J-E02002-19

                                   2020 PA Super 108

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    ERIC L. MAXWELL                             :
                                                :
                       Appellant                :   No. 997 MDA 2018

                  Appeal from the PCRA Order May 23, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0001517-1984


BEFORE: BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J., STABILE, J.,
        DUBOW, J., KUNSELMAN, J., NICHOLS, J., and MURRAY, J.

OPINION BY OLSON, J.:                          FILED: APRIL 30, 2020

       Appellant, Eric L. Maxwell, appeals from the May 23, 2018 order entered

in the Criminal Division of the Court of Common Pleas of Dauphin County that

dismissed as untimely his fourth petition filed pursuant to the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. On appeal, Appellant asserts

that he validly invoked the “newly-discovered” fact exception to the PCRA’s

time-bar found at 42 Pa.C.S.A. § 9545(b)(1)(ii) when his petition cited a July

9, 2016 statement by his brother, Brian Maxwell (Brian).1 More precisely,

Appellant contends that Brian’s July 2016 statement constituted a new fact or


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1 In his statement, which we shall describe in greater detail below, Brian
claimed that, while he attended Appellant’s 1984 trial, he overheard the
prosecuting attorney say to a police officer that the prosecutor did not think
there would be any African Americans on Appellant’s jury.
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a new theoretical variant of a previously raised Batson2 challenge and, hence,

was not a newly-willing or newly-discovered corroborative source of a

previously raised claim, which we have held does not trigger the timeliness

exception found at § 9545(b)(1)(ii). See Commonwealth v. Robinson, 185

A.3d 1055, 1064 n.4 (Pa. Super. 2018) (en banc), appeal denied, 192 A.3d

1105 (Pa. 2018). We reject Appellant’s contention and affirm the dismissal of

Appellant’s fourth petition as untimely.

       We summarized the facts underlying Appellant’s convictions in our 1986

opinion addressing the claims Appellant raised on direct appeal.

       On March 15, 1984, an unmasked gunman entered the Thrift Drug
       Store located on South 29th Street in Harrisburg[, Pennsylvania]
       and demanded money from the cashier, Shavona Mitchell. The
       cashier placed the cash drawer in a paper bag and handed the
       package to the gunman. The gunman departed from the store
       and walked along the front of the store toward the Weis Market,
       located adjacent to the store. Spencer W. Arnold, Jr., a security
       guard employed by the Thrift Drug Store was summoned by the
       clerk and he immediately gave chase to the gunman. Arnold
       apprehended the gunman and started to walk him back to the
       drug store. Approaching the store, the gunman grabbed Arnold,
       threw him against [a] fence, pulled out a gun and shot him.

       The gunman ran to his car and drove from the Weis Market
       parking lot at a high rate of speed. The gunman, later identified
       as [Appellant], drove to his sister's house where several friends
____________________________________________


2Batson v. Kentucky, 476 U.S. 79 (1986). For convenience and clarity, we
shall refer to the substantive claim Appellant seeks to raise before the PCRA
court as a “Batson challenge” or “Batson-type challenge.” We are aware,
however, that the United States Supreme Court filed its decision in Batson in
1986, while Appellant’s homicide trial took place in November 1984.


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        were gathered. These friends later drove [Appellant] to the York[,
        Pennsylvania] bus terminal where he boarded a bus bound for
        Baltimore[, Maryland]. At the Baltimore bus station[, Appellant]
        was placed into custody on unrelated firearm charges.

Commonwealth v. Maxwell, 513 A.2d 1382, 1384 (Pa. Super. 1986),

appeal granted, 520 A.2d 1384 (Pa. 1987), appeal dismissed, 569 A.2d 328

(Pa. 1989).

        In November 1984, a jury found Appellant guilty of first-degree murder,

robbery, and simple assault.3           Thereafter, the trial court imposed a life

sentence without the possibility of parole for Appellant’s first-degree murder

conviction,4 along with two to five years’ incarceration for his remaining

offenses.    This Court affirmed Appellant’s judgment of sentence on direct

appeal. See Maxwell, 513 A.2d at 1384. Subsequently, our Supreme Court

granted allowance of appeal, Commonwealth v. Maxwell, 520 A.2d 1384

(Pa. 1987), but thereafter dismissed further review after learning that

Appellant     escaped     from    confinement        on   August   20,   1989.   See

Commonwealth v. Maxwell, 569 A.2d 328 (Pa. 1989) (per curiam).

Appellant did not seek review before the United States Supreme Court.



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3   18 Pa.C.S.A §§ 2502(a), 3701, and 2701, respectively.

4 A sentence of life without the possibility of parole was imposed after the jury
found that death was not an appropriate punishment since the aggravating
circumstances did not outweigh the mitigating circumstances.


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       Appellant has actively pursued collateral relief in the many years since

his judgment of sentence became final. On August 14, 1990, the PCRA court

dismissed Appellant’s first PCRA petition.           This Court affirmed and our

Supreme Court denied allowance of appeal. Commonwealth v. Maxwell,

595 A.2d 192 (Pa. Super. 1991) (unpublished memorandum), appeal denied,

600 A.2d 534 (Pa. 1991). On August 10, 1993, the United States District

Court for the Middle District of Pennsylvania denied Appellant’s petition for a

writ of habeas corpus and the United States Court of Appeals for the Third

Circuit dismissed his appeal. See Maxwell v. Domovich, 2012 WL 383669,

*1 (M.D. Pa. Feb. 6, 2012) (describing the procedural posture of Appellant’s

habeas corpus claims). Thereafter, on September 20, 2001, the PCRA court

dismissed a second PCRA petition filed by Appellant.5 This Court affirmed that

dismissal. Commonwealth v. Maxwell, 832 A.2d 539 (Pa. Super. 2003)

(unpublished memorandum). On March 4, 2004, the PCRA court dismissed

Appellant’s third PCRA petition. This Court affirmed and our Supreme Court

denied allowance of appeal. Commonwealth v. Maxwell, 864 A.2d 580 (Pa.

Super. 2004) (unpublished memorandum), appeal denied, 875 A.2d 1074 (Pa.

2005).


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5 Appellant’s second PCRA petition filed in May 2000 raised multiple claims,
including a challenge to the racial composition of his jury pursuant to Batson.
See PCRA Court Opinion, 3/27/18, at 3.


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      On August 20, 2012, Appellant, acting pro se, filed this, his fourth, PCRA

petition. Counsel was appointed and filed an amended petition on September

7, 2016. The petition alleged that Appellant was entitled to collateral relief

because the prosecutor in 1984 violated Appellant’s right to a fair and

impartial jury when he intentionally excluded African-American jurors from

the venire. See Amended PCRA Petition, 9/7/16, at para. 39.2.1; see also

42 Pa.C.S.A. § 9543(a)(2)(i) (PCRA petitioners eligible for collateral relief

where they plead and prove by a preponderance of the evidence that their

convictions arose from “[a] violation of the Constitution of this Commonwealth

or the Constitution or laws of the United States which, in the circumstances of

the particular case, so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have taken place[]”).

      Because Appellant filed his fourth petition so many years after his

judgment of sentence became final, his counseled petition invoked the

newly-discovered facts exception to the PCRA’s time-bar found at 42 Pa.C.S.A.

§ 9545(b)(1)(ii).   The newly-discovered fact alleged in Appellant’s petition

involved a July 9, 2016 meeting between Appellant and his brother, Brian.

The visit occurred at SCI-Camp Hill and was said to be their first one-on-one

visit in 32 years. During the visit, Brian recalled for Appellant overhearing the

prosecuting attorney tell a police officer at the 1984 trial that he did not think




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there would be any African-Americans on the jury.          See Amended PCRA

Petition, 9/7/16, at para. 39.2.1.

      The parties agreed to bifurcated proceedings. A jurisdictional hearing

was to take place first, to be followed by a hearing on the merits in the event

Appellant demonstrated the application of a timeliness exception. Pursuant

to the parties’ agreement, the Honorable Scott A. Evans of the Dauphin County

Court of Common Pleas convened an evidentiary hearing on May 15, 2017 at

which Appellant and Brian testified. Brian testified that he largely stopped

speaking with Appellant following his arrest for the instant offenses and did

not visit him in the Dauphin County Prison while awaiting trial in 1984. After

Appellant was convicted, Brian occasionally spoke to Appellant via telephone,

but those conversations were kept short. Brian also testified that he, along

with other family members, visited Appellant on two occasions more than two

decades ago; however, Brian’s first one-on-one visit with Appellant occurred

on July 9, 2016.    During this visit, the two spoke about the prosecutor’s

comment. Brian testified that that he did not believe this statement had any

relevance when he heard it and Appellant testified that he never heard this

information before the July 9, 2016 meeting.

      Judge Evans credited the testimony offered by Brian and Appellant and

concluded   that   Appellant   pled   and   proved   the   application   of   the




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newly-discovered fact exception to the PCRA’s timeliness requirement found

at § 9545(b)(1)(ii). Thus, Judge Evans issued the following order:

      AND NOW, this 26th day of September, 2017, following an
      evidentiary hearing on the PCRA jurisdictional requirements held
      on May 15, 2017, and upon consideration of the Commonwealth’s
      memorandum opposing PCRA jurisdiction, and [Appellant’s]
      response to the Commonwealth’s memorandum, it is hereby
      ORDERED that the jurisdictional requirements have been met.
      [The PCRA court] shall make a determination on the merits of the
      issues set forth in [Appellant’s] PCRA petition.

PCRA Court Order, 9/26/17.

      Owing to the fact that the prosecutor at Appellant’s 1984 homicide trial

was The Honorable Richard Lewis, who was by now the President Judge of the

Dauphin County Court of Common Pleas, Judge Evans sua sponte requested

recusal from further proceedings for himself along with all other judges on the

Court of Common Pleas of Dauphin County. As a result, the Administrative

Office of Pennsylvania Courts assigned an out-of-county judge, the Honorable

John L. Braxton, Senior Judge, to conduct the substantive PCRA evidentiary

hearing where Appellant was to have an opportunity to prove the merits of his

Batson claim under 42 Pa.C.S.A. § 9543(a)(2)(i).

      Judge Braxton convened a hearing on January 31, 2018 at which

President Judge Lewis, Appellant, Brian, and Christine Arnold (the victim’s

widow) testified.   After the evidentiary hearing, both Appellant and the

Commonwealth submitted briefs.         Rather than adjudicating Appellant’s




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Batson challenge under § 9543(a)(2)(i), Judge Braxton instead revisited the

jurisdictional determination reached by Judge Evans.       On March 27, 2018,

Judge Braxton issued notice of his intent to dismiss Appellant’s petition. See

PCRA Court Order, 3/27/18.           In an accompanying opinion, Judge Braxton

explained that Appellant failed to plead and prove the applicability of the

newly-discovered fact exception under § 9545(b)(1)(ii) because Brian’s

testimony lacked credibility.         See PCRA Court Opinion, 3/27/18, at 7.

Appellant responded to Judge Braxton’s notice of intent to dismiss on April 11,

2018 and, thereafter, Judge Braxton issued an order dismissing Appellant’s

fourth petition on May 23, 2018. Appellant filed a timely appeal and both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.6

       On April 23, 2019, a three-judge panel of this Court issued a ruling that

vacated Judge Braxton’s May 23, 2018 order and remanded this matter for



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6 In his Rule 1925(a) opinion, Judge Braxton offered several reasons to
support his decision to revisit the jurisdictional issue previously decided by
Judge Evans. Judge Braxton explained that “the recusal of the Dauphin
County bench render[ed Judge Evans’] decision void,” that the timeliness of
Appellant’s PCRA petition was a threshold jurisdictional issue that needed to
be addressed, that Judge Evans failed to offer a cogent analysis for his ruling,
and that the prior hearing before Judge Evans focused on the “due diligence”
aspect of the newly-discovered fact exception rather than the discovery of a
new “fact” for purposes of the provision. See PCRA Court Opinion, 8/15/18,
at 6.




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further proceedings before the PCRA court. Two judges on that panel found

that the coordinate jurisdiction rule7 barred Judge Braxton from re-examining

Judge Evans’ jurisdictional determination. A third judge, however, concluded

that because Appellant raised Batson challenges in prior post-conviction

petitions, in particular his second PCRA petition filed on May 24, 2000, Brian’s

July 9, 2016 statement constituted only a newly-discovered source of

information that corroborated previously known facts and claims. As such, it

did not confer jurisdiction over the instant petition.        We granted the

Commonwealth’s request to review the petite panel’s determination. After

careful review, we affirm the PCRA court’s dismissal of Appellant’s fourth

petition.

       The question we confront in this appeal is whether Brian’s July 9, 2016

statement triggered the timeliness exception set forth at § 9545(b)(1)(ii),

commonly referred to as the newly-discovered fact exception.          Appellate

review of a PCRA court’s dismissal of a PCRA petition is limited to the

examination of “whether the PCRA court’s determination is supported by the


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7 In general terms, the coordinate jurisdiction rule holds that judges of
coordinate jurisdiction should not overrule each other’s decisions. See Zane
v. Friends Hospital, 836 A.2d 25, 29 (Pa. 2003). The purpose of the rule is
to preserve the expectations of the litigants, ensure uniformity of decisions,
promote judicial economy, and bring finality to trial court proceedings. See
id.



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record and free of legal error.” Commonwealth v. Miller, 102 A.3d 988,

992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.”

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations

omitted). “This Court grants great deference to the findings of the PCRA court,

and we will not disturb those findings merely because the record could support

a contrary holding.”    Commonwealth v. Hickman, 799 A.2d 136, 140

(Pa. Super. 2002) (citation omitted). In contrast, we review the PCRA court’s

legal conclusions de novo.     Commonwealth v. Henkel, 90 A.3d 16, 20

(Pa. Super. 2014) (en banc), appeal denied, 101 A.3d 785 (Pa. 2014).

      It is uncontested that Appellant’s petition is untimely.       Briefly, the

Pennsylvania Supreme Court dismissed Appellant’s direct appeal on December

21, 1989, when it learned he escaped from custody. Thereafter, Appellant did

not seek review with the Supreme Court of the United States.           Thus, his

judgment of sentence became final for purposes of the PCRA on or around

March 21, 1990, upon the expiration of the time for seeking further review.

See U.S.Sup.Ct.R. 13 (allowing 90 days for filing petition for certiorari with

United States Supreme Court); 42 Pa.C.S.A. § 9545(b)(3). Appellant’s fourth

petition was filed on August 20, 2012, more than two decades after his

judgment of sentence became final. As such, Appellant needed to invoke an




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exception to the PCRA’s time-bar to obtain review of the merits of his Batson

claim.

        To this end, Appellant elected to pursue the newly-discovered fact

exception to establish jurisdiction, which is set forth at § 9545(b)(1)(ii).8

Specifically, Appellant alleges that, on July 9, 2016, he learned through Brian

that the district attorney told a police officer during Appellant’s trial that he

did not believe that any African-Americans would serve on the jury. Brian’s

statement, however, is not a new “fact” as contemplated by the PCRA.

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8   The statutory exceptions found at 42 Pa.C.S.A. § 9545 are as follows:

        (i)the failure to raise the claim previously was the result of
        interference by government officials with the presentation of the
        claim in violation of the Constitution or laws of this Commonwealth
        or the Constitution or laws of the United States;

        (ii) the facts upon which the claim is predicated were unknown to
        the petitioner and could not have been ascertained by the exercise
        of due diligence; or

        (iii) the right asserted is a constitutional right that was recognized
        by the Supreme Court of the United States or the Supreme Court
        of Pennsylvania after the time period provided in this section and
        has been held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any petition invoking one of the exceptions
to the time bar must be filed within 60 days of the date the claim could have
been presented. 42 Pa.C.S.A. § 9545(b)(2). Effective December 24, 2018,
§ 9545(b)(2) was amended to provide that petitions invoking an exception
must be filed within one year of the date the claim could have been presented.
See Act 2018, Oct. 24, P.L. 894, No. 146. However, as the amended provision
applies only to claims arising on or after December 24, 2017, the original
60-day time period governs in this case.


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     It is well settled in Pennsylvania that the focus of the exception found

at § 9545(b)(1)(ii) is on newly-discovered facts, not on newly-discovered or

newly-willing sources that corroborate previously known facts or previously

raised claims. See Commonwealth v. Robinson, 185 A.3d 1055, 1064 n.4

(Pa. Super. 2018) (en banc), appeal denied, 192 A.3d 1105 (Pa. 2018). Our

Supreme Court previously explained the newly-discovered fact exception

under § 9545(b)(1)(ii) as follows:

     [Section 9545(b)(1)(ii)] “requires petitioner to allege and prove
     that there were ‘facts' that were ‘unknown’ to him” and that he
     could not have ascertained those facts by the exercise of “due
     diligence.”    Commonwealth v. Bennett, 930 A.2d 1264,
     1270-1272 (Pa. 2007). The focus of [§ 9545(b)(1)(ii) is “on [the]
     newly discovered facts, not on a newly discovered or newly willing
     source for previously known facts.”           Commonwealth v.
     Johnson, 863 A.2d 423, 427 (Pa. 2004) [(abrogated on other
     grounds)]. In Johnson, [our Supreme Court] rejected the
     petitioner's argument that a witness['] subsequent admission of
     alleged facts brought a claim within the scope of [§ 9545(b)(1)(ii)]
     even though the facts had been available to the petitioner
     beforehand.       Relying on Johnson, [our Supreme Court
     subsequently] held that an affidavit alleging perjury did not bring
     a petitioner's claim of fabricated testimony within the scope of
     [§ 9545(b)(1)(ii)] because the only “new” aspect of the claim was
     that a new witness had come forward to testify regarding the
     previously raised claim. [Commonwealth v.] Abu–Jamal, [941
     A.2d 1263, 1267 (Pa. 2008)]. Specifically, [the Court] held that
     the fact that the petitioner “discovered yet another conduit for the
     same claim of perjury does not transform his latest source into
     evidence falling within the ambit of [section] 9545(b)(1)(ii).” Id.
     at 1269.

Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008).




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      The certified record here reveals that Appellant raised Batson-type

challenges in at least three prior post-conviction filings: (1) a state habeas

corpus petition filed September 22, 1996; (2) a second federal habeas corpus

petition filed November 3, 1997; and, (3) a second PCRA petition filed May

24, 2000. See Amended PCRA Petition, 9/7/16, at para. 39.3.2. Thus, as far

back as May 2000 and perhaps as early as 1996, Appellant advanced

contentions that mirror his present Batson claim.          The instant petition

alleged:

      On May 24, 2000, [Appellant] filed his second PCRA petition.
      [Appellant] asserted his petition was timely filed due to
      interference by government officials. [Appellant] advanced
      multiple claims, most significantly is the claim of
      ineffective assistance of counsel for failing to object and
      require the District Attorney provide race-neutral reasons
      for his use of peremptory challenges on black potential
      jurors under Batson v. Kentucky. The [PCRA c]ourt never
      appointed an attorney to represent [Appellant]. This petition was
      dismissed without a hearing on September 18, 2001. The [PCRA]
      court held that “[i]ssues 2-4, relating to the alleged denial of the
      right to an impartial jury were raised and decided in [Appellant’s]
      first PCRA and may not be re-litigated herein.” Issue 4 was
      [Appellant’s] claim that his attorney was ineffective for
      failing to object under Batson v. Kentucky.[]

Amended PCRA Petition, 9/7/16, at para. 29 (emphasis added). In view of

these allegations, Brian’s statement, even if credited by a factfinder, is merely

a new source of information that confirmed facts and claims of which Appellant

was already aware and which he previously raised.




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      There is no room to suggest in this case that Brian’s statement falls

within the scope of § 9545(b)(1)(ii) as a “new fact” or “new theoretical

variant” of a previously raised claim. Although Appellant stresses that he did

not learn of Brian’s statement before July 9, 2016, he does not rebut the fact

that he previously raised Batson-type challenges in prior post-conviction

submissions.     Indeed, the petition itself makes clear that, as early as

September 1996 (and certainly no later than May 2000), Appellant possessed

facts which enabled him to formulate and pursue claims alleging that the

district attorney improperly used peremptory challenges to exclude blacks

from the jury.   As such, the petition establishes that Brian’s July 9, 2016

statement did not bring anything “new” to Appellant’s attention, much less

bring Appellant’s claim of racially tinged jury selection practices within the

scope of § 9545(b)(1)(ii). The only “new” aspect of Appellant’s claim was

that a newly-willing testimonial source had come forward to corroborate a

legal theory Appellant raised decades before. See Abu-Jamal, 941 A.2d at

1267. Put another way, the fact that Appellant discovered through Brian yet

another confirmatory source for the same claim he raised in no fewer than

three prior post-conviction filings does not transform Appellant’s latest source

of information into the type of fact falling within the scope of § 9545(b)(1)(ii).

See Marshall, 947 A.2d at 721-722 (newly-discovered corroborative sources




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of publicly known discriminatory jury selection practices do not bring

underlying discrimination claim within scope of § 9545(b)(1)(ii)).

       For each of the foregoing reasons, we conclude that Brian’s July 9, 2016

statement served merely as a new corroborative source for previously known

facts and claims.      As such, it could not satisfy the newly-discovered facts

exception to the PCRA’s time-bar and it did not confer jurisdiction over

Appellant’s fourth petition.       Because the PCRA court lacked jurisdiction, it

properly dismissed the petition as untimely.9

       Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/30/2020




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9 Since Brian’s statement cannot, as a matter of law, constitute a new “fact”
as contemplated by § 9545(b)(1)(ii), the coordinate jurisdiction rule was not
an obstacle to Judge Braxton’s re-assessment of the initial erroneous
jurisdictional ruling. See, e.g., Ryan v. Berman, 813 A.2d 792, 795 (Pa.
2002) (acknowledging that departure from the coordinate jurisdiction rule is
generally permitted where a prior holding is clearly erroneous and following it
would create manifest injustice).


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