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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NON-PRECEDENTIAL DECISION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, the PCRA court granted Floyd's petition, and reinstated his appellate rights.

On January 11, 2013, Floyd filed a notice of appeal. The PCRA court did not direct Floyd to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Nevertheless, on February 1, 2013, Floyd filed a Rule 1925(b) statement.

Floyd raises three questions for our consideration:

I. Whether the trial court erred in its failure to exercise its inherent power to correct a patently illegal sentence, and instead, dismiss[ed Floyd's] request to correct an illegal sentence as time-barred under the [PCRA]?
II. Whether the trial court erred in its determination that the after-discovered evidence asserted by [Floyd] was not of such a nature and character that a different verdict would likely result, whereas, the court made no reference to, nor granted a hearing to assess, the so-called "other evidence against petitioner" that makes it highly unlikely that the outcome of a new trial would have been different?
III. Whether the trial court erred in applying a "strict interpretation" of 42 Pa.C.S. [§] 9545(b)(1)(iii) & (6)(2) when addressing [Floyd's] claim involving a new rule of constitutional law?

Brief for Floyd at 2 (minor grammatical and capitalization modifications).

Our standard of review regarding a PCRA court's order is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. The PCRA court's findings will not be disturbed unless there is no support for its findings in the certified record. Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super. 2011) (citations omitted).

We first must determine whether Floyd's third PCRA petition was timely. Upon close inspection, we conclude, as did the PCRA court, that all of Floyd's issues are time-barred by the PCRA. It is well-established that the PCRA time limits are jurisdictional, and are meant to be both mandatory and applied strictly by the courts to all PCRA petitions, regardless of the potential merit of the claims asserted. Commonwealth v. Leggett, 16 A.3d 1144, 1145 (Pa.Super. 2011); Commonwealth v. Murray, 753 A.2d 201, 202-03 (Pa. 2000). "[N]o court may properly disregard or alter [these filing requirements] in order to reach the merits of the claims raised in a PCRA petition that is filed in an untimely manner." Murray, 753 A.2d at 203; see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

Subsection 9545(b) sets forth the time limitations for the filing of a PCRA petition, as follows:

(b) Time for filing petition.-

(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

42 Pa.C.S. § 9545(b)(1)(i)-(iii), (2). When a petition is filed outside of this one-year time limit, the petitioner must plead and prove the applicability of one of the three exceptions to the PCRA time restriction. See Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008); 42 Pa.C.S. § 9545(b)(1).

Floyd's judgment of sentence was imposed on June 14, 2000. On December 28, 2001, we affirmed the judgment of sentence. Floyd had thirty days from that date to file a petition for allowance of appeal with the Pennsylvania Supreme Court. See Pa.R.A.P. 1113. Because Floyd failed to file a petition, his judgment of sentence became final at the conclusion of the thirty-day period during which he could have done so, on or about January 27, 2002. See 42 Pa.C.S. § 9545(b)(3) ("[A] judgment 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."). Thus, to be timely, any PCRA petition must have been filed within one year of that date, on or before January 27, 2003. See 42 Pa.C.S. § 9545(b)(1).

Floyd filed his third PCRA petition, which forms the basis for this appeal, on December 1, 2009, a little less than six years after the time period to file a timely PCRA petition expired. Hence, on its face, Floyd's petition is untimely. Consequently, in order to establish jurisdiction in our courts, Floyd must plead and prove one of the three exceptions to the PCRA's time bar set forth at 42 Pa.C.S. § 9545(b)(1)(i-iii). We agree with the PCRA court that Floyd has not done so.

For ease of discussion, we begin with Floyd's second and third issues. In his second issue, Floyd argues that, with the presentation of Ali Shabazz' affidavit, he satisfied the newly-discovered fact exception to the PCRA's strict time limit. Regarding the availability of the alleged newly discovered facts, Floyd asserts only that he had no knowledge either of Shabazz' whereabouts or that Shabazz would state that he was certain that Floyd was not the shooter on August 3, 1999. Brief for Floyd at 13. For the reasons that follow, we conclude that Floyd has failed to prove that he acted with due diligence in the time following his conviction so as to satisfy the exception.

The timeliness exception set forth in subection 9545(b)(1)(ii) requires that a petitioner demonstrate that he did not know the facts upon which he based his petition and could not have learned those facts earlier through the exercise of due diligence. Commonwealth v. Bennett, 395, 930 A.2d 1264, 1271 (Pa. 2007). Due diligence requires that the petitioner take reasonable steps to protect his own interests. Commonwealth v. Carr, 768 A.2d 1164, 1168 (Pa.Super. 2001). In order to succeed in overcoming the PCRA's time-bar, a petitioner must explain why he could not have obtained the new facts earlier with the exercise of due diligence. Commonwealth v. Breakiron, 781 A.2d 94, 98 (Pa. 2001); Commonwealth v. Yarris, 731 A.2d 581, 590 (Pa. 1999).

There is no question that, at the time of trial, Floyd knew that Ali Shabazz was the third victim in the shooting. Indeed, Floyd admits as much by noting that Shabazz was uncooperative with the police at the time of trial. Brief for Floyd at 12-13. Shabazz was not an unknown person whose identity could not have been discovered at or before trial. His location at the time of trial, however, was unknown. Nonetheless, Floyd has not satisfied his burden of demonstrating that he acted with due diligence in attempting to locate this known witness in the approximately nine years between the time that he was convicted and the time that he filed his third PCRA petition. As noted above, a PCRA petitioner must take steps to protect his interests. Before we will conclude that the petitioner has satisfied the newly-discovered fact exception, he must explain the steps that he took or, at a minimum, explain why conducting any reasonable investigation would have been fruitless. See Carr; Breakiron, supra. Floyd has made no attempt to explain to this Court what steps, if any, he took to find Shabazz in the years following his conviction. For all practical purposes, the record indicates that Floyd has done nothing during that time. Floyd's lone allegation that he had no knowledge of Shabazz' whereabouts falls short of demonstrating that he acted with due diligence. See Commonwealth v. Johnson, 945 A.2d 185, 191 (Pa.Super. 2008) (holding that the appellant did not act with due diligence by taking only the "minimal effort" of posting flyers throughout the neighborhood in an effort to locate a known witness). Consequently, Floyd has not demonstrated that he acted with due diligence for the purposes of subsection 9545(b)(1)(ii).

Next, Floyd attempts, as he did in his PCRA petition, to overcome the untimeliness of his petition via subsection 9545(b)(1)(iii), the newly recognized, and retroactively applied, constitutional right exception. To do so, Floyd relies 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).

We need not delve into the more complicated issue of whether Melendez-Diaz announced a new constitutional right, and whether the right was held to apply retroactively in either that case or in Barton-Martin. Subsection 9545(b)(2) requires that any claim raised under any of the three exceptions to the PCRA's time limit must be raised within sixty days of the date that the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). "This rule is of jurisdictional significance and will be enforced strictly." Commonwealth v. Vega, 754 A.2d 714, 718 (Pa.Super. 2000). Martinez-Diaz was decided in 2009. Barton-Martin was decided in 2010. Floyd raised his claim in the amendment to his third PCRA petition, which was filed in July 2011, well beyond sixty days from the date that both of those cases were decided. Thus, Floyd's attempt to establish this exception necessarily fails pursuant to subsection 9545(b)(2).

Floyd's remaining contention involves a challenge to the legality of his sentence. Specifically, Floyd maintains that the PCRA court erred in determining that he was a third-strike offender for the purposes of Pennsylvania's Three Strikes law. Floyd argues that such a claim can be addressed by a court's "inherent power to correct a patent and obvious illegal sentence, " and does not have to be considered as a PCRA claim. As such, Floyd argues, the PCRA's timeliness requirements are inapplicable to his claim. Floyd is mistaken.

"We have repeatedly held that the PCRA provides the sole means for obtaining collateral review and that any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition." Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa.Super. 2002); See Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super. 2002); 42 Pa.C.S. § 9542. By its own terms, the PCRA provides a remedy for a challenge to the legality of a sentence. See 42 Pa.C.S. § 9543(a)(2)(vii). Therefore, we must consider Floyd's legality claim under the PCRA, and its time limits.

Although "not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised for the first time in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim." Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa.Super. 2007) (citing Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) ("Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto.")). As we have discussed above, neither of the exceptions to the PCRA's time limit that are proffered by Floyd are meritorious, or applicable to this case. Consequently, we also lack jurisdiction over Floyd's challenge to the legality of his sentence.[2]

Order affirmed.

Judgment Entered.


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