J-S54019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

HENRY CULVER

                            Appellant                  No. 31 WDA 2017


                Appeal from the PCRA Order December 14, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0008632-2011


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                         FILED OCTOBER 13, 2017

        Henry Culver appeals pro se from the December 14, 2016 order

entered in the Allegheny County Court of Common Pleas dismissing his

petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-46. We affirm.

        This Court set forth the following factual and procedural history in

deciding Culver’s direct appeal:

           The trial court set forth the background of this case, as
           follows:

                    The Commonwealth’s evidence established that
              on December 14, 2011, the victim, Scott Goodman,
              was at the home of his father, Albert Goodman. The
              elder Goodman was sitting in his home when he
              heard an argument coming from the kitchen. He
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S54019-17


              recognized both voices[:] that of his son and that of
              [Culver], with whom he was also familiar.        Mr.
                        [1]
              Goodman walked into the kitchen and saw [Culver]
              shoot his son. [Culver] then turned to Mr. Goodman
              and told him to back off or he would be next. Mr.
              Goodman then fled out the front door while [Culver]
              left through the back door.

                     At approximately the same time that Mr.
              Goodman was leaving his house, a witness,
              [Rasheeda] Saxton, was arriving. She saw [Culver
              come from the back of the house,] get into his car
              and drive off. While she was walking towards the
              Goodman residence, she heard Albert Goodman
              calling for help and, as she went around to the back,
              she saw Scott Goodman lying on the ground,
              bleeding. [When police arrived on the scene, Ms.
              Saxton told them that “Hank (meaning [Culver]) did
              this.”] Scott Goodman was taken to the hospital
              where he eventually died of his wounds.

                    LaPerry Raymond, the mother of [Rasheeda]
              Saxton, also testified. She said that during that
              evening, she was on the phone with Scott Goodman.
              She heard a door slam and Scott told her to hold on.
              He then told her that it was “Hank” and he would call
              her back later. A few minutes later, her daughter
              called and told her that Scott Goodman had been
              shot. . . .

                    [Detective Kenneth Ruckel of the Allegheny
              County police department testified that he found a
              black leather glove with a zipper near the cuff at the
              scene of the murder. A dark brown glove that was
              inside the black one as though the two were worn
              together contained Culver’s DNA.]

____________________________________________


       1
         Albert Goodman’s trial testimony was video-recorded in advance of
trial because he was in poor health. Goodman died before trial, and the jury
was shown the video-recorded testimony. See Commonwealth v. Culver,
No. 321 WDA 2013, unpublished mem. at 2 n.2 (Pa.Super. filed Oct. 1,
2014).



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               The Commonwealth also presented evidence
          concerning [Culver]’s arrest sometime later in Miami.
          ...

                After receiving a tip as to where [Culver] might
          be found, Deputy U[.]S[.] Marshal[] Ty Fallow and
          others went to this location [at a rescue mission in
          Miami, Florida.]      They observed [Culver] and
          Marshal[] Fallow addressed [him], “Mr. Culver, Hank,
          Henry.”     At this point, [Culver] turned around.
          Later, as they were asking him his name, he told
          them that his name was Rocky Wallace. He showed
          them an ID [from the rescue mission] that bore the
          name Rocky Wallace but had his photograph on it.
          [Culver] was [detained] and transported to the Dade
          County Jail [where fingerprint analysis confirmed
          that he was Henry Culver and he was then arrested.]
          He was in a holding cell for a lengthy time as he
          waited his turned to be processed. The defendants’
          names are called out frequently. Marshal[] Fallow
          observed that on all but one occasion when the jail
          called out for Henry Culver, [Culver] did not respond.
          Once, however, when a nurse called the name Henry
          Culver, he did verbally respond.

                Marshal[] Fallow also testified that he was
          present when [Culver] was provided with several
          intake forms including a property form. This form
          itemizes the property that was on his person when
          he was arrested. It has a place for the inmate’s
          signature. Marshal[] Fallow observed [Culver] sign
          the name Rocky Wallace to that form.          [The
          Commonwealth] introduced [the document] into
          evidence at trial.

       (Trial Court Opinion, 1/17/14, at 3-4, 5). . . .

          At the conclusion of trial, the jury convicted [Culver]
       of [first-degree murder, firearms not to be carried
       without a license, terroristic threats, and simple assault




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            – physical menace.2 In a bifurcated nonjury trial, the
            trial court convicted Culver of persons not to possess
            firearms.3]    On December 13, 2012, the court
            sentenced [Culver] to a term of life in prison without
            the possibly of parole on the murder of the first degree
            conviction, plus a concurrent aggregate term of
            imprisonment of not less than nine and one-half nor
            more than nineteen years on the remaining counts.
            The court denied [Culver]’s post-sentence motions on
            January 17, 2013.

Commonwealth v. Culver, No. 321 WDA 2013, unpublished mem. at 1-4

(Pa.Super. filed Oct. 1, 2014) (some alterations in original, footnotes

omitted).

       On February 14, 2013, Culver timely filed a notice of appeal.       On

October 1, 2014, this Court affirmed Culver’s judgment of sentence. Culver

then filed a petition for allowance of appeal, which our Supreme Court

denied on March 31, 2015.

       On July 23, 2015, Culver, acting pro se, filed a PCRA petition.     On

September 1, 2015, the PCRA court appointed counsel.          On July 1, 2016,

counsel filed a motion to withdraw as counsel and a Turner/Finley4 “no-

merit” letter.    On September 21, 2016, the PCRA court granted counsel’s

motion to withdraw and gave notice of its intent to dismiss Culver’s petition

____________________________________________


       2
        18 Pa.C.S. §§ 2502(a), 6106(a)(1), 2706(a)(1), and 2702(a)(3),
respectively.
       3
           18 Pa.C.S. § 6105(a)(1).
       4
      Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).



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under Pennsylvania Rule of Criminal Procedure 907.         On December 14,

2016, the PCRA court dismissed Culver’s petition. On December 16, 2016,

Culver filed a response to the notice of intent to dismiss, asserting that he

had not seen the notice of intent to dismiss and only became aware of it

after being informed that his PCRA petition had been dismissed. On January

4, 2017, Culver timely filed a notice of appeal.

      Culver raises six issues on appeal:

      1. Did the ineffective assistance of [Culver]’s PCRA Counsel
         and the PCRA Court’s failure to provide [Culver] with his
         trial transcripts combine to deprive [Culver] of his due
         process rights under the state and federal constitutions?

      2. Did the PCRA Court err in dismissing without a hearing the
         claim that Trial Counsel . . . was ineffective for failing to
         present expert witness testimony concerning the DNA
         sample taken from the gloves found at the scene of the
         homicide?

      3. Did the PCRA Court err in dismissing without a hearing the
         claim that Trial Counsel . . . was ineffective for failing to
         properly prepare for trial by interviewing witnesses LaPerry
         Raymond and Rasheeda Saxton before they testified?

      4. Did the PCRA Court err in dismissing without a hearing the
         claim that Trial Counsel . . . was ineffective for failing to
         obtain medical records from Jefferson Memorial Clinic in
         Miami, Florida that would have explained that [Culver]
         went to Florida seeking medical treatment, not to avoid
         apprehension by the police?

      5. Did the PCRA Court err in denying without a hearing the
         claim that Trial Counsel . . . was ineffective for failing to
         challenge Albert Goodman’s competency to testify?

      6. Was trial counsel ineffective for failing to properly impeach
         Albert Goodman’s testimony?




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Culver’s Br. at 7 (suggested answers omitted). For ease of disposition, we

address Culver’s issues out of order.

      Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).           We will not disturb the

PCRA court’s factual findings “unless there is no support for [those] findings

in the certified record.” Commonwealth v. Melendez-Negron, 123 A.3d

1087, 1090 (Pa.Super. 2015).

      Culver asserts a number of trial counsel ineffectiveness claims.

         To prevail on . . . [ineffective assistance of counsel] claims,
         [the PCRA petitioner] must plead and prove, by a
         preponderance of the evidence, three elements: (1) the
         underlying legal claim has arguable merit; (2) counsel had
         no reasonable basis for his action or inaction; and (3) [the
         petitioner] suffered prejudice because of counsel’s action
         or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011).                    “The law

presumes counsel was effective[.]” Commonwealth v. Miner, 44 A.3d 684,

687 (Pa.Super. 2012).      “A claim of ineffectiveness will be denied if the

petitioner’s evidence fails to meet any of these prongs.”      Commonwealth

v. Williams, 980 A.2d 510, 520 (Pa. 2009).

      First, Culver argues that trial counsel was ineffective because counsel

did not present an expert witness to refute the Commonwealth’s expert

witness testimony on the DNA evidence recovered.          According to Culver,

when the Commonwealth provided trial counsel the DNA test reports, “[s]he

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immediately sought a postponement because she found the report troubling

. . . [and] told [Culver] it was necessary to hire a DNA expert to rebut the

Commonwealth’s contention.” Culver’s Br. at 17. Culver asserts that trial

counsel told him “that the DNA science the Commonwealth was using was

questionable at best . . . .” Id. At trial, however, counsel did not present a

rebuttal DNA expert witness. Culver asserts that trial counsel “never gave a

reason and never offered an explanation.”     Id. at 18.   For these reasons,

Culver argues that trial counsel had no reasonable basis for withholding

expert testimony, as “testimony from a competing expert on such a critical

issue would have been more convincing than . . . argument from [trial]

counsel” and his “innocence claim would have been considerably more

compelling than a simple denial of guilt.” Id. at 20. We disagree.

     With respect to claims of ineffectiveness for failing to call an expert

rebuttal witness, our Supreme Court has stated that:

        [t]he mere failure to obtain an expert rebuttal witness is
        not ineffectiveness. Appellant must demonstrate than an
        expert witness was available who would have offered
        testimony designed to advance appellant’s cause. Trial
        counsel need not introduce expert testimony on his client’s
        behalf if he is able effectively to cross-examine prosecution
        witnesses and elicit helpful testimony. Additionally, trial
        counsel will not be deemed ineffective for failing to call a
        medical, forensic, or scientific expert merely to critically
        evaluate expert testimony [that] was presented by the
        prosecution. Thus, the question becomes whether or not
        [defense     counsel]    effectively    cross-examined   [the
        Commonwealth’s expert witness].




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Commonwealth v. Chmiel, 30 A.3d 1111, 1143 (Pa. 2011) (internal

quotations and citation omitted; alterations in original).

       We conclude that the PCRA court did not err in dismissing Culver’s

claim. 5 The PCRA court correctly observed that Culver’s claim fails because

“there was no reason to believe that a DNA expert retained by [Culver]

would have come to a conclusion different from that which was reached by

the Commonwealth expert.” PCRA Ct. Op., 9/21/16, at 5. In addition, our

review of the trial testimony shows that trial counsel effectively cross-

examined the Commonwealth’s expert witness, pointing out possible

inconsistencies in the results and flaws in the DNA analysis. See N.T., 9/18-

21/16, at 288-303.        Because Culver failed to show that he had an expert

who would testify differently than the Commonwealth’s expert and trial

counsel effectively cross-examined the Commonwealth’s expert witness, trial

counsel was not ineffective for not presenting a rebuttal expert witness.

Accordingly, Culver’s claim lacks merit.

       Next, Culver claims that trial counsel was ineffective because she did

not interview witnesses LaPerry Raymond and Rasheeda Saxton before trial.

According to Culver, his trial counsel received statements from both


____________________________________________


       5
          The PCRA court also found that the DNA evidence was merely
circumstantial because it only placed Culver’s DNA at the scene. According
to the PCRA court, the direct evidence, specifically the eyewitness testimony
of Albert Goodman and Rasheeda Saxton, made the DNA evidence non-
essential to the Commonwealth’s case.



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witnesses in discovery.   Culver asserts that when trial counsel determined

that both witnesses would be testifying against Culver, she “felt that it was

crucial that she . . . interview the women prior to trial” but never did so.

Culver’s Br. at 23.

      With respect to interviewing witnesses prior to trial, our Supreme

Court has stated that

         trial counsel has a general duty to undertake reasonable
         investigations or make reasonable decisions which render
         particular investigations unnecessary.           The duty to
         investigate, of course, may include a duty to interview
         certain potential witnesses; and a prejudicial failure to
         fulfill this duty, unless pursuant to a reasonable strategic
         decision, may lead to a finding of ineffective assistance.
         Nevertheless, we have never held that trial counsel is
         obligated to interview every Commonwealth witness prior
         to trial. The failure of trial counsel to interview a particular
         witness prior to trial does not constitute ineffective
         assistance of counsel unless there is some showing that
         such an interview would have been beneficial to the
         defense under the facts and circumstances of the case.

Commonwealth v. Mitchell, 105 A.3d 1257, 1276 (Pa. 2014) (internal

quotations and citations omitted).

      In its opinion, the PCRA court concluded that this claim lacked merit

because trial counsel cross-examined these witness effectively, Culver “did

not explain how a pre-trial interview of an opposing witness would have

change[d] the outcome of the trial[,]” and the witnesses “could [not] have

been compelled to submit to such an interview.” PCRA Ct. Op., 9/21/16, at

5. After reviewing the notes of testimony, we agree with the PCRA court’s




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analysis and conclude that it did not err in dismissing this ineffectiveness

claim.

      Next, Culver argues that trial counsel was ineffective for failing to

obtain medical records that would have shown that Culver traveled to Florida

to be treated for an illness. According to Culver, he told trial counsel that

while he was on parole, he was diagnosed as possibly having cancer and

informed his parole officer.    While the parole officer recommended that

Culver obtain a second opinion, Culver saw an advertisement for a medical

clinic in Miami, Florida. Knowing “that his [p]arole [o]fficer would not permit

him to travel across state lines,” Culver chose to travel under the assumed

name of “Rocky Wallace.” Culver’s Br. at 25.

      Culver contends that his trial counsel told him that it would be

beneficial to obtain the medical records of “Rocky Wallace” from the medical

clinic, but trial counsel never attempted to obtain them and gave multiple

excuses as to why she could not obtain them.        According to Culver, trial

counsel had no reasonable basis for failing to obtain these records, and this

failure prejudiced him because the only inference the jury could draw from

his travel was that he fled to avoid apprehension. We disagree.

      With respect to ineffectiveness claims based on a failure to investigate,

our Supreme Court has stated that

         [c]ounsel has a general duty to undertake reasonable
         investigations or make reasonable decisions that render
         particular investigations unnecessary. Counsel’s strategic
         choices made after less than a complete investigation are
         considered reasonable, on a claim of ineffective assistance,

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         precisely to the extent that reasonable professional
         judgments support limitations on the investigation. Failure
         to conduct a more intensive investigation, in the absence
         of any indication that such investigation would develop
         more than was already known, is simply not
         ineffectiveness.

Commonwealth v. Eichinger, 108 A.3d 821, 847 (Pa. 2014) (internal

citations omitted).

      The PCRA court concluded that this claim was meritless:

         The fact that [Culver] received medical care in Florida is
         not inconsistent with him travelling there to avoid
         apprehension. Moreover, the fact that [Culver] had a fake
         ID and provided a fake name to the officers who arrested
         him and at the jail where he was being processed certainly
         corroborated the Commonwealth’s contention that [Culver]
         fled to Florida and allowed the prosecution to argue to the
         jury that [Culver] fled this area and assumed a fake
         identity because he was conscious of his guilty and was
         trying to avoid apprehension.

PCRA Ct. Op., 9/21/16, at 6. We agree with the PCRA court’s analysis and

conclude that it did not err in dismissing the ineffectiveness claim.

      Next, Culver asserts that trial counsel was ineffective for failing to

challenge Albert Goodman’s competency.           According to Culver, Albert

Goodman’s age and severe illness prevented him from “express[ing]

intelligent answers to questions.”     Culver’s Br. at 29.    Culver relies on

inconsistencies in Goodman’s video-recorded testimony and argues that

while “[i]ndividually, these elements of Albert[ Goodman]’s testimony could

be viewed as minor inconsistencies[,] . . . [t]aken as a whole . . . Albert[

Goodman]’s pattern of porous memory reveals that it is much more likely

that his illness had taken such a toll on him that he was unable to maintain a


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clear recollection of what he had seen and heard on the day of the

homicide.” Id. at 30. We disagree.

     The competency of witnesses is governed by Pennsylvania Rule of

Evidence 601, which provides:

        (a)   General Rule. Every person is competent to be a
              witness except as otherwise provided by statute or in
              these rules.

        (b)   Disqualification for Specific Defects. A person is
              incompetent to testify if the court finds that because
              of a mental condition or immaturity the person:

              (1)      is, or was, at any relevant time, incapable
                 of perceiving accurately;

              (2)      is unable to express himself or herself so as
                 to be understood either directly or through an
                 interpreter;

              (3)      has an impaired memory, or

              (4)       does not sufficiently understand the duty to
                 tell the truth.

Pa.R.Evid. 601. This Court has explained that Rule 601

        [i]s expressly intended to preserve existing Pennsylvania
        law. In general, the testimony of any person, regardless
        of [his] mental condition, is competent evidence, unless it
        contributes nothing at all because the [witness] is wholly
        untrustworthy.    Thus, in Pennsylvania, [a witness is]
        presumed competent to testify, and it is incumbent upon
        the party challenging the testimony to establish
        incompetence. Above all, give the general presumption of
        competency of all witnesses, a court ought not to order a
        competency investigation, unless the court has actually
        observed the witness testify and still has doubts about the
        witness’ competency.

        The capacity to remember and the ability to testify
        truthfully about the matter remembered are components
        of testimonial competency. The party alleging a witness is

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         incompetent to testify must prove that contention by clear
         and convincing evidence.

Commonwealth v. Boich, 982 A.2d 102, 109-10 (Pa.Super. 2009) (en

banc) (internal quotations and citations omitted; some alterations in

original).

      The PCRA court concluded that this claim was meritless:

         Though counsel did not seek to exclude the testimony of
         Mr. Goodman on the basis that the witness was not
         competent, [counsel] thoroughly challenged his credibility
         on the same basis upon which [Culver] now contends that
         [Goodman] was not a competent witness. This Court
         made the following findings with regard to the challenge to
         Mr. Goodman’s credibility:

             This Court and the jury viewed a video tape of that
             testimony. Though it was apparent from the video
             that Mr. Goodman was ill, he did not seem to have
             difficulty recalling the events surrounding the death
             of his son and relating them. He seemed tired and
             responded slowly to some questions, but it is simply
             inaccurate to claim that his illness affected his
             perception or that his testimony was confused,
             vague, and contradictory, as [Culver] does in his
             [Rule 1925(b)] statement. It was clear to this Court
             that [Goodman’s] illness or taking of medications did
             not affect his ability to recall events or accurately
             describe what he observed. There were some things
             about which Mr. Goodman was less than certain,
             things that he acknowledged that he could not
             remember.        He was, however, clear about the
             essential facts of the night that his son was shot. He
             was cross examined by the defense as to his inability
             to recall events; as to apparent inconsistencies
             between what he told the police the night of the
             incident and what he testified to in Court; and as to
             the effect his illness and medication had on his
             current state of mind. What effect, if any, to give
             the questions raised by that cross examination as to
             the accuracy of Mr. Goodman’s testimony, was
             something for the jury to decide.          Clearly, Mr.

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               Goodman was a competent witness and the jury was
               allowed to believe as much of his testimony as they
               wished.

         (Slip Opinion 730th, 2014).   Trial counsel was not
         ineffective for seeking to challenge this witness[’]s
         competence because, as the Court pointed out, this
         witness was both competent and credible in his
         testimony.

PCRA Ct. Op., 9/21/16, at 7-8. We agree with the PCRA court’s conclusion.

      Next, Culver argues that trial counsel was ineffective because she did

not impeach Albert Goodman’s testimony. Although Culver raised this issue

in a response to the trial court’s dismissal of his petition, he neither included

it in his PCRA petition and nor obtained permission from the PCRA court to

supplement or amend his petition. Accordingly, we conclude that Culver has

waived this claim on appeal.      See Commonwealth v. Mason, 130 A.3d

601, 640 (Pa. 2015) (concluding that petitioner who first asserted claim in

response to Commonwealth’s motion to dismiss waived claim for failure to

obtain leave of court to supplement or amend petition).

      Finally, Culver argues that his PCRA counsel was ineffective because,

among other things, PCRA counsel failed to provide Culver with trial

transcripts.    It is well settled that “claims of PCRA counsel ineffectiveness

cannot be raised for the first time after a notice of appeal has been taken

from the underlying PCRA matter.”         Commonwealth v. Ford, 44 A.3d

1190, 1201 (Pa.Super. 2012).         Because Culver raises ineffectiveness of

PCRA counsel claims for the first time on appeal from the dismissal of his

PCRA petition, this Court lacks jurisdiction to consider those claims.


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      Culver also asserts that the PCRA court’s denial of his multiple

requests for transcripts violated his due process rights under the United

States and Pennsylvania Constitutions. Culver claims he is entitled to a copy

of the transcripts under federal and Pennsylvania law. According to Culver,

“there may be very significant PCRA issues that would become clear if [he]

had the chance to review the record[, and he] . . . would also be in a better

position to explain why the issues he’s already raised are of arguable merit if

he had the opportunity to read his transcripts.”      Culver’s Br. at 16.   We

disagree.

      While we recognize that “a defendant’s right to meaningful appeal

requires he be provided with a copy of a transcript or other equivalent

picture of the proceedings below,” Commonwealth v. Morgan, 364 A.2d

891, 892 (Pa. 1976), we conclude that, under these circumstances, Culver’s

right to a meaningful appeal has not been violated.

      First, when Culver initially requested transcripts on April 28, 2015, he

had no matter pending before the courts. Thus, even with in forma pauperis

status, he was not entitled to transcripts. See Commonwealth v. Martin,

705 A.2d 1337, 1338 (Pa.Super. 1998).

      Next, with respect to his December 21, 2016 request, we recognize

that, had Culver followed the correct procedure, he should have received his

trial transcripts. However, it is evident that Culver’s lack of access to those

transcripts did not prevent him from receiving a meaningful appeal, as we

were not hindered in determining that Culver’s issues lack merit because we

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received the trial transcripts from the Allegheny County Clerk of Courts.

Further, we find Culver’s claims specious, as Culver quoted a section of

Albert Goodman’s video-recorded testimony in his appellate brief.    See

Culver’s Br. at 34. Accordingly, Culver is not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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