The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
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
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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.
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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
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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
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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.
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[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
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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.
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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.
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“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
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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.
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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.
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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
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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,
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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
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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.
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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,
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7 Counsel moved to withdraw on December 7, 2007; the PCRA court granted
the motion on February 6, 2008.
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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
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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.
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/19
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