J-S38008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARCUS LLOYD                               :
                                               :
                       Appellant               :   No. 3010 EDA 2017

                  Appeal from the PCRA Order August 11, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0501982-1998


BEFORE:      OTT, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY OTT, J.:                                FILED OCTOBER 16, 2019

        Marcus Lloyd appeals, pro se, from the order entered August 11, 2017,

in the Philadelphia County Court of Common Pleas, dismissing as untimely his

serial petition for collateral relief filed pursuant to the Post Conviction Relief

Act (“PCRA”).1       Lloyd seeks relief from the judgment of sentence of two

consecutive sentences of life imprisonment, imposed on August 20, 2003,

following his jury conviction of two counts of murder in the first degree, and

one count each of robbery and conspiracy.2 On appeal, he asserts the PCRA

court erred in dismissing the petition as untimely because he has newly


____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 2502(a), 3701, and 903, respectively.
J-S38008-19


discovered evidence. For the reasons discussed below, we vacate the order

of August 11, 2017, and remand for further proceedings consistent with this

memorandum.

     We take the underlying facts and procedural history in this matter from

this Court’s June 27, 2005 opinion on direct appeal.

     [ ] Marcus Lloyd, appeals from a judgment of sentence entered in
     the Philadelphia County Court of Common Pleas after a jury found
     him guilty of two counts of murder in the first degree, one count
     each of robbery and criminal conspiracy, and sentenced him to
     death. As a result of his first appeal directly to the Pennsylvania
     Supreme Court challenging the imposition of his death sentences,
     [Lloyd] was resentenced to consecutive life sentences. . . .

     The facts of this case were set forth by the trial court as follows:

           [Lloyd], and three confederates, Herbert Blakeney,
           Gregory Miller, and Kenneth Miller, were arrested and
           charged with two counts of first degree murder,
           robbery, conspiracy, and related offenses, pertaining
           to the robbery and shooting deaths of Charles Love,
           Esquire, who had been co-defendant, Gregory Miller’s
           attorney, and Mr. Brian Barry, who was an
           assistant/paralegal to attorney Charles Love. The
           criminal incident occurred on February 25, 1998.

           [Blakeney][,] entered into a negotiated guilty plea
           agreement with the Commonwealth, whereby he pled
           guilty to two counts of first degree murder, and
           related charges, and received two concurrent
           sentences of life imprisonment. Blakeney testified for
           the Commonwealth at trial, and [ ] admitted to being
           the actual shooter of the two victims.

           The evidence at trial established that one of the
           murder victims, Charles Love, Esquire, had
           represented co-defendant, Gregory Miller[,] in various
           matters, and had obtained monies for Gregory Miller[
           ] as a result of civil claims. The entire sums recovered
           could not be distributed to Gregory Miller [ ] because

                                     -2-
J-S38008-19


          of outstanding Family Court “support” orders and
          liens. In claim [sic] against the City of Philadelphia,
          Mr. Love had recovered a sum of $15,000 for his
          client, Gregory Miller. A “Statement of Distribution”[
          ] indicated that after various deductions, Gregory
          Miller was to receive the amount of $5,915.10.
          However, Gregory Miller had also owed child support
          arrearages, and had agreed that the sums recovered
          were to be applied to the reduction of the amount of
          the arrearages.

          On February 25, 1998, [Lloyd] and Kenneth Miller
          visited [Blakeney] and told him that Gregory Miller
          wanted to speak to all of them about a “stick-up”. The
          three of them then proceeded to Gregory Miller’s
          home, where the group discussed Gregory Miller’s
          plan to have them rob and murder Mr. Love [ ] and
          Mr. Brian Barry. Gregory Miller explained that he
          wanted the victims robbed and killed because he had
          not received the expected amount of funds from
          attorney Love.

          Gregory Miller gave [Lloyd] a .38 caliber handgun and
          some telephone wire, and instructed [him] to conceal
          the weapon until the group was inside Mr. Love’s law
          office. Gregory Miller directed that Brian Barry was to
          be tied up. He also told Blakeney to use the gun to
          force Mr. Love to write a check for $10,000.00. He
          told [Lloyd] to take the check to a bank to have it
          cashed, and he instructed Kenneth Miller to shoot both
          victims once [Lloyd] cashed the check. Gregory Miller
          told his cohorts to “leave no witnesses”.

          [Lloyd], Kenneth Miller, and [ ] Blakeney then went to
          Mr. Love’s office. Gregory Miller did not go with them
          to the office. Once at the office, Blakeney confronted
          Mr. Love with the handgun and demanded that he
          write a check for $10,000.00. [Lloyd] took Mr. Brian
          Barry into a storage closet, laid him facedown on the
          floor, and “hog-tied” him. [Lloyd] then took the check
          to a nearby bank, in an attempt to cash it. [ ]
          Blakeney took $1,500.00 from Mr. Love’s pocket, and
          he and Kenneth Miller took turns keeping watch at a


                                   -3-
J-S38008-19


           window, and holding Mr. Love at gunpoint, to ensure
           that he could answer the phone.
           [Lloyd] was unable to have the check cashed at the
           bank[ ] because of inadequate identification. [Lloyd]
           returned to the law office, and said to Mr. Love: “You
           know you are a dead motherfucker now.” Blakeney
           then gave the gun to Kenneth Miller while he
           (Blakeney) took Mr. Love into the storage closet and
           laid him on the floor next to Mr. Barry. Kenneth Miller
           gave the gun back to Blakeney and urged him to kill
           the victims, saying, “You are a bitch ass nigger, if you
           don't kill the motherfuckers”. Blakeney subsequently
           then shot both victim’s [sic] in the head. [Lloyd],
           Blakeney and Kenneth Miller then split the $1,500.00
           taken from the robbery and went shopping. Blakeney
           subsequently returned the gun to Gregory Miller, but
           did not give him any money, telling him that they had
           been unable to cash the check, and omitting telling
           him of the $1,500.00 taken from Mr. Love.

     (Trial Court Supplemental Opinion filed January 20, 2004, at 2-4)
     (internal citations omitted).

     Blakeney pled guilty to two counts of murder and agreed to testify
     at [Lloyd’s] trial in exchange for concurrent life sentences. The
     Honorable James F. Fitzgerald, III, presided over [Lloyd’s] jury
     trial and the subsequent penalty phase, after which the jury
     returned verdicts of death for each of [Lloyd’s] murder
     convictions.    On December 20, 1999, the sentencing court
     formally imposed concurrent death penalty sentences for the
     murder convictions and imposed concurrent sentences of five (5)
     to twenty (20) years’ imprisonment for the robbery conviction and
     twenty (20) to forty (40) years’ imprisonment for the criminal
     conspiracy conviction.

     [Lloyd’s] counsel filed post-sentence motions on December 28,
     1999, . . . Upon request, trial counsel was permitted to withdraw,
     and Richard E. Johnson, Esquire was appointed as replacement
     counsel. On August 23, 2000, Attorney Johnson filed amended
     post-sentence motions, the trial court heard oral argument
     thereon, and the court denied [Lloyd’s] motions for a new trial and
     an arrest of judgment.




                                    -4-
J-S38008-19


      [Lloyd] appealed his judgment of sentence to the Pennsylvania
      Supreme Court, and on May 29, 2002, the Court granted his
      petition to remand for resentencing and remanded for a new
      sentencing hearing. Thereafter, Attorney Johnson was permitted
      to withdraw and present counsel was appointed. On August 20,
      2003, the Honorable Jane Cutler Greenspan conducted a
      sentencing hearing, following which she imposed consecutive
      terms of life imprisonment for the two murder convictions. The
      sentences for the robbery and criminal conspiracy convictions
      remained the same and were ordered to run concurrently with the
      life sentences. This timely appeal followed. . . .

Commonwealth v. Lloyd, 878 A.2d 867, 868-870 (Pa. Super. 2005)

(footnotes omitted).

      On June 27, 2005, this Court affirmed the judgment of sentence. See

id. at 868. On November 10, 2005, the Pennsylvania Supreme Court denied

leave to appeal. Commonwealth v. Lloyd, 887 A.2d 1240 (Pa. 2005). Lloyd

did not file a petition for a writ of certiorari with the United States Supreme

Court.

      On November 30, 2005, Lloyd filed a timely first PCRA petition, which

the PCRA court ultimately denied on February 6, 2008. This Court affirmed

the denial of PCRA relief on March 20, 2009. See Commonwealth v. Lloyd,

972 A.2d 556 (Pa. Super. 2009). The Pennsylvania Supreme Court denied

leave to appeal on September 22, 2009. Commonwealth v. Lloyd, 980 A.2d

606 (Pa. 2009).

      On April 20, 2012, Lloyd filed the instant PCRA petition.             He

subsequently filed multiple amended PCRA petitions. On August 3, 2017, the

PCRA court issued notice of its intent to dismiss the petition pursuant to


                                     -5-
J-S38008-19


Pennsylvania Rule of Criminal Procedure 907(1). Lloyd did not file a response.

On August 11, 2017, the PCRA court dismissed the petition as untimely filed.

Lloyd filed a timely notice of appeal on September 8, 2017. On September

12, 2017, the PCRA court directed Lloyd to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Lloyd filed a timely

Rule 1925(b) statement on September 29, 2017. On February 5, 2019, the

PCRA court filed an opinion.3

       Preliminarily, we note Lloyd filed an application for relief in this Court

asking we direct the PCRA court to forward to us a newly filed PCRA petition

containing additional claims of after discovered evidence. As the PCRA court

does not have jurisdiction to consider this newly-filed PCRA petition pursuant

to the Pennsylvania Supreme Court’s decision in Commonwealth v. Lark,

746 A.2d 585, 588 (Pa. 2000),4 we will not ask it to forward the document to

us. Accordingly, we deny Lloyd’s application for relief.



____________________________________________


3It is not apparent from the record why this PCRA petition languished in the
PCRA court for over five years without the court taking any action on the
matter. We note, because of this, Lloyd filed multiple amendments and
supplements to the petition. We also note the PCRA court has not offered any
explanation for the over one year delay in filing a Rule 1925(a) opinion, a
delay, which has complicated the disposition of this matter.

4 The Lark Court held “when an appellant’s PCRA appeal is pending before a
court, a subsequent PCRA petition cannot be filed until the resolution of review
of the pending PCRA petition by the highest state court in which review is
sought, or upon the expiration of the time for seeking such review.” Lark,
supra at 588.


                                           -6-
J-S38008-19


      “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted). Here, the PCRA court determined,

inter alia, that Lloyd’s petition was untimely. We agree. A petitioner must file

a PCRA petition within one year of the date the underlying judgment becomes

final. See 42 Pa.C.S.A. § 9545(b)(1).

      The PCRA timeliness requirement, however, is mandatory and
      jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
      1035, 1038 (Pa. Super.2007), appeal denied, 597 Pa. 715, 951
      A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
      753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
      untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

572 U.S. 1151 (2014).

      Lloyd’s judgment of sentence was final on February 8, 2006, 90 days

after the Pennsylvania Supreme Court denied leave to appeal and the time for

filing a petition for writ of certiorari before the United States Supreme Court

expired. See U.S.Sup.Ct. Rule 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, he

had until February 8, 2007, to file a timely PCRA petition. His second petition,

filed April 20, 2012, is patently untimely.

      Nevertheless, we may still consider an untimely PCRA petition if one of

the following three exceptions applies:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of


                                      -7-
J-S38008-19


        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.

42 Pa.C.S.A. § 9545(b)(1)(i-iii).

       Here, Lloyd attempts to invoke the unknown facts exception set forth in

Subsection 9545(b)(1)(ii). Until recently, a petitioner invoking an exception

had to file his petition within 60 days of the date he or she could have

presented the claim.5

       This Court has previously explained the interplay between the newly

discovered facts exception to the timeliness requirements and a substantive

collateral claim of after-discovered evidence as follows:

       The timeliness exception set forth in Section 9545(b)(1)(ii)
       requires a petitioner to demonstrate 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. Due diligence
       demands that the petitioner take reasonable steps to protect his
       own interests. A petitioner must explain why he could not have
       learned the new fact(s) earlier with the exercise of due diligence.
____________________________________________


5 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. §
9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness
exception must file the petition within one year of the date the claim could
have been presented, for all claims arising after December 24, 2017. See Act
2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3.


                                           -8-
J-S38008-19


     This rule is strictly enforced. Additionally, the focus of this
     exception is on the newly discovered facts, not on a newly
     discovered or newly willing source for previously known facts.

     The timeliness exception set forth at Section 9545(b)(1)(ii) has
     often mistakenly been referred to as the “after-discovered
     evidence” exception. This shorthand reference was a misnomer,
     since the plain language of subsection (b)(1)(ii) does not require
     the petitioner to allege and prove a claim of “after-discovered
     evidence.” Rather, as an initial jurisdictional threshold, Section
     9545(b)(1)(ii) requires a petitioner to allege and prove that there
     were facts unknown to him and that he exercised due diligence in
     discovering those facts. Once jurisdiction is established, a PCRA
     petitioner can present a substantive after-discovered-evidence
     claim. See 42 Pa.C.S.A. § 9543(a)(2)(vi) (explaining that to be
     eligible for relief under PCRA, petitioner must plead and prove by
     preponderance of evidence that conviction or sentence resulted
     from, inter alia, unavailability at time of trial of exculpatory
     evidence that has subsequently become available and would have
     changed outcome of trial if it had been introduced). In other
     words, the “new facts” exception at:

           [S]ubsection (b)(1)(ii) has two components, which
           must be alleged and proved. Namely, the petitioner
           must establish that: 1) the facts upon which the
           claim was predicated were unknown and 2) could not
           have been ascertained by the exercise of due
           diligence. If the petitioner alleges and proves these
           two components, then the PCRA court has jurisdiction
           over the claim under this subsection.

     Thus, the “new facts” exception at Section 9545(b)(1)(ii) does not
     require any merits analysis of an underlying after-discovered-
     evidence claim.

Commonwealth v. Brown, 111 A.3d 171, 176–177 (Pa. Super. 2015) (some

citations and quotation marks omitted, emphases in original), appeal denied,

125 A.3d 1197 (Pa. 2015).     Accordingly, before we may consider whether

Lloyd’s substantive claim of after-discovered evidence merits relief, we must




                                    -9-
J-S38008-19


first determine whether he has established “there were facts unknown to him

and that he exercised due diligence in discovering those facts.” Id. at 176.

      Lloyd contends the Commonwealth violated the United States Supreme

Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963) by failing to turn

over sealed records and sealed guilty plea notes of testimony from the

Commonwealth’s main witness, Blakeney. Lloyd’s Brief, at 7-13. Lloyd states

these would have shown, at the time of Lloyd’s trial, Blakeney was mentally

ill and taking psychotropic medication. Lloyd’s Brief, at 7-13. Lloyd further

maintains this information constitutes after-discovered evidence. Id. Lloyd

contends he was unaware of this information at the time of trial in 1998. Id.

He avers he was unable to discover the information at the time Blakeney’s

guilty plea hearing testimony was unsealed in November 2006. Id. Lastly, he

states he was unaware of the information until informed about it by one of his

co-defendant’s nephews, at which point he acted to obtain the information

and filed the PCRA petition within sixty days of obtaining it.

      The PCRA court disagreed, holding the medical records documenting

Blakeney’s illness dated back to 1996, two years before the murders, and

Lloyd had not shown he could not have discovered them at the time of trial.

PCRA Court Opinion, 2/05/2019, at 4-5.          The court further found the

Pennsylvania Supreme Court’s decision in Commonwealth v. Burton, 158

A.3d 618 (Pa. 2017), did not apply in this case because, in November 2006,




                                     - 10 -
J-S38008-19


when the Commonwealth unsealed the Blakeney guilty plea transcript, counsel

represented Lloyd.6 Id. at 5.

       In Burton, our Supreme Court held the public records rule does not

apply to petitions filed by pro se prisoners. See Burton, supra at 620. The

public records rule provides that to qualify as a newly discovered fact, “the

information may not be part of the public record.”               Commonwealth v.

Edmiston, 65 A.3d 339, 352 (Pa. 2013) (citation omitted). Moreover, our

Supreme Court clarified that whether a defendant acted with due diligence is

a separate inquiry from whether a fact was unknown. Commonwealth v.

Staton, 184 A.3d 949, 957 (Pa. 2018).              A petitioner has not acted with due

diligence if he was represented by counsel, the documents were public for

many years, and this time period overlapped with the time period the

petitioner was represented by counsel. See id.

       In the instant matter, the PCRA court appears to have improperly

conflated the inquiry as to whether the fact was unknown with the due

diligence inquiry. See PCRA Ct. Op., at 5-6. Moreover, our review of the


____________________________________________


6 The PCRA Court also found the claim meritless because, it averred, since the
trial court found Blakeney competent to plead guilty, Lloyd would be unable
to prove that Blakeney’s testimony was unreliable. Id. at 5. However, this
analysis is both premature and questionable since it does not address the
question that Lloyd clearly raised in his PCRA petition of whether the
Commonwealth withheld Brady material. Moreover, the issue of whether
Blakeney was competent to enter a guilty plea is irrelevant to the issue of his
state of mind at the time of the murders and not dispositive of a claim that
the medications he took at the time of the trial may have affected his memory
of the events.

                                          - 11 -
J-S38008-19


record demonstrates that the record is too underdeveloped to support the

PCRA court’s determinations.

       Initially, we are unpersuaded by the PCRA court’s finding that, because

Blakeney’s mental health records date back to 1996, Lloyd knew or should

have known of his mental illness. Mental health records are not public records.

Lloyd claims that he was unaware that Blakeney had mental health issues.

The fact they committed a crime together does not prove that Lloyd had any

reason to know about Blakeney’s mental health problems.         Moreover, the

Commonwealth does not dispute it sealed the transcript of the guilty plea

hearing, which would have alerted trial counsel to Blakeney’s mental illness.

Thus, absent evidence that would disprove Lloyd’s claim he did not know

Blakeney was mentally ill; the record does not support the PCRA court’s

finding that Lloyd should have known about Blakeney’s mental illness prior to

or during trial.

       As the PCRA court notes, PCRA counsel represented Lloyd when the

Commonwealth unsealed the Blakeney guilty plea transcript on November 29,

2006. PCRA Ct. Op., at 5. Counsel’s representation continued until February

6, 2008.7 Thus, as the PCRA court correctly found, Burton was inapplicable,



____________________________________________


7 Counsel moved to withdraw on December 7, 2007; the PCRA court granted
the motion on February 6, 2008.




                                          - 12 -
J-S38008-19


at least for that time period.8 See Staton, supra at 975; PCRA Ct. Op. at 5.

However, this does not end our inquiry. Again, the record in this matter is

undeveloped.      It is simply not clear, absent prior knowledge of Blakeney’s

mental illness, PCRA counsel would have had any reason to seek out the newly

unsealed guilty plea hearing transcript. Thus, we cannot say, based on the

current record, the PCRA court was correct in holding the information

contained in the transcript was not unknown and, therefore, did not constitute

an unknown fact. Moreover, the record is simply undeveloped with respect to

whether or not Lloyd acted with due diligence in uncovering the information.

Thus, we find the PCRA court erred in dismissing Lloyd’s PCRA petition.

       Instantly, we are not holding Lloyd met the threshold inquiry of

establishing “the facts upon which the claim was predicated were unknown

and could not have been ascertained by the exercise of due diligence.”

Brown, supra at 1076. Instead, we hold there is a genuine issue of material

fact as to whether the facts were unknown and whether Lloyd acted with due

diligence and, therefore, Lloyd is entitled to an evidentiary hearing with

respect to these issues. If, after a hearing, the PCRA court determines the


____________________________________________


8 In Staton, the information at issue had been part of the public record for
many years and counsel had almost continuously represented the defendant
during that period. See Staton, supra at 956-957. That is not the case in
the instant matter. While counsel represented Lloyd when the information
became part of the public record, he only represented him for approximately
one year of that period before seeking to withdraw and Lloyd has represented
himself since February 2008.        Under these circumstances, Staton is
distinguishable.

                                          - 13 -
J-S38008-19


facts were unknown and Lloyd did act with due diligence, then Lloyd has pled

and proven the applicability of the newly discovered fact exception to the

PCRA’s timeliness requirement. In that case, the PCRA court possesses the

jurisdiction to consider the merits of Lloyd’s Brady and newly discovered fact

claims.

      During the pendency of the instant appeal, Lloyd filed an additional

PCRA petition with the court below on August 31, 2019, as well as an

application with this Court, on September 5, 2019, to supplement the record

with the August 31st petition. Given the inordinate delays in this matter, as

well as the substance of the petition, upon remand, the scope of the remand

may include consideration of the PCRA petition filed August 31, 2019. We

deny the application to supplement the record, without prejudice to seek relief

from the PCRA court upon remand.

      Accordingly, for the reasons discussed above, we find the PCRA court

erred in dismissing Lloyd’s PCRA petition.    We remand for an evidentiary

hearing and direct the PCRA court to appoint counsel to represent Lloyd’s

interests in this hearing, as expeditiously as possible. See Pa.R.A.P. 904.

      Order vacated. Case remanded. Jurisdiction relinquished. Application

for relief denied.




                                    - 14 -
J-S38008-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/19




                          - 15 -
