J-E04003-24 2025 PA Super 81
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ISAIAH HEREFORD : : Appellant : No. 1162 WDA 2022
Appeal from the PCRA Order Entered September 8, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010538-2010
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., McLAUGHLIN, J., SULLIVAN, J., and BECK, J.
OPINION BY McLAUGHLIN, J.: FILED: April 8, 2025
Isaiah Hereford appeals from the order denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). See 42 Pa.C.S.A. §§
9541-9546. We affirm.
This Court previously summarized the facts in this case as follows:
[O]n the evening of June 14, 2010, Brittany Poindexter [“Brittany”] went to her brother’s apartment in the Crawford Village housing complex in the McKeesport area for what turned out to be a surprise 18th birthday party. The party went on for several hours, with both family and friends present, and eventually guests began to leave. By the early morning hours of June 15, 2010, only five (5) people were left: Brittany, her brother Jahard, Jahard’s boyfriend/roommate Marcus Madden, Brittany’s boyfriend Tre Madden[,] and their friend, Angela Sanders. Shortly after 1:00 a.m., someone knocked on the screen door of the apartment; it was generally presumed that the person was there to buy a cigarette, since Jahard and Marcus sold cigarettes and marijuana out of the apartment. Marcus got J-E04003-24
up to open the door and when he did, two (2) men entered holding guns. The men told everyone to “get down” and asked[,] “[W]here’s the money?” When Jahard got up to get the money, the men started shooting. Jahard Poindexter, Tre Madden[,] and Angela Sanders were killed in the gunfire[,] and Marcus Madden was shot and injured. At trial, Marcus Madden identified [Hereford] as the first man who entered the apartment with a gun and one of the shooters. [DeAnthony Kirk admitted to being the other shooter.]
Commonwealth v. Hereford, No. 146 WDA 2018, 2019 WL 1093384,
unpublished mem. at *1 (Pa.Super. filed March 8, 2019) (citation omitted).
In August 2011, a jury convicted Hereford of three counts of second-
degree murder, two counts of aggravated assault, and one count each of
robbery, burglary, and conspiracy to commit robbery. In December 2014, the
court sentenced Hereford to three consecutive terms of imprisonment of 15
years to life.1
Hereford filed a direct appeal to this Court. Hereford argued that he was
entitled to a new trial based on after-discovered evidence in the form of a
2012 statement by an alleged witness, Gina Simmons. Hereford asserted that
Simmons would testify that after she heard gunshots on the night in question,
she looked out of her window and saw two men running from the area of the
crime and Hereford was not one of the two men. Commonwealth v. ____________________________________________
1 Hereford was initially sentenced to mandatory life imprisonment with no opportunity for parole. However, Hereford was 17 years old at the time of the murders. Following the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460, 465 (2012) (holding that mandatory life sentences without the possibility of parole were illegal for those offenders who commit their crimes prior to the age of 18), the trial court resentenced Hereford to three consecutive terms of imprisonment of fifteen years to life. Hereford, No. 146 WDA 2018, 2019 WL 1093384, unpublished mem. at *1 n.2.
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Hereford, No. 232 WDA 2015, 2016 WL 1756981, unpublished mem. at *2
(Pa.Super. filed May 3, 2016). Hereford claimed that Simmons would also
testify that she saw Hereford on his girlfriend’s porch approximately 15
minutes after the incident. Id. This Court concluded that the trial court had
properly denied Hereford’s motion for a new trial because Hereford had failed
to meet the four-prong test, see infra, for obtaining a new trial based on after-
discovered evidence. Id. at *9. The Pennsylvania Supreme Court denied
allowance of appeal.
Hereford then filed a timely PCRA petition in September 2017, which the
PCRA court denied. He appealed to this Court, and we affirmed. See
Hereford, No. 146 WDA 2018, 2019 WL 1093384, unpublished mem. at *1.
We rejected his contention that his trial counsel was ineffective for failing to
locate Simmons previously or present her testimony at his trial because
Hereford had not shown that she was willing to testify on his behalf at his trial.
Id. at *4. We explained that “[a]lthough she was aware [Hereford] had been
arrested, charged, and convicted of murder, Simmons refused to come
forward until long after [Hereford’s] trial[.]” Id.
Hereford filed the instant PCRA petition on June 30, 2020, requesting a
new trial based on a claim of newly discovered evidence. Hereford asserted
that a previously unknown eyewitness, Quentin Ingram, had come forward in
February 2020 and would testify that Hereford was not involved in the
shootings. Hereford attached to his petition a certified witness statement that
Ingram had signed.
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At an evidentiary hearing on Hereford’s petition, on February 17, 2022,
Ingram and private investigator Keri Bozich testified. Ingram said that on the
night of the murders, he was staying at his girlfriend’s apartment at Crawford
Village in Unit 29D. N.T. PCRA Hearing, 2/17/22, at 9-10. He went outside of
his girlfriend’s apartment onto the porch and saw two individuals outside of
Unit 24B, the victims’ apartment. Id. at 17-19. Ingram stated that one
individual was adjusting a gun on his hip. Id. at 17. He also observed an
individual “messing with a cell phone.” Id. at 19. He stated that he followed
them “just [to] see[] what was going on[.]” Id. at 36.
Ingram testified that he observed the two individuals look into the
window of the victims’ apartment, and then saw them “bum rush” the door of
the apartment, at which point he heard them immediately start shooting. Id.
at 19-20. Ingram stated that both men were taller than his height of 5’5’’. Id.
at 23-24. He also said that both men weighed more than he did; were taller
than Hereford’s height, as observed in the courtroom; and had darker skin
tones. Id. He stated that both men wore dark clothing and had shirts covering
parts of their faces that they used as masks. Id. at 23, 25. Ingram testified
that he could not see the men’s full faces “because they had shirts covering
certain sections of their face[s].” Id. at 80. He stated that one man had “[o]ne
shirt tied at the top of his head and [another shirt] at the bottom of his face.”
Id. at 23. Ingram said that the other man had a thermal shirt “tied around his
face where you put your head in.” Id.
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Ingram testified that Hereford was not one of the shooters he saw that
night. Id. at 9, 79. He said he was familiar with Hereford because he had
“seen him around the area and he also had a girlfriend who stayed in one of
the houses that [his] mother owns.” Id. at 41. Ingram testified that he is not
related to Hereford or close friends with him. Id. at 41-42. He stated that no
one intimidated him into testifying and he was not receiving any leniency on
his own sentence.2 Id. at 42-43.
Ingram explained that he did not tell anyone what he observed that
night because he was a “known trespasser in Crawford Village” and was not
permitted to be living there in his girlfriend’s apartment. Id. at 37. He also
stated that he did not say anything to anyone because he was a “known drug
dealer.” Id. Ingram testified that he always knew that Hereford was charged
as an accomplice or co-conspirator in the murders, but he did not know that
Hereford was convicted as the shooter until early 2020 when a fellow inmate
informed him. Id. at 43, 47-49, 61. Ingram said that once he learned that
Hereford was convicted as one of the shooters, he came forward and contacted
Hereford’s counsel in February or March 2020 because he had “seen the
shooter so I know he wasn’t the shooter.” Id. at 30-31, 49, 78.
Ingram testified that after he made his statement that Hereford was not
one of the shooters, a police detective, Detective Kinavey, came to his prison
____________________________________________
2 At the time of the hearing, Ingram was serving a sentence of 76 to 152 years’ incarceration for criminal homicide and aggravated assault. N.T. PCRA Hearing at 50-51.
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to interview him. Id. at 49-50. Ingram stated that he had no prior notice that
Detective Kinavey was coming to see him. Id. at 54. He initially did not
recognize Detective Kinavey, but Detective Kinavey reminded Ingram that he
was the detective on Ingram’s own case years before. Id. at 50, 56-58.
Ingram testified that Detective Kinavey showed him his certified witness
statement in this case. Id. at 57. Ingram stated that he declined to be
interviewed by Detective Kinavey because he felt uncomfortable and
intimidated by Detective Kinavey’s questioning. Id. at 58. He explained that
because the visit was unannounced, he was confused as to what was occurring
and was worried about his safety because if he spoke to Detective Kinavey,
the other inmates in the room would think that he was giving information to
the police. Id. at 55, 57-58. Ingram testified that after Detective Kinavey left
the prison, Ingram spoke with Hereford’s PCRA counsel by phone and
indicated that he was willing to talk to the detective about his statement now
that he understood what was going on. Id. at 59. Ingram stated that Detective
Kinavey did not come back to interview him. Id.
Ingram further testified that Gina Simmons – the witness who came
forward in 2012 alleging that she witnessed two men running after the
shooting and Hereford was not one of the shooters – is his mother. Id. at 62.
He stated that on the night of the shooting, he stayed at his mother’s house,
which was a five-minute walk from his girlfriend’s apartment. Id. at 40-41.
Ingram testified that although he was aware that his mother had been
involved in Hereford’s case as an after-discovered witness, he “never
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discussed” with her that Hereford was charged with murder and never told her
that he, too, had witnessed the incident. Id. at 62-64. When asked by the
Commonwealth whether he spoke to his mother about Hereford’s role in the
murders before he came forward in 2020, Ingram replied, “No, me and my
mother talked very little of [Hereford].” Id. at 78.
After the hearing, both parties filed briefs. The PCRA court found that
Hereford’s petition satisfied the newly discovered facts exception to the PCRA’s
time-bar. However, it denied Hereford’s PCRA petition on its merits. Hereford
timely filed a notice of appeal. On February 9, 2024, a three-judge panel of
this Court reversed and remanded for a new trial, and the Commonwealth
timely moved for reargument. This Court granted en banc review, on April 12,
2024, and withdrew the panel’s decision. Hereford filed a supplemental brief,
and the Commonwealth filed a substituted brief.
Hereford raises the following issue: “The credible evidence offered at
the evidentiary hearing showed that Isaiah Hereford is entitled to PCRA relief
on his after-discovered evidence claim. The PCRA court nevertheless denied
relief. Did the court err?” Hereford’s Br. at 3.
On appeal from the denial or grant of relief under the PCRA, our review
is limited to determining “whether the PCRA court’s ruling is supported by the
record and free of legal error.” Commonwealth v. Presley, 193 A.3d 436,
442 (Pa.Super. 2018) (citation omitted).
Before addressing Hereford’s issue on the merits, we address the
Commonwealth’s argument that the PCRA petition was untimely and Hereford
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did not satisfy the new facts exception. See Com.’s Substituted Br. at 29-30.
Any petition for PCRA relief, including a second or subsequent petition, must
be filed within one year of the date on which the judgment of sentence
becomes final, unless the petitioner pleads and proves an exception to the
one-year bar. 42 Pa.C.S.A. § 9545(b)(1). For purposes of the PCRA, “a
judgment becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” Id. at § 9545(b)(3).
Courts may consider a PCRA petition filed after the one-year deadline
only if the petitioner pleads and proves at least one of the three statutory
exceptions:
(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.
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Id. at § 9545(b)(1)(i)-(iii). Any petition attempting to invoke an exception
“shall be filed within one year of the date the claim could have been
presented.” Id. at § 9545(b)(2).
Here, Hereford’s PCRA petition was facially untimely. Hereford has
sought to invoke the newly discovered facts exception to the PCRA time-bar.
To succeed in raising that exception, a petitioner must establish that: (1) “the
facts upon which the claim is predicated were unknown,” and (2) the facts
“could not have been ascertained by the exercise of due diligence[.]” Id. at §
9545(b)(1)(ii). “[T]he due diligence inquiry is fact-sensitive and dependent
upon the circumstances presented.” Commonwealth v. Shiloh, 170 A.3d
553, 558 (Pa.Super. 2017) (citation omitted). Due diligence “does not require
perfect vigilance nor punctilious care, but rather it requires reasonable efforts
by a petitioner, based on the particular circumstances to uncover facts that
may support a claim for collateral relief.” Commonwealth v. Brensinger,
218 A.3d 440, 449 (Pa.Super. 2019) (en banc) (citation and internal quotation
marks omitted).
The PCRA court concluded that Hereford sufficiently invoked the newly
discovered facts exception to the PCRA time-bar. See PCRA Court Opinion,
filed 12/15/22, at 6. The court did not err. The testimony at the PCRA hearing
established that Ingram contacted Hereford’s counsel in February or March
2020 to inform him that Hereford was not one of the shooters. Ingram testified
that he did not tell anyone what he saw on the night of the murders until he
contacted Hereford’s counsel because he was a known trespasser and drug
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dealer in Crawford Village. It was only when he learned in early 2020 that
Hereford was convicted as one of the shooters that he contacted Hereford’s
counsel. The PCRA court evidently credited this much of Ingram’s testimony.
Since Hereford’s June 30, 2020 PCRA petition was filed within one year of
when he learned of this claim, he satisfied the newly discovered facts
exception to the PCRA time-bar.
Once a petitioner establishes the PCRA court’s jurisdiction, the petitioner
may then present a substantive after-discovered evidence claim under 42
Pa.C.S.A. § 9543(a)(2)(vi). Commonwealth v. Reeves, 296 A.3d 1228,
1232 (Pa.Super. 2023). That subsection provides relief when a petitioner
pleads and proves by a preponderance of evidence that the conviction resulted
from “[t]he unavailability at the time of trial of exculpatory evidence that has
subsequently become available and would have changed the outcome of the
trial if it had been introduced.” 42 Pa.C.S.A. § 9543(a)(2)(vi). The after-
discovered evidence must meet a four-prong test:
(1) the evidence could not have been obtained before the conclusion of the trial by reasonable diligence; (2) the evidence is not merely corroborative or cumulative; (3) the evidence will not be used solely for purposes of impeachment; and (4) the evidence is of such a nature and character that a different outcome is likely.
Commonwealth v. Rivera, 939 A.2d 355, 359 (Pa.Super. 2007).
Hereford argues that Ingram’s testimony at the PCRA hearing was
credible, and that he satisfied the four-prong test for an after-discovered
evidence claim. Hereford’s Br. at 42, 52. Hereford maintains that the first
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prong is satisfied because Ingram’s testimony could not have been obtained
before the conclusion of the trial as no one knew that Ingram saw the shooters
or was even present in Crawford Village on the night of the murders until
2020. Id. at 52.
Hereford further argues that he satisfied the second and third prongs
because the after-discovered evidence is not merely corroborative or
cumulative and would not be used solely for purposes of impeachment. Id.
He points out that only two eyewitnesses testified at trial, Brittany Poindexter
and Marcus Madden. Id. He emphasizes that Brittany could not identify the
two masked gunmen and Madden, who identified Hereford as one of the
shooters, “had been drinking and smoking marijuana before the shooting, . .
. was traumatized after being shot in the head during the vicious attack, . . .
initially said he ‘didn’t see anything,’ and [his] testimony materially conflicted
with [Brittany’s.]” Id. at 52-53. He argues that the “new evidence is of a
different grade and character than the means used to challenge the sole
identification eyewitness’s testimony at trial” and is “significant because it
consists of a new eyewitness account from a person who saw the shooters
immediately before they entered Apartment 24B and started shooting.” Id. at
53. Hereford points out that Ingram’s testimony was corroborated by
Brittany’s trial testimony, in that they testified that both shooters had shirts
covering their faces, whereas Madden claimed one of the gunmen was
unmasked. Id. at 48-49. He further argues that Ingram’s testimony that the
shooters were taller than Hereford is consistent with Brittany’s statement that
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both shooters were approximately 5’10”. Id. at 49. Hereford also notes that
the photos and video taken by his investigator and introduced into evidence
at the PCRA hearing corroborated Ingram’s testimony, as they showed that,
from Ingram’s vantage point, he was able observe the shooters and gauge
their height and whether they were wearing a mask. Id. at 45-47.
Hereford lastly argues that the new evidence would result in a different
verdict, thus satisfying the fourth prong. Id. at 54. Hereford asserts that
Ingram had no allegiance to Hereford or the victims, had no motive to lie, and
his testimony affirmatively excluded Hereford as one of the shooters. Id. at
53-55.
“[W]e must defer to the PCRA court’s findings of fact and credibility
determinations [if they are] supported by the record.” Commonwealth v.
Spotz, 84 A.3d 294, 319 (Pa. 2014). This is because “[t]he PCRA court, and
not the appellate courts, has personally observed the demeanor of the
witnesses[.]” Id. “The PCRA court’s credibility determinations, when
supported by the record, are binding on this Court; however, we apply a de
novo standard of review to the PCRA court’s legal conclusions.”
Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citation omitted).
Here, the PCRA court found Ingram’s testimony was not credible and
was unlikely to result in a different verdict if a new trial were granted. See
PCRA Ct. Op. at 6-7. The court explained:
After the evidentiary hearing, the PCRA court found [Ingram] was not credible. The hearing amounted to a slide show of photographs where the witness identified numerous
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residences in a housing community where the murders occurred. He did not observe the shooting. He admitted that the alleged shooters faces were covered. He opined that [Hereford] was not the same height as the person who forced his way into the victim[s’] residence the night of the murder[s]. The witness did not give a statement to police on the night of the shooting, supposedly because he was a trespasser in the public housing community, and a reputed drug dealer. The witness, who is currently serving a life sentence for murder, finally came forward more than 10 years after allegedly making his observations. When the defense presented the alleged after discovered evidence, Allegheny County Homicide Detective Kinavey attempted to interview the witness who refused claiming he didn’t know the detective. This is puzzling since Detective Kinavey is the same police officer who investigated and prosecuted the witness in his own homicide trial.
Under the circumstances, the court did not find [Ingram] to be credible. Additionally, the court does not believe that the outcome of the trial would differ even with the proposed after discovered evidence. This claim is without merit.
Id.
The PCRA court, after carefully reviewing Ingram’s testimony, made
specific credibility determinations. We must defer to the PCRA court’s
credibility determinations if they are supported by the record. See Spotz, 84
A.3d at 319.
The record here indicates that Ingram followed two masked individuals,
one of whom had a visible gun, “just [to] see[] what was going on.” N.T. PCRA
Hearing at 36. Ingram conceded that he did not see the actual shooting and
could not see the individuals’ full faces because they were wearing shirts
covering parts of their faces. Id. at 47, 80. Ingram also stated that the two
men “bum rushed” the victims’ apartment. Id. at 38. By “bum rush” he meant,
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“[l]ike hurry up, run to the door, like push the door, they was running in there
and that’s when you just hear shooting.” Id. However, this testimony was
contradicted by Madden’s and Brittany’s trial testimony.
Madden testified that on the night of the murders, he heard a knock at
the door and went to open it. N.T. Trial, 8/1/11-8/4/11, at 373-74. When he
opened the door, the screen door was still locked, and he saw Hereford
standing there asking him for a cigarette. Id. at 374-75. Madden stated that
he had no trouble seeing Hereford’s face “[b]ecause he was standing right in
front of [him]” and there were lights on outside. Id. Madden said he turned
to Jahard Poindexter and asked him if they had any cigarettes. Id. at 376.
Jahard said that they did and handed a cigarette over to Madden. Id. Madden
unlocked the door to give Hereford the cigarette and Hereford then entered
the apartment with a gun drawn, screaming, “Get down, where is the
money[?]” Id. at 376-77. Madden then started backing up into the apartment
towards his TV and ended up by his computer. Id. at 377. Madden testified
that a second gunman then entered the apartment, but he could not see his
face because it was covered by a shirt. Id. at 377-78. Madden stated that the
screaming got louder, Jahard was pushed against the wall, and then the
shooting started. Id. at 378-79.
Brittany similarly testified that on the night of the murders, there was a
knock at the door and Madden answered it. Id. at 63. After answering the
door, Madden stated that someone wanted to buy a cigarette. Id. Brittany
testified that her brother, Jahard, got up and handed a cigarette to Madden.
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Id. at 63-64. She stated that Madden brought the cigarette over to the door.
Id. at 64. She next saw Madden backing up with his hands up and an
individual entering the apartment with a gun drawn. Id. at 64-65. Brittany did
not know whether the first gunman had a mask on because she “was looking
at the gun.”3 Id. at 66. She said that the first gunman kept screaming,
“[E]verybody get down, where’s the cash[?]” Id. Brittany testified that a
second man then entered the apartment with a gun drawn and had two black
shirts tied around his face. Id. at 66-67. She said the second gunman was
also screaming, “[W]here’s the cash[?]” Id. at 67. Brittany testified that at
that point, her brother got up to give them the money, and “they immediately
started shooting.” Id. 68-69. Ingram’s account that the shooters
simultaneously entered the apartment and immediately started shooting is
thus inconsistent with Madden’s and Brittany’s testimony that there was an
exchange about purchasing a cigarette before the shooting and that the
shooters entered one-by-one.
Further, Ingram’s reasons for not informing the police of what he saw
that evening – that he was a known trespasser and drug dealer at that time –
do not adequately explain why he waited 10 years to come forward. Moreover,
as the PCRA court noted, Ingram had nothing to lose by testifying in this case ____________________________________________
3 Detective Dereck Stitt testified at trial that he spoke to Brittany on the night
of the murders at the hospital. N.T. Trial at 99. He testified Brittany was upset and appeared to be in shock, and she could not give a description of the shooters. Id. at 99-100. However, he said that she told him that one of the shooters had something covering his face and the other one had a t-shirt covering his chin. Id. at 101.
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as he is serving what is essentially a life sentence for murder. Additionally,
Ingram’s claim that although he was aware that his mother was involved in
Hereford’s case as an after-discovered witness, but never discussed Hereford’s
role in the crime with his her, is suspect on its face. Simmons made a witness
statement in 2012 and testified at Hereford’s PCRA hearing in 2018. The
notion that Simmons and Ingram – mother and son – both witnessed the crime
from different vantage points, made claims favorable to Hereford that he was
not one of the shooters, and never discussed the matter with each other is
implausible.
Since there is support in the record for the PCRA court’s credibility
determination, it is binding on this Court. Mason, 130 A.3d at 617.
Respectfully, the dissent reaches the opposite conclusion by reweighing the
evidence, instead of looking to see if the record supports the trial court’s
credibility determination. The PCRA court’s ruling that Ingram’s testimony,
which the court found lacking in credibility, was unlikely to result in a different
verdict at a new trial was free of legal error. We thus affirm the order denying
PCRA relief.
Order affirmed.
President Judge Emeritus Panella, Judge Stabile, Judge Dubow, Judge
Murray, Judge Sullivan and Judge Beck join the Opinion.
President Judge Lazarus files a Dissenting Opinion in which Judge
Kunselman joins.
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DATE: 04/8/2025
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