Commonwealth v. Talbert

• Decision Date: 28 June 2022
• Docket Number: 1154 EDA 2021,J-S15020-22,1155 EDA 2021
• Parties: COMMONWEALTH OF PENNSYLVANIA v. ZAIEE TALBERT Appellant COMMONWEALTH OF PENNSYLVANIA v. ZAIEE TALBERT Appellant
• Court: Pennsylvania Superior Court

COMMONWEALTH OF PENNSYLVANIA v. ZAIEE TALBERT Appellant COMMONWEALTH OF PENNSYLVANIA v. ZAIEE TALBERT Appellant

Nos. 1154 EDA 2021, 1155 EDA 2021

No. J-S15020-22

Superior Court of Pennsylvania

June 28, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered May 10, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at CP-51-CR-0009688-2012, CP-51-CR-0009690-2012

Joseph D. Seletyn, Esq.

BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM

MURRAY, J.

Zaiee Talbert (Appellant) appeals from the order dismissing his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

At approximately 8:00 p.m. on March 12, 2012, Appellant and his co-defendant, Lloyd Butler (Butler), fired numerous gunshots at Dexter Bowie and Jonathan Stokely (collectively, the Victims), killing both men.^[1] During the subsequent investigation several witnesses (including Curtis Stokes (Stokes), Joseph Johnson Bey (Johnson), and Rahiem Aimes (Aimes)), gave statements to police inculpating Appellant in the crimes. Police arrested Appellant and Butler and charged them with two counts each of homicide and criminal conspiracy, and related offenses.

Appellant's first jury trial in February 2014 resulted in a mistrial. On retrial, the jury found Appellant guilty of two counts each of first-degree murder and conspiracy.^[2] The jury found Appellant not guilty of possessing an instrument of crime. On January 30, 2015, the trial court sentenced Appellant to concurrent terms of life in prison for murder, and 20 - 40 years in prison for conspiracy.

This Court affirmed Appellant's judgment of sentence in December 2015, and the Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2015), appeal denied, 138 A.3d 4 (Pa. 2016).

Appellant filed a timely, first PCRA petition in August 2016. The PCRA court denied relief on January 25, 2018. This Court affirmed, and the Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth v. Talbert, 201 A.3d 847 (Pa. Super. 2018) (unpublished memorandum), appeal denied, 207 A.3d 284 (Pa. 2019).

On March 20, 2020, Appellant filed the instant, pro se PCRA petition. He claimed, inter alia, newly discovered evidence of misconduct committed by four police detectives involved in the investigation: Philip Nordo (Nordo), Thomas Gaul (Gaul), John Verrecchio (Verrecchio), and Tracy Byard (Byard) (the four Detectives). On June 26, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's petition without a hearing, after concluding the petition was untimely and lacked merit.

Appellant retained PCRA counsel, who filed an amended PCRA petition on July 31, 2020. Appellant claimed the four Detectives coerced Butler, Stokes, Johnson, and Aimes to give false police statements implicating Appellant. See Amended PCRA Petition, 7/31/20, at 6-22, 27-31. In support, Appellant referenced the outcomes of numerous unrelated criminal cases where one or more of the four Detectives had purportedly engaged in some form of misconduct. See id. at 8-22. Appellant further claimed the Commonwealth had violated Brady v. Maryland, 373 U.S. 83 (1963),^[3] by withholding this evidence of misconduct. See Amended PCRA Petition, 7/31/20, at 8, 36-38. Appellant averred the "patterns of misconduct of[] Detectives Nordo, Gaul, Verrecchio, and Byard were not known by [Appellant] until after the [November 2014] trial, and could not have been obtained prior to trial through reasonable diligence." Id. at 23; see also id. (asserting the new evidence "has become only very recently known to [Appellant]."). Appellant claimed "this evidence would have led to the grant of a new trial." Id. at 27.

Appellant's PCRA counsel filed a supplemental amended PCRA petition on February 4, 2021. Appellant claimed he had recently learned of new, exculpatory facts from an affidavit executed by Anthony Small (Small) on December 29, 2020. Small's affidavit stated, in relevant part:

After I learned about [Appellant's] case on Instagram recently, I started to reach out to a person who knew [Appellant]. I've learned [that Stokes] testified that he saw [Appellant] pull a handgun from under a car after he saw [the Victims] riding by on the four-wheeler. That is not true. [Appellant] never left the [street] corner [on which Small had seen Appellant standing, located blocks away from the scene of the shooting,] until after we all heard the gunshots.

Supplemental Amended PCRA Petition, 2/4/21, Ex. A at p. 2 (unnumbered).

The PCRA court conducted an evidentiary hearing on May 10, 2021 (PCRA hearing), where Small testified as the only witness.^[4] The PCRA court summarized Small's testimony as follows:

Small … testified that on the day of the shooting, he was sitting on the stairs outside his paramour Bianca's house located in the middle of the block on Sheridan Street in North Philadelphia with [] Stokes, an individual named Larry, and Larry's mother Kim. From his vantage point, Small recalled seeing [Appellant] standing on the corner of Sheridan Street and either Clearfield Street or Allegheny Avenue. Small further noted that at the time he observed [Appellant], it was sometime in the afternoon, as the sun was shining on a warm, clear day. After a conversation, Stokes and Kim told [Small] that they were going to a bar, and Small noticed a four-wheel all-terrain vehicle drive past the block multiple times. Small stated that [Appellant] remained on the corner of Sheridan Street while the vehicle passed the area. Some time after the vehicle passed the block, Small recalled hearing between fifteen to twenty-five gunshots from a location nearby, but far enough away to avoid a panic from people in the area. After the shooting, the police approached the area, and Small elected to walk away from the area with Stokes and Kim. As he was leaving, Small recalled noticing [Appellant] still standing on the corner. Small discovered that the gunfire resulted in a murder after watching a news report later that night. N.T., 5/10/2021, at 20-29.

Small did not learn that Stokes testified in this matter or that [Appellant] had been arrested and convicted in the instant shooting until approximately eight years later in May or June of 2020, when [Small] saw an Instagram story image posted by user JBB012 about [Appellant's] incarceration. In response, Small contacted the user shortly thereafter, but took no further action. It wasn't until December 2020, when Small had a change of heart, that he reached out to the user again and provided his December 29, 2020 statement to PCRA counsel. Id. at 29-36.

PCRA Court Opinion, 7/8/21, at 6-7 (citations modified). Appellant requested, and the PCRA court granted, several continuances between Appellant's filing of his March 20, 2020, pro se PCRA petition and the evidentiary hearing.

By order entered May 10, 2021, the PCRA court dismissed Appellant's PCRA petition. Appellant timely filed a motion for reconsideration ten days later. Appellant detailed, inter alia, new evidence that purportedly corroborated the testimony of Small at the PCRA hearing. See Motion for Reconsideration, 5/20/21, at ¶¶ 6-14. Appellant further argued the PCRA court erred in precluding him from presenting testimony from Dallas Roberts at an evidentiary hearing. Id. at ¶¶ 17-24; see also id. at ¶ 18 (asserting Johnson's recantation of his police statement at Appellant's trial "was corroborated by Dallas Roberts[,] who was on the phone with [Johnson] when the shooting occurred and confirms that [Johnson] did not observe the shooting but was nearby when it occurred."). Finally, Appellant claimed certain new evidence and affidavits established that Aimes, not Appellant, conspired with Butler and murdered the Victims. Id. at ¶¶ 25-31, 36-37.

The PCRA court denied Appellant's motion for reconsideration on May 28, 2021. This timely appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

Appellant presents three issues for our consideration:

1.) Did the lower court err in denying the amended PCRA petition based upon newly discovered evidence and a Brady claim, where there was newly discovered facts/evidence of police misconduct; a newly discovered witness who testified that Appellant was not at the scene of the crime when the shooting occurred; and another witness who would have demonstrated that the testimony of the lone eyewitness was coerced?

2.) Did the lower court err in not permitting one Dallas Roberts to testify about how the lone eyewitness who implicated Appellant was not at the scene of the shooting when it occurred and did not observe Appellant shoot anyone?

3.) Did the lower court also err in not granting reconsideration after new evidence, not theretofore[] presented to that court, compelled the grant of a new trial?

Appellant's Brief at 2 (reordered; some capitalization omitted).

Before discussing the merits of Appellant's claims, we must address the timeliness of his PCRA petition.^[5] All PCRA petitions must be filed within one year of the petitioner's judgment of sentence becoming final. See 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence 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. § 9545(b)(3). "If a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the petition." Commonwealth v. Reid, 235 A.3d 1124, 1140 (Pa. 2020) (citation omitted).

Appellant's sentence became final on August 1, 2016, ninety days after the Pennsylvania...