Com. v. Byrd, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GLEN BYRD :
:
Appellant : No. 461 EDA 2020
Appeal from the PCRA Order Entered January 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0503561-2001,
CP-51-CR-0503571-2001
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GLEN BYRD :
:
Appellant : No. 462 EDA 2020
Appeal from the PCRA Order Entered January 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0503561-2001,
CP-51-CR-0503571-2001
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED: JANUARY 25, 2021
Glen Byrd appeals pro se from the order that dismissed his second Post
Conviction Relief Act (“PCRA”) petition. Upon review, we affirm.
On direct appeal, we summarized the evidence that supported
Appellant’s convictions as follows:
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The following facts were established by witness testimony
at trial. Patricia Kirby testified to the following events of the night
of January 3, 2001. While Lawrence Guillaume and Patricia’s
friend, Carla, were at Patricia’s apartment, Appellant banged on
her door, asking to speak to Lawrence. Appellant was wearing a
red-hooded sweatshirt and bright yellow ski jacket. Jamal Small
appeared behind Appellant, and Lawrence stepped outside to talk
to them. Patricia went inside the apartment, and then heard a
noise she suspected to be gunfire. She went outside and saw a
male, who was Jamal, crawling and moaning outside her door.
Patricia did not see Appellant. Eventually, when the police and
paramedics arrived, she went outside and saw Lawrence, who lay
dead in the bushes outside her apartment.
Lavern McCall testified he knew Appellant and Jamal from
the neighborhood. On the night of the incident, he saw them
talking by bushes near Patricia’s apartment. Lavern stated
Appellant was wearing a “yellow and red jacket.” Soon thereafter,
Lavern saw Appellant and Jamal standing at Patricia’s front door,
with Lawrence inside the apartment with the door ajar. Lavern
then heard four to six gunshots, and saw Appellant walk away
from the apartment.5
______
5 At trial, Lavern stated a fourth man, Nate, was present at
Patricia’s door. Lavern testified that after the gunshots,
Nate left the house and walked away quickly. The
Commonwealth then introduced a statement Lavern had
given police the day after the shooting, in which Lavern did
not mention any additional person at Patricia’s apartment
just prior to the gunshots.
Leslie Rollins testified she was Lawrence’s girlfriend, and
lived diagonally across the street from Patricia. She had known
Appellant since he was young. Leslie stated she was at home on
the night of the incident. Around 11:30 p.m., she heard gunshots.
After two to three seconds, Leslie looked out her window and saw
Appellant, wearing a yellow jacket with a red hood, run on
Patricia’s side of the street.
Lawrence was shot four times in his arms and once in his
back, and was pronounced dead at the scene. Jamal suffered one
gunshot wound in his chest and an abrasion on his forehead as a
result of falling after being shot. He was transported to the
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hospital, where he was subsequently pronounced dead. The
causes of death of both men were gunshot wounds. Police
recovered a gun from the scene, which did not have Appellant’s
fingerprints on it.
Commonwealth v. Byrd, 894 A.2d 815 (Pa.Super. 2005) (unpublished
memorandum at 1-3) (citations omitted). A ballistic investigation determined
that the .09 millimeter Taurus firearm recovered from the scene was fully
loaded and that neither victim had been shot by bullets fired from it. See N.T.
Jury Trial, 3/31/04, at 179, 183. A firearm recovered from inside Leslie
Rollins’ home also did not fire the recovered bullets. Id. at 183. While there
were insufficient characteristic microscopic markings in the recovered bullets
to conclusively determine if the victims were shot by the same firearm, the
width of the lands and grooves on the projectiles were similar. Additionally,
all of the recovered bullets were determined to be either .38 or .357 caliber,
except for the most-damaged projectile which was recovered from Lawrence’s
chest and was determined to be either a .38 or .09 caliber bullet. Id. at 182-
83.
In October 2002, a jury trial against Appellant in connection with these
events commenced. However, the trial court declared a mistrial after the jury
deadlocked. In March 2004, Appellant proceeded to a second jury trial at
which Jerome Small, the brother of Jamal, testified in addition to the above
witnesses. See N.T. Jury Trial, 4/1/04, at 84-97. Specifically, Jerome testified
that Appellant told Jerome that Jamal and Lawrence had struggled over control
of Jamal’s gun on the night in question and Appellant claimed that he
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ultimately shot Lawrence. Id. at 86-87. However, Jerome testified that
Appellant was adamant that he did not shoot Jamal. Id. at 87. Jerome also
testified that Appellant also told him that Jamal was carrying a .09 millimeter
Taurus gun that night, which is the same type of weapon recovered from the
scene of the killings. Id. at 87; see also N.T. Jury Trial 3/31/04, at 156, 178-
79.
On April 5, 2004, the jury convicted Appellant of two counts of first-
degree murder, carrying a firearm without a license, and possession of an
instrument of crime. On May 19, 2004, the jury declined to impose the death
penalty and the trial court imposed two consecutive terms of life
imprisonment. Appellant filed a post-sentence motion which was denied. On
direct appeal, Appellant challenged the sufficiency of the evidence, the weight
of the evidence, and the admissibility of Jerome Small’s statement. Id. This
Court affirmed Appellant’s judgment of sentence and our Supreme Court
denied his subsequent petition for allowance of appeal. Id., appeal denied,
903 A.2d 536 (Pa. 2006).
Appellant filed a timely first PCRA petition asserting, inter alia, that trial
counsel provided ineffective assistance by advising Appellant not to testify on
his own behalf. After issuing proper notice under Pa.R.Crim.P. 907, the PCRA
court dismissed Appellant’s petition. This Court affirmed the PCRA court’s
dismissal order, and our Supreme Court denied Appellant’s petition for
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allowance of appeal. Commonwealth v. Byrd, 986 A.2d 1249 (Pa.Super.
2009) (unpublished memorandum), appeal denied, 992 A.2d 123 (Pa. 2010).
On August 23, 2012, Appellant filed his second pro se PCRA petition,
invoking the United States Supreme Court’s decision in Miller v. Alabama,
567 U.S. 460, 465 (2012) (holding that mandatory sentences of life without
parole “for those under the age of 18 at the time of their crime violates the
Eighth Amendment’s prohibition on ‘cruel and unusual punishments’”). On
July 30, 2015, Appellant filed a supplemental pro se PCRA petition alleging
after-discovered evidence in the form of witness recantation testimony by
Jerome Small. Appellant attached a written statement signed by Jerome,
wherein he indicated that Appellant never confessed involvement in the
shooting and that Jerome lied at trial after his mother pressured him to make
sure that Appellant did not “walk.” See Supplemental PCRA Petition, 7/30/15,
at Exhibit A. Jerome further specified that he was in a halfway house at the
time of the incident, never spoke with Appellant, and knew nothing about what
happened. Id.In 2017, the Honorable Tracy Brandeis-Roman issued Rule 907 notice
of intent to dismiss Appellant’s second PCRA petition, finding that Appellant
had not shown the necessary due diligence to overcome the PCRA’s stringent
time bar. Appellant filed a response disagreeing with Judge Brandeis-Roman’s
due diligence finding, but no further action occurred for approximately two
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years. In 2019, the case was reassigned to the initial trial judge,1 who
requested a response from the Commonwealth to Appellant’s petition. After
receiving the Commonwealth’s answer, the PCRA court issued a second Rule
907 notice, reiterating the reasoning from the previous notice. Again,
Appellant filed a response contesting the PCRA court’s due diligence finding.
On January 18, 2020, the PCRA court dismissed the petition by order and
opinion. This timely appeal followed.2 Both Appellant and the PCRA court
complied with the mandates of Pa.R.A.P. 1925, and thus, this appeal is ready
for our disposition.
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1 In its opinion, the PCRA court explained the significant delays in the progress
of Appellant’s second PCRA petition as a breakdown in the court system
whereby Appellant’s petition was mistakenly assigned to the “PCRA unit” and
placed onto the “in house docket.” See PCRA Court Opinion, 1/13/20, at 2
n.1. This led to the assignment of a different judge, the Honorable Tracy
Brandeis-Roman, who issued the initial Rule 907 notice, but took no other
definitive or substantive action. Id. The original trial judge, who eventually
assumed purview as the PCRA court, was not notified of the existence of this
PCRA until July 23, 2019, when he received an email from the scheduling
coordinator of the PCRA unit, providing him with the petitions and apologizing
for the “undue delays.” Id. at Exhibit A.
2 Appellant filed two separate notices of appeal, one at each docket number.
However, the notices each listed both docket numbers, which ran afoul of this
Court’s interpretation of Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018) in Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super. 2019)
(holding that Walker requires quashal of notices of appeal that contain more
than one trial court docket number). However, in Commonwealth v.
Johnson, 236 A.3d 1141 (Pa.Super. 2020) (en banc), we expressly overruled
Creese, holding that as long as an appellant files a separate notice of appeal
at each trial court docket, the fact that each notice of appeal lists multiple
docket numbers is of “no consequence.” Id. at 1148. Accordingly, the fact
that Appellant listed two docket numbers does not require us to quash his
appeals.
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Appellant raises the following issue for our review: “The PCRA Court
erred in failing to grant relief on [A]ppellant’s after[-]discovered recantation
evidence.” Appellant’s brief at 2.
We begin with the pertinent legal principles. Our “review is limited to
the findings of the PCRA court and the evidence of record” and we do not
“disturb a PCRA court’s ruling if it is supported by evidence of record and is
free of legal error.” Commonwealth v. Rykard, 55 A.3d 1177, 1183
(Pa.Super. 2012). Similarly, “[w]e grant great deference to the factual
findings of the PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference to its legal
conclusions.” Id. “[W]here the petitioner raises questions of law, our
standard of review is de novo and our scope of review is plenary.” Finally, we
“may affirm a PCRA court’s decision on any grounds if the record supports it.”
Id.Under the PCRA, any petition “including a second or subsequent petition,
shall be filed within one year of the date the judgment [of sentence] becomes
final[.]” 42 Pa.C.S. § 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.” 42 Pa.C.S. § 9543(b)(3). The
PCRA’s timeliness requirements are jurisdictional in nature, and a court may
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not address the merits of the issues raised if the PCRA petition was not timely
filed. Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017).
The time bar can “only be overcome by satisfaction of one of the three
statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)-(iii).” Id. The
three narrow exceptions to the one-year time bar are as follows: “(1)
interference by governmental officials in the presentation of the claim; (2)
newly-discovered facts; and (3) an after-recognized constitutional right.”
Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa.Super. 2012).
Additionally, a PCRA petitioner must present his claim within sixty days of the
date the claim first could have been presented.3 42 Pa.C.S. § 9545(b)(2).
The timeliness exception set forth at § 9545(b)(1)(ii) has two
components, both of which must be alleged and proven as an initial
jurisdictional threshold. Commonwealth v. Brown, 111 A.3d 171, 176
(Pa.Super. 2015). Namely, the petitioner must establish that (1) the facts
upon which the claim was predicated were unknown; and (2) they could not
have been ascertained by the exercise of due diligence. See Commonwealth
v. Bennett, 930 A.2d 1264, 1272 (Pa. 2007). Due diligence demands that
the petitioner take reasonable steps to protect his own interests and explain
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3 As of December 24, 2018, 42 Pa.C.S. § 9545(b)(2) was amended to provide
that any PCRA petition invoking a timeliness exception must be filed within
one year of the date the claim first could have been presented. However, this
amendment does not apply to Appellant’s case, which arose before the
effective date of the amendment.
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why he could not thereby have learned the new facts earlier.
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa.Super. 2010).
Once it is established that the PCRA court has jurisdiction over the claim,
the petitioner can present a substantive after-discovered evidence claim. See
42 Pa.C.S. § 9543(a)(2)(vi). In order to obtain relief on a substantive after-
discovered evidence claim, a petitioner must demonstrate that: (1) the
evidence has been discovered after trial and it could not have been obtained
at or prior to trial through reasonable diligence; (2) the evidence is not
cumulative; (3) it is not being used solely to impeach credibility; and (4) it
would likely compel a different verdict. Commonwealth v. Washington,
927 A.2d 586 (Pa. 2007). The substantive merits-based analysis is more
demanding than the analysis required by the “new fact” exception to establish
jurisdiction. See Bennett, supra at 1264.
Turning to the specifics of the case sub judice, Appellant challenges the
PCRA court’s review of the record when it dismissed his petition based upon
witness recantation evidence on the grounds that Appellant failed to meet all
of the prongs of a substantive after-discovered evidence claim.4 See
Appellant’s brief at 3.
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4 Appellant does not contest the PCRA court’s dismissal of his cruel-and-
unusual-punishment claim, jurisdiction over which was premised upon the
after-recognized constitutional right exception to the PCRA’s time bar.
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We note the following. Despite its reasoning for issuing the Rule 907
notices, the PCRA court failed to conduct a timeliness analysis in its Pa.R.A.P.
1925(a) opinion before addressing Appellant’s substantive claim. Since it
bypassed the timeliness analysis and proceeded directly to rendering a
credibility determination regarding Jerome Small’s recantation affidavit, we
shall assume the PCRA court found that the newly-discovered fact exception
necessary to establish jurisdiction was met. The record supports such a
finding.5 Accordingly, we conclude that PCRA court had jurisdiction to reach
the merits of Appellant’s petition.
The PCRA court explained its reasoning for denying Appellant’s
substantive after-discovered evidence claim, as follows:
Jerome Small’s recantation attached to [Appellant’s] petition is
scant, his justification for lying at trial is weak, and his newly-
found “truth” has no indicia of reliability.5 Recantation evidence
is “inherently and notoriously unreliable” evidence upon which a
court might grant a new trial.6
______
5 Both the recantation and [Appellant’s] petition are highly
suspect. Small claims he was forced into his previously false
testimony by his mother and the Assistant District Attorney.
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5 Specifically, Appellant alleged in his supplemental PCRA petition that he
encountered Jerome Small for the first time, on June 18, 2015, following his
transfer to SCI Huntington. See Supplemental PCRA petition, 7/30/15, at 5.
After Jerome Small approached him in the SCI Huntington chapel, Appellant
learned that Jerome Small had lied when he testified at Appellant’s trial. Id.
Appellant filed his supplemental PCRA petition raising this issue within sixty
days of their conversation. Id. In the petition, Appellant explained that he
could not have uncovered the recantation sooner because Appellant and
Jerome Small were not previously housed together, he did not know anyone
who knew Jerome Small, and he had no way of knowing that Jerome Small
would recant his trial testimony. Id.
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Moreover, by [Appellant’s] own admission, Jerome Small’s
recantation came after [Appellant’s] transfer to the same
correctional institution as Mr. Small. Finally, Jerome Small’s
recantation occurred after he was convicted of homicide in
an unrelated case and was incarcerated, thereby eliminating
any real consequences for his “recantation.”
6 See Commonwealth v. McNeil, 487 A.2d 802, 807 n.4
(Pa. 1985).
The evidence against [Appellant] was sufficient for a jury to
reach a conclusion without the testimony of Jerome Small. The
jury was permitted to give credence to any, all, or none of Jerome
Small’s testimony at trial. The jury heard eyewitness testimony,
ballistics evidence, and an alleged admission by [Appellant] as
evidence of [Appellant’s] guilt. In light of the overwhelming and
compelling aforementioned other evidence, there is no reason to
suggest Jerome Small’s recantation, which would only be used for
impeachment purposes, would lead to a different verdict at trial.
PCRA Court Opinion, 2/13/20, at 3-4.
Thus, the PCRA court was not persuaded that Jerome Small’s
recantation statement was credible, characterizing it as “scant,” “weak,” and
lacking any “indicia of reliability.” Id. Additionally, viewing the affidavit in
the context of the larger record, where Jerome Small’s testimony was but a
small piece of the overall evidence of Appellant’s guilt, the PCRA court found
that Jerome Small’s recantation would not have changed the outcome of the
case. Id. at 4. We agree.
As the PCRA court recognized, our Supreme Court has repeatedly
“acknowledged the limitations inherent in recantation testimony, which has
been characterized as ‘extremely unreliable.’” Commonwealth v. Small,
189 A.3d 961, 977 (Pa. 2018) (citing Commonwealth v. Williams, 732 A.2d
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1167, 1180 (Pa. 1999)); see also Commonwealth v. Mostellar, 284 A.2d
786, 788 (Pa. 1971) (“There is no less reliable form of proof, especially where
it involves an admission of perjury.”). When addressing the credibility and
significance of recantation evidence, “the PCRA court must, in the first
instance, assess the credibility and significance of the recantation in light of
the evidence as a whole.” Commonwealth v. D’Amato, 856 A.2d 806, 825
(Pa. 2004) (citing Commonwealth v. Dennis, 715 A.2d 404, 416 (Pa.
1998)).
In assessing the reliability of the recantation evidence, the PCRA court
does not need to hold a hearing, so long as it can effectively and independently
assess the credibility of the recantation statement in light of the trial record
as a whole without additional testimony. Commonwealth v. Washington,
927 A.2d 586, 597 (Pa. 2007) (denying remand for PCRA hearing where PCRA
court assessed credibility of recantation and its significance in light of the trial
record and found it was not persuasive evidence). But see Commonwealth
v. Williams, 732 A.2d 1167, 1180-81 (Pa. 1999) (remanding for a PCRA
hearing where the PCRA court adopted the Commonwealth’s argument
wholesale, failing to make an independent determination as to the believability
of the recanting person).6 Unless the PCRA court is satisfied that the
recantation is true, it should deny a new trial. Small, supra at 977.
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6 Appellant has not requested a remand for an evidentiary hearing or argued
that the PCRA court erred by not holding one in this instance.
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Further,
An appellate court may not interfere with the [PCRA court’s
decision regarding] a new trial where the sole ground is the
alleged recantation of state witnesses unless there has been a
clear abuse of discretion. Additionally, the deference normally due
to the findings of the PCRA court is accentuated where what is
involved is recantation testimony. It [is] within the exclusive
province of the PCRA court to determine the credibility [of]
recantation.
Commonwealth v. Medina, 92 A.3d 1210, 1219 (Pa.Super. 2014) (cleaned
up).
Although the PCRA court did not hold an evidentiary hearing, it did
closely scrutinize Jerome Small’s sworn recantation statement and made its
own independent credibility determinations in light of the evidence as a whole.
The PCRA court found that the timing of the recantation, when Jerome had
nothing to lose in contradicting his prior statement, rendered its reliability
suspect from the outset. Specifically, the recantation came fifteen years later
and only after Jerome had been separately convicted of second-degree
murder, sentenced to serve life in prison without the possibility of parole, had
exhausted his appeals, and had been placed in the same prison as Appellant.
These circumstances combined with the ballistic and witness evidence
corroboration of Jerome’s original trial testimony, led the PCRA court to reach
the conclusion that the recantation was incredible. We discern no clear abuse
of discretion in this credibility determination.
Additionally, the PCRA court found that no relief was due since the
outcome of trial would not have changed even without Jerome’s testimony.
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The certified record supports the PCRA court’s conclusion. As detailed above,
at trial, Patricia Kirby testified that Appellant and Jamal Small knocked at her
door to speak with Lawrence Guilliame. Lawrence Guilliame went outside with
them, where two eye-witnesses viewed the men talking from different angles.
Patricia also heard them talking, followed by gunshots. See N.T. Jury Trial
3/31/04, at 75-78, 81, 87, 89. When she went outside, Appellant was gone,
Jamal was dying, and Lawrence was dead. Id. Both men sustained gunshot
wounds to vital parts of their bodies.
Two other witnesses, Leslie Rollins and Lavern McCall, saw Appellant
flee the scene of the shooting. Id. at 100-02, 121-24, 127-28, 163; N.T. Jury
Trial, 4/1/04, at 39-40, 42, 61-62, 64. Leslie Rollins testified that Appellant
had one hand in his pocket, one arm outstretched in a balancing maneuver,
and looked back over his shoulder as he ran from the area. N.T. Jury Trial
3/31/04, at 122. All three individuals had known Appellant for many years
and were confident in their pre-arrest identifications. N.T. Jury Trial, 3/31/04,
at 93-94, 131, N.T. Jury Trial, 4/1/04, at 66, 116. Further, their independent
descriptions of Appellant’s yellow jacket and red hoodie were consistent. Id.
The ballistic evidence also pointed towards Appellant’s guilt. A fully-
loaded firearm was found lying in between the two victims. It did not match
the bullets recovered from the victims or the crime scene. A second firearm
discovered inside Patricia Kirby’s home also did not match any of the fired
ammunition. Both men were shot by a firearm with similar characteristics
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that was never recovered. Appellant, the sole survivor of the incident, was
seen fleeing the scene with his hand in his pocket. Appellant’s decision to flee
from the scene and abscond from authorities for months further evidenced his
guilt. See Commonwealth v. Jordan, 212 A.3d 91, 97 (Pa.Super. 2019)
(noting that flight tends to establish consciousness of guilt). Therefore, the
circumstantial evidence strongly connected Appellant to the missing firearm
and the shooting deaths of Lawrence and Jamal, even without Jerome’s
testimony.
Based on the certified record detailed above, we find that the PCRA court
did not commit a clear abuse of discretion when it found the sworn recantation
statement incredible and that Appellant’s guilt could be inferred from the
totality of the circumstances, even without Jerome Small’s testimony. Thus,
we discern no abuse of discretion in the PCRA court’s denial of this claim for
relief. Accordingly, we affirm the PCRA court’s order dismissing the PCRA
petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/21
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