J-E03003-14



                              2014 PA Super 243



COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

JOSEPH LOUIS KELLY,

                         Appellant                  No. 3432 EDA 2012


    Appeal from the Judgment of Sentence Entered November 14, 2012
             In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0002697-2012


BEFORE: BENDER, P.J.E., BOWES, J., PANELLA, J., DONOHUE, J.,
        SHOGAN, J., ALLEN, J., LAZARUS, J., WECHT, J., and STABILE, J.

OPINION BY BENDER, P.J.E.:                        FILED OCTOBER 24, 2014

     Appellant, Joseph Louis Kelly, appeals from the judgment of sentence

of 30-72 months’ incarceration, and a consecutive term of 5 years’

probation, imposed following his conviction for corruption of minors and

indecent assault.   The question before us is whether the Commonwealth

proved, by sufficient evidence, that Appellant engaged in a “course of

conduct” as required under the felony grading of the offense of corruption of

minors, 18 Pa.C.S. § 6301(a)(1)(ii). Because we conclude that Appellant did

not engage in a “course of conduct” within the meaning of that provision, we

vacate his judgment of sentence and remand for resentencing.

     This case involved Appellant’s sexual abuse of Z.K., a minor with

learning disabilities. During the summer of 2011, Z.K. lived with his mother,
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grandmother, and Appellant (his mother’s husband), at their home in

Chester, Pennsylvania.       Appellant was approximately ten years old at that

time.1    Prior to the abuse detailed below, Z.K. indicated that he and

Appellant got along “okay[.]” N.T., 8/8/12, at 27.

       Z.K. recalled that on a hot day during the summer of 2011, he wanted

to visit his friend’s house; however, his mother told him that he could not go

until he took a bath.2 Following his mother’s instructions, Z.K. went to the

upstairs bathroom accompanied by Appellant.          This was not unusual, as

Appellant “sometimes” helped to “wash [him] up.”         Id. at 36. Appellant’s

mother was in her bedroom at this time, which was also located on the

second floor of the residence.

       Z.K. and Appellant did not speak during Z.K.’s bath, and the door to

the bathroom was closed. At one point, Appellant grabbed Z.K.’s penis and

began “playing with it.” Id. at 45. Z.K. tried to call out, but he could not

because Appellant was using his other hand to cover Z.K.’s mouth.

Appellant held his hand over Z.K.’s mouth for “a long time, ‘cause I can’t –

he held my nose, and I can’t even breath. … Probably like five minutes I

keep on doing that, telling him to get off my – get off my face.” Id. at 49.


____________________________________________


1
 The trial court reports that Z.K. was eleven years old at the time of trial,
which occurred the following summer.
2
 Due to Z.K.’s learning disability, he had difficultly recalling the specific date
on which these events occurred.



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Z.K. recalled that Appellant’s right hand covered his mouth while Appellant’s

left hand played with his penis. Appellant did not speak to Z.K. while this

happened.

      Z.K. made several attempts to flee the bathroom and tell his mother,

but Appellant held him in place and silenced his cries.   This continued for

about five minutes until Z.K.’s mother came into the bathroom to check on

his progress.    When she opened the door, Appellant stopped groping and

restraining Z.K. and left the bathroom.     At that point, Z.K. exited the

bathtub and put on his clothes.

      Z.K. said that this was the only occasion when Appellant had molested

him and that Appellant had previously washed him in the shower or bath

without incident.   However, on this occasion, Z.K. indicated that Appellant

“didn’t really clean [his] body.” Id. at 42. Z.K. did not immediately report

the abuse.    However, once Appellant left the residence, approximately six

weeks after this incident, Z.K. told his mother and grandmother what had

happened.

      Z.K.’s mother testified that she was still married to Appellant at the

time of trial.   However Appellant moved out of their Chester residence, in

November of 2011, following an argument with her that resulted in the

involvement of police. Z.K. told his mother about the bathroom incident in

January of 2012.      Z.K. did not tell her sooner because Appellant had

threatened to harm him, his mother, and his grandmother.




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        Z.K.’s mother suspected that something had happened between

Appellant and Z.K. prior to Z.K.’s disclosure.      Her suspicions arose in

September of 2011, because Z.K. “didn’t want to be around [Appellant]

anymore …. Like he wouldn’t go to the store with [Appellant] anymore. He

wouldn’t do activities.    Stopped going to the library.     He wouldn’t be

anywhere [Appellant] was at ….” Id. at 63.

        The Commonwealth filed a criminal complaint on January 24, 2012,

charging Appellant with three counts of indecent assault, 18 Pa.C.S. §

3126(a)(1), (2) and (7), and one count of corruption of minors, 18 Pa.C.S. §

6301.      Immediately prior to Appellant’s non-jury trial, the criminal

information was amended to reflect the felony gradation of the corruption of

minors offense, 18 Pa.C.S. § 6301(a)(1)(ii). The trial was held on August 8,

2012, and the court found Appellant guilty of all counts.          The court

sentenced Appellant on November 14, 2012, to 30-72 months’ incarceration

for corruption of minors, and to a consecutive term of five years’ probation

for indecent assault.

        On December 13, 2012, Appellant filed a timely appeal from his

judgment of sentence. He also complied in a timely fashion when the trial

court ordered him to file a Pa.R.A.P. 1925(b) statement. The trial court filed

its Rule 1925(a) opinion on June 13, 2013.       Appellant now presents the

following question for our review:

        Whether the evidence was insufficient to sustain the conviction
        for [c]orruption of [m]inors since the Commonwealth failed to
        prove beyond a reasonable doubt that [Appellant], by any course

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      of conduct in violation of Chapter 31 [of Title 18] (relating to
      sexual offenses), corrupted or tended to corrupt the morals of
      any minor?

Appellant’s Brief at 5.

      Although Appellant directs his claim at the sufficiency of the evidence

supporting his conviction for corruption of minors, his sufficiency claim

actually addresses the grading of the offense of corruption of minors rather

than the offense itself, as we will discuss in more detail infra. Nevertheless,

our standard of review of sufficiency claims is well-settled:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      The statute defining the offense of corruption of minors reads, in

pertinent part, as follows:

      (a) Offense defined.--

         (1) (i) Except as provided in subparagraph (ii), whoever,
         being of the age of 18 years and upwards, by any act
         corrupts or tends to corrupt the morals of any minor less
         than 18 years of age, or who aids, abets, entices or
         encourages any such minor in the commission of any
         crime, or who knowingly assists or encourages such minor


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         in violating his or her parole or any order of court, commits
         a misdemeanor of the first degree.

         (ii) Whoever, being of the age of 18 years and upwards, by
         any course of conduct in violation of Chapter 31 (relating
         to sexual offenses) corrupts or tends to corrupt the morals
         of any minor less than 18 years of age, or who aids, abets,
         entices or encourages any such minor in the commission of
         an offense under Chapter 31 commits a felony of the third
         degree.

18 Pa.C.S. § 6301(a) (emphasis added).

      Appellant was convicted under subsection (a)(1)(ii), the felony grading

of the corruption of minors statute. The crux of his argument is that the use

of the phrase “course of conduct” in subsection (a)(1)(ii) requires “proof of

two or more related events that occur over time[,]” and, consequently, that

“a single episode does not constitute a course of conduct.” Appellant’s Brief,

at 13. Appellant maintains that this interpretation of “course of conduct” is

both the plain meaning of the phrase and consistent with the manner in

which it is defined with respect to other offenses in the Crimes Code.

      However, the Commonwealth contends that the phrase “course of

conduct,” as it is used in this statute, simply refers to any action, or series of

actions, that gives rise to a Chapter 31 offense. Commonwealth’s Brief at 8-

9.   To that effect, the Commonwealth emphasizes that, unlike its use in

other statutes, the phrase “course of conduct” in subsection (a)(1)(ii) is

preceded by the term, “any.” The Commonwealth argues that the extended

phrase, “any course of conduct,” takes on a less restrictive meaning than

when the phrase “course of conduct” is isolated without the modifier, “any.”

The Commonwealth contends that this is consistent with the legislative

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intent “to increase the grading of the offense when a Chapter 31 sexual

offense comprised the act which corrupted or tended to corrupt the morals

of a minor.” Commonwealth’s Brief, at 10.

      Appellant’s claim demands that we interpret the corruption of minors

statute before we determine whether he committed an offense under

subsection (a)(1)(ii).

      Because statutory interpretation is a matter of law, our standard
      of review is de novo, and our scope of review is plenary.
      Commonwealth v. McClintic, 589 Pa. 465, 472, 909 A.2d
      1241, 1245 (2006). Consequently, we are not bound by the
      lower court's conclusions regarding the proper meaning of the
      applicable provisions of this statute. See Commonwealth v.
      Kyle, 582 Pa. 624, 632, 874 A.2d 12, 17 (2005) (holding that
      our Court owes no duty of deference to the legal conclusions of
      lower courts regarding an issue of statutory construction).

             Our review is further governed by the Statutory
      Construction Act, 1 Pa.C.S.A. § 1501 et seq., under which our
      paramount interpretative task is to give effect to the intent of
      our General Assembly in enacting the particular legislation under
      review.     See 1 Pa.C.S.A. § 1921(a) (“The object of all
      interpretation and construction of statutes is to ascertain and
      effectuate the intention of the General Assembly. Every statute
      shall be construed, if possible, to give effect to all its
      provisions.”); Nationwide Ins. Co. v. Schneider, 599 Pa. 131,
      143, 960 A.2d 442, 448 (2008). Generally, the best indication
      of the General Assembly's intent may be found in the plain
      language of the statute. Martin v. Commonwealth, Dep't of
      Transp., Bureau of Driver Licensing, 588 Pa. 429, 438, 905
      A.2d 438, 443 (2006). In this regard, “it is not for the courts to
      add, by interpretation, to a statute, a requirement which the
      legislature did not see fit to include.” Commonwealth v. Rieck
      Investment Corp., 419 Pa. 52, 59–60, 213 A.2d 277, 282
      (1965). Consequently, “[a]s a matter of statutory interpretation,
      although one is admonished to listen attentively to what a
      statute says[;][o]ne must also listen attentively to what it does
      not say.” Kmonk–Sullivan v. State Farm Mut. Auto. Ins.


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      Co., 567 Pa. 514, 525, 788 A.2d 955, 962 (2001) (internal
      quotations omitted).

Commonwealth v. Wright, 14 A.3d 798, 814 (Pa. 2011).

      Here, we must construe the meaning of a criminal statue.          As such,

additional principles apply to our interpretation, such as the statutory

mandate that penal statute “shall be strictly construed[.]”          1 Pa.C.S. §

1928(b)(1).

      Of course, the mandate to construe penal statutes narrowly does
      not override the “general principle that the words of a statute
      must be construed according to their common and approved
      usage,” and does not require this Court to give the words of a
      penal    statute   their    “narrowest      possible   meaning.”
      Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846
      (2001).     The mandate “does mean, however, that where
      ambiguity exists in the language of a penal statute, such
      language should be interpreted in the light most favorable to the
      accused. More specifically, where doubt exists concerning the
      proper scope of a penal statute, it is the accused who should
      receive the benefit of such doubt.”        Id. (internal citation
      omitted)[.]

Commonwealth v. McCoy, 962 A.2d 1160, 1168-69 (Pa. 2009).

      The corruption of minors statute was amended in 2010 to include the

provision at issue, subsection (a)(1)(ii). Prior to the amendment, subsection

(a)(1) only prohibited the offense now set forth in subsection (a)(1)(i). Not

surprisingly, then, the instant controversy is a matter of first impression.

      The best evidence of the Legislature’s intent is the plain text of the

statute.   Subsection (a)(1)(ii) identifies two distinct offenses.   The part at

issue addresses the application of the corruption of minors statute to sexual

offenses committed by the adult defendant. The second part of subsection



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(a)(1)(ii) addresses the application of the corruption of minors statute where

the defendant “aids, abets, entices or encourages” a minor to commit a

sexual offense.     18 Pa.C.S. § 6301(a)(1)(ii).     Considered together, these

provisions evidence a clear intent to provide additional penalties when the

act or acts that corrupt the morals of a minor are sexual offenses,

irrespective of whether the sexual offense was committed by an adult

defendant or a minor victim. The question remains, however, whether the

Legislature intended the first part of subsection (a)(1)(ii) to reach a single

act that gives rise to a sexual offense under Chapter 31, or whether its

applicability requires multiple acts in violation of Chapter 31.

      Looking elsewhere within the same statute, it is apparent that the

Legislature knows how to distinguish between the singular and the plural.

The   plain   language   of   the   second   part   of   subsection   (a)(1)(ii)   is

unambiguous in that a defendant is culpable when he aids or abets in a

minor’s commission of a single Chapter 31 offense, targeting a defendant

“who aids, abets, entices or encourages any such minor in the commission of

an offense under Chapter 31….”          Id. (emphasis added).         Similarly, in

subsection (a)(1)(i), the Legislature has no trouble stating that a single act,

crime, or violation of a court order runs afoul of that provision.      18 Pa.C.S.

§ 6301(a)(1)(i) (identifying “any act,” “any crime,” and the violation of “any

order of court”).

      The first provision of subsection (a)(1)(ii) departs from this pattern

when it utilizes the phrase, “any course of conduct….”        Section 6301 does

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not define “course of conduct,” however, the phrase is not alien to the

Crimes Code. “Course of conduct” is defined in multiple instances elsewhere

in the Crimes Code and, in each of those instances, “course of conduct”

implies more than one act over time.      See 18 Pa.C.S. § 2709(f) (defining

“[c]ourse of conduct” as used in the statute defining the offense of

harassment as “[a] pattern of actions composed of more than one act over a

period of time, however short, evidencing a continuity of conduct”); 18

Pa.C.S. § 2709.1(f) (defining “[c]ourse of conduct” as used in the stalking

statute as “[a] pattern of actions composed of more than one act over a

period of time, however short, evidencing a continuity of conduct”).

Although recognizing that the harassment and stalking statutes provide a

statutory definition for the phrase, this Court has “explained that ‘[c]ourse of

conduct by its very nature requires a showing of a repetitive pattern of

behavior.’”   Commonwealth v. Leach, 729 A.2d 608, 611 (Pa. Super.

1999) (quoting Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa. Super.

1995)).

      The phrase “course of conduct” is also used in the grading of the

offense of endangering the welfare of children (EWOC). 18 Pa.C.S. §

4304(b) (“An offense under this section constitutes a misdemeanor of the

first degree. However, where there is a course of conduct of endangering

the welfare of a child, the offense constitutes a felony of the third degree.”)

(emphasis added).    Although the EWOC statue does not define “course of

conduct,” the phrase is clearly used in that context to differentiate the

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penalties for single and multiple endangering acts.           Likewise, indecent

assault is graded as a third degree felony where “[t]here has been a course

of conduct of indecent assault by the person.” 18 Pa.C.S. § 3126(b)(3)(ii).

        Uses of the phrase “course of conduct” exist in Pennsylvania statutes

outside of the Crimes Code. For instance, the CPA 3 Law states that “[i]n any

prosecution or proceeding under this act, evidence of the commission of a

single act prohibited by this act shall be sufficient to justify an injunction or a

conviction without evidence of a general course of conduct.” 63 P.S. § 9.15.

As was the case with the EWOC statute, the use of the phrase “course of

conduct” under the CPA Law is unmistakably distinguishing between multiple

and single acts.

        Federal law is also consistent with the instances where Pennsylvania

law has defined the phrase, “course of conduct.”         Chapter 110(A) of the

Federal Criminal Code, which deals with interstate domestic violence and

stalking, states that a “‘course of conduct’ means a pattern of conduct

composed of 2 or more acts, evidencing a continuity of purpose.”                18

U.S.C.A. § 2266(2).

        The Commonwealth has not cited, nor have we found, any legal

authority in which “course of conduct” is defined or used so as to encompass

a single act. Moreover, we cannot discern how the Legislature’s employment


____________________________________________


3
    Certified Public Accountant.



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of   the   term    “any,”   immediately        preceding   “course   of   conduct,”   so

fundamentally expands the meaning of the latter phrase to encompass a

single act.     Indeed, it would be quite a simple matter to legislate the

meaning advocated by the Commonwealth by replacing the phrase “course

of conduct” with the term “act.”          That the Legislature chose to utilize the

phrase “course of conduct” instead greatly undermines the Commonwealth’s

interpretation.

       Given the well-established meaning of the phrase, “course of conduct,”

we ascertain no ambiguity in its use in subsection (a)(1)(ii) of the corruption

of minors statute. Consequently, we hold that the use of the phrase “course

of conduct” in the first provision of subsection (a)(1)(ii) imposes a

requirement of multiple acts over time, in the same manner in which the

term is used in the harassment, stalking and EWOC statutes. Accordingly,

we reject the Commonwealth’s contention that “course of conduct” could

encompass a single act that gives rise to a Chapter 31 offense.4
____________________________________________


4
   Contrary to the Commonwealth’s argument, this conclusion does not
undermine the legislative intent to escalate the sanctions under the
corruption of minors statute for acts that constitute Chapter 31 offenses.
Indeed, a defendant who commits a Chapter 31 offense against a minor
would simultaneously violate subsection (a)(1)(i) of the corruption of minors
statute. Individuals who commit multiple acts in violation of Chapter 31,
and individuals who aid or abet a minor in the commission of a single
Chapter 31 offense, are subject to a greater penalty. While we cannot
explain why the Legislature would limit the first part of the felony grading of
the corruption of minors offense to multiple acts that give rise to Chapter 31
offenses, we cannot ignore the plain meaning of the text. Moreover, the
Commonwealth offers no evidence of the Legislature’s specific intent to
(Footnote Continued Next Page)


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      Turning to the evidence in this case, we must conclude that the

Commonwealth failed to demonstrate multiple acts in violation of Chapter

31.    Even viewing the evidence in a light most favorable to the

Commonwealth as the verdict winner, there was only one prohibited act in

violation of Chapter 31 that was alleged and proven. That occurred when

Appellant grabbed Z.K.’s genitals.           Although that single act violated three

separate provisions of the indecent assault statute, it did not constitute a

“course of conduct” within the plain and universally accepted meaning of

that phrase.       Furthermore, although Appellant restrained Z.K. while

committing the indecent assault, that action was not itself a violation of

Chapter 31.     And, not inconsequentially, the restraining actions and the

indecent assault occurred simultaneously.              Accordingly, there was not



                       _______________________
(Footnote Continued)

impose the felony grading of the corruption of minors offense for a single act
committed in violation of Chapter 31. Although it may seem strange that
the Legislature did not intend to apply the felony grading of the corruption of
minors to a single sexual offense, Chapter 31 offenses cover a vast array of
prohibited conduct – from indecent exposure to rape.            It is certainly
plausible that the Legislature did not intend to apply the felony grading of
the corruption of minors statute to a single case of indecent exposure to a
child, a crime which already carries additional penalties for offenses
committed against minors. See 18 Pa.C.S. § 3127(b) (“If the person knows
or should have known that any of the persons present are less than 16 years
of age, indecent exposure under subsection (a) is a misdemeanor of the first
degree.     Otherwise, indecent exposure under subsection (a) is a
misdemeanor of the second degree.”).           Similar age-based sentencing
enhancements are contained in many of the offenses defined in Chapter 31.




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sufficient evidence to support the felony grading of the corruption of minors

statute as set forth in subsection (a)(1)(ii).

        Nevertheless, the evidence was sufficient to support the misdemeanor

grading of the corruption of minors offense, subsection (a)(1)(i), and

Appellant does not allege otherwise. It is “the settled law in Pennsylvania …

that a defendant may be convicted of an offense that is a lesser-included

offense of the crime actually charged.” Commonwealth v. Sims, 919 A.2d

931, 938 (Pa. 2007).

        A lesser-included offense is a crime having elements of which
        are a necessary subcomponent of elements of another crime, the
        greater offense. The elements in the lesser-included offense are
        all contained in the greater offense; however, the greater
        offense contains one or more elements not contained in the
        lesser-included offense.

Commonwealth v. Reese, 725 A.2d 190, 191 (Pa. Super. 1999) (quoting

Commonwealth v. Blackwell, 647 A.2d 915, 927 (Pa. Super. 1994)).

        Here, the first part of both subsections of 18 Pa.C.S. § 6301(a)(1)

require a defendant to do something that “corrupts or tends to corrupt the

morals of any minor less than 18 years of age….”                18 Pa.C.S. §

6301(a)(1)(i), (ii). In the case of the first part of subsection (a)(1)(i), that

‘something’ is “any act….”      In the case of the first part of subsection

(a)(1)(ii), that ‘something’ is “any course of conduct in violation of Chapter

31….”     These are not different elements.      Rather, the first provision of

subsection (a)(1)(ii) requires additional elements not required by the first

provision of subsection (a)(1)(i).    As we hold in this opinion, one of the


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additional elements in subsection (a)(1)(ii) is that “any course of conduct”

requires proof of more than one act, whereas subsection (a)(1)(i) only

requires a single act.   Furthermore, subsection (a)(1)(ii) requires that the

“course of conduct” alleged must constitute one or more Chapter 31

offenses. Thus, the first provision of subsection (a)(1)(i) is a lesser included

‘offense’ of the ‘offense’ defined by the first part of subsection (a)(1)(ii).

      As we stated in Reese, “‘upon indictment for a particular crime, a

defendant may be convicted of a lesser offense included within that crime.’

As long as conviction is for a lesser-included offense, the defendant will have

been put on notice of the charges against him and can adequately prepare a

defense.”   Reese, 725 A.2d at 191 (quoting Commonwealth v. Sewell,

702 A.2d 570, 571 (Pa. Super. 1997)). Here, Appellant was charged with

the offense of corruption of minors, and convicted under the felony grading

of the offense. Although we conclude that there was insufficient evidence of

a violation of the felony grading of that offense, Appellant’s commission of

an indecent assault against the victim was sufficient evidence of the lesser

included crime, that of the misdemeanor grading of corruption of minors.

Accordingly, we vacate Appellant’s entire sentence and remand for the trial

court to resentence Appellant in accordance with this opinion.                   See

Commonwealth v. Waters, 988 A.2d 681 (Pa. Super. 2009) (remanding

for resentencing on the second-degree felony grading of burglary where

there was insufficient evidence of the first-degree felony grading).




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     Judgment of sentence vacated.     Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2014




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