J-A01006-16


                                   2016 PA Super 55

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TAROHN JAYNES

                            Appellant                 No. 2658 EDA 2014


             Appeal from the Judgment of Sentence April 17, 2014
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0012926-2011


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                           FILED MARCH 01, 2016

        This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Philadelphia County following Appellant’s conviction on

the charges of robbery, possessing an instrument of crime, and person not

to possess a firearm.1 Appellant contends (1) the trial court erred in failing

to suppress the victim’s in-and-out-of-court identifications of Appellant as

the perpetrator; (2) the trial court erred in limiting defense counsel’s cross-

examination of Detective Frank Mullen as it pertains to the police’s normal

protocols for conducting a photo array; and (3) the trial court erred in failing

to declare a mistrial due to a statement made by the prosecutor in closing

argument that constituted prosecutorial misconduct. We affirm.
____________________________________________


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 907, and 6105, respectively.



*Former Justice specially assigned to the Superior Court.
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        The relevant facts and procedural history are as follows: On October

15, 2011, at 9:00 p.m., Nathaniel Harley was sitting in his vehicle when an

unmasked man entered, sat in the front passenger seat, pointed a gun at

him, and rummaged through his pockets, removing two cell phones and

cash.    Mr. Harley drove to a nearby police cruiser, and once he was inside of

the cruiser, he viewed a photo of Appellant on the cruiser’s computer screen,

which happened to be there as a result of an unrelated matter, and

identified the person on the screen as his assailant. At the police station,

Mr. Harley identified Appellant from a photo array. Appellant was arrested in

connection with the robbery, and he proceeded to a jury trial on various

charges. On December 9, 2013, after the jury was unable to reach a verdict

on all charges, the trial court declared a mistrial.

        The Commonwealth provided notice of its intent to retry the case, and

on January 24, 2014, Appellant’s counsel filed a motion to suppress all

potential witnesses’ in-and-out-of-court identifications of Appellant as the

perpetrator. Specifically, Appellant alleged the police’s out-of-court photo

identification   procedures   were   unduly   suggestive   and   there   was   no

independent basis for an in-court identification. On February 11, 2014, the

matter proceeded to a hearing, and the trial court denied the motion.

        During Appellant’s second jury trial, Mr. Harley identified Appellant as

the perpetrator of the robbery, and on February 19, 2014, the jury convicted

Appellant of the charges indicated supra. On April 17, 2014, the trial court


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sentenced him to an aggregate of seventeen years to thirty-five years in

prison, and on April 23, 2014, Appellant filed a timely post-sentence motion,

which was denied by operation of law on August 22, 2014. On September 2,

2014, Appellant filed a counseled notice of appeal, and all Pa.R.A.P. 1925

requirements have been met.

         Appellant’s first contention is the trial court erred in failing to suppress

Mr.   Harley’s      in-and-out-of-court     identifications    of   Appellant   as   the

perpetrator.     Specifically, Appellant alleges Mr. Harley’s initial out-of-court

identification of him was based on an unduly suggestive police display of a

single     photo,    and   therefore,     Mr.   Harley’s      subsequent   out-of-court

identification based on a photo array, as well as his in-court identification,

were improperly tainted. In this vein, Appellant argues “[t]he demonstration

of one picture, immediately after the crime was committed, in the context of

an excited and adrenalized report from the victim of a robbery, is clearly

fraught with the potential for misidentification.” Appellant’s Brief at 11.

         Initially, we note “[o]ur standard of review in addressing a challenge

to a trial court's denial of a suppression motion is limited to determining

whether the factual findings are supported by the record and whether the

legal conclusions drawn from those facts are correct.” Commonwealth v.

Kearney, 92 A.3d 51, 65 (Pa.Super. 2014) (quotation and quotation marks

omitted).

                    [W]e may consider only the evidence of the
               prosecution and so much of the evidence for the

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           defense as remains uncontradicted when read in the
           context of the record as a whole. Where the record
           supports the findings of the suppression court, we
           are bound by those facts and may reverse only if the
           court erred in reaching its legal conclusions based
           upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (citations, quotations, and quotation marks omitted). Moreover, it is

within the lower court’s province to pass on the credibility of witnesses and

determine the weight to be given to their testimony. See Commonwealth

v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013).

           When determining the admissibility of identification
           testimony, this Court has held that suggestiveness in
           the identification process is a factor to be considered
           in determining the admissibility of such evidence, but
           suggestiveness alone does not warrant exclusion. A
           pretrial identification will not be suppressed as
           violative of due process rights unless the facts
           demonstrate that the identification procedure
           was so infected by suggestiveness as to give
           rise to a substantial likelihood of irreparable
           misidentification.
     Due process does not require that every pretrial identification of
     witnesses must be conducted under laboratory conditions of an
     approved lineup. “In reviewing the propriety of identification
     evidence, the central inquiry is whether, under the totality of the
     circumstances, the identification was reliable.” Commonwealth
     v. Armstrong, 74 A.3d 228, 238 (Pa.Super. 2013) (citation
     omitted).
           Additionally, “the purpose of a suppression order regarding
     exclusion of identification evidence is to prevent improper police
     action. Thus, where a defendant does not show that improper
     police conduct resulted in a suggestive identification,
     suppression is not warranted.” Commonwealth v. Sanders,
     42 A.3d 325, 330–31 (Pa.Super. 2012)[.]




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Commonwealth           v.   Lark,    91   A.3d   165,   168-69   (Pa.Super.   2014)

(quotations and quotation marks omitted) (emphasis in original).

       Here, as it relates to the police’s initial display of Appellant’s photo to

Mr. Harley, the trial court made the following factual findings:2

             Officer Daniel Kostick testified that on the evening of
       October 15, 2011[,] he was on routine patrol with his partner in
       a marked police cruiser in the vicinity of 62nd and Arch Streets in
       the City of Philadelphia. At approximately 9:09 p.m. . . . the
       complainant, Nathaniel Harley, pulled alongside and reported
       that he had just been robbed. He instructed Mr. Harley to park
       his car and get into the police vehicle in order to look for the
       assailant.
             Officer Kostick also testified that when Mr. Harley got into
       the cruiser he had a picture displayed on his computer screen of
       a black male, identified as [Appellant], whom he was
       investigating from the prior evening. On seeing the picture[,]
       Mr. Harley immediately recognized [Appellant] as his assailant.
       Realizing that he had forgotten to close the picture in the
       excitement of the moment, Officer Kostick immediately removed
       it from view. Officer Kostick explained that on the previous
       evening he had been on patrol without his partner and had
       observed [Appellant] acting in a suspicious manner. He was
       showing the picture to his partner in order for him to be on the
____________________________________________


2
  As the trial court noted in its opinion, in lieu of presenting testimony at the
February 11, 2014, hearing, the parties agreed to incorporate and rely upon
the relevant portions of testimony from Appellant’s first trial. Trial Court
Opinion, filed 3/3/15, at 9; N.T. Pre-trial Hearing, 2/11/14, at 18-19.
However, the certified record provided to this Court does not include the
transcripts from Appellant’s first trial. Commonwealth v. Preston, 904
A.2d 1 (Pa.Super. 2006) (en banc) (indicating waiver of an issue may be
found where the appellant fails in his responsibility to ensure the appellate
court is provided with necessary transcripts). In any event, inasmuch as the
parties and court substantially summarized the relevant testimony during
the February 11, 2014, hearing, and the parties do not dispute the trial
court’s recitation of the relevant factual findings is based on the court’s
credibility determinations, as well as supported by the testimony presented
at Appellant’s first trial, we shall address the merits of Appellant’s claim.



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      lookout for him. He testified that it was not his intention for Mr.
      Harley to see the photograph on his computer screen.
            Philadelphia Police Detective Frank Mullen testified that on
      the evening of October 15, 2011, he was the detective assigned
      to investigate the robbery of Mr. Harley. Prior to interviewing
      Mr. Harley, he interviewed Officer Kostick who told him that he
      had [Appellant’s] picture on the screen when Mr. Harley got into
      his vehicle and “saw [Appellant’s] photo on the computer. . . .”
            In an abundance of caution and in an effort to further
      verify Mr. Harley’s identification, Detective Mullen prepared a
      photo array of eight photographs, including [Appellant’s]. Prior
      to being interviewed by Detective Mullen, Mr. Harley viewed the
      array and immediately identified [Appellant] as his assailant.
      When he was asked how sure he was of his identification, Mr.
      Harley replied: “Positive, 100 percent.” Mr. Harley also told
      Detective Mullen that, “[w]hile I was in the car, they had a
      picture of the guy on their computer already. I told them that it
      was the guy that robbed me.”
            In addition to identifying [Appellant] from the photo array,
      Detective Mullen testified that Mr. Harley told him that he
      recognized [Appellant] from the neighborhood. He explained
      that, although he didn’t know [Appellant’s] name and hadn’t
      seen him for quite some time, he had grown up on the same
      street, a block away from [Appellant]. This was corroborated by
      Mr. Harley [at trial].

Trial Court Opinion, filed 3/3/15, at 9-11 (citations to record omitted).

      Based on these factual findings, the trial court denied Appellant’s

motion to suppress, noting “Detective Mullen’s testimony corroborated that

of Officer Kostick that the display of [Appellant’s] picture on the computer

screen was accidental and unintentional and did not constitute an improper

photo array.”   Id. at 11.    We conclude the trial court did not err in this

regard.

      Appellant did not demonstrate that improper police conduct occurred

during his initial out-of-court identification of Appellant. Rather, as the trial


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court found, Mr. Harley’s viewing of Appellant’s photo on the police cruiser’s

computer screen was inadvertent and not an attempt to utilize a suggestive

single photo identification procedure.    Rather, Mr. Harley’s viewing of the

photo was more akin to a spontaneous identification of a suspect, which is

M392 A.2d 1294, 1297 (1978).

      Intertwined in his first argument, Appellant argues that, immediately

after Mr. Harley identified him from the single photo displayed in the police

cruiser, “Officer Kostick told [Mr.] Harley that the police were already looking

for [Appellant] because of a ‘run-in’ they had with him on the night before.”

Appellant’s Brief at 13. Appellant argues Officer Kostick’s comment “further

tainted” Mr. Harley’s in-and-out-of-court identifications of Appellant, and

therefore, the trial court should have suppressed the identifications.

      We find no merit to Appellant’s claim. Simply put, this is not a case

where the witness saw the perpetrator but did not recognize him.            Mr.

Harley indicated that, although he did not know Appellant’s name, he

recognized him from the neighborhood, and in fact, had grown up a block

away from Appellant.        Accordingly, we find no merit to Appellant’s

suggestion that Officer Kostick’s comment resulted in an identification by Mr.

Harley that “was so infected by suggestiveness as to give rise to a

substantial likelihood of irreparable misidentification.” Lark, 91 A.3d at 168

(emphasis and quotation omitted).        See Commonwealth v. Kubis, 978

A.2d 391, 397 (2009) (holding that an out-of-court identification based on a


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line-up was not suggestive even though, after the witness made his

selections from the line-up, a detective indicated that one of the two men

the victim chose was the suspect).

      Appellant’s second contention is that he is entitled to a new trial due to

the trial court’s error in limiting defense counsel’s cross-examination of

Detective Mullen as it pertains to the police’s normal protocols for conducting

a photo array. Specifically, Appellant contends that, when defense counsel

attempted to ask Detective Mullen whether it was proper to mention to an

eyewitness that the police had a prior “run-in” with the suspect, the trial

court improperly sua sponte interrupted the cross-examination and informed

the jury that the inquiry was not relevant. See Appellant’s Brief at 14 (citing

N.T. Trial, 2/18/14, at 62-64).      In response, the Commonwealth avers

Appellant has waived his claim of error. We agree with the Commonwealth.

      In analyzing Appellant’s claim, we set forth the following portion of

Detective Mullen’s cross-examination at trial:

              [DEFENSE COUNSEL]: Detective, you certainly would
      never say anything to suggest that you had any prior contact
      with anyone that was about to be identified; correct?
              [DETECTIVE MULLEN]: I’m sorry. I don’t mean to make
      it difficult. I’m sorry.
              [DEFENSE COUNSEL]: Say you had had [sic] contact or a
      run-in with an individual—
              THE COURT: How is it relevant what this detective does?
              [DEFENSE COUNSEL]: It goes to his knowledge of
      procedures regarding photo arrays, Judge.
              THE COURT: It’s not relevant. There’s an argument to be
      made that seeing the photograph in the police car suggested to
      the complainant, to the victim that that [sic] person in the
      photograph was the robber. And by the police officer saying, if

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      in fact he did say this--and I don’t know that it’s been
      established exactly what the facts are as to what happened in
      that police car. But if you believe that the police officer said,
      well, it’s up there because of a run-in we had with him last night,
      the argument could be made that all of that is suggestive. That
      you’re taking a victim and suggesting to the victim of all the
      millions of people in the world who might have robbed him that
      night, the guy in that photograph is the guy.
             But what detectives would normally do or what police
      officers in general would normally do really isn’t relevant.
      Because you’re not here to decide what police officers generally
      do or normally do. You’re not here to decide the other--I don’t
      know how many thousands of cases this detective has worked on
      or the police officers in this case have worked on. All you’re
      looking at is this case. The facts of this case. So first you have
      to find facts. What happened in that police car? And then you
      have to decide was that suggestive? And then ultimately you
      have to decide whether the identification made by the victim of
      [Appellant] is the result of that suggestion or if he knows what
      he’s talking about when he says this is the guy who robbed me.
      So it’s really not relevant what this detective normally does.
             [DEFENSE COUNSEL]: I think you covered it adequately,
      Your Honor. I appreciate that.
             THE COURT: Okay.

N.T. Trial, 2/18/14, at 62-64.

      As is evident, defense counsel did not object to the trial court’s

interruption or subsequent instruction to the jury. Therefore, this issue has

been waived on direct appeal. See Commonwealth v. Pearson, 685 A.2d

551 (Pa.Super. 1996) (en banc) (indicating the failure to raise a timely

objection at trial waives the claim on appeal); Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal.”).

      In his final contention, Appellant argues the trial court erred in failing

to declare a mistrial due to a statement made by the prosecutor in closing

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argument that constituted prosecutorial misconduct. Specifically, he argues

a mistrial was warranted due to the prosecutor improperly asking the jury to

“put themselves in the victim’s shoes” and render a verdict based on

sympathy for the victim. We find no relief is due.

     In analyzing Appellant’s claim, we set forth the following relevant

portions from the prosecutor’s closing argument:

            [PROSECUTOR]: As I was saying, when Mr. Harley
     started this case, he testified the first time in this case in
     November of 2011. And he did not have to sit across from
     [Appellant]. He did not have to look at him and identify him
     because he wasn’t in the room. And so Mr. Harley got up there
     and told the judge what happened without hesitation[,] without
     fear for his small children. But what happened after that day?
     That same afternoon when Mr. Harley finished testifying? We
     not only know what happened from Mr. Harley. You heard it on
     the phone call of [Appellant]. He took care of it. He talked to
     him and took care of it. And so now I’m good. Would you be
     afraid if you lived around the corner with two small kids?
     So that’s what happened, ladies and gentlemen.
            [DEFENSE COUNSEL]: Objection.
            THE COURT: What’s the basis?
            [DEFENSE COUNSEL]: For the jury to put themselves in
     the shoes of the victim.
            THE COURT: That’s a good point. That’s a term, phrase
     that’s not appropriate in the trial. You know, how would you
     feel? How do you identify the victim in the case in any way?
     Obviously if he were the victim in this case, he wouldn’t be
     sitting on the jury. He wouldn’t be qualified to sit on a jury. So
     it’s a term and phrase that we use in everyday discussions,
     possibly: How would you feel? It’s not appropriate at trial. You
     should refrain from saying things like that.
            [PROSECUTOR]:        Sure. You heard from Mr. Harley.
     When he came to testify in December, he was afraid. So afraid
     that he hid from his house. He left his home for several days
     because he did not want to come in here. He came in but he still
     wasn’t going to do it. He was not going to put his family and
     himself in danger. And so he tried every which way to throw the
     case, as he testified. He talked to people on the street. They

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       gave him ideas. Every which way he could figure out because he
       was scared. And he told you that honest[l]y when he testified in
       front of you the other day.

N.T. Trial, 2/18/14, at 112-14 (emphasis added).

       Moreover, at the conclusion of closing arguments, after the jury was

excused, the following relevant exchange occurred:

              [DEFENSE COUNSEL]: Could I put one brief thing on the
       record?
              THE COURT: Yes.
              [DEFENSE COUNSEL]: I didn’t want to ask for a mistrial
       in front of the jury. I would respectfully ask for a mistrial at this
       point.
              THE COURT: What else do you want me to say?
              [DEFENSE COUNSEL]: That’s the thing.            There’s not
       really a further instruction you can give that would cure asking a
       jury to put themselves in the shoes of a victim. For that reason
       I would be asking for a mistrial.
              THE COURT: I’m not going to reconsider my ruling. But
       my understanding is that curative instructions include just about
       everything including this. So the bottom line, if she had said it a
       slightly different way; if she said, You can understand what
       person would not be concerned instead of saying, Wouldn’t you
       will [sic] be concerned. It’s just the term as phrased. I can
       cover it again in my closing instruction if you want me to do
       that.
              [DEFENSE COUNSEL]: I think that just raises more
       attention to it. So I’m not asking for that.
              THE COURT: Then your motion is denied.

Id. at 118-20.3


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3
  We note that Appellant’s request for a mistrial has been properly preserved
notwithstanding the fact that defense counsel waited until the end of the
prosecutor’s closing argument to move for a mistrial. See Commonwealth
v. Rose, 960 A.2d 149 (Pa.Super. 2008) (indicating objection coupled with
request for a mistrial preserves denial of the mistrial for appellate review
(Footnote Continued Next Page)


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      The following standards govern our review of the denial of a motion for

mistrial:

            In criminal trials, declaration of a mistrial serves to
      eliminate the negative effect wrought upon a defendant when
      prejudicial elements are injected into the case or otherwise
      discovered at trial. By nullifying the tainted process of the
      former trial and allowing a new trial to convene, declaration of a
      mistrial serves not only the defendant's interest but, equally
      important, the public's interest in fair trials designed to end in
      just judgments.      Accordingly, the trial court is vested with
      discretion to grant a mistrial whenever the alleged prejudicial
      event may reasonably be said to deprive the defendant of a fair
      and impartial trial. In making its determination, the court must
      discern whether misconduct or prejudicial error actually
      occurred, and if so, . . . assess the degree of any resulting
      prejudice. Our review of the resulting order is constrained to
      determining whether the court abused its discretion. Judicial
      discretion requires action in conformity with [the] law on facts
      and circumstances before the trial court after hearing and
      consideration. Consequently, the court abuses its discretion if,
      in resolving the issue for decision, it misapplies the law or
      exercises its discretion in a manner lacking reason.

Commonwealth v. Lettau, 955 A.2d 360, 363 (Pa.Super. 2008), reversed

on other grounds, 604 Pa. 437, 986 A.2d 114 (2009) (citations, quotations,

and quotation marks omitted).

      Moreover,        with   specific   reference   to   a   claim   of   prosecutorial

misconduct in a closing statement, it is well settled that any challenged

prosecutorial comment must not be viewed in isolation, but rather must be

considered in the context in which it was offered.               Commonwealth v.

                       _______________________
(Footnote Continued)

even where such is made at the conclusion of the prosecutor’s closing
argument).



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Correa, 664 A.2d 607 (Pa.Super. 1995).         Our review of a prosecutor’s

comment and an allegation of prosecutorial misconduct requires us to

evaluate whether a defendant received a fair trial, not a perfect trial.

Commonwealth v. Rios, 554 Pa. 419, 721 A.2d 1049 (1998). Thus, it is

well settled that statements made by the prosecutor to the jury during

closing argument will not form the basis for granting a new trial “unless the

unavoidable effect of such comments would be to prejudice the jury, forming

in their minds fixed bias and hostility toward the defendant so they could not

weigh the evidence objectively and render a true verdict.” Commonwealth

v. Fletcher, 580 Pa. 403, 434-35, 861 A.2d 898, 916 (2004) (quotation and

quotation marks omitted).    The appellate courts have recognized that not

every unwise remark by an attorney amounts to misconduct or warrants the

grant of a new trial. Commonwealth v. Faulkner, 528 Pa. 57, 595 A.2d

28 (1991).    Additionally, like the defense, the prosecution is accorded

reasonable latitude, may employ oratorical flair in arguing its version of the

case to the jury, and may advance arguments supported by the evidence or

use inferences that can reasonably be derived therefrom. Commonwealth

v. Carson, 590 Pa. 501, 913 A.2d 220 (2006); Commonwealth v. Holley,

945 A.2d 241 (Pa.Super. 2008). Moreover, the prosecutor is permitted to

fairly respond to points made in the defense’s closing, and therefore, a

proper examination of a prosecutor’s comments in closing requires review of




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the arguments advanced by the defense in summation. Commonwealth v.

Chmiel, 585 Pa. 547, 889 A.2d 501 (2005).

       In   the   case    sub   judice,   the      defense   was   largely   based   on

misidentification, and more specifically, the defense actively sought to call

into doubt the accuracy of Mr. Harley’s in-and-out-of-court identifications of

Appellant as the perpetrator. The defense attorney’s closing included

argument that Officer Kostick suggestively showed Mr. Harley a single photo

(that of Appellant) immediately following the robbery and that Mr. Harley

subsequently chose Appellant’s photo from an array only because he had

previously seen the single photo of Appellant.           N.T. Trial, 2/18/14, at 98-

102.

       In response, in arguing Mr. Harley did not misidentify Appellant as the

perpetrator, the prosecutor explained that, at a November 2011                hearing,

Mr. Harley identified Appellant as the perpetrator, and later that day, Mr.

Harley was threatened in an effort to keep him from testifying. As a result

of the threat, and because he lived around the corner from Appellant with

two small children, Mr. Harley was afraid, resulting in him not wanting to

testify.    However, despite his fear, Mr. Harley appeared and testified at

Appellant’s jury trial.

       Contrary to Appellant’s claim, the prosecutor’s comment was not an

attempt to have the jury render a verdict based on sympathy for the victim;

but rather, it constituted an attempt at explaining that, despite the threat


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and fear, Mr. Harley continued to identify Appellant as the perpetrator.

Accordingly, when viewed in context, the prosecutor’s sole statement did not

constitute prosecutorial misconduct and the trial court did not abuse its

discretion in denying Appellant’s request for a mistrial. Correa, supra.

     For all of the foregoing reasons, we affirm.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




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