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[U] Commonwealth v. Floyd

Superior Court of Pennsylvania

February 10, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ISAAC FLOYD Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of February 3, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0907931-1999

BEFORE: BOWES, J., LAZARUS, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Isaac Floyd appeals the February 3, 2012 order dismissing his third petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

In a prior memorandum, we adopted the following summary of the factual history of this case, as provided by the trial court:

At 3:30 PM on August 3, 1999, approximately fifteen people were playing a game of craps on the corner of Heiskel and Baynton Streets in Philadelphia. Torrey Thompson, one of the players, saw a vehicle pull up close to the game. He saw two men get out and approach the group. One of those men was [Floyd, ] who then aimed a handgun at one of the players and ordered everyone to stay put. [Floyd] then shot Ali Shabazz, making him fall to the ground. Then he stepped over top of him, aimed at his groin and shot him three or four times. [Floyd] then turned to another player, Mr. [Anthony] Purnell, and shot him once. [Floyd] then turned to Mr. Thompson who was sitting in a chair next to Mr. Purnell, aimed at his face and shot, then, aiming at his groin, shot him another three times, hitting a testicle, his penis, and his upper thigh. Mr. Thompson tried to get up to run and was shot again in his buttocks. [Floyd grabbed $2, 000 that was sitting on the ground, and fled.] All three victims sustained serious injuries[, but survived]. Mr. Purnell recognized [Floyd] as "Ike" at the shooting and told the police at the hospital his name and in what section of Germantown he lived.

Commonwealth v. Floyd, No. 2034 EDA 2000, slip op. at 1-2 (Pa.Super. Dec. 28, 2001) (citing Trial Court Opinion, 1/2/01, at 2-3).

At the conclusion of a jury trial, Floyd was convicted of three counts each of attempted murder, aggravated assault, and robbery, and one count of possessing an instrument of crime ("PIC").[1] Pursuant to Pennsylvania's Three Strikes Law, see 42 Pa.C.S. § 9714(a)(2), Floyd was sentenced to three consecutive life sentences on the attempted murder convictions, three terms of twenty-five to fifty years' incarceration on the robbery convictions, which were ordered to run consecutively to the attempted murder sentences as well as each other, and one concurrent term of two and one-half to five years' incarceration on the PIC conviction.

On December 28, 2001, we affirmed the judgment of sentence. Commonwealth v. Floyd, No. 2034 EDA 2000, slip op. at 1, 10 (Pa.Super. Dec. 28, 2001). Floyd did not seek allowance of appeal from the Pennsylvania Supreme Court.

On January 13, 2003, Floyd filed a pro se PCRA petition. The PCRA court appointed counsel, who filed an amended petition on Floyd's behalf. The PCRA court entered an order dismissing the petition without a hearing, and, on December 21, 2005, we affirmed that order. Commonwealth v. Floyd, No. 3354 EDA 2004, slip op. at 1, 13 (Pa.Super. Dec. 21, 2005). On May 16, 2006, the Pennsylvania Supreme Court denied Floyd's petition for allowance of appeal. Commonwealth v. Floyd, 899 A.2d 1121 (Pa. 2006) (per curiam).

On May 8, 2008, Floyd filed his second pro se PCRA petition, which he supported with a memorandum of law that was filed on August 14, 2008. On October 16, 2008, the PCRA court issued a notice of its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P. 907. On October 31, 2008, Floyd filed a written response to the PCRA court's Rule 907 notice. On December 3, 2008, the PCRA court dismissed Floyd's second PCRA petition without a hearing. Floyd did not appeal the PCRA court's order.

On December 1, 2009, Floyd filed another pro se PCRA petition, his third. In the petition and corresponding memorandum of law, Floyd maintained that the petition was timely based upon newly-discovered facts in the form of an affidavit from Ali Shabazz, a victim of the August 3, 1999 shooting. In the affidavit, Shabazz, who could not be located at the time of Floyd's jury trial, stated that Floyd was not the person who shot him on August 3, 1999. On September 28, 2010, the PCRA court issued a Rule 907 notice of its intent to dismiss the petition without a hearing. On October 8, 2010, Floyd filed a response to the PCRA court's notice, wherein Floyd again argued that he successfully had invoked the newly-discovered fact exception to the PCRA's jurisdictional time-bar, thereby excusing the facial untimeliness of his petition. See 42 Pa.C.S. § 9545(b)(1)(ii). The PCRA court took no further immediate action. On July 8, 2011, Floyd filed an amended pro se PCRA petition. In his amended petition, Floyd invoked the newly recognized, and retroactively applied, constitutional right exception to the PCRA's time limits based upon the United States Supreme Court's decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and the application of Melendez-Diaz in Commonwealth v. Barton-Marin, 5 A.3d 363 (Pa.Super. 2010). See 42 Pa.C.S. § 9545(b)(1)(iii). On February 3, 2012, after consideration of the submitted materials, the PCRA court dismissed Floyd's petition in a memorandum and order.

On July 19, 2012, Floyd filed another PCRA petition, in which he alleged that he was not provided a copy of the PCRA court's order dismissing his third PCRA petition. Asserting a breakdown in the court system, Floyd sought reinstatement of his appellate rights nunc pro tunc. On December 31, 2012, ...


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