Commonwealth v. Talbert

• Decision Date: 22 December 2015
• Docket Number: No. 719 EDA 2015,719 EDA 2015
• Citation: 129 A.3d 536
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Zaiee TALBERT, Appellant.
• Court: Pennsylvania Superior Court

129 A.3d 536

COMMONWEALTH of Pennsylvania, Appellee

v.Zaiee TALBERT, Appellant.

No. 719 EDA 2015

Superior Court of Pennsylvania.

Submitted Sept. 28, 2015.

Filed Dec. 22, 2015.

James F. Berardinelli, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, and Branden J. Albaugh, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

OPINION BY MUSMANNO, J.:

Zaiee Talbert ("Talbert") appeals from the judgment of sentence imposed following his convictions for two counts each of murder of the first degree and conspiracy.¹ We affirm.

On March 12, 2012, at approximately 8:00 p.m., Officer Timothy Stephan ("Officer Stephan") responded to a call reporting gunshots. After arriving at the scene, Officer Stephan found an all-terrain vehicle ("ATV") next to a parked van. Officer Stephan found 17–year–old Dexter Bowie ("Bowie") and 18–year–old Jonathan Stokely ("Stokely"), one on either side of the van, both of whom were unconscious and suffering from multiple gunshot wounds

. Stokely was pronounced dead at the scene. Bowie was transported to Temple University Hospital, where he was pronounced dead at 8:24 p.m.

Dr. Samuel Gulino ("Dr. Gulino"), Chief Medical Examiner of Philadelphia County, ruled each death a homicide. Bowie suffered 13 gunshot wounds

to the head, back, buttock, chest, abdomen, arm, thigh and foot, which caused injury to his intestine, liver and lung. Stokely suffered at least 22 gunshot wounds, 15 of which were to the legs, with others to the back, abdomen, buttock and lung. Eyewitnesses identified Talbert and Christopher Lloyd Butler ("Butler") as the shooters.²

Talbert and Butler were arrested, and each was charged with two counts of murder and related charges.³ In September 2012, the Commonwealth filed a Pennsylvania Rule of Criminal Procedure 802 Notice of Aggravating Circumstances. In June 2013, the Commonwealth filed a Notice of Removal of Capital Designation. In February 2014, following a jury trial, the trial court declared a mistrial because the jury could not reach a verdict regarding the charges against Talbert.⁴

Following a second jury trial in November 2014, Talbert was acquitted of possessing instruments of crime, and convicted of two counts each of murder of the first degree and conspiracy. On January 30, 2015, the trial court sentenced Talbert to concurrent terms of life in prison for the murder convictions and 20–40 years in prison for the conspiracy convictions.

On February 6, 2015, Talbert filed timely Post–Sentence Motions, which the trial court subsequently denied. Talbert filed a timely Notice of Appeal and a court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.

On appeal, Talbert raises the following questions for our review:

I. Whether [Talbert] is entitled to a new trial based on the ground that the trial court erred in admitting an overly prejudicial [music] video of [Talbert] singing rap lyrics[,] when the Commonwealth failed to establish that [Talbert] was the author of the lyrics and failed to establish that the lyrics, in fact, pertained to the incident in question?

II. Whether [Talbert] is entitled to an arrest of judgment on the ground that the evidence was insufficient to sustain his conviction[,] since he was found not guilty of [p]ossessing an [i]nstrument of [c]rime[,] and the only evidence linking him to the crime asserted that he was one of the shooters?

III. Whether [Talbert] is entitled to a new trial/arrest of judgment on the ground that the trial court erred in accepting an inconsistent verdict since [Talbert's] acquittal of the charge of Possessing and Instrument of Crime clearly indicated that the Commonwealth had not proven beyond a reasonable doubt that he was one of the shooters[,] and there was no additional evidence adduced that he played any other role in the crime?

IV. Whether [Talbert] is entitled to an arrest of judgment in the above-captioned matter on the ground that the verdict is against the weight of the evidence since any evidence linking [Talbert] to the crime was contradicted by overwhelming evidence showing [Aimes] and [Butler] to be the shooters?

Brief for Appellant at 3–4 (renumbered for ease of disposition).

In his first claim, Talbert argues that the trial court erred in admitting as evidence a rap music video that allegedly contained lyrics describing a crime similar to the murders at issue in this case. Id. at 20. Talbert contends that the trial court misconstrued the meaning of the "slang" words used in the lyrics; therefore, it was impossible to conclude that the rap specifically referred to the murders in question. Id. at 21. Talbert asserts that the video was irrelevant and unfairly prejudicial, and that its admission into evidence entitles him to a new trial. Id.

Our standard of review concerning the admissibility of evidence is well settled:

With regard to the admission of evidence, we give the trial court broad discretion, and we will only reverse a trial court's decision to admit or deny evidence on a showing that the trial court clearly abused its discretion. An abuse of discretion is not merely an error in judgment, but an overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of the record.

Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa.Super.2012) (citations and quotation marks omitted).

"Relevance is the threshold for admissibility of evidence." Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super.2015) ; see also Pa.R.E. 402. "Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence[,] and the fact is of consequence in determining the action." Pa.R.E. 401 ; see also Tyson, 119 A.3d at 358 (stating that "[e]vidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.").

"The court may exclude relevant evidence if its probative value is outweighed by a danger of ... unfair prejudice...." Pa.R.E. 403 ; see also Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa.Super.2012) (stating that even when evidence meets the relevance requirements, "such evidence may still be excluded where its probative value is outweighed by the danger of unfair prejudice.").

However, [e]vidence will not be prohibited merely because it is harmful to the defendant. [E]xclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based on something other than the legal propositions relevant to the case.... This Court has stated that it is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand[.]

Kouma, 53 A.3d at 770 (citation omitted); see also Pa.R.E. 403 cmt. (defining "unfair prejudice" as "a tendency to suggest a decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially.").

Here, when Officer Stephan arrived at the scene, he found Bowie and Stokely at North 9th Street and Indiana Street, in a neighborhood that is part of the 25th District.⁵ N.T., 11/10/14, at 53–55. Both victims were shot more than a dozen times. N.T., 11/13/14, at 191, 219–31. Stokely suffered at least 15 gunshots to the legs. Id. at 222. The cartridge casings recovered at the scene included almost two dozen casings consistent with cartridges that would be used in an AK–47 assault rifle, as well as several casings that would be used in a 9–millimeter handgun. N.T., 11/14/14, at 60–61. Additionally, a surveillance video confirmed that the escape vehicle driven by the shooters was a van. N.T., 11/10/14, at 203. In March 2012, Talbert owned a blue van. N.T., 11/13/14, at 62–63. Two eyewitnesses also testified regarding Talbert's participation in the shooting. See N.T., 11/14/14, at 334–45, 333–38; N.T., 11/13/14, at 105–06, 126–27.

On April 23, 2012, Talbert uploaded a rap music video to YouTube, which the Commonwealth argued contained lyrics that described a crime similar to the murders at issue in this case. In the video, Talbert rapped the following lyrics:

Running and running the Badlands like an Afghan

Choppers on deck, slide up in the caravan

Hit up ya legs, turn that nigga into half a man

Things get hot and I slide down to Maryland

Where a nigga get a bean for half a grand."

N.T., 11/6/14, at 7.⁶ Steven Sturgis ("Sturgis") helped Talbert record the rap song at issue over the beat of Meek Mill's "Lean Wit It." N.T., 11/10/14, at 168. Sturgis testified that, to his knowledge, the new lyrics were Talbert's own lyrics, and that he had either previously written them or rapped them freestyle in the studio. Id.⁷ The Commonwealth introduced the music video to corroborate Talbert's role as one of the shooters through the use of his own words in the rap song. See N.T., 11/6/14, at 25–27; see also Brief for the Commonwealth at 24.

After considering the testimony provided at trial, the trial court concluded that the portion of the lyrics of the rap song introduced at trial made particular references to the murders of Bowie and Stokely. See Trial Court Opinion, 4/29/15, at 10. Specifically, the trial court determined that the term "Badlands" is often used to refer to the neighborhood in Philadelphia where the murders occurred. See id.; N.T., 11/10/14, at 171, 176. The trial court also found that the term "chopper" is a term used to refer to a gun. See Trial Court Opinion, 4/29/15, at 10; N.T., 11/10/14, at 171. The trial court further construed the term "caravan" to be a reference to the escape vehicle used by Talbert and Butler. See Trial Court Opinion, 4/29/14, at 10. Additionally, the trial court determined that the phrases "hit up ya legs" and "half a man"...