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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WAYNE T. SMITH
Appellant No. 2304 EDA 2015
Appeal from the Judgment of Sentence April 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011844-2010
BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 09, 2016
Wayne Smith was charged with murder and related offenses for his
role in a street brawl on the evening of June 5, 2010. His first trial ended in
a hung jury. A second jury convicted him of third degree murder,
aggravated assault, possession of an instrument of crime and carrying a
firearm on public streets in Philadelphia.1 The trial court sentenced Smith to
an aggregate term of 25-50 years’ imprisonment. He filed timely post-
sentence motions, which the Court denied. Smith then filed a timely notice
of direct appeal, and both Smith and the trial court complied with Pa.R.A.P.
1925. We affirm.
The record reflects that David Dial uttered a racial epithet denigrating
Smith’s sister, Taneka, and Jimmy Schmidt. A street fight ensued between
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1
18 Pa.C.S. §§ 2502, 2702, 907, and 6108, respectively.
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two duos: (1) Smith and Schmidt and (2) Dial and Tyrell Harris (the
victims). Jamial Burley soon joined the fight on the side of Smith and
Schmidt.
A few minutes later, Harris started to fight with Burley, and Schmidt
went to help Burley. Dial approached and said: “You ain’t going to roll on
my man.” Smith pulled out a gun and shot Dial four times and Harris once.
Dial died; Harris was hospitalized with a gunshot wound to his upper back.
That night, Smith had been driving a car owned by his sister, Latia.
Latia called police to report that her car was stolen. Police officers arrived at
the house where Smith, Taneka and Latia lived with their mother. The
officers realized that family members had been involved in the shooting
incident and told Smith’s mother that they wanted to talk with everyone in
the house. Smith’s mother called Smith and Taneka and told them that
detectives wanted to talk to them. Taneka, Jimmy Schmidt, Krysta Mitchell,
and Smith’s mother went to the police station. Smith did not go to the
police station but instead went to his aunt’s house to avoid the police.
On June 6, 2010, the morning after the shooting, Schmidt gave a
written statement to police identifying Burley as the shooter. One day later,
on June 7, 2010, Jamella Shaw, an eyewitness to the shooting, gave a
statement to police that she saw Smith shoot the victims. After obtaining
Shaw’s statement, Detective Bamberski obtained a second verbal statement
from Schmidt on June 25, 2010. In this second statement, Detective
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Bamberski later testified, Schmidt recanted his first statement incriminating
Burley and claimed that Smith was the shooter.2 Two months later, Schmidt
died in an unrelated incident.
On July 13, 2010, police detectives interviewed Burley. At first, Burley
said he did not know anything about the shooting. But when detectives
showed him Schmidt’s statement identifying him as the shooter, Burley
stated that he saw Smith shoot the victims. After Burley’s interview, police
arrested Smith.
Smith raises five issues in this appeal:
1. WAS JIMMY SCHMIDT’S LATER ORAL STATEMENT TO
DETECTIVE BAMBERSKI IN WHICH HE IDENTIFIED [SMITH] AS
THE SHOOTER INADMISSIBLE?
2. WAS THE ADMISSION OF SCHMIDT’S UNSIGNED STATEMENT
MADE TO DETECTIVE BAMBERSKI HARMLESS?
3. CAN THE COMMONWEALTH SHOW - BEYOND A REASONABLE
DOUBT - THAT JIMMY SCHMIDT’S UNSIGNED STATEMENT DID
NOT CONTRIBUTE TO THE VERDICT?
4. DID THE COURT ERR IN NOT DECLARING A MISTRIAL SUA
SPONTE WHEN THE COMMONWEALTH INTRODUCED [SMITH’S]
PRE-ARREST SILENCE OVER DEFENSE OBJECTION?
5. WAS THE INTRODUCTION OF A FIREARM ALLEGEDLY SEEN
IN [SMITH’S] POSSESSION WITHIN ONE WEEK OF THE SLAYING
WHICH WAS NOT TIED IN ANY WAY TO THE SLAYING
PREJUDICIAL?
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2
Schmidt’s second statement was verbal but not written. Schmidt refused
to give a written statement against Smith on the ground that he considered
Smith to be like “family”.
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Brief For Appellant, at 4.
We consider Smith’s first and third arguments together. The thrust of
both arguments is that Detective Bamberski’s testimony about Schmidt’s
second statement, in which Schmidt recanted his prior accusation against
Burley and named Smith as the shooter, was inadmissible hearsay. The trial
court overruled Smith’s hearsay objection and instructed the jury that it
could not consider this statement for its truth but only to explain the course
of the police investigation. We conclude that the court’s decision was an
appropriate exercise of its discretion.
Our standard of review for evidentiary rulings is abuse of discretion.
Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa.2009). Hearsay is “a
statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.”
Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super.2003); Pa.R.E.
801(c). Certain out-of-court statements offered to explain the course of
police conduct are admissible; such statements do not constitute hearsay,
because they are not offered for the truth of the matters asserted but
merely to show the information upon which police acted. Dent, 837 A.2d at
577–79. The reason for admitting course of conduct evidence is because “an
arresting or investigating officer should not be put in the false position of
seeming just to have happened upon the scene; he should be allowed some
explanation of his presence and conduct.” Id. at 580. However, “not every
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out-of-court statement having bearing upon subsequent police conduct
should be admitted because, despite cautionary instructions, there is great
risk that certain types of statements will be considered by the jury as
substantive evidence of guilt.” Commonwealth v. Chmiel, 889 A.2d 501,
533 (Pa.2005). To guard against prejudice, “the trial court, in exercising
discretion over the admission of such statements, must balance the
prosecution’s need for the statements against any prejudice arising
therefrom.” Id. at 532-33.
In multiple cases, courts have held out-of-court statements to police
officers admissible to explain the officers’ course of conduct, notwithstanding
the speaker’s absence from the witness stand and the possibility of
prejudice. See Commonwealth v. Weiss, 81 A.3d 767, 805-06 (Pa.2013)
(in capital murder trial, state trooper’s testimony that he received
anonymous telephone call that defendant had given victim ride home on
night she disappeared was not inadmissible hearsay, where Commonwealth
offered testimony not to prove that defendant had given victim ride home
but to explain what prompted trooper’s interview with defendant);
Commonwealth v. Trinidad, 96 A.3d 1031, 1036-37 (Pa.Super.2014) (in
jury trial, court properly allowed detective to testify about recorded
statement he took from an individual concerning victim’s murder);
Commonwealth v. Cruz, 414 A.2d 1032, 1035 (Pa.1980) (content of police
radio call did not constitute hearsay where Commonwealth introduced call to
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explain police conduct and not to prove truth of content of tape); but see
Commonwealth v. Moseley, 114 A.3d 1072, 1078 (Pa.Super.2015) (error
to admit officer’s testimony that he was responding to informant’s complaint
of “drug activity” at apartment complex, where court failed to give jury
cautionary instruction as to its limited admissibility).
In view of these precedents, Detective Bamberski’s testimony about
Schmidt’s second statement was admissible. At the time of Schmidt’s
second statement, the police had two conflicting accounts: (1) Schmidt’s
first statement incriminating Burley, and (2) Shaw’s statement incriminating
Smith. To resolve the discrepancy, Detective Bamberski went back to
Schmidt and obtained a second statement, this time accusing Smith.
Following Schmidt’s second statement, the police expanded the investigation
by interviewing Burley. When the police told Burley about Schmidt’s first
statement identifying Burley as the shooter, Burley responded that Smith
was the shooter. It was reasonable to inform the jury of all statements in
this chain, including Schmidt’s second statement, so that the jury
understood the manner in which the police investigated the crimes and
gathered its body of evidence against Smith. Moreover, in contrast to
Moseley, the court gave an appropriate limiting instruction that the jury
should not consider Schmidt’s second statement for its truth but to explain
the course of the police investigation. The jury is presumed to have followed
this instruction. Commonwealth v. Estepp, 17 A.3d 939, 945
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(Pa.Super.2011) (officer’s testimony regarding statements made by
confidential informant was admissible to explain officer’s course of conduct,
during prosecution for possession with intent to deliver a controlled
substance; defendant presented no evidence to rebut presumption that jury
followed instruction to consider this evidence only to explain officer’s course
of conduct).
The two decisions relied upon by Smith in his brief – Commonwealth
v. Palsa, 555 A.2d 808 (Pa.1989), and Government of Virgin Islands v.
Muiruri, 340 Fed. Appx. 794 (3d Cir. 2009) – are not on point. In Palsa,
following a one-car accident, the police arrested the driver (Silvoy) both for
driving under the influence and possession of fifteen pounds of marijuana
found in his car. While in custody, Silvoy told an undercover detective that
at the time of the accident, he was on his way to deliver marijuana to a man
named “Ed” (the appellant) at 116 East Irvin Street in State College,
Pennsylvania. Silvoy added that one day before the accident, he had sold Ed
a pound of marijuana for $500.00, and Ed had given him an extra $500.00
as a down payment on an order of fifteen additional pounds. The police
conducted a “sting” operation which culminated in the appellant’s arrest for
attempting to complete the purchase of the fifteen pounds of marijuana.
Silvoy then became a fugitive and was not available to testify at the
appellant’s trial. Over the appellant’s objection, the trial court permitted the
undercover detective to describe Silvoy’s custodial statement to the jury.
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The trial court instructed the jury that it could not consider this testimony as
substantive evidence of guilt but only to explain the police’s subsequent
course of conduct.
The jury found the appellant guilty of attempt to gain possession of
fifteen pounds of marijuana with the intent to deliver the substance to
others. Our Supreme Court reversed and remanded for a new trial,
reasoning:
In this case, the police easily could have explained the course of
their conduct pertaining to the investigation and arrest of
appellant … without resorting to the full and explicit statements
given by Silvoy. It is the prosecutor’s duty to avoid the
introduction of out-of-court statements that go beyond what is
reasonably necessary to explain police conduct. Certainly,
references to appellant’s having purchased one pound of
marijuana on the day prior to the attempted delivery of the
fifteen pounds involved in this case could have been eliminated.
The statements could have been attenuated in other ways, too,
to lessen their prejudicial impact. Thus, an adequate explanation
for police conduct could have been provided, while minimizing
the introduction of statements made by a person who was not
under oath and who was not available for cross-examination.
It is certainly to be recognized that there is often a subtle, and
elusive, difference between the use of statements to establish
the truth of facts averred by one not in court and their use to
establish a course of conduct by police. Further, in weighing the
prejudice to the defense versus the prosecution’s need for the
challenged statements, the ambit of the trial court’s discretion is
to be preserved. In the present case, however, the statements
were so highly incriminating, and the need for them in the form
in which they were introduced was so lacking, that their
admission cannot be sustained.
Id. at 811.
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The present case is distinguishable from Palsa. The prosecution in
Palsa introduced Silvoy’s statement about an extraneous subject (the
appellant’s purchase of marijuana on a prior occasion) that went beyond
what was essential to explain police conduct and prejudiced the defendant
by casting him as a repeat drug dealer. Here, in contrast, Schmidt’s second
statement related strictly to the matter under investigation, the shooting of
Dial and Harris, and was a vital link in this investigation.
In Muiruri, the defendant was charged with rape, and his defense was
that he had consensual intercourse with the complainant. The jury heard
the testimony of a man who overheard the security guard at the
complainant’s condominium complex tell the complainant’s husband: “Your
wife has been raped.” The trial judge permitted this testimony by accepting
the Government's contention that it did not offer the security guard’s out-of-
court statement to prove the truth of the matter asserted but to explain why
the complainant’s husband stopped searching for his wife and went to the
hospital. The Third Circuit held that there was “[no] tenable non-hearsay
purpose for the security guard’s statement that [the complainant] had been
raped.” Id. at 799. The court reasoned:
The Government claims that the out-of-court statement was
offered to explain [the complainant’s husband’s] activities after
his wife’s encounter with Muiruri, but those activities are utterly
irrelevant. The fact that [the complainant’s husband] was
searching for his wife and eventually found her at the hospital
has no bearing on the question whether the sexual encounter
between Muiruri and [the complainant] was consensual. To the
extent that the witness’s testimony provided context for the
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jury, its marginal utility could have been achieved without the
hearsay statement - which expressed a third-hand opinion
regarding the ultimate issue in the case - that [the complainant]
had been raped. On appeal, the Government makes no attempt
to explain how [the complainant’s husband’s] actions were
relevant, or why the hearsay statement was so necessary to
provide context that it was not intended to prove the truth of the
matter asserted.
Id. at 798-99. The Government’s claim that this statement explained the
complainant’s husband’s subsequent course of conduct was a “thinly veiled
pretext,” Id. at 789, because it had no bearing on the ultimate issue in the
case: whether the defendant had consensual intercourse with the
complainant.
While the security guard’s testimony in Muiruri was irrelevant
hearsay, Schmidt’s second statement to Detective Bamberski is relevant to
the central issue in this case -- the identity of the shooter -- and explains
the police’s course of conduct in obtaining Burley’s statement and then
arresting Smith. The trial court properly admitted Detective Bamberski’s
testimony for a non-hearsay purpose.
For these reasons, Smith’s first and third arguments are devoid of
merit.
In his second argument on appeal, Smith argues that Schmidt’s
second statement was inadmissible under the Confrontation Clause of the
Sixth Amendment. Smith waived this argument because he did not lodge a
Confrontation Clause objection during trial; he only lodged a hearsay
objection. Commonwealth v. Arroyo, 723 A.2d 162, 170 (Pa.1999) (if
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party objects to evidence on specific ground, all other reasons for its
exclusion are waived); Commonwealth v. Akbar, 91 A.3d 227, 235
(Pa.Super.2014) (where appellant objected to admission of 911 tapes as
hearsay, but not on Confrontation Clause grounds, he waived Confrontation
Clause argument on appeal), appeal granted and order vacated on other
grounds, 111 A.3d 168 (Pa.2015).
Even if Smith preserved this issue, it has no merit. A statement
admitted for a purpose other than establishing the truth of the matter
asserted -- such as, in this case, the investigating officers’ course of conduct
-- does not violate the Confrontation Clause. Commonwealth v. Dargan,
897 A.2d 496, 500 (Pa.Super.2006).
Smith argues that the United States Supreme Court’s plurality opinion
in Williams v. Illinois, -- U.S. --, 132 S.Ct. 2221 (2012), supports his
position that Schmidt’s second statement was inadmissible under the
Confrontation Clause. We are not convinced. Plurality decisions have no
precedential value. Petition of Hughes, 532 A.2d 298, 303 n. 5 (Pa.1987).
Even if Williams were precedential, it would not help Smith. The plurality in
Williams held that an expert witness could testify for the prosecution that a
DNA profile produced by an outside laboratory matched the state police lab’s
DNA profile using a sample of the defendant’s blood. The plurality held that
the expert’s references to the outside lab were admissible, because they
were not offered for their truth but solely for the purpose of explaining the
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assumptions on which the expert based her opinions. Id. at 1228 (“We now
conclude that this form of expert testimony does not violate the
Confrontation Clause because that provision has no application to out-of-
court statements that are not offered to prove the truth of the matter
asserted. When an expert testifies for the prosecution in a criminal case, the
defendant has the opportunity to cross-examine the expert about any
statements that are offered for their truth. Out-of-court statements that are
related by the expert solely for the purpose of explaining the assumptions on
which that opinion rests are not offered for their truth and thus fall outside
the scope of the Confrontation Clause”). This rationale is consistent with the
Superior Court’s holding in Dargan that a statement admitted for a purpose
other than establishing the truth of the matter asserted does not violate the
Confrontation Clause.
In his fourth argument on appeal, Smith argues the trial court erred by
failing to declare a mistrial sua sponte after the prosecutor asked a defense
witness about Smith’s failure to go to the police with the rest of his family.
The witness, Smith’s sister, Taneka, testified that the morning after the
shooting, she, Jimmy Schmidt and Krystal Mitchell went to the police station.
On cross-examination, Taneka explained that she went because her mother
told her the police wanted to talk to her. The prosecutor asked if Smith
went with his family, and Taneka responded that he did not. The prosecutor
asked: “So that would make sense, right, you guys are all going down,
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Wayne should probably go down if he didn’t do anything wrong, right?”
Smith objected, and the court sustained the objection and struck the
question. Smith did not request a mistrial.
Because Smith failed to request a mistrial when the court sustained his
objection, he cannot complain on appeal that the trial court failed to grant a
mistrial. Commonwealth v. Ables, 590 A.2d 334, 340 (Pa.Super.1991)
(“A defendant is required to request a mistrial because of an event
prejudicial to him when the event is disclosed. Since appellant failed to move
for a mistrial, he cannot now complain that the court erred in failing to grant
a mistrial when no such motion was made. We therefore deem this issue
waived”).
Relying on Commonwealth v. Molina, 104 A.3d 430 (Pa.2014),
Smith insists that he was not required to request a mistrial in order to
preserve this argument for appeal. We consider Molina distinguishable.
The issue in Molina was “whether a defendant's right against self-
incrimination … is violated when the prosecution utilizes a non-testifying
defendant’s pre-arrest silence as substantive evidence of guilt.” Id. at 432.
Molina is different from this case, because the trial court in Molina
overruled the defendant’s objection to use of the defendant’s pre-arrest
silence, whereas the trial court in this case sustained the objection. In cases
where the trial court overrules this objection, the court has effectively said
that it considers the prosecutor’s comment proper. Commonwealth v.
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McGeth, 622 A.2d 940, 943 (Pa.Super.1993). A request for a mistrial
would be futile under these circumstances, so the failure to seek a mistrial
does not constitute waiver. Id. But when the defendant’s objection is
sustained, the trial court “[has] indicate[d] that the challenged conduct was,
in fact, improper … [T]herefore, a request for a curative instruction or
mistrial ... should be made immediately to remedy the error and/or to
preserve the record.” Id. at 942-43. The failure to request a mistrial in this
situation results in waiver of the right to request a mistrial on appeal. Id.
That is what happened here. The court sustained an objection to the
prosecutor’s question to Taneka, but Smith did not follow up by requesting a
mistrial. As a result, he has waived the right to argue in this Court that the
trial court erred by failing to grant a mistrial.
Even if Smith had not waived his request for a mistrial, this argument
is meritless because the trial court should not have sustained his objection
to the question that the prosecutor asked Taneka. The prosecutor’s question
was a permissible reference to Smith’s efforts to avoid apprehension, not to
his silence. After the shooting, Smith did not go home; he avoided his
mother and his sisters. Evidence of this behavior is admissible and probative
of his consciousness of guilt. Commonwealth v. Collins, 269 A.2d 882,
884 (Pa.1970) (“Flight, unlike silence in the face of police questioning,
cannot be taken as an assertion of a constitutional right”).
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Further, even assuming the question was improper, the trial court
cured any prejudice by instructing the jury that questions were not evidence,
sustaining Smith’s objection and striking the question. Commonwealth v.
Brown, 987 A.2d 699, 712 (Pa.2009) (no reversible error based on
challenged question where objection was sustained, no answer was
provided, and jury had been instructed that questions were not evidence).
Finally, we note that spontaneously declaring a mistrial despite Smith’s
failure to request one might have violated Smith’s double jeopardy rights
and barred a retrial. A mistrial not requested by the defendant must be
supported by “manifest necessity.” Pa.R.Crim.P. 605(B). If a trial court sua
sponte declares a mistrial in the absence of manifest necessity, the
defendant may not be retried. Commonwealth v. Bycer, 401 A.2d 740,
742 (Pa.1979) (under double jeopardy clause, “retrial is improper unless the
previous trial was aborted on a motion by the defendant or out of manifest
necessity”). Had the trial court sua sponte declared a mistrial here, Smith
could have subsequently argued that there was no manifest necessity. This
might well have succeeded, because as we observed above, the trial court
should not have sustained his objection in the first place.
In his final argument, Smith asserts that the trial court abused its
discretion in allowing the Commonwealth to present evidence that he had a
gun shortly before the crimes in question. Specifically, the Commonwealth
presented Burley’s testimony that Smith showed him a small gun less than
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one week before the shooting. Burley testified that Smith told him the gun
was .40 caliber, but the gun was actually much smaller than .40 caliber.
The fired cartridge casings found at the crime scene and the bullets
recovered from Dial’s body were .25 caliber, a smaller weapon than a .40
caliber gun.
The trial court properly determined that Burley’s testimony was
admissible. The fact that the accused had a weapon suitable to the
commission of the crime charged
is always a proper ingredient of the case for the prosecution.
This court has repeatedly held that the prosecution need not
establish that a particular weapon was actually used in the
commission of a crime in order for it to be admissible at trial.
The only burden on the prosecution is to lay a foundation that
would justify an inference by the finder of fact of the likelihood
that the weapon was used in the commission of the crime.
Moreover, the admission of such demonstrative evidence is a
matter within the discretion of the trial judge and, absent an
abuse of his discretion, his decision must stand.
Commonwealth v. Lee, 662 A.2d 645, 652 (Pa.1995); see also
Commonwealth v. Yount, 314 A.2d 242, 249 n.8 (Pa.1974) (evidence that
accused possessed weapon “is relevant to show that the defendant owned or
had access to an implement with which the crime could have been
committed”). Evidence that the defendant possessed a weapon that was
likely the murder weapon, shortly before the murder, is highly probative and
properly admitted. Commonwealth v. Murphy, 657 A.2d 927, 933-34
(Pa.1995) (testimony that witness saw weapon of same caliber as murder
weapon in defendant’s possession between 1981 and 1983 was relevant and
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admissible, even though weapon was not conclusively proven to be murder
weapon); Commonwealth v. Akers, 572 A.2d 746, 754-55
(Pa.Super.1990) (trial court properly permitted testimony that defendant
possessed gun similar to, but not specifically identified as, murder weapon
five months before murder).
These decisions support the admission of Burley’s testimony that
Smith showed him a small gun less than one week before the shooting was
admissible. The only case Smith cites in his brief, Commonwealth v.
Marshall, 743 A.2d 489 (Pa.Super.1999), is inapposite, because there, the
gun in question could not possibly have been the murder weapon. Id. at
492 (abuse of discretion to admit weapon into evidence; “it was impossible
for appellant’s gun to have been the murder weapon since the gun was in
police custody eighty days before the murder and remained in police custody
on the actual day of the murder”) (emphasis in original).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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