J-S64015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ISAAC FLOYD                              :
                                          :
                   Appellant              :    No. 3866 EDA 2017

              Appeal from the PCRA Order November 3, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0907931-1999


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 08, 2019

     Isaac Floyd appeals from the November 3, 2017 order dismissing his

PCRA petition as untimely. We affirm.

     The facts giving rise to the convictions underlying the instant PCRA

petition were summarized 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 Appellant who then
     aimed a handgun at one of the players and ordered everyone to
     stay put. Appellant 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. Appellant then turned to another
     player, Mr. Purnell, and shot him once. Appellant 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 the
     buttocks. All three victims sustained serious injuries. Mr. Purnell
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     recognized Appellant as “Ike” at the shooting and told the police at
     the hospital his name and in what section of Germantown he lived.

Trial Court Opinion, 1/3/01, at 2-3.

      Appellant was convicted by a jury of three counts each of attempted

murder, aggravated assault, robbery, and one count of possessing an

instrument of crime (“PIC”). He was sentenced on June 14, 2000, to three

consecutive life sentences on the attempted murder counts, three twenty-five

to fifty-year consecutive sentences for robbery, and a concurrent two and one-

half to five years of imprisonment for PIC. Judgment of sentence was affirmed

by this Court on direct appeal.    Commonwealth v. Floyd, No. 2034 EDA

2000 (Pa.Super. 2001) (unpublished memorandum). Appellant did not seek

allowance of appeal.

      On January 13, 2003, Appellant filed his first PCRA petition and counsel

was appointed.    Counsel filed an amended petition, which was dismissed

without an evidentiary hearing. This Court affirmed on appeal, and allowance

of appeal was denied. Commonwealth v. Floyd, 894 A.2d 816 (Pa.Super.

2005) (unpublished memorandum), appeal denied, 899 A.2d 1121 (Pa. 2006).

Appellant filed a second PCRA petition on May 8, 2008, which was dismissed

without a hearing. A third PCRA petition was dismissed as untimely. After

Appellant succeeded in obtaining nunc pro tunc reinstatement of his appellate

rights from the dismissed third petition, this Court affirmed. Commonwealth

v. Floyd, 97 A.3d 798 (Pa.Super. 2014) (unpublished memorandum).

      The instant petition, Appellant’s fourth, was filed on October 15, 2014,

and amended several times.        The PCRA court issued notice pursuant to

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Pa.R.Crim.P. 907(a) of its intent to dismiss the petition as untimely. Appellant

filed objections to the dismissal, followed by two additional amended petitions.

On November 3, 2017, the PCRA court dismissed the petition, and Appellant

timely appealed.

      Appellant presents three issues for our review:

      1) Did the PCRA Court err in holding, without an evidentiary
         hearing, that [A]ppellant’s petition was untimely where the
         Court failed to properly interpret United States Supreme Court
         precedent when considering its jurisdiction to correct
         [A]ppellant’s illegal sentence?

      2) Did the PCRA Court err in holding, without an evidentiary
         hearing, [A]ppellant failed to exercise due diligence to obtain
         the affidavit from the victim, Anthony Purnell?

      3) Did the PCRA Court err in holding, without an evidentiary
         hearing, that the affidavits of Ali Shabazz, Kent Derry, Darnell
         Gay, Gary Smith, and John Blow, were presented as the
         substance of a claim of innocence, when in fact, those affidavits
         were presented as a show of [A]ppellant’s diligent attempts to
         protect his own interest?

Appellant’s brief at 2.

      In reviewing the denial of PCRA relief, we must decide whether the PCRA

court’s factual determinations are supported by the record and free of legal

error. Commonwealth v. Brown, __A.3d__, 2018 Pa. LEXIS 5489, *32-33

(Pa. 2018) (citing Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)).

A petitioner is not entitled to an evidentiary hearing as a matter of right. A

PCRA court must hold a hearing when a PCRA petition raises any issues of




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material fact.     Commonwealth v. Santiago, 855 A.2d 682, 691 (Pa.

2004) (citing Pa.R.Crim.P. 908(A)(2)).

      Generally, a petition for post-conviction relief, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final, unless the petitioner alleges and proves that one of the three

exceptions to the time bar applies. “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. § 9545(b)(3).”

Commonwealth v. Hernandez, 79 A.3d 649, 650 (Pa.Super. 2013). The

merits of a PCRA petition cannot be addressed unless the PCRA court has

jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

Jurisdiction does not exist if the PCRA petition is untimely filed. Id.

      Herein, Appellant’s judgment of sentence became final on or about

January 27, 2002, thirty days after this Court affirmed judgment of sentence

when he did not file a petition for allowance of appeal. 42 Pa.C.S. §

9545(b)(3).      Thus, the petition was filed roughly a dozen years too late.

However, a facially untimely petition will be rendered timely if a petitioner

pleads and proves one of the exceptions to the one-year time bar set forth in

42 Pa.C.S. § 9545(b)(1)(i-iii); see also Commonwealth v. Smallwood, 155

A.3d 1054, 1060 (Pa.Super. 2017) (affirming it is the petitioner’s burden to

allege and prove that one of the timeliness exceptions applies).


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      Appellant pled that the exceptions for newly-discovered facts and a new

constitutional rule set forth in 42 Pa.C.S. § 9545(b)(1)(ii) and (iii) rendered

his petition timely:

      (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.

42 Pa.C.S. § 9545(b)(1)(ii) and (iii).

      The law is well settled that, “[q]uestions regarding the scope of the

statutory exceptions to the PCRA’s jurisdictional time-bar raise questions of

law; accordingly, our standard of review is de novo.” Commonwealth v.

Robinson, 185 A.3d 1055, 1059 (Pa.Super. 2018) (en banc) (quoting

Commonwealth v. Chester, 895 A.2d 520, 522 n.1 (Pa. 2006)).

      To avail oneself of the exception for newly-recognized constitutional

rights, the right must have been held to apply retroactively by either the

United States Supreme Court or the Pennsylvania Supreme Court. Regarding

the newly-discovered facts exception, “a petitioner must demonstrate that he

did not know the facts upon which he based his petition and could not have

learned those facts earlier by the exercise of due diligence.” Commonwealth

v. Brown, 111 A.3d 171, 176 (Pa.Super. 2015) (citations and quotation

marks omitted). In addition, a petitioner must plead and prove specific facts

demonstrating that his claim was raised within the sixty days after he learned

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of the new fact or the newly-recognized constitutional right was held to be

retroactive. 42 Pa.C.S. § 9545(b)(2).

      Appellant contends first that his petition challenging the legality of his

sentence is timely under Alleyne v. United States, 133 S. Ct. 2151 (2013),

and Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which recognized

new constitutional rights that were to be applied retroactively. However, as

the PCRA court properly concluded, the United States Supreme Court did not

expressly hold Alleyne to be retroactive, and our Supreme Court held in

Commonwealth v. Washington, 143 A.3d 810, 820 (Pa. 2016), that

Alleyne does not apply retroactively to judgments of sentence that were final

as of Alleyne’s publication. While the United States Supreme Court held in

Montgomery that its previous decision in Miller v. Louisiana, 132 S. Ct.

2455 (2012), was to be applied retroactively, that determination related only

to juveniles sentenced to mandatory life imprisonment without possibility of

parole. Appellant does fall within the ambit of Miller or Montgomery. Hence,

Appellant’s petition is not rendered timely by the exception for new

constitutional rights in § 9545(b)(1)(iii).

      Nor did Appellant properly invoke the newly-discovered fact exception

when he appended the affidavit of Anthony Purnell, dated November 11, 2016,

to an amended petition. In the affidavit, Purnell avers that he was “coerced

into falsely testifying against Isaac (Ike) Floyd and I would like to recant said

testimony, because he is not the person who shot me or those other guys at


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the dice game.       I am willing to testify to this.”   Amended PCRA Petition,

12/16/16, at Exhibit B (Affidavit Anthony Purnell, 11/11/16, at 1). Appellant

was required to plead that, with the exercise of due diligence, he could not

have discovered this fact earlier. The only reason Appellant asserts for his

inability to ascertain Purnell’s willingness to recant earlier was Purnell’s lack

of cooperation with the initial investigation sixteen years before. Appellant

now cites Purnell’s reluctance and lack of cooperation as the justification for

Appellant’s failure to discover his recantation earlier.        He relies upon

authorities holding that such witnesses are deemed unavailable for purposes

of after-discovered evidence under the PCRA, and alleges that the PCRA court

misapplied the law. Finally, Appellant maintains that he raised a genuine issue

of material fact as to whether Purnell was coerced by detectives, and that he

should have had an evidentiary hearing.

       The PCRA court found that Appellant failed to make the requisite

demonstration of due diligence to merit a hearing. The court cited Appellant’s

failure to include specifics as to when he learned of Purnell’s recantation, or

establish that he filed the petition within sixty days of that date.1 Moreover,

Appellant failed to demonstrate that he could not have learned earlier of

____________________________________________


1 Appellant filed the instant petition on October 15, 2014. He alleged therein
that his sentence was illegal under Alleyne v. United States, 133 S. Ct. 2151
(2013). He filed an amended petition on December 16, 2016, in which he
asserted the exceptions to the one-year time bar and appended Purnell’s
November 11, 2016 affidavit.



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Purnell’s willingness to recant his identification of Appellant with the exercise

of due diligence.     Appellant knew that Purnell was uncooperative with the

police investigation prior to trial, and the PCRA court reasoned that Purnell’s

reluctance could have been explored at the time.2 Finally, the PCRA court

found that Appellant failed to outline the steps he took to enlist Purnell’s

cooperation in the years following his conviction.

       Preliminarily, we note that Appellant’s discussion of an unwilling witness

being deemed unavailable for purposes of after-discovered evidence misses

the mark. The newly-discovered fact exception to the one-year time bar is

not the same as after-discovered evidence. While the timeliness exception for

newly-discovered facts was at issue in Commonwealth v. Davis, 86 A.3d

883 (Pa.Super. 2014), that issue turned on whether the appellant exercised

due diligence when he did not obtain transcripts of unrelated proceedings

involving witnesses who testified against him, and who denied that they were

offered any special considerations for their testimony. We reasoned that the

appellant would have had no reason to seek those transcripts, as it would have



____________________________________________


2 In his December 16, 2016 amended petition, Appellant alleged that Purnell
would not cooperate at the scene or speak to detectives at the hospital.
Amended Petition, 12/16/16, at 5. He represented further that Purnell
testified at trial that he did not know the identity of the perpetrator. Id. at 1.
Appellant averred that, “[p]ost-trial, Purnell states he was coerced into
testifying falsely. Under these circumstances there was no way Mr. Floyd or
his attorney’s [sic] at the time could have persuaded Purnell to admit he’s
been coerced into stating Mr. Floyd was the perpetrator.” Id. at 5. Appellant
seemingly suggested that no effort was made in this regard.

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required him to assume that the Commonwealth permitted the witnesses to

commit perjury. We held that “[d]ue diligence does not require a defendant

to make such unreasonable assumptions.” Id. at 890.

      At the time of trial, Appellant was aware that Purnell allegedly identified

him to police as the shooter, and further, that Purnell was reluctant to

cooperate with police. Purnell testified at trial that he did not know the identity

of the shooter. Thus, technically, the newly-discovered fact, i.e., that Purnell

would testify that Appellant was not the shooter, was not a recantation of

Purnell’s trial testimony. Furthermore, unlike the situation in Davis, Appellant

had every reason to approach Purnell at the time of trial, and may have done

so.   In any event, Appellant offered no explanation as to why he did not

approach Purnell earlier.    Compare Commonwealth v. Medina, 92 A.3d

1210 (en banc) (affirming PCRA court’s finding that appellee could not have

discovered with due diligence that police had coerced eleven-year-old witness

into testifying that the appellee had a knife and threatened to kill someone

shortly before the murder when even the prosecution was unaware that it

used perjured testimony).

      Appellant maintains that he offered the affidavits of Ali Shabazz, Kent

Derry, Darnell Gay, Gary Smith, and John Blow, as proof of his due diligence

for purposes of satisfying the timeliness exception, and that the PCRA court

erred in failing to consider them for that purpose. However, we find no error




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as the affidavits were irrelevant to that inquiry.3 The affidavits do not relate

to the newly-discovered fact asserted by Appellant, i.e., that Purnell’s earlier

identification was coerced by police and that he was now willing to recant.4

Appellant must show that he exercised due diligence in discovering the

previously unknown fact asserted; the affidavits from other witnesses and/or

victims had no bearing on that question. See Brown, supra (affirming that

petitioner has to allege newly-discovered fact and demonstrate that that he

could not have learned that fact with the exercise of due diligence). Thus,

Appellant’s claim of PCRA court error merits no relief.

       We conclude that the record supports the PCRA court’s finding that

Appellant failed to make the requisite showing of due diligence to merit a

hearing or satisfy the timeliness exception for newly-discovered facts. Since



____________________________________________


3  As the PCRA court noted, the affidavits of Ali Shabazz, Kent Derry, Darnell
Gay, Gary Smith, and John Blow, were dated between 2000 and 2009, well
beyond the sixty-day period for invoking the newly-discovered fact exception.
Furthermore, Appellant previously sought PCRA relief based on at least some
of these affidavits, and hence, the issues were previously litigated. See
Commonwealth v. Floyd, 97 A.3d 798 (Pa.Super. 2014) (unpublished
memorandum) (finding affidavit of Shabazz did not satisfy newly-discovered
fact exception). See 42 Pa.C.S. § 9544(a)(3) (defining an issue as previously
litigated if it was “raised and decided in a proceeding collaterally attacking the
conviction or sentence”).

4  The newly-discovered fact is not that Appellant is innocent, as Appellant
would necessarily have known that fact at the time. As our Supreme Court
reiterated in Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008),
“[e]xception (b)(1)(ii) requires petitioner to allege and prove that there were
‘facts’ that were ‘unknown’ to him and that he could not have ascertained
those facts by the exercise of due diligence.”

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Appellant failed to plead the applicability of a timeliness exception, we affirm

the PCRA court’s dismissal of the petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/8/19




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