J-S48003-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DEMETRIUS D. GIBSON
Appellant No. 590 WDA 2015
Appeal from the Judgment of Sentence January 15, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0001873-2013
BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.
MEMORANDUM BY BOWES, J: FILED AUGUST 25, 2016
Demetrius Gibson appeals from the aggregate judgment of sentence of
sixteen to forty years of incarceration following his conviction for, inter alia,
third-degree murder. We affirm.
The trial court summarized the factual history of this case in its
Pa.R.A.P. 1925(a) opinion.
The testimony and evidence presented at trial revealed that
[Appellant] was involved in a relationship with Elizabeth [Miller]
that was marred by incidents of mutual domestic violence. On
the evening of August 5, 2013, [Appellant] and Elizabeth were at
their residence at 1157 Catherine Street, Apartment 7 in Tire
Hill, with Elizabeth's brother Quinn Miller (Quinn). Around
midnight Quinn heard Elizabeth screaming and upon going to the
upstairs bedroom he found that [Appellant] had Elizabeth on a
bed and was choking her. Quinn intervened at which time
[Appellant] threatened both Elizabeth and Quinn with a hammer
he picked up from beside the bed. While holding the hammer
[Appellant] asked Quinn if he wanted to die. Following this
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incident Elizabeth and [Appellant] began a series of verbal and
physical assaults on one another ending up downstairs. At some
point during this altercation [Appellant] obtained a kitchen knife
and threatened Elizabeth and Quinn with it again asking Quinn if
he wanted to die.
Eventually Elizabeth and Quinn left the apartment and started
driving around in her car intending to return to the house Quinn
shared with other family members. Elizabeth discovered that
she left her cell phone in the apartment and called [Appellant]
using Quinn's cell phone several times to arrange to get her
phone back. She agree[d] to meet [Appellant] at a car wash in
the Moxham section of Johnstown to return her phone. Elizabeth
and Quinn arrived at the car wash first around 4:30 a.m. and
[Appellant] arrived shortly after in his red Chevrolet Blazer and
parked in one of the car wash stalls. Elizabeth exited her car
and got into the front passenger seat of [Appellant]'s car where
she remained for sometime. Elizabeth and [Appellant]
eventually began arguing loudly and Quinn exited Elizabeth's car
and walk[ed] towards the Blazer to see if his sister was all right.
Quinn observed [Appellant] and Elizabeth arguing and fighting in
the vehicle. Elizabeth told Quinn that [Appellant] had a knife
and [Appellant] admitted to Quinn that he did. Quinn walked to
the passenger side of the Blazer and tried to pull Elizabeth from
the vehicle while she was fighting with [Appellant]. While
engaged in this effort Quinn saw a large knife in [Appellant]'s
hand and saw [Appellant] stab Elizabeth in the back. [Appellant]
then threw the knife out the driver's side window. As
[Appellant] drove off Elizabeth partially fell and was partially
pulled by Quinn out of the Blazer.
...
Police and emergency personal arrived and Elizabeth was
transported to Conemaugh Memorial Hospital. Elizabeth suffered
massive blood loss due to the knife puncturing her inferior vena
cava. She died as a result of her wounds at the hospital as
doctors attempted to stop the bleeding.
...
Efforts to locate [Appellant] continued for ten days and involved
both state and federal authorities. [Appellant] eventually turned
himself in to Johnstown Police. The knife and other evidence
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w[ere] recovered from the crime scene with additional evidence
being recovered after searches of the Blazer and apartment were
conducted after search warrants had been obtained. Elizabeth's
cell phone was eventually recovered from the apartment.
[Appellant] did not testify but argued, inter alia, that Quinn, the
only eyewitness, did not see the entire incident that occurred
inside the Blazer, that it was Elizabeth who was the initial
aggressor with the knife, and that [Appellant] was acting in self -
defense when they struggled. [Appellant] argued he had taken
the knife from Elizabeth and that the stabbing was accidental
and resulted when Elizabeth fell backwards into the Blazer when
Quinn was trying to pull her out of the vehicle which resulted in
her falling onto the knife and impaling herself. By nature of the
verdicts the jury rejected [Appellant]'s theory and found Quinn's
testimony credible as the only eyewitness to these events.
Trial Court Opinion, 8/11/15, at 4-7.
On September 3, 2014, the jury found Appellant guilty of third-degree
murder, as well as aggravated assault, aggravated assault with a deadly
weapon, and recklessly endangering another person.1 The trial judge
imposed the aforementioned sentence on January 15, 2015.
Appellant filed timely post-sentence motions, which were denied. A
notice of appeal was perfected, followed by a timely Pa.R.A.P. 1925(b)
statement that raised twelve issues. The trial court issued its opinion in
response and the matter is now ready for our review. Appellant raises three
issues.
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1
Appellant was also alleged to have attempted to run over a civilian when
he briefly returned to the scene in his vehicle. He was found not guilty of
aggravated assault as to that bystander.
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1. Whether the trial court erred in denying the motion to
suppress the warrantless seizure of a motor vehicle, which was
not mobile, and evidence derived from the seizure and the fruits
thereof, inasmuch as the Commonwealth failed to prove any
exigency or other justification for such warrantless seizure?
2. Whether the trial court abused its discretion in denying the
motion for new trial asserting that the verdicts were against the
weight of the evidence, being manifestly unreasonable in light of
countervailing evidence from the Commonwealth's experts?
3. Whether the trial court abused its discretion in permitting an
exhibit, a DNA report, about which an expert had testified, to go
to the jury during their deliberations, which was over defense
objection, inasmuch as the report was prejudicial, subject to
misinterpretation, cumulative and unnecessary due to the
expert's testimony, and contained matters outside of the
testimony?
Appellant’s brief at 6.
Appellant first asserts that the trial court should have suppressed all
evidence recovered from the vehicle. The search, conducted pursuant to a
warrant, is alleged to be the fruit of an unreasonable warrantless seizure.
When reviewing the denial of a suppression motion, we are subject to the
following standard of review:
[An appellate court's] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole.
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Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted).
The facts pertinent to the seizure are as follows. Detective Larry
Wagner of the City of Johnstown Police testified that, based on information
from Mr. Miller and other eyewitnesses, he obtained a list of vehicles
registered to Appellant. N.T. Suppression, 5/6/14, at 12. A “be on the
lookout” was sent via dispatch. Subsequently, a homeowner called police to
report a vehicle was blocking his driveway. Id. at 12-13. Sergeant Thomas
Owens responded to the scene and observed the vehicle in question, which
was stuck due to its back end hanging over an embankment. Id. at 52. The
vehicle was blocking part of the street as well as the driveway. Id. at 53.
The officer observed blood on the passenger seat. Believing the vehicle to
be the same one involved in the murder, Sergeant Owens had the vehicle
towed to a facility. Id. The trial court upheld the seizure as valid due to
probable cause and exigent circumstances, in that Appellant, who was not
yet in custody, could return to the scene and have the vehicle removed.
Trial Court Opinion, 8/11/15, at 9. The trial court also stated the Blazer was
abandoned and blocking the roadway, thus permitting officers to remove it
pursuant to 75 Pa.C.S. § 3352 (unattended vehicle obstructing roadway or
posing safety hazard may be moved).
According to Appellant, the police either needed a warrant, or probable
cause and exigent circumstances, to seize the vehicle, ”[S]ince the evidence
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showed that [the Blazer] was stuck, negating its inherent mobility, which
obviated the motor vehicle exception to the warrant requirement, as that
exception was announced in Commonwealth v. Gary, 91 A.3d 102 (Pa.
2014).” Appellant’s brief at 14. Gary, decided after the search in question,
expanded, rather than limited, the ability of police to search vehicles without
a warrant by adopting the federal automobile exception to the warrant
requirement.2 Thus, Article I, Section 8 of the Pennsylvania Constitution
affords no greater protection than its Fourth Amendment to the United
States Constitution counterpart. “The prerequisite for a warrantless search
of a motor vehicle is probable cause to search; no exigency beyond the
inherent mobility of a motor vehicle is required.” Id. at 138. Appellant
states that since the vehicle in question was immobile, the rule announced in
Gary does not apply and the police needed a warrant to seize the vehicle.
Appellant’s argument is misplaced for two reasons. First, Appellant
fails to recognize the source of police authority to seize the vehicle in
question. Vehicle seizure questions normally arise in the context of traffic
stops, for which there must be, depending on the offense at issue, either
reasonable suspicion or probable cause to effectuate a stop.
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2
The lead opinion is a plurality of three Justices. Now-Chief Justice Saylor
“join[ed] the lead Justices in adopting the federal automobile exception.”
Id. at 138. Thus, Gary is precedential.
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Commonwealth v. Chase, 960 A.2d 108, 111 (Pa. 2008). Here, however,
the seized vehicle was disabled and abandoned. Police authority to seize
such vehicles without a warrant has been described as “beyond challenge.”
In the interests of public safety and as part of what the Court
has called “community caretaking functions,” Cady v.
Dombrowski, supra, 413 U.S. at 441, 93 S.Ct. at 2528,
automobiles are frequently taken into police custody. Vehicle
accidents present one such occasion. To permit the
uninterrupted flow of traffic and in some circumstances to
preserve evidence, disabled or damaged vehicles will often be
removed from the highways or streets at the behest of police
engaged solely in caretaking and traffic-control activities. Police
will also frequently remove and impound automobiles which
violate parking ordinances and which thereby jeopardize both
the public safety and the efficient movement of vehicular traffic.
The authority of police to seize and remove from the streets
vehicles impeding traffic or threatening public safety and
convenience is beyond challenge.
South Dakota v. Opperman, 428 U.S. 364, 368–69, (1976) (footnote
omitted); Accord Commonwealth v. Hennigan, 753 A.2d 245, 255
(Pa.Super. 2000) (recognizing the “community caretaking function”
doctrine). Here, Appellant’s vehicle was jeopardizing public safety and
convenience by blocking a citizen’s driveway. The police were therefore
permitted to seize and tow the vehicle without prior judicial approval.
Furthermore, we note that Appellant misapprehends Gary, which
clearly adopted a bright-line rule. Gary extensively traced the development
of the federal automobile exception, and, in so doing, cited several federal
cases which directly contradict Appellant’s claim that a vehicle’s mobility is
material to application of the automobile exception. Under Gary, the police
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would have been permitted to both seize and search the vehicle upon a
finding of probable cause, regardless of the vehicle’s mobility.
It is thus clear that the justification to conduct such a
warrantless search does not vanish once the car has been
immobilized; nor does it depend upon a reviewing court's
assessment of the likelihood in each particular case that the car
would have been driven away, or that its contents would have
been tampered with, during the period required for the police to
obtain a warrant.
Gary, supra at 110 (quoting Michigan v. Thomas, 458 U.S. 259 (1982)
(per curiam)). Two years later, the High Court reiterated that whether the
vehicle is effectively immobile is irrelevant to the automobile exception.
Florida v. Meyers, 466 U.S. 380 (1984). Gary adopted the federal
standard and its corresponding body of case law. Thus, under Gary, the
mobility of the vehicle is irrelevant. We agree with the trial court that there
was probable cause to justify seizing the vehicle, given that it matched the
description of a vehicle driven by a wanted homicide suspect and contained
blood. Thus, a warrantless search would have been permitted.3 No relief is
due.
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3
Appellant implicitly concedes, by citing to Gary, that its rule would apply
to the search herein. In Commonwealth v. Hudson, 106 A.3d 724
(Pa.Super. 2014), we assumed, without deciding, that the rule of Gary
would apply on direct appeal to a search, such as the one here, conducted
before it was announced. The trial court did not rely on Gary, and we
simply note here in passing that its application would be less favorable, not
more, to Appellant’s position.
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Appellant’s second appellate claim attacks the weight of the evidence
supporting his convictions. He posits that the evidence “shows that the fatal
wound resulted from misadventure, and the guilty verdicts shocked the
sense of justice.” Appellant’s brief at 17. Our Supreme Court has defined
homicide by misadventure as follows: “Homicide by misadventure, which is
excusable, is defined as: the accidental killing of another, where the slayer is
doing a lawful act, unaccompanied by any criminally careless or reckless
conduct.” Commonwealth v. Charleston, 94 A.3d 1012, 1025 (Pa.Super.
2014) (citations omitted).
Appellant’s basis for a new trial on these grounds relies on the
testimony of two Commonwealth expert witnesses: Amy Irwin, a DNA
expert, and Dr. Heggere, the pathologist who conducted the autopsy. The
witnesses respectively testified that Appellant’s DNA was not present on the
knife and that the victim had no visible injuries.
Given the testimony of the two experts, Amy Irwin and Dr.
Heggere, which discredited [Mr. Miller]’s version of the struggle
leading to the fatal stab wound and established a basis for
misadventure leading to that wound, the trial court’s exercise of
discretion in denying the motion for new trial based on the
weight of the evidence was manifestly unreasonable.
Appellant’s brief at 19 (citation and quotation marks omitted).
Our review of a weight claim reviews the exercise of the trial court’s
discretion, not the underlying question of whether the verdict is against the
weight of the evidence. Commonwealth v. Leatherby, 116 A.3d 73, 82
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(Pa.Super.2015) (citing Commonwealth v. Brown, 23 A.3d 544, 558
(Pa.Super. 2011)). “One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict was or
was not against the weight of the evidence and that a new trial should be
granted in the interest of justice.” Id. at 82.
Herein, the trial court, in rejecting Appellant’s post-trial motion for a
new trial, reviewed the evidence supporting the verdicts and determined
that the verdict was not against the weight of the evidence:
There was only a single eyewitness to the fatal encounter and
the jury was free to credit his testimony or not as they saw fit.
. . . The nature of the verdict is such that the jury obviously
gave credit to Quinn’s testimony and there was nothing that
occurred during trial to give this jurist cause to question that
decision by the fact finder.
Trial Court Opinion, 8/11/15, at 34. We discern no abuse of discretion on
the trial court’s part in reaching this conclusion. The sole eyewitness
testified unequivocally that Appellant deliberately stabbed the victim in her
back. The record amply supports the court’s conclusion that the guilty
verdicts were not so contrary as to shock its sense of justice. Since the jury
was free to believe none, all, or part of the evidence presented, it could
reject Mr. Miller’s testimony about choking or striking while crediting the
testimony that he saw Appellant stabbing Ms. Miller, or simply find that the
testified-to blows would leave no visible injuries. Similarly, the lack of
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Appellant’s DNA on the knife does not compel a different result.4 The trial
judge determined that the facts testified to by the expert witnesses were not
deserving of greater weight than the facts set forth by Mr. Miller. The record
supports the court’s conclusion and we find no abuse of discretion.
Appellant’s third assignment of error assails the trial court’s decision to
permit the jury access to an expert report during deliberations. Pa.R.Crim.P.
646 sets forth the materials a jury may possess, and grants the trial judge
the leeway to provide “such exhibits as the trial judge deems proper,”
excepting the following items.
(C) During deliberations, the jury shall not be permitted to have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded confession
by the defendant;
(3) a copy of the information or indictment; and
(4) except as provided in paragraph (B), written jury
instructions.
Pa.R.Crim.P. 646(C). Since the report in question is not specifically
prohibited by rule, we apply an abuse of discretion standard. “Whether an
exhibit should be allowed to go out with the jury during its deliberation is
within the sound discretion of the trial judge.” Commonwealth v. Barnett,
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4
Appellant’s weight-of-the-evidence argument regarding the lack of DNA on
the knife is in effect a sufficiency claim. Logically, we can conclude that the
verdict shocks the conscience only if we find the lack of DNA requires a
finding that Appellant did not commit the crime of third-degree homicide.
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50 A.3d 176, 194 (Pa.Super. 2012) (quoting Commonwealth v. Merbah,
411 A.2d 244, 247 (Pa.Super. 1979)).
The exhibit in question was submitted at trial through Amy Irwin, the
aforementioned Commonwealth expert, who testified that she examined
several items to determine whether the victim’s DNA, Appellant’s DNA, or
both, was present. N.T. Volume IV, 8/29/14, at 83. Pertinent to the claim
on appeal, Ms. Irwin testified that the blood on the knife blade matched only
Ms. Miller’s DNA. Id. at 93. The handle of the knife, described as a black
cord wrapped around the weapon, also contained the victim’s DNA. Id. at
97-98. Ms. Irwin stated that tests for the presence of Y chromosome yielded
no interpretable results since there was an insufficient amount of male DNA
on the handle. Id. at 98. The trial court admitted, without objection, her
expert report. Id. at 99. The exhibit was not published to the jury.
During closing argument, Appellant’s attorney repeatedly noted that
the victim’s DNA is on the knife, while Appellant’s DNA was not. N.T.
Volume VII, 9/3/14, at 74 (“If you were accused of holding an instrument,
and your defense is that you didn’t hold it, what are you going to do, come
up and say, I didn’t hold it. . . . I got better, the science says he didn’t touch
it.”); Id. at 80 (“First of all, her DNA is on it. . . . Why isn’t his DNA on the
knife?”); Id. at 91 (“Can you say that [Appellant] held that knife when his
DNA isn’t on it, just because of Quinn[?]).
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The jury thereafter submitted a question reading, “Lab report DNA on
knife. Defines touch. Skin cells? Sweat?” Court’s Exhibit A (some
punctuation added). The trial judge, over Appellant’s objection, permitted
the jury to receive the DNA report.
The following principles guide our review in determining whether the
trial court abused its discretion. In Commonwealth v. Strong, 836 A.2d
884 (Pa. 2003), our Supreme Court addressed whether the trial court erred
in permitting the jury, during its deliberations, to look at a crime scene
diagram which was used by the parties during trial but never offered or
admitted into evidence. Id. at 885. Strong noted that Rule 646 applies
only to exhibits, and, since the judge therein sent an item that was not
moved into evidence, the diagram was not within the purview of the rule.
Strong therefore had to determine whether such errors were subject to
harmless error analysis or were per se prejudicial. Id. at 888. In
concluding harmless error applied, the Court observed the following:
The underlying reason for excluding certain items from the jury's
deliberations is to prevent placing undue emphasis or credibility
on the material, and de-emphasizing or discrediting other items
not in the room with the jury. If there is a likelihood the
importance of the evidence will be skewed, prejudice may be
found; if not, there is no prejudice per se and the error is
harmless.
Id. at 888. Thus, the likelihood that the importance of the evidence would
be skewed was part of the harmless error analysis, not a consideration to be
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made in determining whether the trial court abused its discretion under Rule
646.
In Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015), our
Supreme Court analyzed whether a judge erred in permitting the jury to
review, during its deliberations, expert reports drafted by experts for both
the prosecution and the defense that were admitted into evidence. Id. at
495. The Court incorporated the above-quoted rationale into the abuse of
discretion analysis:
We hold that Appellant has failed to demonstrate an abuse of
discretion. . . . Relating to the medical expert reports, we find
that they are not specifically precluded from examination during
deliberations pursuant to Rule 646(C) and that it is unlikely that
the jury would be skewed by placing undue emphasis on one
report over the other, considering that the expert medical
reports from both the prosecution and the defense were
permitted in the jury room. Because no prejudice arose from
the jury's examination of the expert reports, Appellant is not
entitled to relief.
Id. at 497 (citing Strong). Thus, Woodard adopted the harmless error
considerations of Strong, i.e., whether the material will skew the effect of
the evidence in some fashion, in deciding whether the trial court abused its
discretion in permitting the jury to review the material. Since Woodard
found no abuse of discretion while also noting a lack of prejudice, we view
the inquiries as overlapping.
In assessing whether a new trial is warranted, we must consider
whether the prejudicial effect of the evidence was severe and readily
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apparent. Barnett, supra at 194. We have noted that a failure to object to
the admission of the evidence and a jury request to view the exhibit are both
factors militating against a finding of prejudice. Id. at 195 (citing cases).
Finally, we are mindful that the comment to the rule cites Commonwealth
v. Pitts, 301 A.2d 646, 650 n. 1 (Pa. 1973). Pitts, a case decided under
the predecessor to Rule 646, found no abuse of discretion in granting the
jury access to a fingerprint chart into the jury room. Pitts observed in dicta
that “it would be a better procedure not to allow exhibits into the jury room
which require expert interpretation.” Id.
With the foregoing precepts in mind, we now turn to Appellant’s
substantive complaint. He argues that the report skewed the importance of
Ms. Irwin’s testimony in that the DNA report as submitted “show[s] not only
loci and letters and numbers galore to which the expert did not testify, but
also that the matters on which she did testify and opine could not readily be
related to the jury’s question[.]” Appellant’s brief at 21. Appellant avers the
report served to undermine Ms. Irwin’s testimony and opinion, since a
proper examination of the DNA report required interpretation.
We have reviewed the report and find that Appellant has failed to
demonstrate a likelihood that the jury placed undue emphasis on the
document. We agree that the report contains several instances of highly-
technical information not testified to by the expert, and understanding those
matters required expert testimony.
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However, the highly-technical nature of the report demonstrates that
no error occurred. The jury’s question pertained to the knife, and the report
states in plain English that Elizabeth Miller’s blood was on the knife’s handle.
The complained-of additional information in the report, such as the different
genetic loci tested, is not readily understandable and sheds no light on the
case without expert interpretation. We thus reject Appellant’s claim that the
report skewed the importance of Ms. Irwin’s testimony. If anything, the
inability to understand the exhibit emphasized the importance of the expert’s
testimony. Ms. Irwin clearly testified that Appellant’s DNA was not on the
knife handle, and the jury was well aware of this fact due to the repeated
references during closing argument. This is not a situation where competing
experts offered differing interpretations or opinions, nor does the report
contain any opinion or speculation regarding why Appellant’s DNA did not
appear on the handle. While we think the better course would have been to
instruct the jury to rely on the testimony of the expert, we find no prejudice
from the jury’s examination of the report and Appellant is not entitled to
relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2016
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