J-S69028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    AKEEM FOLLY                                :
                                               :
                       Appellant               :   No. 2822 EDA 2018


             Appeal from the PCRA Order Entered August 24, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0511742-2005.


BEFORE:      SHOGAN, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 14, 2020

        Akeem Folly appeals pro se from the order that denied his second

petition filed pursuant to the Post Conviction Relief Act (PCRA). 42 Pa.C.S.A.

§§ 9541-46. We affirm.

        In support of its order denying Folly’s first PCRA petition, the PCRA court

summarized the pertinent facts as follows:

              On July 25, 2003, at about 1:00 a.m. or 1:30 a.m.,
           seventeen year old Edward Craig Jackson, who was known
           to his friends as CJ, was shot numerous times and killed by
           [Folly] and his co-defendant William Creighton in the 3100
           block of West Norris Street as he left his girlfriend’s house.
           A third individual named Tyrone Brown was also involved in
           the incident.

               According to Mr. Brown, who entered a guilty plea to inter
           alia a charge of murder of the third degree for the death of
           [CJ][,] he, [Folly] and Mr. Creighton were driving around
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*   Retired Senior Judge assigned to the Superior Court.
J-S69028-19


       the area where the killing occurred looking for individuals to
       rob. At some point, [Folly] told Brown, who was driving, to
       pull the car over to the curb near 32nd and Berks Street.
       When he pulled over, both [Folly] and Creighton quickly
       exited the car and ran up an alley. Approximately five
       minutes later Brown heard several gunshots. Immediately
       thereafter, both [Folly] and [Creighton] returned to the car.
       [Folly] told Brown, “We had to shoot the ‘M’ Fer’”.

          After [Folly] and Creighton got into the car, all three men
       went to [Folly’s] house. While there, Creighton told Brown
       that they shot “that boy CJ”, an individual Brown did not
       know. In subsequent conversations, Creighton indicated
       that he shot [CJ] because of something that happened at
       school.

          Brown further testified that [CJ] was shot with a .45
       Caliber Glock handgun. According to Brown, he gave such
       a weapon to Creighton that night because he (Brown) did
       not want to carry it while he was driving in the event that
       he was pulled over by the police.

          Brown was arrested in September of 2003. Incident to
       that arrest police siezed a .45 Caliber Glock handgun that
       testing revealed to be the gun that was used to kill [CJ].

          Mr. Robert Spurell was another individual Creighton
       confided in about the killing of [CJ]. Spurell, who went to
       school with [Folly] and Creighton, admitted giving a
       statement to police wherein he stated that Creighton told
       him that he shot [CJ] in the presence of [Folly] because [CJ]
       had threatened to ask someone to get [Folly]. Spurell
       added that he was with Tyrone Brown in September of 2003
       when Brown was arrested and found to be in possession of
       the murder weapon herein. Spurell indicated that he
       implicated both [Folly] and Creighton in the murder of [CJ]
       because he believed that they had implicated him in criminal
       activity.

          Mr. Freddy Spurell, Robert Spurell’s cousin, was
       interviewed by police twice. While he testified that what he
       told police in his statement was not true, in those
       statements he stated that Creighton told him that he shot
       [CJ] because of an incident at school during which [CJ] was
       poked in the eye and threatened to go to the police over it.
       Creighton indicated that he snuck up on [CJ] as [CJ] was

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          leaving his girlfriend’s house and shot him in the face.
          Creighton added that when [CJ] fell to the pavement, he
          shot him several more times.

             Freddy [Spurell], as did his cousin Robert, stated that he
          inculpated Creighton in [CJ’s] killing because he believed
          that Creighton had given police information about a
          homicide that he had committed.

             An autopsy performed on [CJ’s] body showed that he was
          shot nine times. The bullets damaged several vital organs
          including [CJ’s] brain, heart, lungs, liver, and one kidney.

PCRA Court Opinion, 1/15/10, at 1-4 (footnotes omitted).

       Folly and Creighton were tried jointly in May of 2006. At the conclusion

of the trial, the jury found Folly guilty of third-degree murder, criminal

conspiracy, and possessing an instrument of crime.1 On June 21, 2006, the

trial court imposed an aggregate term of twenty to forty years of

imprisonment. Folly did not file a direct appeal.

       On December 20, 2007, Folly filed a pro se PCRA petition. The PCRA

court appointed counsel, and PCRA counsel thereafter filed several amended

petitions. By order entered October 22, 2009, and following Pa.R.A.P. 907

notice, the PCRA court denied the petition as untimely filed. Folly filed a timely

appeal to this Court. On August 9, 2010, we affirmed the order denying post-

conviction relief and, on September 11, 2011, our Supreme Court denied

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1The jury convicted Creighton of first-degree murder and related charges.
Thereafter, the trial court sentenced him to a term of life in prison. See
Commonwealth v. Creighton, 965 A.2d 291 (Pa. Super. 2008) (unpublished
memorandum).



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Folly’s petition for allowance of appeal. Commonwealth v. Folly, 11 A.3d

71017 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 27 A.3d

223 (Pa. 2011).

      On October 24, 2011, Folly filed a second pro se PCRA petition. Over

the next several years, Folly filed multiple amended petitions in which he

claimed newly-discovered evidence in the form of affidavits from various

individuals. Privately retained PCRA counsel entered his appearance on April

21, 2017. Thereafter, PCRA counsel filed an amended petition in which Folly

claimed the existence of a previously unknown eyewitness to CJ’s murder.

The Commonwealth filed an answer, and the PCRA court held an evidentiary

hearing at the conclusion of which the PCRA court denied post-conviction

relief. This pro se timely appeal followed. The PCRA court did not require

Pa.R.A.P. 1925 compliance.

      Folly’s   pro   se   brief   does   not   contain   a   statement   of   issues.

Notwithstanding this procedural defect, it is clear that Folly is claiming the

PCRA court erred by denying him post-conviction relief in the form of a new

trial based upon the after-discovered evidence provided by the testimony of

his witness, Alvino Ray.

      This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.           Commonwealth v.

Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011). “The PCRA court’s findings


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will not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012).

       Before addressing the merits of Folly’s issues, we must first determine

whether Folly’s second PCRA petition was timely.

       The    timeliness     of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges, and the petitioner proves, that an

exception to the time for filing the petition is met. The three narrow statutory

exceptions to the one-year time bar are as follows:            “(1) interference by

government officials in the presentation of the claim; (2) newly discovered

facts; and (3) an after-recognized constitutional right.” Commonwealth v.

Brandon, 51 A.3d 231-233-34 (Pa. Super. 2012) (citing 42 Pa.C.S.A. §

9545(b)(1)(i-iii)). A PCRA petition invoking one of these statutory exceptions

must “be filed within 60 days of the date the claim could have been

presented.” See Hernandez, 79 A.3d 651-52 (citations omitted); see also

42 Pa.C.S.A. § 9545(b)(2).2 Finally, exceptions to the PCRA’s time bar must



____________________________________________


2 Our legislature recently amended this section of the PCRA to provide
petitioners one year to file a petition invoking a time-bar exception. See
2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018].
This amendment does not apply to Folly’s petition since he filed it before the
effective date.

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be pled in the petition, and may not be raised for the first time on appeal.

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007); see also

Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are

waived and cannot be raised for the first time on appeal).

      Here, Folly’s judgment of sentence became final on July 21, 2006, thirty

days after the time for filing an appeal to this Court expired. See 42 Pa.C.S.A.

§ 9545(b)(3). Therefore, Folly had until July 21, 2007, to file a timely petition.

Because Folly filed his second petition in 2011, it is patently untimely unless

he has satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

      Within his most recent amendment to his second PCRA petition, Folly

asserted that he had established a time-bar exception.         Specifically, Folly

contended that, on March 1, 2017, Alvino Ray, “a heretofore unknown

eyewitness to the crimes charged [had] signed an affidavit [] which states

that [Folly] was not present when [CJ] was shot and killed.” PCRA Petition,

4/21/17, at 2 (unnumbered).        Folly averred that this witness’ proposed

testimony raised “newly-discovered facts” which “were unknown to him and

could not have been ascertained by the exercise of due diligence.” Id. at 3

(unnumbered).     According to Folly, these “newly-discovered facts” entitled

him to post-conviction relief in the form of a new trial.

      With this claim, Folly attempted to establish the PCRA’s timeliness

exception found at section 9545(b)(1)(ii).


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          The timeliness exception set forth in Section 9545(b)(1)(ii)
         requires a petitioner to demonstrate he did not know the
         facts upon which he based his petition and could not have
         learned of those facts earlier by the exercise of due
         diligence. Due diligence demands that the petitioner take
         reasonable steps to protect his own interests. A petitioner
         must explain why he could not have learned the new fact(s)
         earlier with the exercise of due diligence. This rule is strictly
         enforced. Additionally, the focus of this exception is on the
         newly discovered facts, not on a newly discovered or newly
         willing source for previously known facts.

            The timeliness exception set forth at Section
         9545(b)(1)(ii) has often mistakenly been referred to as the
         “after-discovered evidence” exception.       This shorthand
         reference was a misnomer, since the plain language of
         subsection (b)(1)(ii) does not require the petitioner to allege
         and prove a claim of “after-discovered evidence.” Rather,
         an initial jurisdictional threshold, Section 9545(b)(1)(ii)
         requires a petitioner to allege and prove that there were
         facts unknown to him and that he exercised due diligence in
         discovering those facts. Once jurisdiction is established, a
         PCRA petitioner can present a substantive after-discovered
         evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015) (citations

omitted).

      Here, the PCRA court accepted PCRA counsel’s argument that Folly

established the Section 9545(b)(1)(ii) exception to the PCRA’s time bar. Our

review of the record provides no reason to disturb this conclusion. The court

then heard the after-discovered evidence and denied post-conviction relief.

Thus, we review the PCRA court’s determination that Folly cannot establish

his claim of after-discovered evidence.




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     To address this issue, we first note the test applied to after-discovered

evidence.   When discussing the test in the context of a PCRA appeal, our

Supreme Court recently summarized:

            [W]e have viewed this analysis in criminal cases as
        comprising four distinct requirements, each of which, if
        unproven by the petitioner, is fatal to the request for a new
        trial. As stated, the four-part test requires the petitioner to
        demonstrate the new evidence: (1) could not have been
        obtained prior to the conclusion of trial by the exercise of
        reasonable diligence; (2) is not merely corroborative or
        cumulative; (3) will not be used solely to impeach the
        credibility of a witness; and (4) would likely result in a
        different verdict if a new trial were granted. The test applies
        with full force to claims arising under Section 9543(a)(2)(vi)
        of the PCRA. In addition, we have held the proposed new
        evidence must be producible and admissible.

Commonwealth v. Small, 189 A.3d 961, 972 (Pa. 2018) (citations omitted).

     Here, the PCRA court applied the above test to Ray’s testimony from the

evidentiary hearing, which the PCRA court summarized as follows:

            Instantly, Alvino Ray testified essentially in accordance
        with the affidavit he signed wherein he averred that he did
        not see [Folly] in the area of the shooting herein on the night
        [CJ] was killed. He also admitted that he did not witness
        the murder itself. According to Ray, he was sitting next to
        William Creighton, [Folly’s] co-defendant, when [CJ] and his
        girlfriend exited a nearby residence. When Creighton saw
        [CJ], Ray heard Creighton say that he was going to murder
        [CJ] because he told [CJ] not to come to that neighborhood
        and that he was going to ambush him on a nearby street.
        When [CJ] walked away, Creighton left, according to Ray.
        Shortly thereafter, Ray heard gunshots that prompted him
        to go inside for his own safety and because he did not want
        to be considered a suspect by the police. However, he went
        outside only thirty to forty-five seconds thereafter because
        he wanted to ascertain whether Creighton had shot [CJ] as
        Creighton said he was going to do. When he did so, he
        confirmed that [CJ] had been shot. He also saw Creighton


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         sitting on some steps. Creighton looked at Ray with what
         Ray described as a “conniving, devilish look smiling looking
         me square in the eye smiling.” According to Ray, the next
         day he saw Creighton who confirmed that he had shot [CJ]
         and also described the shooting to Ray.

            Ray added that he knew [Folly] and that he had not seen
         him that night or during the preceding couple of days. He
         also indicated that he was unaware that [Folly] had been
         arrested and charged with murder for the death of [CJ]
         because at the time [Folly] was arrested, he was away at
         college. He thereafter moved from Philadelphia to Atlanta,
         Georgia, and returned to Philadelphia in 2016 or 2017.

             Ray returned to Philadelphia in 2016 or 2017 and was
         taken into custody on the warrants, which ultimately
         resulted in his incarceration. [Ray indicated that he had
         numerous criminal contacts in various states. The parties
         stipulated that Ray pleaded guilty in Georgia to the crimes
         of identity fraud and making a false statement.] At some
         point Ray’s cousin brought up [Folly’s] case and asked Ray
         if he wanted to “save” someone’s life. His cousin eventually
         told Ray that [Folly] was the person whose “life” he could
         save but Ray took no action because there were warrants
         outstanding for his arrest and he did not want to be jailed
         on those warrants.

            Ray first spoke to [Folly’s] brother after he was released
         from prison. Ray also stated that he did not see the face of
         the [shooting] victim but knew it was [CJ] based on the
         clothing and the arm of the person he believed was [CJ]. At
         the time the person he believed was [CJ] was laying entirely
         in the street between two parked cars, which Ray said he
         saw from approximately 800 feet away.

            On cross-examination, Ray, [who admitted that he was
         a] trained actor, said he told his cousin about the shooting
         a couple of days after it occurred. He, however, conceded
         that he did not witness the shooting himself.

PCRA Court Opinion, 3/6/19, at 4-5 (citations and footnote omitted).

      At the conclusion of the evidentiary hearing, the PCRA court denied

Folly’s after-discovered evidence claim. In doing so, the trial court recalled

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the statements of the various trial witnesses and noted that a jury believed

their version that Folly was with Brown and Creighton in a vehicle shortly

before [CJ’s] murder. When asked by the PCRA court, Ray confirmed that he

was not aware of this version of the event. See N.T., 8/24/18, 78-80.

     In its opinion supporting the denial of post-conviction relief, the PCRA

court further explained:

            This Court, having carefully listened to the testimony
        presented by Ray, found his testimony to be wholly lacking
        in credibility. First, Ray’s version of the incident did not jibe
        with the evidence recovered following the shooting and that
        presented a trial. Ray testified that he heard about four or
        five shots when in actuality, there were nine total shots.
        Ray was also unaware of any of the details of the crime
        itself, and the testimony presented at trial which included
        evidence that [Folly], Creighton, and a third male named
        Tyrone Brown had been driving around that night looking
        for someone to rob and settled on [CJ]. In addition, his
        testimony sounded contrived and simply was not believable
        given the discrepancies in it and the facts presented at trial.

           Second, this Court found the testimony not credible
        because Ray waited so long to come forward. His decision
        not to “come clean” until his own legal problems were
        resolved and his decision to go outside again on the night of
        the killing so quickly despite his fear of being considered a
        suspect caused this Court to conclude that he simply was
        not telling the truth about what occurred that night.

           Third, this Court did not believe Ray because he did not
        witness the shooting.       The entirety of his testimony
        amounted to pure speculation and was diametrically
        opposite of the testimony presented at trial. For this reason
        and those discussed above, it is respectfully suggested that
        this Court’s order be affirmed for the reasons stated herein.

PCRA Court Opinion, 3/6/19, at 5-6. Our review of the record supports the

PCRA court’s conclusions.

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         In arguing to the contrary, Folly essentially asserts that the PCRA court

inappropriately added a credibility determination to the test for after-

discovered evidence. We disagree.

         Credibility determinations are an integral part of determining whether a

PCRA petitioner has presented after-discovered evidence that would entitle

him to a new trial. See, e.g., Small, 189 A.3d at 978-79 (remanding for the

PCRA court to make relevant credibility determinations). As this Court has

stated, prior to granting a new trial based on after-discovered evidence, “a

court must assess whether the alleged after-discovered evidence is of such a

nature and character that it would likely compel a different verdict if a new

trial is granted. Commonwealth v. Padillas, 997 A.2d 356, 365 (Pa. Super.

2010). “In making this determination, a court should consider the integrity of

the alleged after-discovered evidence, the motive of those offering the

evidence, and the overall strength of the evidence supporting the conviction.”

Id. On appeal, the PCRA court’s credibility determinations, if supported by

the record, are binding on this Court. Commonwealth v. Medina, 92 A.3d

1210, 1214 (Pa. Super. 2014). Here, our review of Ray’s testimony supports

the PCRA court’s conclusion that, for various reasons, it was unworthy of

belief. Thus, Folly failed to establish that this evidence entitled him a new

trial.

         In the alternative, Folly argues that credibility determinations are limited

to after-discovered evidence claims that only involve a recantation of trial

testimony. See Folly’s Brief at 4-5. Folly cites no case law to support this

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limited interpretation of the after-discovered evidence test.             Indeed, we

conclude that Pennsylvania precedent holds otherwise.

       In Commonwealth v. Johnson, 966 A.2d 523 (Pa. 2009), Johnson,

who was convicted of first-degree murder and was sentenced to death, filed a

PCRA    petition   in   which   he   raised   several   claims   of   trial   counsel’s

ineffectiveness for failing to interview witnesses to the crime, as well as a

claim of after-discovered evidence based on a witness’s recantation of his trial

testimony. The PCRA court held an evidentiary hearing. The new witnesses

proffered testimony consistent with the trial witness’s recantation. The PCRA

court found Johnson proved prejudice based on trial counsel’s ineffectiveness,

and for that reason, granted Johnson a new trial. Although the PCRA court

expressly discredited the trial witness’s recantation testimony, the court

concluded that it did not need to determine the new witnesses’ credibility,

because that role was for the jury once Johnson’s new trial was held.

       The Commonwealth appealed to our Supreme Court and raised

numerous claims, including PCRA court error in failing to assess the credibility

of the new witnesses proffered by Johnson. According to the Commonwealth,

in order to grant a new trial based upon trial counsel’s ineffectiveness, “the

PCRA court must necessarily find that if the evidence presented at the PCRA

hearing had been presented at trial, it would have been found to be credible

by the jury and would have resulted in [Johnson’s] acquittal.” Johnson, 966

A.2d at 541 (citation omitted).




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       In a unanimous decision, our Supreme Court found that “[s]uch a high

burden, it seems to us, does not comport” with the Strickland3 prejudice

standard for proving ineffectiveness. Johnson, 966 A.2d at 541. Rather, the

high    court   stated   “[a]fter-discovered       evidence   cases    premised   upon

recantation     testimony     are    instructive    in   explicating   the   credibility

assessment.” Id. Our Supreme cited the Small test cited above, and noted

that the Court “has remanded after-discovered evidence cases and specifically

directed the trial or PCRA court to make credibility determinations on the

recantation testimony with an eye to the relevant prejudice standard.” Id.

       The Johnson court then discussed several of these cases, and

concluded “the after-discovered evidence cases tie the court’s credibility

determination to the governing prejudice standard.” Id. at 542. The high

court thus vacated the order granting Johnson a new trial and remanded the

case so that the PCRA court could properly assess the new witness’s

credibility.4 In doing so, our Supreme Court explained:

          In assessing credibility on remand in the case sub judice,
          the question for the PCRA court is not whether the jury in
          fact would have credited [Johnson’s] new evidence[.]
          Instead, the question is whether the nature and the quality
          of the evidence is such that the jury would have credited it
          and rendered a more favorable verdict. That assessment
          must include a recognition of the impeachability of the
____________________________________________


3   Strickland v. Washington, 466 U.S. 668 (1984).

4The PCRA court also concluded that Johnson received ineffective assistance
during the penalty phase of his case. Given its remand, our Supreme Court
declined to reach that issue. Johnson, 966 A.2d at 543.


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          witnesses, and not merely a viewing of their testimony in a
          most favorable light. Some witnesses may display a
          demeanor, or be subject to such strong impeachment []
          that the court is convinced that no reasonable jury would
          believe them. On the other hand, some witnesses may
          conduct themselves, or be of such repute, that the PCRA
          judge would credit them.

Johnson, 966 A.2d at 542 (emphasis added).

       Summarizing Johnson, our Supreme Court concluded that the

Strickland prejudice standard for claims of ineffectiveness of counsel aligned

with the prejudice standard put forth in the fourth prong of the test for after-

discovered evidence, that is that the new witnesses’ testimony would “would

likely result in a different verdict if a new trial were granted.” Small, supra.

Therefore, in each situation the PCRA court must considered the credibility of

the new evidence proffered when determining if the petitioner established the

requisite prejudice before granting post-conviction relief.

       Here, the PCRA court found Ray’s demeanor to be contrived and

combative; the court therefore concluded that no reasonable jury would

believe him. We cannot disturb this determination as it is supported by our

review of Ray’s testimony. Medina, supra. Thus, Folly’s claim that he should

have been granted a new trial without the PCRA court’s determination of

credibility fails.

       Finally, Folly takes issue with certain statements the PCRA court made

in deciding to discredit Ray’s testimony, such as the number of gunshots and

the fact that Ray did not witness the shooting. See Folly’s Brief at 5-9. We

conclude that none of these arguments establishes a basis upon which to

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disturb the PCRA court’s credibility determination. See Commonwealth v.

Martin, 1 A.3d 868, 888 (Pa. 2010) (stating that the factual findings of a

PCRA court, “which hears evidence and passes on credibility of witnesses,

should be given great deference,” especially where “the PCRA court judge also

served as the trial court judge”).

      In sum, our review of the record supports the PCRA court’s conclusion

that Folly’s after-discovered evidence claim failed to meet the Small criteria,

and, therefore, did not warrant the award of a new trial. Thus, we affirm the

PCRA court’s order denying post-conviction relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/20




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