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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHAUNCEY ELLISON,
Appellant No. 747 EDA 2014
Appeal from the Judgment of Sentence entered January 17, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008805-2012
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 11, 2015
Appellant, Chauncey Ellison, appeals from the judgment of sentence
entered following his conviction of recklessly endangering another person
(“REAP”). We affirm.
Following a jury trial that commenced on November 18, 2013, and
concluded on November 22, 2013, Appellant was convicted of REAP. He was
found not guilty of possession of an instrument of crime and criminal
conspiracy. The jury was deadlocked on the remaining charge of voluntary
manslaughter, which was ultimately nol prossed by the Commonwealth on
January 29, 2014.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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On January 17, 2014, Appellant was sentenced to eleven and one-half
to twenty-three months of imprisonment, followed by one month of
probation. Appellant filed post-sentence motions which were denied on
February 21, 2014. On March 4, 2014, Appellant filed his notice of appeal.
Appellant and the trial court complied with Pa.R.A.P. 1925.
The trial court provided the following thorough statement of facts:
On the evening of Monday, November 17, 2008,
[Appellant] and co-defendant Robin Fortune, his then-girlfriend,
were inside Fortune’s home when their fourteen-year-old sons
went out to buy pizza. When the two boys returned home, they
informed [Appellant] and Fortune that they had been robbed at
the pizza shop. Stephon Berry, Robin Fortune’s son, was
trembling in fear, and Chauncey Ellison, Jr., [Appellant’s] son,
had a bruise on his head. N.T. 11/21/13, pp. 78- 79, 94-95,
126-128, 140, 178-180.
At the time, [Appellant] and Fortune were Philadelphia
police officers, but both were off duty on that evening. Instead
of calling 911 and reporting the crime, [Appellant] and Fortune
decided to search for the robber on their own. Neither
[Appellant] nor Fortune was in police uniform nor did either have
official police department identification on their person when
they entered [Appellant’s] SUV and began their search for the
robber. However, [Appellant] was armed with his service
weapon. [Appellant’s] son, Chauncey Ellison, Jr., and Fortune’s
sixteen-year-old daughter, Brittany Fortune, accompanied them
on their search. Stephon Berry, Fortune’s son, remained at
home. N.T. 11/21/13, pp. 94, 99, 126, 139-144, 178-180.
[Appellant] began the search by driving toward the
Cheltenham Mall along Cheltenham Avenue. When they were
near the mall parking lot, [Appellant’s] son identified a man
wearing an orange hoodie as the individual who robbed and
assaulted him. This man was later identified as sixteen-year-old
Demetrius Haywood, who was walking with his friend, nineteen-
year-old Lawrence Allen, the decedent. Haywood and Allen were
returning to Renova Street after having bought snacks from a
nearby delicatessen. Decedent lived at 1982 Renova Street with
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his girlfriend, Rosemily Rosado, his two children, his sisters,
Louren Allen and Mecca Drake, and their children. N.T.
11/19/13, pp. 73-76; N.T. 11/21/13, pp. 49-54, 80-83, 128-
130, 180-183.
Upon observing Haywood and Allen, [Appellant] drove
slowly toward the two men and stopped his SUV in the middle of
the mall parking lot. [Appellant], Fortune and her daughter
exited the vehicle. [Appellant] unholstered his gun as he
approached Haywood and Allen. However, neither [Appellant]
nor co-Defendant Fortune identified themselves as police
officers. Haywood and Allen both ran across Cheltenham Avenue
in opposite directions. [Appellant] attempted to chase the two
men, but lost sight of them after they crossed the street.
[Appellant] returned to his vehicle and learned that Fortune and
her daughter had chased Haywood, who ran into a driveway.
When Fortune and her daughter reached the end of that
driveway, they lost Haywood. [Appellant], Fortune and her
daughter all re-entered [Appellant’s] vehicle and they continued
their search. N.T. 11/19/13, pp. 81-84; N.T. 11/21/13, pp. 55-
58, 83-86, 129-132,180-183.
[Appellant] then drove to 20th Street and Cheltenham
Avenue. When he turned from 20th Street onto Renova Street,
[Appellant] was driving in the wrong direction on this one-way
residential street. After turning onto Renova Street, with his gun
pointed out of the window of his SUV, [Appellant] again saw
Haywood who was still running away. Upon observing
[Appellant], Haywood reversed his direction and ran back down
the street. [Appellant] then stopped, and he and Fortune exited
the vehicle. Co-Defendant Fortune then started screaming up the
block at Haywood: “Yeah. You like robbing people. We’ll be
down there. We’ll be down there.” N.T. 11/19/13, pp. 77-80;
N.T. 11/21/13, pp. 58-60, 84-87, 131-132, 146-148, 182-183.
When [Appellant] and Fortune exited the SUV, Allen
approached them and said: “Yo! What’s going on? You out
here pulling guns endangering my son.” At that time, Allen’s son
was inside the house looking outside the window. Allen said:
“What’s the problem? .... If it was about the pizza, I give you all
the money back.” While [Appellant] and Fortune were
confronting Allen outside, Haywood ran past [Appellant’s] SUV
and into Allen’s house, where he informed Allen’s girlfriend and
two sisters that he had assaulted and robbed a boy at the pizza
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shop. He further informed them that Allen was involved in an
altercation with the boy’s father outside. Haywood then hid
inside Allen’s garage and the women went outside. When the
two women got outside, Fortune was screaming and cursing
loudly: “You all don’t know who the fuck you’re dealing with.
You all going to learn today, you pussies.” She was also yelling
to [Appellant]: “You going to let this happen? You going to let
him do that to your son? .... You going to let one of these MF’ers
push you around? Go ahead and pop one of these MF’ers. Pop
those pussies.” At one point, Allen reached inside his pocket and
pulled out money and offered to pay for the pizza. [Appellant]
refused the offer and Allen grabbed his girlfriend’s hand and
turned to go inside his house. [Appellant] then reached over
Allen’s girlfriend and shot Allen once in the back. This shooting
occurred at or around 9:00 p.m. N.T. 1 1/1 9/13, pp. 74-92;
N.T. 11/20/13, pp. 60-69, 92-106; N.T. 11/21/13, pp. 57-62.
After the gunshot, Allen collapsed on the ground and
started coughing up blood. Allen’s friend, Sybari Laws, drove him
in a Cadillac Deville to Albert Einstein Hospital in Montgomery
County. Allen’s girlfriend and other unnamed individuals rode
with them. Allen had been shot in the upper left portion of his
back. The bullet went from left to right in the vertebra and
lodged in the fourth thoracic. The bullet fractured the back part
of his rib and caused bleeding in his chest cavity. In addition to
paralysis, Allen suffered several other complications from his
gunshot wound including bedsores, infection, pneumonia, and
blood clots in his leg, which developed into a pulmonary
embolism while he was in the hospital. N.T. 11/20/13, pp. 28-
35, 101-103.
Allen remained in the hospital until February 13, 2009,
when he was transferred to Moss Rehab after being found in
stable condition. While in Moss Rehab for only a few hours, Allen
developed a high fever. As a result, he returned to the hospital,
where he was diagnosed with a severe urinary tract infection.
Lawrence Allen died in Einstein Hospital on February 15, 2009.
Dr. Samuel Gulino, Chief of the Office of the Medical Examiner,
testified at trial as the Commonwealth’s expert in forensic
pathology. Dr. Gulino concluded to a reasonable degree of
medical certainty that Allen’s death was caused by a urinary
tract infection with sepsis, one of the medical complications he
suffered as a result of the gunshot wound to his back. N.T.
11/20/13, pp. 28-35.
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Immediately after Allen was shot, [Appellant] and Fortune
returned to his SUV and left the scene. When they reached the
area near 21st Street and Cheltenham Avenue, there was a
Cheltenham police officer conducting a traffic stop. Co-
Defendant Fortune exited the SUV and ran to the police officer.
It was approximately 9:15 p.m. when Fortune approached
Cheltenham Police Officer Brian Walsh and informed him that
[Appellant] had shot someone. When Officer Walsh approached
the SUV, [Appellant] was in the driver’s seat and the two
teenagers were in the back passenger seats. Officer Walsh
observed a gun on the center console and secured it for his
safety. When he asked [Appellant] if he had been involved in a
shooting, [Appellant] answered in the affirmative. Officer Walsh
probed further, and he learned that [Appellant’s] son had been
robbed, that [Appellant] had found the robber, and that
[Appellant] shot a man who had come to the robber’s assistance.
Officer Walsh then advised his dispatcher that off-duty
Philadelphia police officers had been involved in a shooting.
Within a minute, Officer Walsh turned over [Appellant’s] service
weapon to a Philadelphia police officer who arrived on the scene.
N.T. 11/19/13, pp. 110-122; N.T. 11/21/13, pp. 135-136, 185-
188.
Lieutenants Jack Feinman and David Van arrived on the
scene and transported [Appellant] to Internal Affairs, where
Lieutenant Michael Young inventoried the Glock pistol, an official
city-issued weapon, and seventeen (17) [9 mm] cartridges.
Lieutenant Young also determined that [Appellant] did not have
anything on his person that identified him as a police officer.
[Appellant] was then authorized to receive a replacement
weapon. He was also informed that he was assigned to desk
duty while Internal Affairs conducted an investigation.
Trial Court Opinion, 7/17/14, at 2-6.
Appellant presents the following issues for our review:
Did the trial court err in denying Appellant’s motion for mistrial
made in response to the Commonwealth improperly questioning
Appellant on a matter that the court had specifically ordered all
parties not to introduce at trial?
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Was the evidence presented by the Commonwealth at trial
sufficient as a matter of law to convict him of recklessly
endangering another person?
Appellant’s Brief at 2 (full capitalization omitted).
Appellant first argues that the trial court erred in denying Appellant’s
motion for a mistrial made in response to the Commonwealth’s question to
Appellant asking whether he had been fired from his job as a police officer.
Appellant’s Brief at 12. Appellant asserts that the question was asked in
contravention of the trial court’s earlier ruling that no such questions would
be permitted. Id. Appellant further argues that the “fairness of Appellant’s
trial was irreparably compromised as a consequence of this misconduct, the
[trial court] should have granted a mistrial and the cautionary instruction
presented to the jury failed to sufficiently alleviate the prejudicial affect that
it had.” Id.
Our Supreme Court has set forth the following standard for reviewing
the denial of a motion for mistrial:
It is well-settled that the review of a trial court’s denial of
a motion for a mistrial is limited to determining whether the trial
court abused its discretion. “An abuse of discretion is not merely
an error of judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will . . . discretion is abused.” A trial court may grant
a mistrial only “where the incident upon which the motion is
based is of such a nature that its unavoidable effect is to deprive
the defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict.” A mistrial is not necessary where
cautionary instructions are adequate to overcome prejudice.
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Commonwealth v. Chamberlain, 30 A.3d 381, 422 (Pa. 2011) (internal
citations omitted)
Prior to trial, the Commonwealth filed a motion in limine. In support
of its motion in limine, the Commonwealth explained that initially the district
attorney’s office, after reviewing information submitted by the police
department, made a decision to not charge Appellant. N.T., 11/18/13, at
10. Ultimately, however, a grand jury was convened and charges were
brought against Appellant and the co-defendant. Id. The Commonwealth
further stated that the police department ultimately discharged Appellant for
“other reasons of their own.” Id. As a result, the Commonwealth sought to
preclude reference being made during trial to the fact that the district
attorney’s office and the police department had cleared Appellant and co-
defendant of the criminal charges. Id.
During this exchange, co-defendant’s counsel also sought to preclude
any mention of the fact that a grand jury had indicted Appellant and co-
defendant. N.T., 11/18/13, at 11. The Commonwealth further stated it
would also “move in limine the fact that [Appellant and the co-defendant]
had been fired by the police department.” Id. In response, however,
defense counsel raised a concern and stated: “Depending on how the case
goes, there may be an argument as to whether or not that comes in or not.”
Id. Following a brief discussion of this issue, the trial court stated: “If it
becomes relevant, let me know before you introduce it. I will not preclude
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anyone from doing what he or she thinks is appropriate to get a fair trial.
Let’s not bring in extraneous and irrelevant material.” Id. at 12-13.
On the morning of trial, co-defendant’s counsel made a motion in
limine seeking to exclude testimony regarding internal police directives.
N.T., 11/19/13, at 9. The Commonwealth responded that such directives
may become relevant during trial depending on the defense developed. Id.
at 12. Instead of ruling on the motion at that time, the trial court indicated
that it would rule on that issue if it arose. Id. at 14.
With those rulings in mind, we review the questioning contested by
Appellant. During cross-examination, the Commonwealth questioned
Appellant about a police department directive that directed off-duty officers
“to be a good witness and call 911.” N.T., 11/21/13, at 191. Co-
Defendant’s counsel objected, but the trial court overruled that objection.
Id. Appellant explained that, while at that time there was no directive,
there was in fact a commissioner’s memorandum, dated 1998, that was in
effect that advised that “the best course of action is to call 911.” Id. at 191-
192. The Commonwealth further questioned Appellant regarding these
directives and the following exchange took place:
[ADA]: There is also a directive that says police officers
should ensure that their actions do not precipitate the use of
deadly force by placing themselves or others in jeopardy by
taking unnecessary, overly aggressive and improper actions,
correct?
[Co-Defendant’s Counsel]: Objection.
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[Trial Court]: Overruled.
[Appellant]: It does say that, but was it also noted in this
case that I was justified by the Philadelphia Police Department in
the use of deadly force.
[ADA]: You were justified in your head --
[Appellant]: No, on paper, that the Philadelphia Police
Department determined that in this incident that I was justified
in the use of deadly force.
You bringing up the directives and --
[ADA]: Is that before or after you were fired for violating the
directives?
[Appellant]: Before. I was justified right after the incident.
N.T., 11/21/13, at 193.
Following this exchange and outside of the hearing of the jury,
Appellant’s counsel objected to the Commonwealth’s reference to Appellant
being fired and he moved for a mistrial on this basis. N.T., 11/21/13, at
193-194. The Commonwealth argued that the directives were relevant to
establish Appellant’s state of mind and the behavior expected of police
officers. Id. at 197. The Commonwealth further asserted that by
responding to its questions regarding the directives with the fact that the
Philadelphia police department determined that he was justified in his
actions, Appellant “opened the door” to facts related to his termination. Id.
at 198.
As noted, the trial court did not rule on the motion to preclude
reference to department directives but instead, stated that it would address
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such issues as they arose, if at all, during trial. Thus, the Commonwealth
did not violate the trial court’s ruling by asking Appellant questions regarding
department directives. Counsel objected to the question, and the trial court
overruled the objection. Thus, we cannot agree that the Commonwealth
improperly questioned Appellant regarding this material.
Moreover, instead of responding to the Commonwealth’s question
about the departmental directive, Appellant responded that the police
department had found that “he was justified” in his actions. Appellant
therefore raised the issue of departmental action that the parties and the
trial court had previously addressed in the motion in limine and had decided
would be irrelevant and immaterial to the proceedings. Because Appellant
opened the door to the police department’s previous action of finding
Appellant’s actions justified, the Commonwealth was within its rights to
reference the police department’s additional and subsequent action of firing
Appellant. “Having ‘opened the door’ to this subject, [A]ppellant cannot now
complain because the prosecutor chose to further comment on what was
behind that door.” Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa.
1997).
Furthermore, based on the testimony provided, the jury heard
information that was supportive of both Appellant’s and the Commonwealth’s
case. Before these statements were expounded upon, the testimony was
interrupted. Therefore, we do not conclude that the Commonwealth’s
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questioning had the unavoidable effect of prejudicing the jury so as to
warrant a mistrial. See Commonwealth v. Begley, 780 A.2d 605, 624
(Pa. 2001) (“The remedy of a mistrial is an extreme one that is required only
when an incident is of such a nature that its unavoidable effect is to deprive
the defendant of a fair and impartial trial by preventing the jury from
weighing and rendering a true verdict.”) As a result, we cannot agree with
Appellant’s argument that the Commonwealth’s reference to Appellant being
fired so prejudiced Appellant that the trial court was required to grant a
mistrial.
Furthermore, following the objection and motion for mistrial, the trial
court crafted a curative jury instruction. The trial court provided the
following instruction to the jury:
Ladies and gentlemen, you have heard testimony during the
course of this trial that these two defendants were both off duty
police officers at the time of the incident which gave rise to the
charges which are the subject of this trial.
In the course of the testimony adduced thus far, there was
testimony about police directives and there was testimony about
whether the shooting was deemed justified by the police
department and there was testimony about whether [Appellant]
was fired as a result of his actions.
Ultimately, ladies and gentlemen, none of that is relevant
to your inquiry as to whether or not a crime or crimes were
committed.
That is a determination that you must make as jurors
based on the evidence you hear during the course of this trial
and the law which I will instruct you [sic] at the conclusion of the
evidence.
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Accordingly, members of the jury, I instruct you to
disregard any question or answer or testimony about police
directives, about departmental clearance and/or termination of
employment.
Your decision in these cases must be based upon the facts
and the law of this case and nothing else.
N.T., 11/21/13, at 201-202.
Accordingly, the trial court’s contemporaneous instruction cured any
prejudice that may have been imparted by the Commonwealth’s reference to
Appellant’s termination. Our Supreme Court has held that a mistrial is
unnecessary where cautionary instructions are sufficient to overcome any
possible prejudice. Begley, 780 A.2d at 624. Furthermore, “absent
evidence to the contrary, the jury is presumed to have followed the court’s
instructions.” Commonwealth v. Huggins, 68 A.3d 962, 974 (Pa. Super.
2013) (quoting Commonwealth v. O’Hannon, 732 A.2d 1193, 1196 (Pa.
1999)). Because the cautionary instruction was sufficient to overcome any
possible prejudice and there is no evidence that the jury did not follow the
court’s instructions, the trial court did not abuse its discretion in denying the
motion for a mistrial. Thus, this claim does not afford Appellant relief.
In his second issue, Appellant maintains that the evidence presented
by the Commonwealth was insufficient as a matter of law to convict him of
REAP. Appellant’s Brief at 18. Specifically, Appellant argues that the
evidence fails to support the trial court’s conclusion that Appellant acted
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recklessly. Id. at 21. As a result, Appellant asks this Court to overturn his
conviction for REAP. Id. at 23.
Our standard for reviewing the sufficiency of evidence on appeal is as
follows:
The standard we apply in reviewing the sufficiency of
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 factfinder 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
that of 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. Bricker, 41 A.3d 872, 877 (Pa. Super. 2012) (citations
and quotations omitted).
The crime of REAP is defined at 18 Pa.C.S. § 2705 as follows: “[a]
person commits a misdemeanor of the second degree if he recklessly
engages in conduct which places or may place another person in danger of
death or serious bodily injury.” We have held that a person is guilty of this
crime when it is shown that the person (1) possessed “a mens rea
recklessness,” (2) committed a wrongful deed or guilty act (“actus reus”),
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and (3) created by such wrongful deed the danger of death or serious bodily
injury to another person. Commonwealth v. Emler, 903 A.2d 1273, 1278
(Pa. Super. 2006).
“Recklessly” is defined as follows:
A person acts recklessly with respect to a material element
of an offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s conduct
and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable
person would observe in the actor’s situation.
18 Pa.C.S. § 302(b)(3). Furthermore, 18 Pa.C.S. § 2301 defines “serious
bodily injury” as “[b]odily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.”
The trial court provided the following summation of evidence
presented at trial that supports Appellant’s conviction of REAP:
Clearly, [Appellant] consciously disregarded an unjustified
and extremely high risk that brandishing and firing his weapon
would cause serious bodily injury or death. In the first instance,
[Appellant] was reckless for pursuing the individual who robbed
his son while in plain clothes and armed with a firearm while off
duty without identifying himself as a police officer. The more
reasonable course of action would have been to call 911 and
report the crime when they learned of the robbery. However,
instead of acting in a reasonable manner, [Appellant] pursued
the robber and placed numerous lives in great risk of danger.
When [Appellant] arrived on Renova Street in his continued
pursuit of the robber, he pointed his gun out of the window as he
sped up the street in the wrong direction while there were
several individuals outside and children inside Allen’s house
nearby.
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Despite Allen’s repeated offers to pay for the stolen pizza,
the confrontation continued to escalate with Fortune urging
[Appellant] to “shoot the MFers.” [Appellant] shot Allen in the
back even after the decedent had begun to retreat from the
brawl. This shooting led to Allen’s severe injuries and ultimate
death. Certainly [Appellant’s] actions grossly deviated from the
standard of conduct that a reasonable person would observe
under these circumstances. The aforementioned facts clearly
demonstrate that [Appellant] acted recklessly during this
incident and that he consciously disregarded an unjustified and
extremely high risk that injury and death could result from his
conduct. Based on these facts, the Commonwealth proved
beyond a reasonable doubt that [Appellant] was guilty of
recklessly endangering another person. Therefore, there was
sufficient evidence to convict [Appellant] of this offense.
Trial Court Opinion, 7/17/14, at 15-16.
The evidence of record supports the trial court’s summary and
analysis. Viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, the record reflects sufficient evidence
to establish beyond a reasonable doubt Appellant’s conviction of REAP.
Thus, Appellant’s second claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2015
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