J. S48026/16
                               2016 PA Super 281

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                  v.                      :
                                          :
JACK J. JAROSZ, JR.                       :
           Appellant                      :
                                          :     No. 1769 WDA 2015

               Appeal from the PCRA Order September 17, 2015
               In the Court of Common Pleas of Bedford County
               Criminal Division No(s): CP-05-CR-0000316-2008


BEFORE: BOWES, DUBOW, and MUSMANNO, JJ.

OPINION BY DUBOW, J.:                           FILED DECEMBER 13, 2016

      Appellant, Jack J. Jarosz, Jr., appeals from the Order entered in the

Bedford County Court of Common Pleas denying his first Petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46.

After careful review, we affirm.

      On direct appeal, this Court summarized the pertinent facts as follows:

      The case arose out of a motor vehicle crash on July 3, 2008. The
      evidence produced at trial demonstrated that [Appellant] left his
      lane of travel on State Route 31, and collided with a vehicle in
      the westbound lane of State Route 31. The collision occurred in
      Harrison Township of Bedford County.          After the collision,
      [Appellant] fled the scene without offering aid or assistance, or
      identifying himself. The driver of the other vehicle received fatal
      injuries, and expired at the hospital on July 15, 2008. On the
      date in question, [Appellant] did not possess a valid driver’s
      license and his privileges had been suspended DUI related since
      2005. [Appellant] has not had a valid license since 1992.
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Commonwealth v. Jarosz, No. 372 WDA 2012, unpublished memorandum

at 2-3 (Pa. Super. filed February 22, 2013) (quoting Trial Court Opinion,

2/6/12, at 2).

      Appellant initially pled guilty to certain charges in this case, but later

successfully challenged his guilty plea and proceeded to trial. On June 17,

2011, a jury found Appellant guilty of the following offenses: Homicide by

Vehicle; Accidents Involving Death/Personal Injury Not Properly Licensed

(AIDPI-NL); Accidents Involving Death; Failure to Stop and Render Aid/Give

Information; Abandoning Vehicle on Highway; Disregarding Traffic Lane;

Careless Driving; and Driving Under a Suspended License-DUI Related

(DWS-DUI).1 The trial court sentenced Appellant to an aggregate sentence

of 4 to 15 years of incarceration. On February 22, 2013, this Court affirmed

Appellant’s Judgment of Sentence.        He did not seek review with our

Supreme Court.

      On February 24, 2014, Appellant filed a timely pro se PCRA Petition.

The PCRA court appointed counsel, who filed an amended PCRA Petition on

May 9, 2014, a supplement to the amended PCRA on June 27, 2014, and a

second supplement on September 18, 2014. Appellant also filed Motions for

appointment of a medical expert and the appointment of an expert crash

reconstructionist, which the PCRA court denied following a hearing. On June

1
  75 Pa.C.S. § 3732; 75 Pa.C.S. § 3742.1(b)(2); 75 Pa.C.S. § 3742(a); 75
Pa.C.S. § 3744(a); 75 Pa.C.S. § 3712(a); 75 Pa.C.S. § 3309(1); 75 Pa.C.S.
§ 3714(c); and 75 Pa.C.S. § 1543(b), respectively.



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18, 2015, the PCRA court held an evidentiary hearing on Appellant’s PCRA

Petition.    The PCRA court denied Appellant’s Petition on September 17,

2015.

        Appellant timely appealed, and Appellant and the trial court complied

with Pa.R.A.P. 1925.

        Appellant raises the following six issues for our review:

        1. Whether the PCRA Court erred/abused its discretion by failing
        find [] trial/appellate counsel ineffective for not presenting and
        arguing merger of sentences for the Homicide by Vehicle and
        Accidents Involving Death[/]Personal Injury—Not Properly
        Licensed charges?

        2. Whether the PCRA Court erred/abused its discretion by failing
        to find [] trial/appellate counsel ineffective for not presenting
        and arguing merger of sentences for the Accidents Involving
        Death/Personal Injury—Not Properly Licensed and the Driving
        Under Suspension charges?

        3. Whether the PCRA Court erred/abused its discretion by failing
        to find trial/appellate counsel ineffective for not arguing and
        investigating the issue that Mr. Jarosz [was] wrongly charged
        under 75 Pa.C.S. § 1543(b)(1), as the evidence showed [that]
        Mr. Jarosz was under a 75 Pa.C.S. § 1543(a) suspension?

        4. Given evidence of Mr. Jarosz's brain injury would have been
        beneficial to the defense in rebutting the Commonwealth's
        evidence that he purposefully fled the scene, and would also
        have rebutted evidence that he voluntarily abandoned his
        vehicle/failed to render aid/give information to police, did the
        PCRA Court err/abuse its discretion by failing to find
        trial/appellate counsel ineffective for not presenting evidence of
        a brain injury?

        5. Whether the PCRA Court erred/abused its discretion by failing
        to address claim 6(b)(viii) of the Amended PCRA Petition, in
        which Mr. Jarosz argues his trial/appellate counsel was
        ineffective for failing to argue/preserve the issue that Mr.
        Jarosz's sentence violated the terms of a plea bargain in another
        case, resulting in an unlawful extension of his sentence?


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      6. Whether the PCRA Court erred/abused its discretion by failing
      to grant Mr. Jarosz's requests for the appointment of a medical
      expert and the appointment of a crash reconstructionist, as
      expert testimony was necessary to show the ineffectiveness of
      Mr. Jarosz's prior counsel?

Appellant’s Brief at 2-4.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.

2014). “The scope of review is limited to the findings of the PCRA court and

the evidence of record, viewed in the light most favorable to the prevailing

party at the trial level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.

2014) (citation omitted).

                    Ineffective Assistance of Counsel Claims

      Appellant’s first five issues contend that trial and appellate counsel

provided ineffective assistance to Appellant.       In analyzing claims of

ineffective assistance of counsel, we presume that trial counsel was effective

unless the PCRA petitioner proves otherwise. Commonwealth v. Williams,

732 A.2d 1167, 1177 (Pa. 1999).        In order to succeed on a claim of

ineffective assistance of counsel, Appellant must demonstrate (1) that the

underlying claim is of arguable merit; (2) that counsel’s performance lacked

a reasonable basis; and (3) that the ineffectiveness of counsel caused the

appellant prejudice.   Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.

2003). “[Where] the underlying claim lacks arguable merit, counsel cannot



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be deemed ineffective for failing to raise it.”    Commonwealth v. Koehler,

36 A.3d 121, 140 (Pa. 2012). Appellant bears the burden of proving each of

these elements, and his “failure to satisfy any prong of the ineffectiveness

test requires rejection of the claim of ineffectiveness.” Commonwealth v.

Daniels, 963 A.2d 409, 419 (Pa. 2009).            With this standard in mind, we

address Appellant’s first five issues.

Merger of Offenses

      Underlying Appellant’s first two ineffective assistance of counsel

claims, Appellant contends that his offenses merged for purposes of

sentencing.

      The legislature has provided the following statutory guidance for

merger:

      § 9765. Merger of sentences

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 9765.

      When considering whether two offenses should merge:

      [W]e compare the elements of the offenses. If the elements of
      the lesser offense are all included within the elements of the
      greater offense and the greater offense has at least one
      additional element, which is different, then the sentences merge.
      If both crimes require proof of at least one element that the
      other does not, then the sentences do not merge.



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Commonwealth v. Nero, 58 A.3d 802, 807 (Pa. Super. 2012) (quotations

and citations omitted). “A plain language interpretation of [42 Pa.C.S.A. §

9765] reveals the General Assembly’s intent to preclude the courts of this

Commonwealth from merging sentences for two offenses that are based on

a single criminal act unless all of the statutory elements of one of the

offenses   are   included   in   the   statutory   elements   of    the   other.”

Commonwealth v. Baldwin, 985 A.2d 830, 837 (Pa. 2009)

      Appellant first contends that trial counsel was ineffective for failing to

argue that his Homicide by Vehicle conviction merged with AIDPI-NL.

Although the issue presents itself in an ineffective assistance of counsel

claim, this Court has not yet addressed the underlying merger issue.

Therefore, this is a case of first impression.

      The legislature has defined the crimes at issue as follows:

      § 3732. Homicide by vehicle

      (a) Offense.--Any person who recklessly or with gross
      negligence causes the death of another person while engaged in
      the violation of any law of this Commonwealth or municipal
      ordinance applying to the operation or use of a vehicle or to the
      regulation of traffic except section 3802 (relating to driving
      under influence of alcohol or controlled substance) is guilty of
      homicide by vehicle, a felony of the third degree, when the
      violation is the cause of death.

                                       ...

      § 3742.1. Accidents involving death or personal injury
      while not properly licensed

      (a) Offense defined.--A person whose operating privilege was
      disqualified, canceled, recalled, revoked or suspended and not
      restored or who does not hold a valid driver's license and


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     applicable endorsements for the type and class of vehicle being
     operated commits an offense under this section if the person
     was the driver of any vehicle and caused an accident resulting in
     injury or death of any person.

75 Pa.C.S.A. §§ 3732(a) and 3742.1, respectively.     Additionally, case law

has imposed a scienter requirement of negligence as to AIDPI-NL.            See

Commonwealth v. Hurst, 889 A.2d 624, 628-29 (Pa. Super. 2005). Thus,

the elements of Homicide by Vehicle are: 1) recklessness or gross

negligence; 2) causing death; and 3) while violating the vehicular code; and

4) the violation is the cause of death. The elements of AIDPI-NL are: 1)

negligence; 2) causing death or personal injury; and 3) while unlicensed.

     Contrary to Appellant’s contention, AIDPI-NL is not a lesser included

offense of Homicide by Vehicle.    Although both Homicide by Vehicle and

AIDPI-NL require a violation of the vehicular code, Homicide by Vehicle

specifically requires that the violation of the vehicle code be the cause of

death. The vehicle code violation in AIDPL-NL is driving without a license.

Since driving without a license was not the cause of death in this case,

AIDPL-NL does not merge into Homicide by Vehicle for sentencing purposes. 2

     Appellant next contends that his convictions for AIDPI-NL and DWS-

DUI, merged. This Court has already considered and rejected the merger of

these two offenses, concluding that:




2
  In the instant case, Appellant’s Careless Driving and Disregarding Traffic
Lane violations were the proximate cause of the victim’s death.



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      [Appellant’s] conviction for AIDPI while not properly licensed
      required the Commonwealth to demonstrate that [Appellant]
      caused an accident that resulted in the injury or death of a
      person, and that his operating privilege was either disqualified,
      canceled, recalled, revoked or suspended (and not restored), or
      that [Appellant] did not hold a valid driver's license.
      [Appellant’s] conviction for DWS–DUI related required the
      Commonwealth to demonstrate that [Appellant’s] operating
      privilege was suspended or revoked as a condition of acceptance
      of ARD (for driving under influence, or for a similar offense that
      occurred outside of the Commonwealth), or for a refusal to
      submit to chemical testing. A review of the plain language of
      these statutes demonstrates that DWS–DUI related clearly
      imposes an additional requirement that a license suspension be
      related to DUI or ARD. Such an element is not contemplated by
      the AIDPI statute.

Commonwealth v. Raven, 97 A.3d 1244, 1251 (Pa. Super. 2014) (citation

omitted).

      Because neither of Appellant’s merger claims have merit, the trial

court properly concluded that trial counsel cannot be found ineffective for

failing to raise them. Koehler, supra at 140.

Challenge to the Suspension Offense Subsection

      In his third ineffectiveness challenge, Appellant argues that he was

improperly charged with DWS-DUI because his DUI suspension had expired

a few months earlier, and trial counsel was ineffective for failing to raise this

issue at trial. See Appellant’s Brief at 17-21. We disagree.

      The offense of DWS-DUI is defined, in relevant part, as:

      (1) A person who drives a motor vehicle on a highway or
      trafficway of this Commonwealth at a time when the person's
      operating privilege is suspended or revoked as a condition of
      acceptance of Accelerated Rehabilitative Disposition for a
      violation of section 3802 (relating to driving under influence of


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     alcohol or controlled substance) or the former section 3731,
     because of a violation of section 1547(b)(1) (relating to
     suspension for refusal) or 3802 or former section 3731 or is
     suspended under section 1581 (relating to Driver's License
     Compact) for an offense substantially similar to a violation of
     section 3802 or former section 3731 shall, upon conviction, be
     guilty of a summary offense and shall be sentenced to pay a fine
     of $500 and to undergo imprisonment for a period of not less
     than 60 days nor more than 90 days.

                                    ...

     (2) This subsection shall apply to any person against whom one
     of these suspensions has been imposed whether the person is
     currently serving this suspension or whether the effective date of
     suspension has been deferred under any of the provisions of
     section 1544 (relating to additional period of revocation or
     suspension). This provision shall also apply until the person
     has had the operating privilege restored.

75 Pa.C.S. § 1543(b) (emphasis added).

     In the instant case, Appellant began serving a two-year DUI

suspension on March 12, 2006. N.T., 6/18/15 at 17. The DUI suspension

expired on March 12, 2008, and on that same date a new two-year

suspension for Driving under Suspension began.3 Id. at 18. Appellant hit

and killed a fellow motorist on July 3, 2008.     At no point between the

termination of his DUI suspension and the accident had Appellant had his

operating privileges restored.    Therefore, pursuant to 75 Pa.C.S. §

1543(b)(2), the Commonwealth properly charged Appellant with, and the



3
  Appellant, a habitual offender who has not held a valid driver’s license
since 1992, received a citation for driving on a suspended license while he
was serving the DWS-DUI suspension. N.T., 6/18/15 at 18.




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jury   properly    convicted   him   of,    DWS-DUI.   Accordingly,   Appellant’s

underlying issue has no merit and trial counsel could not be found ineffective

for failing to raise a meritless issue.

Evidence of Brain Injury at Trial

       In his fourth issue, Appellant argues that trial counsel was ineffective

for failing to obtain medical records from Conemaugh Hospital which would

have shown that he had suffered a concussion in the accident, and that

because of his concussed state, he lacked the mens rea to commit the

offenses of Failure to Stop and Render Aid/Give Information and Abandoning

Vehicle on Highway. Appellant’s Brief at 21-24.

       At trial, Appellant’s counsel effectively elicited testimony regarding

Appellant’s head injuries, and the concussion diagnosis he had received at

the hospital. N.T., 6/17/11 at 15, 110-12; N.T., 6/17/11 at 8, 33, 36-40,

47, 93-94.        The Commonwealth never disputed Appellant’s concussion

diagnosis. N.T., 6/18/15, at 54.

       While there may be arguable merit to the contention that counsel

should have obtained the medical report memorializing the concussion

diagnosis, Appellant has failed to demonstrate how one more piece of

evidence confirming a fact that no one disputed would have impacted the

outcome in this case.      Unable to meet his burden of showing prejudice,

Appellant is not entitled to relief on this claim.




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Plea Agreement Violation

      In his final allegation of ineffective assistance of counsel, Appellant

avers that his sentence violated a prior plea agreement and that trial counsel

was ineffective for failing to raise this fact. Appellant’s Brief at 24-27.

      Plea agreements have become commonplace in our legal system, and,

when properly administered, can be essential and valuable components in

the administration of justice.    Commonwealth v. White, 787 A.2d 1088,

1091 (Pa. Super. 2001). To safeguard this essential process, we impose a

duty on the Commonwealth to honor all promises made, and we demand

“strict compliance with that duty in order to avoid any possible perversion of

the plea bargaining system, evidencing the concern that a defendant might

be coerced into a bargain or fraudulently induced to give up the very valued

constitutional   guarantees      attendant     the   right   to   trial   by   jury.”

Commonwealth v. Fuehan, 557 A.2d 1093, 1094 (Pa. Super. 1989).

“Assuming the plea agreement is legally possible to fulfill, when the parties

enter the plea agreement on the record, and the court accepts and approves

the plea, then the parties and the court must abide by the terms of the

agreement.”      Commonwealth v. Parsons, 969 A.2d 1259, 1268 (Pa.

Super. 2009).

      Where, as here, “a defendant withdraws or successfully challenges his

plea, the bargain is abrogated[.]” Commonwealth v. Ward, 425 A.2d 401,

406 (Pa. 1981). When a defendant abrogates a plea agreement, he resumes



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his preagreement status, and the government may proceed . . . as if the

agreement had never existed.” Id.

     If the defendant were permitted to accept a bargain and then
     revoke his part while leaving the prosecution bound, the entire
     purpose of plea bargaining would be defeated. Every defendant
     would find it in his interest to plead and then challenge his plea
     after sentencing. Every plea would thus require subsequent
     litigation, and if successfully revoked, would be followed by the
     very trial and consumption of judicial resources which the
     bargain supposedly had precluded. As a result, the criminal
     justice system would become more clogged with litigation than if
     there were no plea bargaining.

Id. at 405.

     Thus, where, as here, “a defendant withdraws or successfully

challenges his plea . . . he must be prepared to accept all of the

consequences which the plea originally sought to avoid.” Id. at 406.

     In the instant case, trial counsel represented Appellant in two

unrelated cases: this case, and an aggravated assault case not at issue in

this appeal.   N.T., PCRA Hearing, 6/18/15, at 30.   Initially, Appellant pled

guilty in both cases, and as a term of the negotiated plea agreement in the

assault case, the sentences in both cases were set to run concurrent to one

another. Id. at 30-31.

     Appellant subsequently challenged and withdrew his guilty plea in the

instant case, forcing the Commonwealth to proceed to trial in this case and

denying the Commonwealth the benefit of the bargain reached. Appellant’s

own actions abrogated the bargain and, thus, at sentencing he was no

longer entitled to receive the benefit of the bargain, i.e., to recommend to


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the court that it impose a sentence concurrent to the sentence for

aggravated assault. Ward, 425 A.2d at 406.

      Therefore, because Appellant’s underlying claim, based on a prior

abrogated plea agreement, is without merit, trial counsel and appellate

counsel were not ineffective for failing to raise it. Koehler, supra at 140.

              Appellant’s Request for Experts at PCRA Hearing

      In his final issue, Appellant asserts that the PCRA court abused its

discretion in failing to grant his request for the appointment of a medical

expert and an expert in crash reconstruction.

      If an expert’s testimony is necessary to establish that an appellant is

entitled to relief in his PCRA Petition, the PCRA court may appoint an expert.

See Commonwealth v. Albrecht, 720 A.2d 693, 707 (Pa. 1998) (generally

discussing the appointment of an expert in PCRA proceedings when after-

discovered evidence has been raised). The decision on whether to appoint

an expert witness is within the sound discretion of the PCRA court.

Commonwealth v. Reid, 99 A.3d 470, 505 (Pa. 2014).

      The provision of public funds to hire experts to assist in the
      defense against criminal charges is a decision vested in the
      sound discretion of the court and a denial thereof will not be
      reversed absent an abuse of that discretion. At the trial stage,
      an accused is entitled to the assistance of experts necessary to
      prepare a defense. This court has never decided that such an
      appointment is required in a PCRA proceeding. We must review
      the PCRA court's exercise of its discretion in the context of the
      request[.]

Id. at 505 (citation and quotation omitted).



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      A PCRA Petitioner is not entitled to the appointment of an expert

where the expert’s testimony would be “merely cumulative of that already

presented by trial counsel.”    Id.    Nor is an expert necessary where the

evidence produced at trial clearly negates the theory an appellant wishes

that expert to adduce. Albrecht, 720 A.2d at 708-09. Finally, this Court

will not grant relief where an appellant “has not established by factual

analysis or argument that the trial court's denial of funds [to hire an expert

witness] prejudiced him.” Id. at 707.

Medical Expert Testimony

      Appellant avers that expert medical testimony was necessary at the

PCRA proceeding to prove that trial counsel was ineffective for failing to call

a medical expert at trial.

      Although Appellant alleges that he has no memory of the aftermath of

the accident and has “no clue” why he left the scene, he is nonetheless

confident that he wandered away from the scene in a confused daze without

the intent to leave the scene. Appellant’s Brief at 34-35. However, as the

PCRA court noted, “[t]he record is bare of evidence [that Appellant]

‘wandered’ away[;] the testimony of the witnesses . . . was that he ran away

with little difficulty and a party of Pennsylvania State Police could not locate

him.” Memorandum Opinion, dated 4/14/15, at 12. In fact, a witness who

testified at trial clearly described Appellant acting “very nervous” and—upon




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hearing approaching sirens—saying “I got to go,” and running from the

scene up a steep incline. Id. at 5-6 (quoting N.T., 6/16/11, at 24-25).

        Despite this evidence, Appellant argues, in bare and conclusory terms,

that:

        Had expert testimony regarding [Appellant’s] head injury and its
        effects been submitted to the jury, there is a reasonable
        probability [that] the outcome of the trial would have been
        different.    Therefore, in order to show [trial counsel’s]
        ineffectiveness, expert medical testimony would have been
        necessary, and the [PCRA] court erred by not granting
        [Appellant’s] petition to appoint a medical expert.

Appellant’s Brief at 35.

        As discussed, supra, Appellant has failed to demonstrate the manner

in which additional evidence regarding Appellant’s injury would have had any

impact on the outcome at trial, particularly in light of the uncontested

evidence of a concussion diagnosis that trial counsel did present to the jury.

Indeed, it seems this is precisely the type of cumulative evidence this Court

previously rejected in Reid, supra at 505.

        Moreover, the only witness who claims to remember Appellant’s

actions after the crash clearly testified that Appellant intentionally fled upon

hearing sirens, negating the theory Appellant now wishes to raise that he

wandered off in a daze.

        Thus, “review[ing] the PCRA court's exercise of its discretion in the

context of the request[,]” we conclude that the PCRA court did not abuse its




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discretion when it denied Appellant’s request for a medical expert.     Reid,

supra at 505.

Expert Crash Reconstructionist

      Finally, Appellant summarily argues that the PCRA court erred in not

appointing an expert crash investigator because “an independent review of

the evidence will reveal he was not criminally liable for the car crash.”

Appellant’s Brief at 33.    Appellant is seeking to embark on a fishing

expedition in the hopes that a new expert might reach a different conclusion.

His Brief lists a single alleged error in the trial testimony of the

Commonwealth’s expert—an error that Appellant concedes counsel attacked

at trial. Appellant’s Brief at 33-34; N.T., 6/17/11, at 89-90. His argument—

devoid of any factual analysis or developed argument that he was

prejudiced—must fail.

      Having determined that Appellant is not entitled to relief on any of his

claims, we affirm the PCRA court’s September 17, 2015 Order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/13/2016




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