J-S14023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA.                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DARREN LAMONT MACKLIN,

                            Appellant                 No. 1488 EDA 2014


           Appeal from the Judgment of Sentence of February 28, 2014
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0008503-2012


BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                               FILED APRIL 01, 2015

       Appellant, Darren Lamont Macklin, appeals from the judgment of

sentence entered on February 28, 2014, as made final by the denial of post-

sentence motions on April 15, 2014, following his bench trial conviction for

indecent assault of a person less than 13 years of age.1 Upon review, we

affirm.

       The trial court set forth the facts and procedural history of this case as

follows:
               Appellant’s non-jury trial commenced on May 13, 2013
           and concluded on May 17, 2013.               At trial, the
           Commonwealth presented testimony from the victim, herein
           “I.L.”, her mother, Jazla, Jacqueline Brown from Child and
           Youth Services and Officer John Kuryan of the Chester City
           Police Department.
____________________________________________


1
    18 Pa.C.S.A. § 3126(a)(7).
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            I.L. testified that although she is currently thirteen, she
       was ten years old on the night of the incident and living [in
       a home on] Jeffrey Street in Chester, Pennsylvania with her
       mom, grandmother, sister and brother. Appellant, known
       to her as “Sporty” would also spend time at the home.
       I.L.’s mother, Jazla, testified that two other women also
       stayed in the home on occasion, one by the name of Amber.
       The house had four bedrooms and I.L. testified that
       although she does not always sleep in the middle bedroom,
       it is technically hers and that she always sleeps in that room
       when she has company spending the night.

           On the evening of the assault, I.L. had a friend spending
       the night. Prior to going upstairs to bed, the two were
       downstairs with I.L.’s grandmother, the grandmother’s
       boyfriend, and Appellant, all of whom were drinking.
       Sometime after I.L. had fallen asleep, she woke up to
       Appellant “touching her rear end with his hands.” I.L.
       testified that when she went to sleep her pants were up but
       when she awoke to Appellant touching her, her pants were
       pulled down, Appellant’s zipper was down, and Appellant
       was “holding her rear end open.” I.L. flicked on the light []
       and confronted Appellant to which he answered “my bad I
       thought you was Amber.”

           I.L.’s mother, Jazla, testified that her daughter told her
       a few days later that “Sporty had touched her.” Jazla
       confronted Appellant about the incident twice. The first
       time, Appellant replied “I ain’t no molester” and then he left
       the residence for a few days. When Jazla asked Appellant
       again if he had touched I.L., she had to ask several times
       before he responded: “My bad, I thought she was Amber.”
       Jazla’s testimony was that she had no reason to believe that
       Appellant was “messing around” with Amber. In fact, she
       thought he was having sexual relations with the other
       woman who sometimes stayed in the home. However,
       Officer John Kuryan testified that when he interviewed
       Appellant, he stated that he was sleeping with Amber and
       the other woman, whom he identified as Takia Carr.
       [Moreover,] Jazla testified that Amber was somewhere
       between 5’6[”]-5’7[”] and 130 pounds while her daughter
       was only 50-60 pounds. Shortly after the incident, Jazla
       noticed that I.L. was acting differently, having nightmares
       and acting out in school.

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           At the conclusion of trial, [the trial court] found
       Appellant guilty [of the aforementioned crime and not guilty
       of attempted aggravated assault, attempted rape of a child,
       and corruption of a minor.] Sentencing was deferred until
       August 22, 2013, and [the trial court] ordered a
       [p]sychosexual      [e]valuation    and     [pre]-[s]entence
       [i]nvestigation.

           On May 20, 2013, [the trial court] issued an [o]rder to
       have Appellant assessed by the Pennsylvania Sexual
       Offenders Assessment Board [(herein “SOAB”)]. On August
       14, 2013, the SOAB provided [the trial court] with a written
       assessment and on August 15, 2013, the Commonwealth
       filed a praecipe for a hearing.

          On August 22, 2013, based on the report and the
       request for a SOAB hearing, defense counsel requested a
       continuance until October 3, 2013, which [the trial court]
       granted.

          On October 3, 2013, defense counsel advised [the trial
       court] that he had retained his own expert who needed time
       to review the reports.        [The trial court] granted a
       continuance[.]

           On January 14, 2014, [the trial court] held a hearing to
       determine whether Appellant should be classified as a
       sexually violent predator [(“SVP”)], pursuant to 42 Pa.C.S.
       § 9795. The Commonwealth presented testimony from Dr.
       Thomas F. Haworth Ph.D., a licensed psychologist and
       member of the Pennsylvania SOAB, who testified that it was
       his opinion that Appellant met the criteria to be classified as
       a [SVP]. The defense presented testimony from Dr. Steven
       Mechanick, M.D., who rendered the opinion that the
       available evidence did not support Dr. Haworth’s opinion
       that Appellant met the criteria. After hearing from the
       witnesses, [the trial court] took the matter under
       advisement until the sentencing hearing scheduled for
       February 28, 2014.

          On February 28, 2014, [the trial court] found that the
       Commonwealth did not satisfy its burden to classify
       Appellant as a [SVP], outlining its reasons on the record as

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          well as issuing an [o]rder. [The trial court] then addressed
          sentencing.

              Pursuant to invoking 42 Pa.C.S. § 9718.2,[2] the
          Commonwealth presented a certified copy of Appellant’s
          prior conviction for sexual assault as well as the sentencing
          sheet. Counsel for Appellant argued that the mandatory
          minimum of twenty-five years [of imprisonment] was
          unconstitutional under [Alleyne v. United States, 133 S.
          Ct. 2151 (2013)].         [The trial court] disagreed with
          Appellant’s argument and sentenced him to 300-600
          months in a state correctional institution. On March 20,
          2014, Appellant filed a [m]otion for [j]udgment of
          [a]cquittal or [a]rrest of [j]udgment. [The trial court] held
          a hearing on April 15, 2014, and subsequently denied the
          motion.

              Appellant filed a timely notice of appeal on May 13,
          2014. [The trial court] issued a [Pa.R.A.P.] 1925(b) [o]rder
          on May 14, 2014. Counsel requested an extension of time
          to file his 1925(b) statement which [the trial court] granted.
          On June 24, 2014, counsel filed a timely 1925(b)
          statement[. The trial court issued an opinion pursuant to
          Pa.R.A.P. 1925(a) on July 21, 2014.]
____________________________________________


2
    42 Pa.C.S.A. 9718.2 provides, in pertinent part:

          Any person who is convicted in any court of this
          Commonwealth of an offense set forth in section 9799.14
          (relating to sexual offenses and tier system) shall, if at the
          time of the commission of the current offense the person
          had previously been convicted of an offense set forth in
          section 9799.14 or an equivalent crime under the laws of
          this Commonwealth in effect at the time of the commission
          of that offense or an equivalent crime in another
          jurisdiction, be sentenced to a minimum sentence of at least
          25 years of total confinement, notwithstanding any other
          provision of this title or other statute to the contrary.

42 Pa.C.S.A. § 9718.2(a).




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Trial Court Opinion, 7/21/2014, at 2-5 (citations to the record and criminal

statutes omitted) (footnote one incorporated into body of the text).

      On appeal, Appellant presents the following issues for our review:

        1) Whether the evidence was insufficient to sustain the
           conviction    for    [i]ndecent   [a]ssault   since    the
           Commonwealth failed to prove beyond a reasonable
           doubt that [Appellant] intentionally made indecent
           contact with a person less than thirteen years of age, or
           that he did so with the purpose of arousing himself or the
           complainant?

        2) Whether the mandatory sentence imposed herein is
           illegal, and should be vacated, since the Commonwealth
           failed to prove that [Appellant] had a prior conviction
           necessary to trigger application of the provision, and
           because the provision and facts triggering it were not
           included within the charging document?

Appellant’s Brief at 5 (italics omitted).

      In his first issue     presented, Appellant argues that there was

insufficient evidence to support his conviction for indecent assault because

the Commonwealth failed to prove that he made contact with the victim for

the purpose of arousing himself or the victim. Id. at 12. More specifically,

Appellant posits “he was not acting with the purpose of arousing” the victim

and “his actions constituted a reasonable mistake, which negated any intent

since he believed the complainant was an adult.”        Id. at 14.     Appellant

claims he “had a bona fide belief that he was engaging in lawful activity” and

“[h]is reasonable belief that he was touching his adult girlfriend rendered his

actions entirely innocent.” Id. at 15.

      Our standard of review is well settled:


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        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
        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. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)

(emphasis and internal citation omitted).

     Appellant was convicted of indecent assault of a person less than 13

years of age.   “A person is guilty of indecent assault if the person has

indecent contact with the complainant […] for the purpose of arousing sexual

desire in the person or the complainant” and “the complainant is less than

13 years of age[.]” 18 Pa.C.S.A. § 3126(a)(7).

     In this case, the trial court determined:

        Here, the Commonwealth presented sufficient evidence to
        establish that Appellant committed indecent assault on a
        person less than thirteen years of age. Appellant asserts
        that the Commonwealth failed to show he intentionally had
        indecent contact with I.L. because he stated “my bad, I
        thought you were Amber.”          However, the testimony
        presented clearly established that Amber was not present at

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        the residence that evening. Rather, Appellant was at the
        home with I.L. and her friend and was present when the
        girls went upstairs to go to bed. Appellant walked into the
        bedroom, got into the bed, pulled down I.L.’s pants,
        unzipped his pants, put his hands onto I.L.’s rear end and
        proceeded to spread her cheeks apart.       Appellant only
        stopped after I.L. woke up and confronted him. Even then,
        Appellant simply stated “my bad, I thought you was
        Amber.” The intent to have indecent contact was certainly
        present.    Furthermore, [the trial court did] not find
        Appellant’s argument that he mistakenly believed the 60
        [pound] child he was undressing was actually the grown
        woman he was having sexual relations with to be not
        credible.

Trial Court Opinion, 7/21/2014, at 6-7.

     Based upon our standard of review and a review of the certified

record, we agree.      Appellant was a close family friend and spent

considerable time at the subject residence.    N.T., 5/15/2013, at 52-53.

There were four bedrooms in the house. Id. at 43. The “middle” bedroom,

where the incident occurred, was the victim’s bedroom, but she often slept

in her mother’s bedroom.     Id. at 44.    Amber also slept in the middle

bedroom from time to time. Id. at 53. There were only five people in the

residence on the night in question – Appellant, the victim, the victim’s

friend, the victim’s grandmother, and the grandmother’s boyfriend.    Id. at

42-43. The victim and her friend went upstairs to go to bed; they both slept

in the same bed. Id. at 43, 46. The victim awoke with her pants down and

Appellant with his hands on her rear-end “holding it open like.” Id. at 47.

When she turned on a light and confronted Appellant, he replied that he

thought the victim was someone else. Id. Appellant’s pants were unzipped.



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J-S14023-15



Id. at 71. The victim’s mother confronted Appellant several days later and

he said, “I’m not a molester” and left the residence for a couple of days. Id.

at 82-83. Upon his return to the residence, the victim’s mother confronted

Appellant again, in the presence of the victim, and Appellant stated that he

thought the victim was Amber. Id. at 83. The victim’s mother testified that

she did not see Appellant for a long time after the second confrontation. Id.

at 84. The victim suffered from insomnia and nightmares and began “acting

up in school” following the incident.   Id. at 85-86.    The victim’s mother

testified that there was a 70 pound differential between the victim and

Amber at the time in question. Id. at 87.

      Appellant pulled down the victim’s pants and grabbed the victim’s

rear-end. Appellant’s pants were unzipped at the time. Thus, his intent of

arousing sexual desire in himself was clear.    Moreover, the record belies

Appellant’s claim of mistake. Appellant was familiar with the residence and

the transient nature of the sleeping arrangements therein.          Appellant

witnessed the victim and her friend going upstairs to bed and they were the

only people in the house aside from the three adults who all remained

downstairs. The victim was sleeping in a bed with her friend at the time of

the incident. The victim was much smaller than Amber and Amber was not

present on the night in question.   These facts refute Appellant’s argument

that he thought the victim was someone else. Further, when confronted by

the victim’s mother on different occasions, Appellant disappeared for days at

a time.   Finally, the victim’s behavior was markedly different after the

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incident. In totality, the facts were sufficient to convict Appellant of indecent

assault on a person less than 13 years of age. Accordingly, Appellant’s first

issue lacks merit.

      In his next issue, Appellant contends that the trial court imposed an

illegal sentence when it applied a mandatory minimum sentence based upon

a prior conviction pursuant to 42 Pa.C.S.A. § 9718.2.       Appellant’s Brief at

17. First, Appellant argues “the Commonwealth failed to establish that he

had a prior conviction.”    Id. at 19.   Appellant maintains that “[t]he only

evidence” the Commonwealth offered “was a fourteen-year old sentencing

sheet that contained the name Darren Macklin.”        Id. at 20.   He suggests

“[i]t could have been another Darren Macklin or someone who used his

name at the time of arrest.” Id.     Next, Appellant avers that the indictment

or bill of information does not contain allegations of prior convictions and,

thus, the trial court could not impose an enhanced sentence under the

recidivist statute. Id. at 22.   In sum, he avers:

        The mandatory statute at issue in this case is more than
        just a sentencing provision. It is a new, aggravated crime,
        with increased penalties for alleged recidivists. In this case,
        the offense was graded as a first-degree misdemeanor, but
        the resulting penalty was ten times greater than that
        generally permitted for such violations.       Therefore, the
        statute and the facts triggering it must be included in the
        charging document before it can be imposed. Otherwise, it
        would be akin to a defendant being charged with and
        convicted of only one minor crime, but being sentenced for
        a separate, more serious offense.

Id. at 23.



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      The United States Supreme Court has determined that any fact that

increases a mandatory minimum sentence is an element of the crime, not a

sentencing factor, and must be submitted to the jury to be determined

beyond a reasonable doubt.     See Alleyne v. United States, 133 S. Ct.

2151 (2013). However, this Court has recently determined:

        Prior convictions are the remaining exception to Apprendi
        v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d
        435 (2000), and Alleyne v. United States, ––– U.S. ––––,
        133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), insofar as a fact-
        finder is not required to determine disputed convictions
        beyond a reasonable doubt to comport with the Sixth
        Amendment jury trial right. See Almendarez–Torres v.
        United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d
        350 (1998). However, the viability of this holding has been
        questioned, see Almendarez–Torres, supra (Scalia, J.
        dissenting); Apprendi, supra (Thomas, J. concurring), and
        five Justices appear to disagree with the Almendarez
        holding, to the extent a conviction would increase a
        defendant's maximum sentence; namely, Justices Scalia,
        Thomas, Ginsburg, Sotomayor, and Kagan. As noted by this
        Court, “[t]he precise issue has yet to be reconsidered by the
        United States Supreme Court following Apprendi. See
        Alleyne, supra at 2160 n. 1.” Commonwealth v. Watley,
        81 A.3d 108, 117 n. 3 (Pa. Super. 2013) (en banc).


Commonwealth v. Hale, 85 A.3d 570, 585 (Pa. Super. 2014).               Thus,

mandatory minimum sentences for recidivism remain constitutional in

Pennsylvania.

      In this case, pursuant to 42 Pa.C.S.A. § 9718.2, the trial court

imposed a mandatory minimum sentence of 25 years of imprisonment,

because Appellant had a prior conviction for sexual assault. Section 9718.2

provides, in pertinent part:

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       (a)     Mandatory sentence.—

             (1) Any person who is convicted in any court of this
             Commonwealth of an offense set forth in section
             9799.14 (relating to sexual offenses and tier system)
             shall, if at the time of the commission of the current
             offense the person had previously been convicted of an
             offense set forth in section 9799.14 or an equivalent
             crime under the laws of this Commonwealth in effect at
             the time of the commission of that offense or an
             equivalent crime in another jurisdiction, be sentenced to
             a minimum sentence of at least 25 years of total
             confinement, notwithstanding any other provision of this
             title or other statute to the contrary. Upon such
             conviction, the court shall give the person oral and
             written notice of the penalties under paragraph (2) for a
             third conviction. Failure to provide such notice shall not
             render the offender ineligible to be sentenced under
             paragraph (2).

                          *         *            *
       (c) Proof of sentencing.--The provisions of this section
       shall not be an element of the crime, and notice thereof to
       the defendant shall not be required prior to conviction, but
       reasonable notice of the Commonwealth's intention to
       proceed under this section shall be provided after conviction
       and before sentencing. The applicability of this section shall
       be determined at sentencing. The sentencing court, prior to
       imposing sentence on an offender under subsection (a),
       shall have a complete record of the previous convictions of
       the offender, copies of which shall be furnished to the
       offender. If the offender or the attorney for the
       Commonwealth contests the accuracy of the record, the
       court shall schedule a hearing and direct the offender and
       the attorney for the Commonwealth to submit evidence
       regarding the previous convictions of the offender. The
       court shall then determine, by a preponderance of the
       evidence, the previous convictions of the offender and, if
       this section is applicable, shall impose sentence in
       accordance with this section. Should a previous conviction
       be vacated and an acquittal or final discharge entered
       subsequent to imposition of sentence under this section, the
       offender shall have the right to petition the sentencing court

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        for reconsideration of sentence if this section would not
        have been applicable except for the conviction which was
        vacated.

42 Pa.C.S.A. § 9718.2.

     We are cognizant of the following legal principles:

            In interpreting a statute, we are called to ascertain and
        effectuate the intention of the General Assembly. Every
        statute shall be construed, if possible, to give effect to all its
        provisions. When the words of a statute are clear and free
        from all ambiguity, the letter of it is not to be disregarded
        under the pretext of pursuing its spirit. Furthermore, we
        interpret statutes so as to give effect to all its provisions.
        We may not render language superfluous or assume
        language to be mere surplusage.

            Additionally, this Court strictly construes criminal
        statutes and any doubt as to the meaning of a criminal
        statutory provision is to be resolved in favor of the
        defendant. Concomitantly, a court may not achieve an
        acceptable construction of a penal statute by reading into
        the statute terms that broaden its scope.

            We generally interpret words and phrases according to
        their common and approved usage; but technical words and
        phrases and such others as have acquired a peculiar and
        appropriate meaning or are defined in this part, shall be
        construed according to such peculiar and appropriate
        meaning or definition.

Hale, 85 A.3d at 580 (internal citations, quotations and brackets omitted).

     Here, pursuant to       the   plain language     of Section 9718.2, the

Commonwealth was not required to give Appellant notice of the applicability

of this statute prior to his conviction.       See 42 Pa.C.S.A. § 9718.2(c)

(“[N]otice … to the defendant shall not be required prior to conviction.”).

Thus, we summarily reject Appellant’s contention that he was entitled to

notice in the bill of criminal information. Instead, the Commonwealth was

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required to give Appellant “reasonable notice of [its] intention to proceed

under this section … after conviction and before sentencing.” Id.             On May

16, 2013, the trial court rendered its verdict. N.T., 5/16/2013, at 3-4. The

trial   court   ordered    a   presentence     investigation   and   a   psychosexual

evaluation.     Id. at 6.      Immediately thereafter, the Commonwealth gave

notice that it planned to seek a mandatory minimum sentence of 25 years of

imprisonment under Section 9718.2. Id. at 8-10. Thus, the Commonwealth

gave proper notice under 9718.2.

        At sentencing, the Commonwealth presented certified copies of a bill of

criminal information “showing a conviction for a prior sexual assault …

entered on January 14, 2000[,]” as well as the sentencing sheet in that

matter, “for Darren Macklin, same date of birth.” N.T., 2/28/2014, at 7, 11.

The trial court recognized that the criminal complaint filed in this matter

bore the name, “Darren Lamont Macklin, date of birth, November 4, 1976.”

Id. at 14-15.      After examining the sentencing sheet in the prior sexual

assault case, the trial court noted “it has the date of birth of November 4,

1976, which is the same date.”           Id.   Hence, the trial court took “judicial

notice based on the certified copies that this is one and the same person[.]”

Id. at 15.      Appellant had adequate notice, but did not offer any evidence

that contradicted the Commonwealth’s proof.3

____________________________________________


3
  Instead, Appellant argued that under Alleyne, the Commonwealth was
required to prove beyond a reasonable doubt that Appellant was the person
(Footnote Continued Next Page)


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      We discern no error. Under Section 9718.2, the Commonwealth was

only required to prove by a preponderance of the evidence that Appellant

was   previously       convicted    of   a   crime    under   Section   9799.14.4   “A

preponderance of the evidence is the lowest burden of proof in the

administration of justice, and it is defined as the greater weight of the

evidence, i.e., to tip a scale slightly in one's favor.”          Commonwealth v.

A.R., 990 A.2d 1, n.4 (Pa. Super. 2010) (internal citation, quotations, and

brackets omitted).        Stated differently, preponderance of the evidence is

tantamount to a “more likely than not” standard.                  Commonwealth v.

Heater, 899 A.2d 1126, 1133 (Pa. Super. 2006). Here, the Commonwealth

presented evidence that Appellant was more likely than not the same person

who committed the prior assault based upon the same name and birthdate

as reflected in certified court documents. Appellant’s second issue fails.

      Judgment of sentence affirmed.




                       _______________________
(Footnote Continued)

who committed the prior conviction. N.T., 2/28/2014, at 12-13. Appellant
suggested that the Commonwealth should have brought the victim, district
attorney, trial judge, or Appellant’s probation officer involved in the prior
conviction proceedings into the instant sentencing proceeding to identify
Appellant definitively. Id. As previously discussed, Appellant’s reliance on
Alleyne was misplaced and, as discussed infra, the Commonwealth was
only required to show by a preponderance of the evidence that Appellant
committed the prior sexual assault.
4
  There is no dispute that sexual assault is an enumerated offense under
Section 9799.14.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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