J-A18017-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KERMIT ROBINSON : : Appellant : No. 1025 WDA 2023
Appeal from the Judgment of Sentence Entered August 3, 2023 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006255-2022
BEFORE: OLSON, J., MURRAY, J., and BECK, J.
MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 24, 2024
Kermit Robinson (Appellant) appeals from the judgment of sentence
imposed after the trial court convicted him of one count each of persons not
to possess firearms and possession of drug paraphernalia, and four counts
each of possession with the intent to deliver a controlled substance and
possession of a controlled substance.1 We affirm.
On September 22, 2023, the Commonwealth filed a criminal information
charging Appellant with the above offenses. The charges arose from a search
of Appellant’s residence conducted on July 14, 2022, by Parole Agent Mark
Graulty (Agent Graulty) and the Mount Oliver Police Department. Law
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1 See 18 Pa.C.S.A. § 6105(a)(1); 35 P.S. §§ 780-113(a)(32), (30), (16), respectively. J-A18017-24
enforcement recovered a loaded firearm and large quantities of suspected
heroin and cocaine from Appellant’s residence.
On May 21, 2023, Appellant filed a motion to suppress evidence and
statements. Therein, Appellant challenged the legality of law enforcement’s
search of his residence and subsequent interrogation. See Motion to
Suppress, 5/21/23, at 4-5 (unpaginated). On June 29, 2023, the trial court
held an evidentiary hearing on Appellant’s suppression motion. The
Commonwealth presented testimony from Officer Ryan Lawrence (Officer
Lawrence), and Agent Graulty. Appellant presented testimony from his wife,
Lisa Gittings (Ms. Gittings). At the conclusion of the hearing, the trial court
took the matter under advisement.
On August 3, 2023, the trial court denied Appellant’s suppression
motion. The trial court issued the following findings of fact:
[I]n late June, early July of 2022, M[ount] Oliver police received reports of suspected drug activity near the 200 block of Ormsby Avenue[,] near where [Appellant] lives. The police also received reports of heavy foot traffic [at] 221 Ormsby Avenue[ (Appellant’s residence or the residence)] in the late evening, early morning hours ….
[] Agent Graulty[ ]was informed by the M[ount] Oliver police of the complaints they had received involving the residence, which was the residence of … [Appellant].2 ____________________________________________
2 Agent Graulty further testified Officer Lawrence told him he had observed
Appellant engage in a surveillance countermeasure to avoid “trash pulls” by discarding his garbage at a location other than his own residence. N.T., 6/29/23, at 25. Officer Lawrence testified that “trash pulls” are a common technique employed in narcotics investigations, whereby officers search (Footnote Continued Next Page)
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Thereafter[, Agent Graulty] initiated surveillance of the residence and observed an individual [exit] a maroon SUV and enter the residence[. This individual] stayed for a brief period of time, [and] exited[,] getting back in the SUV.
The next day, July 7th, [Appellant] reported to [the North Shore state] parole office[] for his visit[,] and upon leaving[,] was seen entering a maroon SUV. [Agent Graulty] authored a report memorializing what he had observed and the reasonable suspicion … that existed to search the residence [based on Appellant]’s status as a parolee. [Agent Graulty] also requested the assistance of the M[ount] Oliver police in that regard.
On July 14, 2022, [at] approximately 6:30 a.m.[, Agent Graulty] and nine other agents went to the residence and knocked, at which time [Ms. Gittings] answered the door[. T]he agents went inside and observed [Appellant] on the couch. They removed him from the residence, placing him in [a] M[ount] Oliver parole [officer’s] car. Agents searched the couch and found [a] firearm and [] stamp bags of suspected heroin. [Agent Graulty] called 911 for officer assistance.
Approximately five to ten minutes later[,] the M[ount] Oliver [police] officers responded to the residence. [Officer] Lawrence[] read [Appellant] his Miranda3 [r]ights and told him the agents had discovered [contraband] in his home. [Appellant] consented to a search of the residence, which revealed narcotics, [and] indicia [of Appellant’s residency].
N.T., 8/3/23, at 2-4 (footnotes added).
through refuse in order “to ascertain who lives [at a particular residence] or if there’s any type of narcotics or drug paraphernalia consistent with drug sales in the area.” Id. at 8.
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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Following Appellant’s stipulated non-jury trial, the trial court4 convicted
Appellant of the above offenses, and the matter immediately proceeded to
sentencing. The trial court sentenced Appellant to an aggregate three to six
years in prison.5 Appellant timely appealed. Both the trial court and Appellant
have complied with Pa.R.A.P. 1925.
Appellant presents the following issue:
I. Did the trial court err in denying the motion to suppress filed in this case because it was the result of an investigation into a parolee done without reasonable suspicion that criminal activity was afoot? Specifically, did the parole agent fail to corroborate the unsubstantiated anonymous tip of suspicious activity at [Appellant]’s home, resulting in an improper search of [A]ppellant’s home?
Appellant’s Brief at 6.6
4 The Honorable Edward J. Borkowski presided over Appellant’s suppression
hearing and non-jury trial.
5 The record is silent on merger of offenses; however, the trial court imposed
no further penalty for Appellant’s misdemeanor drug possession convictions.
6 The trial court asserts Appellant waived his claim for failure to comply with
Pa.R.A.P. 1925(b)’s conciseness requirement. See Trial Court Opinion, 2/7/24, at 10; see also Pa.R.A.P. 1925(b)(4)(iv) (“The Statement should not … provide lengthy explanations as to any error.”). Indeed, Appellant’s three- page, single-issue Rule 1925(b) statement needlessly argued the merits of the issue he identified in his concise statement. See Pa.R.A.P. 1925(b) Statement, 10/17/23, at 2-3 (unpaginated). Nevertheless, upon review, Appellant’s Rule 1925(b) statement was not so vague or lengthy as to require the trial court “to guess what issues [A]ppellant is appealing[.]” See Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa. Super. 2006) (en banc); see also Trial Court Opinion, 2/7/24, at 11-14 (trial court addressing the merits of Appellant’s claim). Therefore, we decline to find Appellant waived his sole issue, as stated in his Pa.R.A.P. 2116 Statement of Questions Involved. (Footnote Continued Next Page)
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Appellant challenges the trial court’s denial of his suppression motion.
Our standard of review
is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court’s factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted. Our scope of review of suppression rulings includes only the suppression hearing record and excludes evidence elicited at trial.
Commonwealth v. McMahon, 280 A.3d 1069, 1071 (Pa. Super. 2022)
(quoting Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017)).
“The Fourth Amendment to the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee the right of the people
to be secure in their persons, houses, papers, and possessions from
unreasonable searches and seizures.” Commonwealth v. Rice, 304 A.3d
1255, 1260 (Pa. Super. 2023) (citation omitted). “As a general rule, a warrant
stating probable cause is required before a police officer may search for or
However, Appellant purports to challenge, as a sub-claim in the argument section of his brief, whether he voluntarily consented to the search of his residence. See Appellant’s Brief at 37-44. Appellant did not preserve this issue in his Rule 1925(b) statement. Accordingly, it is waived. See Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020) (“[A]ny issue not raised in a Rule 1925(b) statement will be deemed waived for appellate review.” (citing Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)).
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seize evidence.” Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa.
Super. 2021) (en banc) (quotation marks and citation omitted).
However, “[a] parolee has limited Fourth Amendment rights because of
a diminished expectation of privacy.” Commonwealth v. McClellan, 178
A.3d 874, 881 (Pa. Super. 2018) (citing Commonwealth v. Williams, 692
A.2d 1031, 1035 (Pa. 1997)). Consequently, “[a] parole officer need not
obtain a warrant based upon probable cause before conducting a search of a
parolee.” Commonwealth v. Gould, 187 A.3d 927, 935 (Pa. Super. 2018)
(citation omitted).
The statute governing the supervisory relationship between parole
officers and parolees provides, in relevant part, as follows:
(d) Grounds for personal search of a department- supervised offender.--
(1) A personal search of an offender may be conducted by an agent:
(i) if there is a reasonable suspicion to believe that the department-supervised offender possesses contraband or other evidence of violations of the conditions of supervision[.]
***
(4) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with such case law, the following factors, where applicable, may be taken into account:
(i) The observations of agents.
(ii) Information provided by others.
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(iii) The activities of the department-supervised offender.
(iv) Information provided by the department-supervised offender.
(v) The experience of agents with the department- supervised offender.
(vi) The experience of agents in similar circumstances.
(vii) The prior criminal and supervisory history of the department-supervised offender.
(viii) The need to verify compliance with the conditions of supervision.
61 Pa.C.S.A. § 6182(d).
We have recently reiterated the standards applicable to parolee
searches:
“[P]arolees agree to ‘endure warrantless searches’ based only on reasonable suspicion in exchange for their early release from prison.” Commonwealth v. Curry, 900 A.2d 390, 394 (Pa. Super. 2006) (citation omitted). Thus, “agents need not have probable cause to search a parolee or his property; instead, reasonable suspicion is sufficient to authorize a search.” Id. A search will be deemed reasonable “if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer’s duty.” [] Gould, 187 A.3d [at] 935 [] (citation omitted). Parole officers may form reasonable suspicion based on personal observations, their history with the parolee, the parolee’s behavior while on parole, and third-party information. See Commonwealth v. Colon, 31 A.3d 309, 314–16 (Pa. Super. 2011).
Commonwealth v. Rosendary, 313 A.3d 236, 247-48 (Pa. Super. 2024)
(emphasis in original).
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“[T]he determination of whether reasonable suspicion exists is to be
considered in light of the totality of the circumstances[.]” Commonwealth
v. Sperber, 177 A.3d 212, 215 (Pa. Super. 2017) (citation omitted).
Pertinently, “[a] consideration [of] the totality of the circumstances includes
such factors as tips, the reliability of any tips, location and suspicious activity.”
Commonwealth v. Muhammad, 289 A.3d 1078, 1087 (Pa. Super. 2023).
An anonymous tip, standing alone, “is insufficient to give rise to a reasonable
suspicion that criminal activity is afoot. [T]he police need[] ‘something more’
than just [an] anonymous tip to” give rise to a reasonable suspicion of criminal
activity. Commonwealth v. Goodwin, 750 A.2d 795, 799 (Pa. 2000)
(plurality); see also id. (concluding police lacked reasonable suspicion to
search the defendant where they “saw no unusual activity while they watched
[the defendant] and had no reason independent of the anonymous tip to
suspect that criminal activity was afoot.”).
Appellant argues that Agent Graulty “did not have reasonable suspicion
in this case[,] because he relied upon vague, unreliable, anonymous reports
that [did not] even allege that criminal activity [was] afoot.” Appellant’s Brief
at 21. Appellant asserts Agent Graulty “relied on a hunch that ‘foot traffic’
equals ‘drug sales’ in [Appellant’s] residence[,]” and, as a result, the evidence
falls “far short of the specific articulable facts which should be discussed in
connection to a finding of reasonable suspicion.” Id. at 30. Appellant
maintains that “[t]here is no corroboration of drug activity here.” Id. at 35.
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The Commonwealth responds that there was ample corroboration of the
anonymous reports of drug activity in the vicinity of Appellant’s residence.
See Commonwealth’s Brief at 17. The Commonwealth argues the surveillance
countermeasure employed by Appellant (ostensibly to conceal items in his
garbage should law enforcement conduct a “trash pull”) was a significant
factor in Agent Graulty’s reasonable suspicion of a parole violation. See id.
at 17-18. The Commonwealth argues Appellant’s surveillance
countermeasure,
in conjunction with the fact that [Appellant] had been a drug dealer in the past, the claim that foot traffic was seen going in and out of his residence between certain hours, the information indicating that drug purchases had been taking place on his street, and the odd location where [Appellant] parked his vehicle—on two separate occasions—in relation to where he was going, surely provided a reasonable suspicion that evidence of contraband would be found in his residence such that [the trial court] did not err in concluding that the gun and drugs recovered as a result of the search of [Appellant’s] residence should not be suppressed.
Id. at 18.
We observe that Appellant relies largely on the rationales stated in
Commonwealth v. Wimbush, 750 A.2d 807 (Pa. 2000), and
Commonwealth v. Coleman, 130 A.3d 38 (Pa. Super. 2015). We address
each case in turn.
In Wimbush, the Pennsylvania Supreme Court considered “whether an
anonymous tip and other purported corroborating evidence created a
reasonable suspicion that criminal activity was afoot….” Wimbush, 750 A.2d
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at 372.7 The consolidated appeal examined the cases of Anthony Wimbush
(Wimbush) and Lance White (White), both of whom were charged with drug
offenses following searches conducted by law enforcement after receiving
anonymous tips. Id. at 373-74.
In Wimbush’s case, law enforcement received a tip “that a black man
named Tony would be driving a white van on Piney Ridge Road and that Tony
would have cocaine and marijuana in his possession.” Id. at 373. The caller
provided the van’s license plate number, which officers learned was registered
to Wimbush. Id. Officers located and surveilled the van, ultimately
conducting a traffic stop and recovering illegal contraband. Id.
In White’s case, officers “responded to an anonymous 911 call about
possible drug activity at [a] … public housing complex.” Id. at 374. “The
anonymous caller asserted that a black male, wearing a white shirt and white
shorts, would exit the complex with drugs in his possession and get onto a
girl’s black bicycle.” Id. An officer observed White (who matched the
anonymous caller’s description) get onto “a girl’s black bicycle.” Id. The
officer detained White and frisked him for weapons. Id. White began to flee;
however, he complied with the officer’s commands to return. Id. As White
7 Although Wimbush does not involve a parolee search, Section 6182(d)(4),
supra, requires parolee searches to be “in accordance with constitutional search and seizure provisions as applied by judicial decision[,]” and that our analysis be “in accordance with such case law[.]” 61 Pa.C.S.A. § 6182(d)(4).
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walked back to the officer, he discarded contraband, which the officer
recovered. Id.
The Wimbush Court concluded the anonymous tips in both cases
carried no indicia of reliability. See id. at 812-13. Neither tip provided
predictive, “inside information” demonstrating the callers’ “intimate
familiarity” with the defendants’ respective affairs. Id. As the anonymous
tips in both cases conveyed only general, conclusory information, and
because law enforcement failed to corroborate those tips, they were
insufficient to establish reasonable suspicion of criminal activity. See id. at
813.
In Coleman, this Court addressed whether a parole agent possessed
reasonable suspicion justifying a search of Mark Coleman’s (Coleman)
residence after receiving an anonymous tip that Coleman “was one of the
largest drug sellers” in the area, and had “received a driving under suspension
citation.” Coleman, 130 A.3d at 40. The parole agent attempted to meet
with Coleman at his residence on approximately three occasions, but Coleman
never appeared. See id. After confirming that police had cited Coleman for
driving under a suspended license, the agent arranged for Coleman to meet
him at the parole office. See id. Once there, agents detained Coleman and
traveled to his residence to conduct a search, whereupon they found illegal
contraband. See id.
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The Coleman Court concluded “the anonymous tip in this matter falls
short of the information provided and confirmed in the Wimbush case[.]” Id.
at 46. We recognized the limitations on parole agents’ ability “to conduct
surveillance or confirm information received by a tipster.” Id. at 47.
Nevertheless, we required that a parole agent’s “reasonable suspicion to
search [] be determined in accordance with constitutional search and seizure
provisions as applied by judicial decision.” Id. (internal brackets, quotation
marks, and citation omitted). We continued:
The anonymous tip in this matter cannot be considered reliable …. [T]he fact that [Coleman] and his parole agent had not personally met for a compliance check of his residence does not, in combination with the unreliable tip, rise to the level of reasonable suspicion to search that home. Parole agents did not have specific and articulable facts that [Coleman] was engaged in criminal activity. Accordingly, the warrantless entry into Appellant’s apartment violated his Fourth Amendment and Article I, § 8 rights.
Id.
Instantly, at the suppression hearing, Officer Lawrence testified with
respect to reports from members of the public concerning drug trafficking near
Appellant’s residence:
Specifically, there’s a bus stop [on the 200 block of Ormsby Avenue] and mothers and[] fathers were complaining that … individuals [] were possibly under the influence of narcotics[, and] purchasing narcotics in that area.
N.T., 6/29/23, at 5. Officer Lawrence further testified, “My chief contacted
me and told me specifically he received a complaint in regards to [the
residence].” Id. On an unspecified date in July of 2022, Agent Graulty went
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to the Mount Oliver police station to show officers “a book of everyone who is
on parole” in the area. Id. at 6. Officer Lawrence testified he advised Agent
Graulty that his department had “received tips from parents[,] and my chief
gave me a tip in regards to [the residence,] specifically.” Id. at 7.
In the days following his communication with Agent Graulty, Officer
Lawrence drove past Appellant’s residence. See id. On one occasion, Officer
Lawrence observed Appellant exit his residence with a “trash bag” in hand and
walk to a local bar, where “[h]e placed the trash there and then walked back
down to this residence.” Id. Based on his training and experience, Officer
Lawrence suspected Appellant was attempting to “hide something, possibly
whatever is in that trash. He doesn’t want anyone to see what’s in it.” Id. at
8. Officer Lawrence relayed this information to Agent Graulty. See id.
Agent Graulty testified that when he went to the Mount Oliver police
station, officers advised him “there were anonymous tips coming in about
suspicious activities, specifically drug activities, surrounding” Appellant’s
address. Id. at 22. Based on this information, Agent Graulty conducted
surveillance on Appellant’s residence on July 6, 2022. Id. Agent Graulty
described what he next observed:
I sat in the vehicle in front of the residence for a period of time until I noticed a maroon SUV that was parked [more than a block away] from [Appellant’s residence]. [An o]ccupant got out of the vehicle, went into the residence, was inside the residence for a very brief amount of time and went back into [the maroon SUV]. It should be noted there is plenty of parking in front of that residence.
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Id. at 22-23. Agent Graulty did not state whom he believed the occupant of
the vehicle to be. See id. However, in response to the prosecutor’s question,
“When did you see [Appellant] again after July 6th[,]” Agent Graulty
responded, “July 7th.” Id. at 23.
Agent Graulty explained Appellant arrived at the parole office on July 7,
2022, for “regular reporting.” Id. Agent Graulty described Appellant’s
unusual behavior that day:
So when he left our office after his visit on that day[,] I observed him walk, again, a block down or half a block down our street, a block down the other way and a half a block up on the next street over and enter [the maroon SUV].
Id. Agent Graulty testified he believed Appellant was employing “a typical
counter-surveillance technique that guys use whenever they come to our
office under the idea that if they park in our lot their vehicle might get
searched.” Id. at 24. Agent Graulty further testified that the information
Officer Lawrence related to him, i.e., Appellant “taking his trash out of his
residence and placing it in front of a different residence[,]” appeared to be an
effort to “avoid … a trash pull.” Id. at 25. On cross-examination, Agent
Graulty testified that the above observations, “[i]n conjunction with
[Appellant’s] criminal history,” informed his decision to conduct a search of
Appellant’s residence. Id. at 37.
In its Rule 1925 opinion, the trial court relied on its findings and legal
conclusions resolving Appellant’s suppression motion, announced in court
prior to Appellant’s non-jury trial:
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The [c]ourt notes that[,] as a matter of law[,] the right to be free from unlawful searches and seizures is guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution and Article [I], Section 8, of the Pennsylvania Constitution. It is well settled that the Fourth Amendment of the U.S. Constitution and Article [I], Section 8 of the Pennsylvania Constitution provides limited protection to parolees. Parole agents are not required to obtain a warrant based upon probable cause before conducting a search of a parolee[,] as any search will be deemed reasonable and the results of the search admissible if the parole agent possessed both reasonable suspicion that a parole violation has been committed and the search was reasonably related to the parole agent’s duty. Parole agents may also base reasonable suspicion of drug activity on information provided by a reliable third party or first-hand observations.
The [c]ourt finds unequivocally that reasonable suspicion existed for the search of [Appellant’s] home. The [c]ourt finds the tips provided to the police were reliable based on their investigation. Further, the subsequent investigation by [Agent Graulty] clearly evidenced the likelihood of a parole violation. As such, the resulting search was reasonably related to the agent’s duty and was proper.
Trial Court Opinion, 2/7/24, at 13 (quoting N.T., 8/3/23, at 4-5).
Upon review, and considering the totality of the circumstances, we
conclude the trial court’s findings are supported by the evidence and its legal
conclusions are sound. The record confirms that Agent Graulty independently
corroborated the anonymous tips conveyed to him by Officer Lawrence.
Unlike the cases relied upon by Appellant, wherein law enforcement
wholly failed to investigate anonymous reports alleging criminal activity, Agent
Graulty set forth specific, articulable facts corroborating the anonymous tips
reporting Appellant’s involvement in drug activity. Agent Graulty was not
required to observe outright illegal conduct in order to formulate reasonable
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suspicion of a parole violation. See Commonwealth v. Altadonna, 817 A.2d
1152 (Pa. Super. 2003) (“The fact that [a]ppellant’s [actions] may have been
consistent with innocent behavior does not, standing alone, make the
detention and limited investigation illegal.” (citation omitted)).
In particular, Appellant’s depositing trash at a location away from his
residence, and parking a distance from his residence and the parole office, led
Agent Graulty reasonably to conclude Appellant was employing
countermeasures to avoid detection of illegal activity. See Sperber, 177 A.3d
at 215 (reasonable suspicion must be “considered in light of the totality of the
circumstances”). These observations independently corroborated the
anonymous tips received by Mount Oliver police. Further, Agent Graulty’s
consideration of Appellant’s prior criminal history was permissible in
evaluating the totality of the circumstances. See 61 Pa.C.S.A. § 6182(d)(vii).
As Agent Graulty had reasonable suspicion that Appellant was in
violation of the terms of his parole, his search of Appellant’s residence was
lawful. See Rosendary, 313 A.3d at 247. Accordingly, Appellant’s claim
merits no relief.
Judgment of sentence affirmed.
Judge Beck joins the memorandum.
Judge Olson concurs in the result.
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DATE: 9/24/2024
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