J-S15001-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

ISSAC FLOYD 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2384 EDA 2023 

Appeal from the PCRA Order Entered August 18, 2023 

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0907931-1999 

BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED JUNE 18, 2024

Appellant, Issac Floyd, appeals from the August 18, 2023 order 

dismissing, as untimely, his petition filed pursuant to the Post Conviction Relief 

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541–9546. We affirm. 

 A previous panel of this Court summarized the relevant factual and 

procedural history of this case as follows. 

At 3:30 [p.m.] on August 3, 1999, approximately [15] people 

were playing a game of craps on the corner of Heiskel and 

Baynton Streets in Philadelphia[, Pennsylvania]. 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, 

[Anthony] Purnell, and shot him once. Appellant then turned to 

Mr. Thompson who was sitting in a chair next to Mr. Purnell, 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court. 
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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 recognized Appellant as “Ike” at the shooting and told 

the police at the hospital his name and in what section of 

Germantown he lived. 

Appellant was convicted by a jury of three counts each of 

attempted murder, aggravated assault, robbery, and one count 

of possessing an instrument of [a] crime (“PIC”). He was 

sentenced on June 14, 2000, to three consecutive life sentences 

on the attempted murder counts, three [25] to [50]-year 

consecutive sentences for robbery, and a concurrent two and 

one-half to five years of imprisonment for PIC. [Appellant’s 

j]udgment of sentence was affirmed by this Court on direct 

appeal. Commonwealth v. Floyd, No. 2034 EDA 2000 (Pa. 

Super. 2001) ([non-precedential decision]). 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)

([non-precedential decision]), 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) 

([non-precedential decision]). 

[Appellant filed another] petition, [his] fourth, . . . on October 

15, 2014, and amended [it] several times. The PCRA court 

[later] issued notice pursuant to 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. [This Court affirmed 

the PCRA court’s dismissal on January 8, 2019]. 
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Commonwealth v. Floyd, 2019 WL 125389, at *1 (Pa. Super. Jan. 8, 2019) 

(non-precedential decision) (internal and parallel citations omitted). 

 On February 1, 2022, Appellant filed the instant PCRA petition, his fifth. 

In his petition, Appellant alleged that he recently discovered 

that the prosecutor in [his] case, Assistant District Attorney 

(ADA) Thomas Malone, failed “to disclose prior statements of 

witnesses . . . that were favorable to [Appellant]” in violation 

of Brady [v. Maryland, 83 S. Ct. 1194 (1963)]. Specifically, 

[Appellant] allege[d] that [Mr.] Thompson [made a previous 

statement] wherein he indicated someone other than 

[Appellant] was responsible for the shooting. [Appellant] 

claim[ed] to have discovered this alleged fact when he read the 

Commonwealth’s response brief in Commonwealth v. Lavar 

Brown, CP-51-CR-0407441-2004, wherein the Commonwealth 

asserted that, during the prosecution of Lavar Brown, ADA 

Malone [] “failed to memorialize and disclose to the defense 

prior statements made by a witness.” 

PCRA Court Opinion, 8/18/23, at *1-*2 (unpaginated) (internal quotations 

and footnotes omitted). On June 23, 2023, the PCRA court issued notice of 

its intent to dismiss Appellant’s petition without a hearing pursuant to 

Pa.R.Crim.P. 907, citing the untimeliness of Appellant’s petition. Thereafter, 

Appellant retained private counsel who entered his appearance on July 6, 

2023. That day, Appellant’s newly retained counsel contacted the court via

e-mail and requested it refrain from dismissing Appellant’s PCRA petition to 

allow him to “review that matter.” Appellant’s Brief at App. A. Ultimately, 
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however, the PCRA court dismissed Appellant’s PCRA petition on August 18, 

2023. This timely appeal followed.1

 Appellant raises the following issue on appeal: 

Whether the [PCRA] court erred in dismissing [Appellant’s] 

PCRA petition as untimely after undersigned counsel entered his 

appearance and requested time to investigate as well as for the 

court to schedule a status hearing? 

Appellant’s Brief at 6. 

Our standard of review is as follows: 

Our review of a PCRA court's decision is limited to examining 

whether the PCRA court's findings of fact are supported by the 

record, and whether its conclusions of law are free from legal 

error. We view the findings of the PCRA court and the evidence 

of record in a light most favorable to the prevailing party. With 

respect to the PCRA court's decision to deny a request for an 

evidentiary hearing, or to hold a limited evidentiary hearing, 

such a decision is within the discretion of the PCRA court and 

will not be overturned absent an abuse of discretion. The PCRA 

court's credibility determinations, when supported by the 

record, are binding on this Court; however, we apply a de novo

standard of review to the PCRA court's legal conclusions[.] 

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1

 Appellant's timely notice of appeal, filed pro se despite being represented by 

counsel, was properly accepted by the trial court, forwarded to this Court, and 

docketed by this Court in accordance with this Court's Operating Procedure 

65.24, and does not offend the considerations of hybrid representation. See

210 Pa.Code § 65.24 (stating that, “[a] pro se notice of appeal received from 

the trial court shall be docketed, even in instances where the pro se [party] 

was represented by counsel in the trial court” without offending the prohibition 

against hybrid representation); see also Commonwealth v. Williams, 151 

A.3d 621, 623-624 (Pa. Super. 2016) (holding that, a pro se notice of appeal 

may be accepted by the trial court, forwarded to this Court, and docketed by 

this Court without offending the considerations prohibiting hybrid 

representation because a defendant has a constitutional right of appeal). 
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Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015) (citations 

omitted). 

 Herein, Appellant argues that the PCRA court erred in dismissing his 

PCRA petition without affording his counsel time to conduct an “additional 

investigation” of the claims Appellant raised in his pro se PCRA petition. 

Appellant’s Brief at 9. Appellant avers that, “at the time [counsel] was 

retained, there was not sufficient information available to allow for a thorough 

analytical response to the [PCRA court’s] 907 [notice].” Id. Thus, Appellant 

requests this Court to vacate the PCRA court’s order dismissing his pro se

PCRA petition and remand the matter to allow for “further investigations and 

filings by [] Appellant” via counsel. Id. at 10. 

 Pennsylvania Rule of Criminal Procedure 904 provides, in pertinent part: 

(C) Except as provided in paragraph (H) [regarding 

appointment of counsel in death penalty cases], when an 

unrepresented defendant satisfies the judge that the defendant 

is unable to afford or otherwise procure counsel, the judge shall 

appoint counsel to represent the defendant on the defendant's 

first petition for post-conviction collateral relief. 

(D) On a second or subsequent petition, when an unrepresented 

defendant satisfies the judge that the defendant is unable to 

afford or otherwise procure counsel, and an evidentiary hearing 

is required as provided in Rule 908, the judge shall appoint 

counsel to represent the defendant. 

(E) The judge shall appoint counsel to represent a defendant 

whenever the interests of justice require it. 

Pa.R.Crim.P. 904(C)-(E). 

Moreover, the Comment to Rule 904 states: 
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Consistent with Pennsylvania post-conviction practice, it is 

intended that counsel be appointed in every case in which a 

defendant has filed a petition for post-conviction collateral relief 

for the first time and is unable to afford counsel or otherwise 

procure counsel. However, the rule now limits appointment of 

counsel on second or subsequent petitions so that counsel 

should be appointed only if the judge determines that an 

evidentiary hearing is required. Of course, the judge has the 

discretion to appoint counsel in any case when the interests of 

justice require it. 

Pa.R.Crim.P. 904 cmt. (emphasis omitted). 

 Upon review, we decline Appellant’s invitation to remand the instant 

matter – and do so for two reasons. First, as stated above, this is Appellant’s 

fifth PCRA petition, filed well after his judgment of sentence became final.2 As 

such, Appellant was only entitled to counsel if the PCRA court determined that, 

based upon the averments within Appellant’s petition, an evidentiary hearing 

was necessary or the interests of justice required it. See Pa.R.Crim.P. 

904(D)-(E). In this instance, however, the PCRA court reviewed Appellant’s 

petition and subsequently issued notice pursuant to Pa.R.Crim.P. 907(1), 

which reflected the court’s determination “that there [were] no genuine issues 

concerning any material fact,” that Appellant was “not entitled to [PCRA] 

relief,” and that “no purpose would be served by any further proceedings.” 

Pa.R.Crim.P. 907(1). Because Appellant did not possess a rule-based right to 

counsel, it cannot be said that the PCRA court’s decision to deny additional 

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2

 On a previous appeal, a panel of this Court determined that Appellant’s 

judgment of sentence became final “on or about January 27, 2002.” Floyd, 

2019 WL 125389 at *2. Appellant did not file the current petition until 

February 1, 2022, 20 years after his judgment of sentence became final. 

Accordingly, Appellant’s PCRA petition was patently untimely. 
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time to newly-retained counsel to facilitate further investigation of Appellant’s 

claims constituted an abuse of discretion. 

 Second, we disagree with the contention that Appellant’s counsel was 

unable to conduct an adequate investigation into the claims set forth in 

Appellant’s pro se petition. A review of the certified record reveals that 

Appellant’s counsel entered his appearance on July 6, 2023. The PCRA court 

herein did not dismiss Appellant’s PCRA petition until August 18, 2023. Thus, 

Appellant’s counsel had 43 days in which to investigate his client’s discovery 

of previously undisclosed statements allegedly made by Mr. Thompson and to 

submit either an amended PCRA petition on behalf of Appellant or a more 

formal request for an extension of time in which to respond to the PCRA court’s 

907 notice. Instead, counsel simply sent e-mail correspondence to the PCRA 

court. Under these circumstances, we discern no abuse of discretion in the 

dismissal of Appellant’s fifth PCRA petition. 

Order affirmed. 

Date: 6/18/2024