J-S11024-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JAMAL TAIT                              :
                                         :
                   Appellant             :   No. 951 WDA 2019

             Appeal from the PCRA Order Entered May 29, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0009086-1998

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 JAMAL TAIT                              :
                                         :
                   Appellant             :   No. 952 WDA 2019

             Appeal from the PCRA Order Entered May 29, 2019
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0009526-1998


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

MEMORANDUM BY MURRAY, J.:                             FILED APRIL 3, 2020

     Jamal Tait (Appellant) appeals from the order dismissing his third

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

     The PCRA court summarized the background of this case as follows:

          In November 1999, [Appellant] was convicted by a jury
     of Murder in the Third Degree, Accidents Involving Death or
     Personal Injury, Homicide by Vehicle, Fleeing or Attempting to
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     Elude a Police Officer, Violation of the Uniform Firearms Act,
     Recklessly Endangering Another Person (4 counts), Driving
     Under the Influence, Homicide by Vehicle with DUI, Simple
     Assault (2 counts), and numerous motor vehicle violations. On
     January 13, 2000, [Appellant] was sentenced to an aggregate
     term of 28½ to 57 years imprisonment.

           [Appellant’s] sentence has been affirmed on appeal and
     his two previous PCRA Petitions have been dismissed.

PCRA Court Opinion, 7/12/19, at 1.

     In denying Appellant’s second petition seeking PCRA relief, this Court

explained:

     Appellant’s judgment of sentence was affirmed by a panel of this
     Court on November 1, 2001. See Commonwealth v. Tait, 792
     A.2d 619 (Pa. Super. 2001) (unpublished memorandum).
     Appellant then filed a petition for allowance of appeal with our
     Supreme Court. This petition was denied on May 29, 2002.
     Appellant’s judgment of sentence became final 90 days later, on
     August 27, 2002. Appellant had one year from that date, or by
     August 27, 2003, to file a timely PCRA petition. Appellant filed
     the instant petition on July 28, 2011, nearly eight years late.
     Accordingly, the PCRA court had no jurisdiction to entertain
     Appellant’s petition unless he pleaded and offered to prove one of
     the three statutory exceptions to the time bar. See 42 Pa.C.S. §
     9545(b).

Commonwealth v. Tait, No. 513 WDA 2013, at *1 (Pa. Super. Nov. 20,

2013).

     On October 19, 2018, Appellant filed the underlying PCRA petition, in

which he averred that he is entitled to a new trial based on after discovered

evidence from a trial witness, Erick Stemmerick, who was a passenger in the

vehicle with Appellant when Appellant fled from police who were trying to

apprehend the speeding vehicle, which ultimately crashed into and killed a



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seven-year-old boy. Within his petition, Appellant attached an affidavit from

Stemmerick stating that police had “coached” and “threatened” him, such that

he lied at trial.   Stemmerick claimed that he and Appellant “were riding

peacefully until a confrontation that took place with 2 guys” and “unfortunately

a police chase ensued and a little kid lost their life.” Affidavit, 8/28/18, at 2.

Stemmerick asked that his trial testimony be stricken.          The PCRA court

summarized:

      Mr. Stemmerick, who was 14 years of age at the time of the
      incident, states that the police “never broke the chase”, they were
      not “high” that day, and they were riding in the vehicle
      “peacefully” until there was a confrontation with “2 guys.”

PCRA Court Opinion, 7/12/19, at 2, citing Stemmerick’s Affidavit, 8/28/18.

      Although the PCRA court determined that Appellant met the after

discovered evidence exception to the PCRA’s one year time bar, see 42

Pa.C.S.A. §§ 9545(b)(1)(ii), the PCRA court issued notice of its intent to

dismiss Appellant’s PCRA petition without a hearing pursuant to Pennsylvania

Rule of Criminal Procedure 907; the PCRA court reasoned that the “new

statements” of Stemmerick, which differed “substantially” from his trial

testimony, “even if believed, would not compel a different verdict if the [PCRA

c]ourt granted a new trial.” PCRA Court Opinion, 7/12/19, at 2. On May 28,

2019, the PCRA court dismissed Appellant’s PCRA petition.            This appeal

followed.

      Appellant presents the following issue for our review:




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      I.    WHETHER THE PCRA COURT ERRED IN DISMISSING
            APPELLANT’S PETITION FOR POST CONVICTION RELIEF
            WITHOUT AN EVIDENTIARY HEARING WHERE A KEY
            WITNESS IN THE PROSECUTION’S CASE AGAINST
            APPELLANT ADMITTED TO LYING AT TRIAL, AND HIS
            TESTIMONY WAS RELEVANT TO ESTABLISHING APPELLANT’S
            MALICE, WHERE APPELLANT WAS CONVICTED OF THIRD-
            DEGREE MURDER IN A VEHICULAR RELATED DEATH?

Appellant’s Brief at 4.

      Appellant argues that he was entitled to an evidentiary hearing pursuant

to Pa.R.Crim.P. 908(A)(2) because he raised material issues of fact to be

resolved. Appellant’s Brief at 11. Rule 908 provides for a hearing,

      . . . when the petition for post-conviction relief or the
      Commonwealth’s answer, if any, raises material issues of fact.
      However, the judge may deny a hearing on a specific issue of fact
      when a full and fair evidentiary hearing upon that issue was held
      at trial or at any proceeding before or after trial.


Pa.R.Crim.P. 908(A)(2).

      Here, Appellant claims that the newly discovered evidence from the

witness, Stemmerick, is material because, at trial, Mr. Stemmerick’s

testimony established that Appellant “acted recklessly and with indifference,

and therefore acted with malice,” to support the jury’s verdict of third-degree

murder. Appellant argues:

             At trial, Stemmerick testified as to the reckless nature of
      Appellant’s driving.     Specifically, Stemmerick testified that
      Appellant made turns down roads he was not allowed to, and that
      despite him pleading with Appellant to slow down, Appellant
      maintained a dangerously high rate of speed. Stemmerick also
      testified that Appellant was smoking marijuana before the police
      chase ensued. Furthermore, Stemmerick testified as to the
      presence of children on the side of the road not long before the
      accident took place and that despite this, Appellant failed to slow

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      down. Because Stemmerick was one of only two people in the
      vehicle with Appellant during the time leading up to the accident,
      his testimony was an integral piece in the Commonwealth’s case
      to establish recklessness.

             In his affidavit, Stemmerick recants his trial testimony and
      admits he lied as a result of pressure from the police and district
      attorney. Stemmerick explains that the police “harassed him and
      told him to lie [at trial].” Stemmerick goes on to say that both he
      and Zotter, who was the only other person in the vehicle with
      Stemmerick and Appellant, were told to “say what wasn’t true”
      and that “if we didn’t cooperate, [they] would go to jail.” These
      statements, if true, establish that Stemmerick lied at trial
      regarding Appellant’s culpability and state of mind. Specifically, if
      Stemmerick and Zotter’s testimony that Appellant was smoking
      marijuana and driving recklessly was a lie, then the
      Commonwealth may not be able to establish that Appellant acted
      with malice, which is required to convict him of third-degree
      murder.

Appellant’s Brief at 12-13 (citations to reproduced record omitted).

      The Commonwealth responds that the “record appears to support the

PCRA court’s finding that [A]ppellant has satisfied the jurisdictional threshold

for the newly-discovered fact exception to [the] time bar.” Commonwealth

Brief at 17. However, the Commonwealth, like the PCRA court, maintains that

Appellant has failed to establish that the new evidence would likely result in a

new verdict. Id. at 19. The Commonwealth recognizes that to obtain relief

based on after discovered evidence, Appellant “must show that the evidence

(1) could not have been obtained prior to or before the conclusion of trial

through reasonable diligence; (2) is not merely cumulative; (3) will not be

used solely for impeachment purposes; and (4) would likely compel a different

verdict if a new trial were granted.    Id. at 18, citing Commonwealth v.


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Brown, 111 A.3d 171, 177 (Pa. Super. 2015); Commonwealth v. Small,

189 A.3d 961, 972 (Pa. Super. 2018)              (analysis has “four distinct

requirements, each of which, if unproven by the petitioner, is fatal to the

request of a new trial”).

      The Commonwealth further observes — correctly — that Stemmerick’s

“new” statement — that no one was high on marijuana on the day of the

accident — is consistent with his trial testimony that no one could have been

high because the blunt was rolled too tight to get a hit. Id. at 19, citing N.T.,

11/23-30/99, at 258-261.

      As to Stemmerick’s claim in the affidavit, contrary to his trial testimony,

that police “never broke the chase,” the trial testimony of at least three other

witnesses indicates otherwise. Police Officer Donald Mason testified that he

ceased pursuit as the chase led through residential streets, and this testimony

was corroborated by Police Officer James Dunham, who testified he was

following in an “unmarked unit.” N.T., 11/23-30/99, at 148. Officer Dunham

said Appellant ran a stop sign, and “Officer Mason, being the lead car, called

the chase off. He pulled over right by Orchlee. . . . It was [also] called off

verbally on the radio plus he pulled over, turned off his emergency lights and

siren.” Id. at 149.    Moreover, the other passenger in Appellant’s car, Tim

Zotter, who was 18 at the time, testified that he told Appellant to “slow down”

and Appellant responded that “we got them beat.” Id. at 224.




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        Further, even if Stemmerick’s assertion in the affidavit that police

coerced him to lie at trial, and in reality never “broke the chase,” it would not

obviate the jury’s ultimate determination that Appellant possessed the

requisite malice to support his conviction of third-degree murder.            Our

Supreme Court has explained that “[t]hird-degree murder is defined as ‘all

other kinds of murder,’ i.e., those committed with malice that are not

intentional (first-degree) or committed during the perpetration of a felony

(second-degree).”     Commonwealth v. Packer, 168 A.3d 161, 1168 (Pa.

2017). “Malice is a legal term, [which] comprehends not only a particular ill-

will, but every case where there is wickedness of disposition, hardness of

heart, cruelty, recklessness of consequences, and a mind regardless of

social duty, although a particular person may not be intended to be injured.”

Id. citing Commonwealth v. Drum, 58 Pa. 9, 15 (1868) (emphasis added).

In Packer, the Supreme Court affirmed a third-degree murder conviction of

a defendant who “inhaled (or ‘huffed’) difluoroethane (‘DFE’)” and then drove

her vehicle, head-on at 42 m.p.h., into another vehicle, causing “within

minutes,” the death of the approaching driver. Id. at 162, 164. The Court

held:

        The standard for malice enunciated in Dunn, reiterated in
        [Commonwealth v.] O’Hanlon, [653 A.2d 616 (Pa. 1995)], and
        reaffirmed today requires recklessness of consequences and the
        conscious disregard for an unjustified and extremely high risk that
        a chosen course of conduct might cause a death or serious
        personal injury.

Packer, 168 A.3d at 172.

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      In this case, the record — even with Stemmerick’s affidavit — would

support the finding that Appellant possessed malice in his actions which led to

the death of the young boy. As the Commonwealth emphasizes, Stemmerick’s

affidavit refuting much of his trial testimony “does not dispute that during the

chase, [A]ppellant had been driving on mostly residential streets at speeds

well above the posted limits.     He also does not dispute that [A]ppellant

disregarded at least twelve stop signs and several watch children signs, flew

through a red light, made an illegal left-hand turn and swerved around a police

roadblock during the pursuit.       Importantly, all eyewitnesses, including

Stemmerick, agreed that [A]ppellant was traveling at a high rate of speed

when he struck the young victim . . .” Commonwealth Brief at 23, citing N.T.,

11/23-30/99, at 138-49, 364.

      Consistent with the foregoing, the PCRA court concluded:

      [Mr. Stemmerick’s affidavit] statements differ substantially from
      Mr. Stemmerick’s trial testimony, along with the trial testimony of
      the police officers and other third party witnesses. The police
      testified that they terminated the chase after about two miles
      because they were concerned for the safety of innocent
      bystanders. Also, an expert witness testified that the amount of
      marijuana in [Appellant’s] system was sufficient to establish
      intoxication and eyewitnesses testified that [Appellant] was
      driving erratically and at a very high rate of speed. The bottom
      line is that even if the new statements are to be believed, they
      would not compel a different verdict if the [c]ourt granted a new
      trial.

PCRA Court Opinion, 7/12/19, at 2.

      As discussed above, this conclusion is supported by the record.        We

therefore discern no error in the PCRA court’s denial of relief on the basis that

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a new trial “would not compel a different verdict.” Brown, 111 A.3d at 177;

Small, 189 A.3d at 972.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/3/2020




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