at 5.

      In support of his first issue, Appellant argues that the Commonwealth

failed to present evidence that in the seconds after he was punched, he could

reasonably retreat.       Appellant’s Brief at 31.   In Appellant’s view, the

Commonwealth did not establish the unreasonableness of his fear that

Decedent could gain control of and use Appellant’s gun. Id. at 32. He cites

testimony that Decedent’s erratic behavior and punching of Appellant support

the reasonableness of his belief that Decedent would seriously harm him and

others.   In addition, Appellant contends that the Commonwealth failed to

prove that he initiated the use of deadly force. Id. Appellant argues that the

record established that he was “calmly speaking” to Decedent, before

Decedent decided to “suddenly and unexpectedly” punch Appellant. Id.

      The trial court initially argues that Appellant waived his challenge to the

sufficiency of evidence disproving his claim of self-defense because he failed


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to identify the precise element or elements at issue.3 Trial Ct. Op., 8/7/17, at

8. Regardless, in the court’s view, the record established that Appellant did

not have a reasonable belief that he had to use deadly force to protect the

hundreds of people in the room and that by displaying his gun, Appellant

provoked the use of force. The court notes that Decedent punched Appellant

only after he brandished his weapon. Id. at 9. Finally, the trial court states

Appellant could have safely retreated without having to shoot Decedent.

       Our standard of review follows:

       Because a determination of evidentiary sufficiency presents a
       question of law, our standard of review is de novo and our scope
       of review is plenary. In reviewing the sufficiency of the evidence,
       we must determine whether the evidence admitted at trial and all
       reasonable inferences drawn therefrom, viewed in the light most
       favorable to the Commonwealth as verdict winner, were sufficient
       to prove every element of the offense beyond a reasonable doubt.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa. Super. 2017)

(citations omitted).

       By way of background,

          The use of force against a person is justified when the actor
       believes that such force is immediately necessary for the purpose
       of protecting himself against the use of unlawful force by the other
       person. When a defendant raises the issue of self-defense, the
       Commonwealth bears the burden to disprove such a defense
       beyond a reasonable doubt. While there is no burden on a
       defendant to prove the claim, before the defense is properly at
       issue at trial, there must be some evidence, from whatever

____________________________________________


3We decline to find waiver, as the trial court discerned and responded to
Appellant’s argument in its opinion. Cf. Commonwealth v. Laboy, 936 A.2d
1058, 1060 (Pa. 2007).


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      source, to justify a finding of self-defense. If there is any evidence
      that will support the claim, then the issue is properly before the
      fact finder.

Commonwealth v. Torres, 766 A.2d 342, 345 (Pa. 2001) (citations

omitted). After such evidence is adduced, the Commonwealth has the burden

of disproving Appellant’s defense beyond a reasonable doubt. Id.

      Under the Crimes Code, self-defense falls under the defense of

justification, which is a complete defense to criminal liability. See 18 Pa.C.S.

§ 502. Section 505(a) of the Code provides:

      The use of force upon or toward another person is justifiable when
      the actor believes that such force is immediately necessary for the
      purpose of protecting himself against the use of unlawful force by
      such other person on the present occasion.

Id. § 505(a). Section 505(b)(2) of the Crimes Code provides as follows:

      The use of deadly force is not justifiable under this section unless
      the actor believes that such force is necessary to protect himself
      against death [or] serious bodily injury . . . ; nor is it justifiable if:

         (i) the actor, with the intent of causing death or serious bodily
         injury, provoked the use of force against himself in the same
         encounter; or

         (ii) the actor knows that he can avoid the necessity of using
         such force with complete safety by retreating . . . .

Id. § 505(b). Thus, an actor’s belief that he needs to use deadly force must

be reasonable. If the actor actually, but unreasonably, believes that deadly

force is necessary to protect himself against death or serious bodily injury, he

exercises what is referred to as “imperfect self-defense.” Commonwealth v.




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Tilley, 595 A.2d 575, 582 (Pa. 1991). In sum, the Commonwealth meets its

burden of disproving self-defense

       if it proves any of the following: that the slayer was not free from
       fault in provoking or continuing the difficulty which resulted in the
       slaying; that the slayer did not reasonably believe that he was in
       imminent danger of death or great bodily harm, and that it was
       necessary to kill in order to save himself therefrom; or that the
       slayer violated a duty to retreat or avoid the danger.

Commonwealth v. Mouzon, 53 A.3d 738, 740-41 (Pa. 2012) (brackets,

citations, and quotation marks omitted).4

       Instantly, we agree with the trial court that the record establishes

Appellant escalated the situation by interjecting himself and brandishing his

weapon, which led to Decedent punching Appellant and subsequently his

death.    As set forth above, Williams and McDevitt testified that prior to

Appellant’s    actions,    Decedent      was   calm;   afterwards,   Decedent   was

aggravated. N.T., 11/1/16, at 289-90; N.T., 11/2/16, at 16-17, 19.

       Moreover, Hendrie and Lemon testified that Appellant could have safely

retreated. See N.T., 11/1/16, at 46, 166. Appellant, therefore, could have

avoided any use of deadly force. See Mouzon, 53 A.3d at 740-41. While

Appellant testified he believed he had no opportunity to retreat, N.T., 11/2/16,


____________________________________________


4 With respect to the defendant’s reasonable belief, there are two factors: “(1)
the defendant’s subjective belief that he had an honest, bona fide belief that
he was in imminent danger, to which expert testimony is admissible; and (2)
the objective measurement of that belief, i.e., the reasonableness of that
particular belief in light of the facts as they appear, to which expert testimony
is inadmissible.” Commonwealth v. Rivera, 108 A.3d 779, 792 (Pa. 2014).


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at 59, it was well within the fact-finder’s province to favor the other witnesses’

testimony to the contrary. See Commonwealth v. Brown, 52 A.3d 1139,

1163 (Pa. 2012). Therefore, Appellant’s claim that the Commonwealth failed

to disprove self-defense merits no relief.

      We briefly set forth the following as background for resolving Appellant’s

last two issues. At Appellant’s sentencing hearing, the court acknowledged

that the standard range sentence for voluntary manslaughter, including a

deadly   weapon     enhancement,     is   fifty-four   to   seventy-two   months’

imprisonment.     N.T., 4/18/17, at 6-7.     Numerous witnesses testified; the

Commonwealth moved additional victim impact statements into the record.

The court also reviewed Appellant’s December 24, 2016 sentencing statement,

which was not made part of the record. N.T., 4/18/17, at 75. According to

the court, in the statement, Appellant discussed three different occasions in

which he “interjected [himself] into a circumstance which could have caused

[his] death to save others.”    Id. at 78.    The court stated that Appellant’s

actions during those occasions were “problematic” because Appellant

perceived himself “as some type of hero that injects himself into certain

situations[.]” Id. at 80. The court continued:

      Certainly, this time, it didn’t work out.

      No luck here. Or did these never happen and this was an
      opportunity to carry out that fantasy of yours. I don’t know. That
      is a mystery. I guess we’ll never know. All I know is that I believe
      you are a danger to society.




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        In the present case, I have considered your age, the
     information about you that you have presented to me and that I
     found in the pre-sentence investigation, and that evidence that I
     found as the trial judge in considering your sentence.

        I can’t imagine -- I cannot imagine the pain of losing a child.
     This is probably the most difficult day I have had as a judge. This
     is such a heartbreaking circumstance, to lose a child in such a
     violent and unusual circumstance. I can’t seem to get it out of my
     mind, [Appellant], that -- we can’t forget that we are talking about
     the loss of a young man’s life.

       And the jury has spoken. I have to balance your rehabilitative
     needs, the safety of society, as well as the nature of the crime
     when I determine your sentence.

         I listened to all the testimony today. And I have come to this
     conclusion. I have read your letters of support as well. I know
     the heartache your family must feel. How strange it is that such
     religious families on both sides of the aisle are placed in this
     horrible, horrible heartbreaking situation.

        With that said, please stand.

                                 *      *     *

         There has been no dispute as to your personal background and
     circumstances found to be set forth in the pre-sentence
     investigation except the ones [Appellant’s counsel] mentioned
     [when they had corrected the PSI report earlier].

        As I said, the jury has spoken. And after considering these
     factors, I find that there would be an undue risk that during the
     period of probation or partial confinement you will commit another
     crime. You, sir, are in need of correctional treatment that can be
     provided most effectively by your commitment to an institution.

        And once again, a lesser sentence would depreciate the
     seriousness of your crime. I, therefore, find that a sentence of
     total confinement is proper.

N.T., 4/18/17, at 80-82.




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      Turning to Appellant’s arguments, he maintains that the court’s

sentence must be supported by a clear record and reflect a “dispassionate

decision to depart” from the guidelines.      Appellant’s Brief at 22 (quoting

Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. Super. 1999)). Appellant

opines the court’s reasoning, as set forth above, does not justify an upward

deviation from the recommended sentence in the sentencing guidelines. Id.

at 25. Appellant assails the absence of any factual basis to support the court’s

conclusion that he is a “danger to society.” Id. He concludes that the court

failed to acknowledge that the sentence departed from the guideline range.

Id.   Appellant argues that the court double-counted factors, such as

Decedent’s death, that are already taken into account by the sentencing

guidelines. Id. at 27.   The court, Appellant contends, overlooked mitigating

factors such as his age and cooperation with the police. Id.

      A discretionary challenge to a judgment of sentence is not appealable

as of right. Commonwealth v. Luketic, 162 A.3d 1149, 1159 (Pa. Super.

2017). We will exercise our discretion to consider the issue only if (1) the

appellant has filed a timely notice of appeal; (2) he has preserved the

sentencing issue at the time of sentencing or in a motion to reconsider and

modify his sentence; (3) he presents the issue in a properly framed statement

in his brief under Rule 2119(f) of the Rules of Appellate Procedure, pursuant

to Commonwealth v. Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the

words of Section 9781(b) of the Sentencing Code, 42 Pa.C.S. § 9781(b), “it


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appears that there is a substantial question that the sentence imposed is not

appropriate under this chapter.” See, e.g., Commonwealth v. Haynes, 125

A.3d 800, 807 (Pa. Super. 2015).        “A defendant presents a substantial

question when he sets forth a plausible argument that the sentence violates

a provision of the sentencing code or is contrary to the fundamental norms of

the sentencing process.” Luketic, 162 A.3d at 1160 (citation omitted).

      Here, Appellant has timely appealed and timely filed a post-sentence

motion preserving the sentencing issue he seeks to raise on appeal.        See

Luketic, 162 A.3d at 1159. Appellant has also preserved his issue in his Rule

2119(f) statement.   See id.     We therefore address whether Appellant has

raised a substantial question.

         A defendant presents a substantial question when he sets forth
      a plausible argument that the sentence violates a provision of the
      sentencing code or is contrary to the fundamental norms of the
      sentencing process.    One of the fundamental norms in the
      sentencing process is that a defendant’s sentence be
      individualized. . . .

         . . . [S]entencing must result both from a consideration of
         the nature and circumstances of the crime as well as the
         character of the defendant.

      Thus, a sentencing court abuses its discretion when it considers
      the criminal act, but not the criminal himself. The Sentencing
      Code prescribes individualized sentencing by requiring the
      sentencing court to consider the protection of the public, the
      gravity of the offense in relation to its impact on the victim and
      the community, and the rehabilitative needs of the defendant, and
      prohibiting a sentence of total confinement without consideration
      of the nature and circumstances of the crime[,] and the history,
      character, and condition of the defendant[.]




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         In [Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)], the
      Supreme Court set forth the following regarding the two-part duty
      of sentencing judges:

         The first responsibility is a fact-finding responsibility: the
         judge must be sure he had enough information. The second
         responsibility       is    an       application-and-explanation
         responsibility: the judge must apply to the information he
         has gathered the guidelines specified in the Sentencing
         Code, 42 Pa.C.S. §§ 9701 et seq., and explain how the
         sentence he has selected is responsive to, and reflects the
         standards embodied in, those guidelines. If the judge fails
         to fulfill these responsibilities, we must vacate the sentence
         and remand for resentencing.

Luketic, 162 A.3d at 1160. A substantial question exists when the claim is

that the court imposed a sentence outside the guidelines and by double-

counting factors already considered by the guidelines. Commonwealth v.

Goggins, 748 A.2d 721, 728 (Pa. Super. 2000) (en banc).

      Here, Appellant argued the court “failed to articulate sufficient reasons”

for imposing a ten-year minimum sentence and the court double-counted the

impact of Decedent’s death and Appellant’s unreasonable belief in the use of

force. Appellant’s Brief at 20-21. This argument raises a substantial question,

which we review on the merits. See Goggins, 748 A.2d at 728.

      Section 9721 of the Sentencing Code states that in sentencing a

defendant

      the court shall follow the general principle that the sentence
      imposed should call for confinement that is consistent with the
      protection of the public, the gravity of the offense as it relates to
      the impact on the life of the victim and on the community, and
      the rehabilitative needs of the defendant. The court shall also
      consider any guidelines for sentencing and resentencing adopted
      by the Pennsylvania Commission on Sentencing . . . . In every

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      case where the court imposes a sentence or resentence outside
      the guidelines adopted by the Pennsylvania Commission on
      Sentencing . . . , the court shall provide a contemporaneous
      written statement of the reason or reasons for the deviation from
      the guidelines to the commission . . . . Failure to comply shall be
      grounds for vacating the sentence or resentence and resentencing
      the defendant.

42 Pa.C.S. § 9721(b).

      Section 9781(d) sets forth the factors considered by this Court in

evaluating the reasonableness of a sentence outside the guidelines:

      (d) Review of record.—In reviewing the record the appellate
      court shall have regard for:

         (1) The nature and circumstances of the offense and the history
         and characteristics of the defendant.

         (2) The opportunity of the sentencing court to observe the
         defendant, including any presentence investigation.

         (3) The findings upon which the sentence was based.

         (4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d). Where a pre-sentence investigation report exists, we

shall “presume that the sentencing judge was aware of the relevant

information   regarding   the   defendant’s   character   and   weighed     those

considerations along with mitigating statutory factors.” Commonwealth v.

Walls, 926 A.2d 957, 967 n.7 (Pa. 2007) (citation omitted).         “Even if a

sentencing court relies on a factor that should have not been considered, there

is no abuse of discretion when the sentencing court has significant other

support for its departure from the sentencing guidelines.” Commonwealth




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v. Sheller, 961 A.2d 187, 192 (Pa. Super. 2008); Commonwealth v. P.L.S.,

894 A.2d 120, 133 (Pa. Super. 2006).

      In this case, the court complied with Section 9721(b). The court noted

that the standard range sentence was fifty-four to seventy-two months in

prison for voluntary manslaughter.     The court, as set forth above, stated

reasons for imposing a minimum sentence of ten years’ imprisonment. The

court acknowledged Appellant’s PSI and stated it considered his age,

rehabilitative needs, protection of the public, and the nature of the crimes at

issue, as well as their impact on the community. N.T., 4/18/17, at 80-82.

Because a PSI exists, which the court acknowledged reviewing, we also

presume that the court weighed the information contained within the PSI. See

Walls, 926 A.2d at 967 n.7.

      We acknowledge that the court did not explicitly state it was departing

from the recommended sentence set forth in the guidelines, but the court

explicitly expressed its reasons for imposing the sentence it did.        N.T.,

4/18/17, at 80-82. Even if the court improperly double-counted factors, such

as Decedent’s death, the court indicated it considered the impact his death

had on family and friends and that it was troubled by Appellant’s tendency to

insert himself into circumstances that could cause his death and portray him

as a hero. Thus, any departure from the sentencing guidelines was supported

by independently valid reasons. See, e.g., Sheller, 961 A.2d at 192. For




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these reasons, we affirm the judgment of sentence.   See generally 42

Pa.C.S. § 9781(d).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/18




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