Com. v. Floyd, E.
31 EDA 2017
Pa. Super. Ct.Sep 11, 2018Background
- In 2008 Floyd participated with co-conspirators in a series of crimes that culminated in a Bank of America robbery; during the getaway an assault rifle was used and Philadelphia Police Sgt. Liczbinski was killed. Floyd was identified as the Jeep driver and later provided an inculpatory statement.
- Co-defendant Levon Warner gave a statement describing the getaway in which an unidentified "boy" (linkable to Floyd by other evidence) yelled "Bang him," then Cain used the rifle to shoot the officer; Warner did not testify at trial.
- Floyd moved to sever his trial from Warner on Bruton/Grey grounds; the court denied severance but admitted a redacted version of Warner’s statement replacing explicit references to Floyd with neutral phrases; trial counsel did not object further to admission of the redacted statement.
- Floyd was convicted (including first-degree murder). His direct appeal affirmed the convictions; his petition for allowance of appeal to the PA Supreme Court was denied.
- Floyd filed a PCRA petition alleging (1) trial counsel ineffective for not objecting to the redacted co‑defendant statement (Confrontation/Bruton claim), (2) appellate counsel ineffective for not raising all five Superior Court issues in the allocatur petition, and (3) (on appeal only) trial counsel ineffective for failing to object to the reasonable-doubt instruction. The PCRA court dismissed; this appeal followed.
Issues
| Issue | Floyd's Argument | Commonwealth's Argument | Held |
|---|---|---|---|
| 1. Trial counsel ineffective for not objecting to admission of Warner’s redacted statement (Confrontation/Bruton) | Warner’s redacted statement still permitted the jury to infer Floyd shouted "Bang him," violating Floyd’s Confrontation Clause rights and counsel should have objected or secured severance | Claim is previously litigated / meritless because Superior Court already held the redaction preserved Travers/Bruton limits; failure to object would not have succeeded | Denied — claim treated as previously litigated and, alternatively, lacking merit given earlier Bruton/Travers analysis; PCRA court properly dismissed |
| 2. Appellate counsel ineffective for failing to present all five Superior Court issues in allocatur petition | Counsel was ineffective by raising only two issues to PA Supreme Court, denying Floyd full review; seeks reinstatement nunc pro tunc | No per se ineffectiveness: counsel timely filed an allocatur petition; strategic selection of strongest issues is appropriate; no presumption of prejudice | Denied — Floyd failed to show ineffectiveness or prejudice; counsel not required to raise every issue |
| 3. Trial counsel ineffective for not objecting to reasonable‑doubt jury instruction | (Raised first on appeal) Instruction allegedly allowed conviction on less than beyond a reasonable doubt | Claim was not raised in PCRA and is waived for appellate first‑time review | Not considered — claim waived for being raised for first time on appeal |
Key Cases Cited
- Bruton v. United States, 391 U.S. 123 (1968) (Confrontation Clause bars admission of non‑testifying co‑defendant’s confession that facially incriminates defendant)
- Richardson v. Marsh, 481 U.S. 200 (1987) (redaction and limiting instruction may mitigate Bruton concerns in some circumstances)
- Gray v. Maryland, 523 U.S. 185 (1998) (redactions that merely replace a name with a blank or obvious indicator can still violate Bruton)
- Commonwealth v. Travers, 564 Pa. 362 (Pa. 2001) (redaction to neutral pronouns plus proper instruction can satisfy Bruton where confession does not on its face tie defendant to crime)
- Commonwealth v. Gribble, 863 A.2d 455 (Pa. 2004) (explains when collateral counsel‑ineffectiveness claims tied to Bruton issues may be previously litigated and addresses severance/withdrawal nuances)
- Commonwealth v. Collins, 888 A.2d 564 (Pa. 2005) (ineffectiveness claims based on Sixth Amendment issues may be distinct for PCRA review but often fail for the same reasons as direct review)
- Commonwealth v. Rigg, 84 A.3d 1080 (Pa. Super. 2014) (standards for appellate counsel ineffective assistance re: petition for allowance of appeal)
- Commonwealth v. Ellis, 626 A.2d 1137 (Pa. 1993) (appellate advocacy principle: selective presentation of strongest issues is proper)
- Commonwealth v. Halley, 870 A.2d 795 (Pa. 2005) (distinguishes failures that completely foreclose appellate review from those that merely narrow it)