Com. v. Robinson, T.

J-S43035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY DELRON ROBINSON :
:
Appellant : No. 1876 WDA 2019

Appeal from the PCRA Order Entered December 5, 2019
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007055-2010

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TROY DELRON ROBINSON :
:
Appellant : No. 1877 WDA 2019

Appeal from the PCRA Order Entered December 5, 2019
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006561-2011

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JANUARY 21, 2021

Appellant, Troy Delron Robinson, appeals from the order entered in the

Allegheny County Court of Common Pleas, which denied his first petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

____________________________________________

1 42 Pa.C.S.A. §§ 9541-9546.
J-S43035-20

This Court has previously set forth the relevant facts and some of the

procedural history of this case as follows:

[I]n the early morning hours of February 26, 2010,
Christopher Solis was awakened after hearing 5
gunshots. The shots came from the direction of the
Hide–Away Bar. As he looked out his window, Solis
saw a male wearing [bulky] winter clothing walking
down the street in deep snow looking back several
times in the direction of the bar.

At approximately 2:44 a.m. that day, police were
dispatched to the Hide–Away Bar as a result of Solis’
call to 911. When police arrived at the scene, they
were not able to find evidence of gunfire, a suspect,
or victims. Snow was falling that morning.

The next day, a body was found in deep snow in an
area not far from the bar. It was later determined
that the victim died as a result of multiple gunshot
wounds to his torso, and that bullets recovered were
all fired from the same firearm.

Detectives began an investigation and were able to
ascertain that videos existed from both inside and
outside the bar and that there was projectile damage
to the structure that housed the bar. The manager of
the bar also gave police a bullet that she found in front
of the bar’s door as she was salting and sweeping the
sidewalk.

The inside video showed that on the night in question,
both Appellant and the victim were in the bar. The
video shows Appellant standing next to the victim as
the victim’s head is lying on the bar. The victim lifts
his head and is given a bottle of water by the
bartender. Appellant then walks out of the bar and
the victim follows holding the bottled water. The
outside video shows the two outside of the bar and
Appellant taking the victim’s water, drinking it, and
then returning it to the victim. Appellant then backs
out of camera view, but the video shows the victim
being shot and falling down.

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J-S43035-20

The bartender at the Hide–Away Bar testified that the
victim was asleep at the bar when Appellant went up
to him and said: “I got you mother fucker, now you
are all asleep….” When the victim and Appellant went
outside of the bar, an eyewitness, who had been
waiting to give Appellant a ride, testified that he heard
the victim and Appellant yelling obscenities at each
other. The witness saw Appellant step away from the
victim, and then heard gunshots. Appellant ran away.

Tonya Darby, Appellant’s girlfriend, also testified that
she was with Appellant 12 days earlier when he and
the victim got into a heated argument in the Hide–
Away Bar, on February 14, 2010. The argument
continued outside of the bar. In that incident, the
victim in this case pointed a gun at Appellant. The
confrontation was then defused without further
incident. The bartender also confirmed that this
Valentine’s Day incident occurred between Appellant
and the victim.

Trial Court 1925(a) Opinion, 10/5/2012, at 4-6.

Appellant was charged with one (1) count of first-degree
murder, one (1) count of persons not to possess a firearm,
and one (1) count of carrying a firearm without a license.
The trial court subsequently severed the persons not to
possess a firearm count and reassigned it to a new case
number.4

4 Appellant was found guilty of this count at a non-
jury trial held on June 2, 2011.[2]

The trial court held a jury trial for the remaining counts.
With the jury unable to reach a verdict, the trial court
declared a mistrial and scheduled the case for retrial. A
retrial was held, and the jury found Appellant guilty on both
counts.
____________________________________________

2All charges were originally docketed at CP-02-CR-0007055-2010 (“docket
7055-2010”). Once severed, the persons not to possess firearms charge was
docketed at CP-02-CR-0006561-2011 (“docket 6561-2011”).

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J-S43035-20

At sentencing, the trial court imposed the mandatory
sentence of life imprisonment for first-degree murder, and
a concurrent term of 3½ to 7 years for carrying a firearm
without a license. For the remaining firearm conviction, the
trial court sentenced Appellant to a consecutive term of 5 to
10 years.

Appellant filed timely post-sentence motions [at both
underlying dockets] that were denied by operation of law
[on January 23, 2012]. …

Commonwealth v. Robinson, No. 308 WDA 2012, 2014 WL 10986804, at

*1–2 (Pa.Super. Feb. 5, 2014) (unpublished memorandum) (some internal

footnotes omitted).

Appellant timely filed a notice of appeal solely at docket 7055-2010.

This Court affirmed the judgment of sentence on February 5, 2014, and on

August 12, 2014, our Supreme Court denied allowance of appeal. See

Commonwealth v. Robinson, 97 A.3d 794 (Pa.Super. 2014) (unpublished

memorandum), appeal denied, 626 Pa. 698, 97 A.3d 744 (2014).

On March 12, 2015, Appellant filed his first PCRA petition pro se at both

underlying docket numbers. The court appointed counsel on March 18, 2015.

Following the grant of numerous requests for an extension of time, counsel

filed an amended PCRA petition on May 3, 2019. The Commonwealth filed an

answer on July 30, 2019. On August 7, 2019, the court issued notice of its

intent to dismiss the petition without a hearing per Pa.R.Crim.P. 907.

Following the grant of an extension, Appellant responded on September 30,

2019. On December 5, 2019, the court denied PCRA relief. Appellant timely

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J-S43035-20

filed separate notices of appeal at each underlying docket on December 19,

2019.3 That day, the court ordered Appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

timely complied on January 8, 2020.

Appellant raises three issues for our review:

Whether trial counsel was ineffective in failing to object to
the trial court’s mistrial declaration; in failing to request that
the jury be instructed that it should proceed to consideration
of the evidence as to third-degree murder if deadlocked on
first-degree murder; and in failing to assert and preserve an
objection that retrial under these circumstances violated the
Double Jeopardy Clause[?]

Whether prior counsel was ineffective in abandoning and
failing to preserve a challenge to the jury instruction that
carrying a firearm without a license may constitute
circumstantial evidence of intent to commit murder, where
the instruction undercuts reasonable doubt and its
continued viability is suspect[?]

Whether [Appellant] was denied his constitutional rights to
due process, fundamental fairness and the effective
assistance of trial counsel by virtue of the court’s denial of
his meritorious pretrial motion for new counsel due to
conflict of interest, where the trial court failed to
meaningfully inquire into the nature of the conflict prior to
denying the motion[?] And whether prior counsel were
ineffective in failing to recognize and preserve this claim for
review[?]

(Appellant’s Brief at 7) (re-ordered for purposes of disposition).

As a preliminary matter, the timeliness of a PCRA petition is a

jurisdictional requisite. Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d

____________________________________________

3 This Court consolidated the appeals sua sponte on January 3, 2020.

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J-S43035-20

978 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277

(2009). Pennsylvania law makes clear that no court has jurisdiction to hear

an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837

A.2d 1157 (2003). The PCRA requires a petition, including a second or

subsequent petition, to be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence

is 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 review.” 42 Pa.C.S.A. §

9545(b)(3). To obtain merits review of a PCRA petition filed more than one

year after the judgment of sentence became final, the petitioner must allege

and prove at least one of the three enumerated timeliness exceptions. See

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Instantly, Appellant filed his current PCRA petition at both underlying

docket numbers. Nevertheless, our review of the record makes clear that

Appellant did not pursue direct review in connection with docket 6561-2011,

regarding his persons not to possess firearms conviction. Consequently,

Appellant’s judgment of sentence at that docket became final on or around

February 22, 2012, after expiration of the time for filing a notice of appeal

with this Court following the denial of his post-sentence motions. See 42

Pa.C.S.A. § 9545(b)(3). Appellant’s current PCRA petition, filed on March 12,

2015, is therefore patently untimely as it relates to docket 6561-2011. See

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J-S43035-20

42 Pa.C.S.A. § 9545(b)(1). Appellant did not assert in his PCRA petition (or

in this appeal) any exception to the PCRA time-bar. See id. Thus, Appellant’s

PCRA petition regarding docket 6561-2011 remains time-barred.

In any event, Appellant’s appellate issues pertain only to his convictions

at docket 7055-2010. As Appellant pursued direct review at that docket

number, his judgment of sentence at docket 7055-2010 became final on or

around November 10, 2014, after expiration of the time for filing a petition for

writ of certiorari with the U.S. Supreme Court. See U.S.Sup.Ct.R. 13

(providing 90 days to file petition for writ of certiorari). Appellant’s current

PCRA petition, filed on March 12, 2015, is therefore timely regarding docket

7055-2010. See 42 Pa.C.S.A. § 9545(b)(1). Thus, we proceed to our merits

review of Appellant’s claims at docket 7055-2010.

Our standard of review of the denial of a PCRA petition is limited to

examining whether the record evidence supports the court’s determination

and whether the court’s decision is free of legal error. Commonwealth v. H.

Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d

319 (2008). This Court grants great deference to the findings of the PCRA

court if the record contains any support for those findings. Commonwealth

v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932

A.2d 74 (2007). We give no such deference, however, to the court’s legal

conclusions. Commonwealth v. J. Ford, 44 A.3d 1190 (Pa.Super. 2012).

Further, a petitioner is not entitled to a PCRA hearing as a matter of right; the

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J-S43035-20

PCRA court can decline to hold a hearing if there is no genuine issue

concerning any material fact, the petitioner is not entitled to PCRA relief, and

no purpose would be served by any further proceedings. Commonwealth v.

Wah, 42 A.3d 335 (Pa.Super. 2012).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Susan

Evashavik DiLucente, we conclude Appellant’s first and second issues on

appeal merit no relief. The PCRA court opinion comprehensively discusses and

properly disposes of those claims. (See PCRA Court Opinion, filed March 11,

2020, at 5-14) (finding: (1) (pages 5-11) at first trial, court issued

progression charge to jury, instructing jury to initially decide if Appellant was

guilty of first-degree murder, and if it did not find Appellant guilty of first-

degree murder, to then deliberate on third-degree murder; during

deliberations, jury informed court on multiple occasions that jury was

deadlocked; court declared mistrial for reasons of manifest necessity based

on jury’s deadlock; Appellant complains trial counsel was ineffective for failing

to object to declaration of mistrial, failing to request that court instruct jury

to deliberate on third-degree murder charge if it was deadlocked on first-

degree murder, and failing to move for dismissal of retrial on first-degree

murder charge based on Double Jeopardy, to extent that jury might have

acquitted Appellant of first-degree murder and been deadlocked on third-

degree murder; nevertheless, court’s progression instruction was proper

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J-S43035-20

under Pennsylvania law; additionally, court properly declared mistrial based

on manifest necessity where it was clear jury was hopelessly deadlocked;

because court properly charged jury regarding first and third-degree murder,

was forced to declare mistrial after jury became hopelessly deadlocked and

could not reach verdict, and appropriately ordered retrial as result, Appellant’s

claim that trial counsel was ineffective lacks merit; (2) (pages 11-14) at

retrial, trial counsel objected to court’s instruction that, if jury found defendant

used firearm in committing murder and defendant did not have license to carry

firearm, jury could regard that as one piece of circumstantial evidence of

Appellant’s intent to commit murder; Appellant complains appellate counsel

failed to advance this claim on direct appeal; nevertheless, court issued

permissible, not mandatory, jury instruction, and facts of case provided

rational way for jury to connect Appellant’s firearm offense to murder;

Appellant acknowledges that court’s instruction was proper but he objects to

majority’s reasoning in relevant Supreme Court case; given state of law,

evidentiary record, and Appellant’s concession, appellate counsel had no basis

to advance Appellant’s proffered issue on appeal; counsel cannot be

ineffective for failing to advance change in law; thus, Appellant’s

ineffectiveness claim lacks arguable merit).4 The record supports the PCRA

court’s analysis of Appellant’s first and second issues. See H. Ford, supra.

____________________________________________

4The full citation for Commonwealth v. Roane, cited on page 10 of the PCRA
court’s opinion, is 142 A.3d 79, 88 (Pa.Super. 2016).

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J-S43035-20

In his third issue, Appellant argues that prior to his retrial, Appellant

requested substitution of privately retained trial counsel due to disagreements

between them. Appellant asserts that trial counsel informed the court that

the disagreements involved how to proceed at the retrial, but defense counsel

did not elaborate further due to attorney/client privilege. Appellant complains

trial counsel was ineffective for failing to request an ex parte proceeding, in

which counsel could have gone into more detail about the scope of the conflict

at issue. Appellant insists he did not request a change of counsel in bad faith

or to delay the proceedings. Appellant claims the court’s denial of his motion

for substitution of counsel caused Appellant prejudice. Appellant concludes

the trial court erred in denying his motion and trial counsel rendered

ineffective assistance with respect to this motion. We disagree.

Initially, the PCRA court deemed Appellant’s claim of trial court error

waived because it could have been raised on direct appeal. (See PCRA Court

Opinion at 15) (citing 42 Pa.C.S.A. § 9543(a)(3) (stating to be eligible for

relief under PCRA, petitioner must plead and prove allegation of error was not

waived); and 42 Pa.C.S.A. § 9544(b) (explaining issue is waived if petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal, or in prior state post-conviction proceeding)). To the

extent Appellant’s claim on appeal sounds in trial court error, we agree with

the PCRA court’s finding of waiver. See id.

Regarding Appellant’s related claim of trial counsel’s ineffectiveness,

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J-S43035-20

Pennsylvania law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is required

to demonstrate: (1) the underlying claim is of arguable merit; (2) counsel had

no reasonable strategic basis for his action or inaction; and, (3) but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong

of the test for ineffectiveness will cause the claim to fail. Williams, supra.

“Whether a petition for change of…counsel should be granted is within

the sound discretion of the trial court. Moreover, although the right to counsel

is absolute, there is no absolute right to a particular counsel, and…counsel

shall not be removed except for substantial reasons.” Commonwealth v.

Moore, 534 Pa. 527, 539, 633 A.2d 1119, 1125 (1993), cert. denied, 513

U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995) (internal citations omitted).

See also Pa.R.Crim.P. 122(C) (stating motion for change of counsel shall not

be granted except for substantial reasons). “In some cases, we have

concluded that ‘substantial reasons’ or ‘irreconcilable differences’ warranting

appointment of new counsel are not established where the defendant merely

alleges a strained relationship with counsel, where there is a difference of

opinion in trial strategy, where the defendant lacks confidence in counsel’s

ability, or where there is brevity of pretrial communications.”

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J-S43035-20

Commonwealth v. Floyd, 937 A.2d 494, 497 (Pa.Super. 2007).

Instantly, on the morning scheduled for Appellant’s jury selection in the

retrial, the court heard argument on Appellant’s motion for substitution of

counsel. Appellant argued he no longer wanted trial counsel to represent him

because Appellant was not comfortable with trial counsel’s preparation of the

case “the second time around.” (N.T. Hearing, 6/3/11, at 2). Although trial

counsel had been privately retained, Appellant asked if the court would

appoint him a new attorney. The court explained to Appellant that trial

counsel was very familiar with the facts of Appellant’s case, and emphasized

that trial counsel had done a good job for Appellant at the first trial, evidenced

by the hung jury. The court reminded Appellant that at the first trial, trial

counsel had persuaded at least some of the jurors to find in his behalf. (Id.

at 3). Trial counsel then explained that Appellant did not believe counsel was

properly prepared to go forward because they disagreed on how to proceed.

Trial counsel did not divulge further details due to attorney/client privilege.

(Id. at 4). Appellant stated that trial counsel does not “have to

wholeheartedly agree but…[Appellant is] not comfortable with [trial counsel]

representing [him].” (Id. at 5-6). Ultimately, the trial court viewed the

conflict as a minor disagreement between Appellant and counsel, denied

Appellant’s motion, and appointed trial counsel to continue representing

Appellant at the retrial.

On this record, we cannot agree with Appellant’s position that trial

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J-S43035-20

counsel was ineffective in failing to request an ex parte conversation with the

trial court to divulge the details of the disagreement between Appellant and

counsel. Based on the court’s on-the-record remarks, we are not convinced

there is a reasonable probability that the outcome of the proceedings would

have been different had trial counsel made such a request. See Kimball,

supra. Therefore, Appellant’s ineffectiveness claim merits no relief.5

Accordingly, we affirm the order denying PCRA relief.

Order affirmed.

Judge Shogan joins this memorandum.

Judge Stabile concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/21/2021

____________________________________________

5 To the extent Appellant argues appellate counsel was ineffective in failing to
raise on direct appeal the trial court’s allegedly improper denial of his motion
for substitution of counsel, Appellant did not specify that claim of error in his
Rule 1925(b) statement, so it is waived. See Commonwealth v. Hansley,
24 A.3d 410 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275
(2011) (explaining general rule that issues not raised in concise statement will
be deemed waived for review; concise statement must properly specify error
to be addressed on appeal).

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 Circulated 12/23/2020 04:18 PM

Allegheny County - Department of of Court Records
Criminal Division - Filings Information

(OPINION)
County caseID:CP-02-CR-0007055-2010(OPINION)
Case Description: COMMONWEALTH OF PENNSYLVANIA v. v. LNAME ROBINSON
Entry, Sort By Document
Official Docket Entry, Document Number Ascending

Document Title/Entry Filing Date
Number

1
1 OPINION 03/11/2020

(Index Page-1)
(Index Page-1)
 1-OPINION

ORIGINAL
Criminal Division
Dept. Of Court Records
Allegheny County, riA,

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA No.: CP-02-CR-0007055-2010
No.: CP-02-CR-0006561-2011

Superior Court No.1876 WDA 2019
v. Superior Court No.1877 WDA 2019

TROY DELRON ROBINSON
OPINION

BY:

Honorable Susan Evashavik DiLucente
533 Courthouse
436 Grant Street
Pittsburgh, PA 15219

COPIES TO:

Michael W. Streily, Esquire
Deputy District Attorney
Appellate Division
401 Allegheny County Courthouse
Pittsburgh, PA 15219

William C. Kaczynski, Esquire
564 Forbes Avenue
1004 Manor Complex
Pittsburgh, PA 15219
 COUNTY, PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF ALLEGHENY

COMMONWEALTH OF PENNSYLVANIA • CRIMINAL DIVISION

vs. .• CP-02-CR-0007055-2010
.• Superior Court #1876 WDA 2019

.• CP-02-CR-0006561-2011
TROY DELRON ROBINSON, .• Superior Court #1877 WDA 2019

Defendant.

OPINION
December 5,
Defendant Troy DeIron Robinson has appealed the Court's
without a hearing (the
2019 order denying his request for post-conviction relief
opinion. For the reasons
"Order"). The Court now submits this Pa.R.A.P. 1925(a)

that follow, the Order should be affirmed.

I. Introduction
request for
Though the instant appeal involves Mr. Robinson's first
stemming from
collateral relief, these proceedings already have a long history,
opinion addressing Mr.
the following facts, which the Court summarized in its

Robinson's direct appeal:

[lin the early morning hours of February 26, 2010,
Christopher Solis was awakened after hearing 5
gunshots. The shots came from the direction of the
saw
Hide-Away Bar. As he looked out his window, Solis
down the
a male wearing bulky winter clothing walking
street in deep snow looking back several times in the
direction of the bar.

At approximately 2:44 a.m. that day, police were
dispatched to the Hide-Away Bar as a result of Solis'
they
calls to 911. When the police arrived at the scene,
1
were not able to find evidence of gunfire, a suspect, or
victims. Snow was falling that morning.

The next day, a body was found in deep snow in an
area not far from the bar. It was later determined that
the victim died as a result of multiple gunshot wounds
to his torso, and that bullets recovered were all fired
from the same firearm.

Detectives began an investigation and were able to
ascertain that videos existed from both inside and
outside the bar and that there was projectile damage
to the structure that housed the bar. The manager of
the bar also gave police a bullet that she found in front
of the bar's door as she was salting and sweeping the
sidewalk.

The inside video showed that on the night in question
both [Mr. Robinson] and the victim were in the bar. The
video shows [Mr. Robinson] standing next to the victim
as the victim's head is lying on the bar. The victim lifts
his head and is given a bottle of water by the
bartender. [Mr. Robinson] then walks out of the bar
and the victim follows holding the bottled water. The
outside video shows the two outside of the bar and [Mr.
Robinson] taking the victim's water, drinking it, and
then returning it to the victim. [Mr. Robinson] then
backs out of camera view, but the video shows the
victim being shot and falling down.

The bartender at the Hide-Away Bar testified that the
victim was asleep at the bar when [Mr. Robinson] went
up to him and said: "I got you mother fucker, now you
are all asleep .. ." When the victim and [Mr. Robinson]
went outside the bar, an eye-witness, who had been
waiting to give [Mr. Robinson] a ride, testified that he
heard the victim and [Mr. Robinson] yelling obscenities
at each other. The witness saw [Mr. Robinson] step
away from the victim, and then heard gunshots. [Mr.
Robinson] ran away.

Tonya Darby,[Mr. Robinson's] girlfriend, also testified
that she was with [Mr. Robinson] 12 days earlier when
he and the victim got into a heated argument in the
2
 Hide-Away Bar, on February 14, 2010. The argument
continued outside of the bar. In that incident, the
victim in this case pointed a gun at [Mr. Robinson]. The
confrontation was then defused without further
incident. The bartender also confirmed that this
Valentine's Day incident occurred between [Mr.
Robinson] and the victim.

See October 5, 2012, Pa.R.A.P. 1925(a) Opinion at 4-6.

The Commonwealth charged Mr. Robinson at CP-02-CR-0007055-2010

("Case 1") with one count of each of the following: murder (18 Pa. C.S. §2501),

persons not to possess a firearm (18 Pa. C.S. §6105(a)(1)), and carrying a firearm

without a license (18 Pa. C.S. §6106). This Court severed the charge of persons

not to possess a firearm, and that count was docketed at CP-02-CR-0006561-

2011 ("Case 2").

Case 1 proceeded to a jury trial, which ended in a mistrial due to a hung

jury on May 27, 2011. Case 2 went to a non-jury trial on June 2, 2011, and the

Court found Mr. Robinson guilty. On June 8, 2011, a second jury trial for Case 1

began, and Mr. Robinson was ultimately convicted of first-degree murder (18

Pa. C.S. §2502(a)) and carrying a firearm without a license. Accordingly, Mr.

Robinson was convicted of all charges lodged against him in Cases I and 2.

Mr. Robinson appeared for sentencing on August 24, 2011. At Case 1, this

Court sentenced Mr. Robinson to life imprisonment for his murder conviction and

1 2 to 7 years' incarceration for the firearm violation. This
a concurrent term of 3 /

Court sentenced Mr. Robinson to 5 to 10 years' imprisonment for the firearm

infraction at Case 2, said sentence to run consecutively to those imposed at

3
Case 1. In the aggregate, Mr. Robinson received a life sentence followed by an

additional 5 to 10 years in prison.

Mr. Robinson filed a timely post-sentence motion in Cases 1 and 2 on

August 26, 2011. Said motion was denied by operation of law on January 23,

2012.

A timely notice of appeal at Case 1 was filed on February 21, 2012. Mr.

Robinson did not appeal his conviction and sentence at Case 2, and the

Superior Court docketed his lone appeal at 308 WDA 2012. On February 5, 2014,

the Superior Court affirmed Mr. Robinson's judgment of sentence at Case 1.

Mr. Robinson subsequently filed a petition for allowance of appeal

("PAA") to the Pennsylvania Supreme Court at Case 1. The PAA was docketed

at 116 WAL 2014 and denied on August 12, 2014.

On March 12, 2015, Mr. Robinson filed a pro se Post-Conviction Relief Act

("PCRA") petition in Cases 1 and 2. This Court appointed counsel to represent

Mr. Robinson, and through counsel an amended PCRA petition was filed on

May 2, 2019. The Commonwealth filed an answer to the amended PCRA
petition.'
petition, and this Court issued a notice of intent to dismiss ("NID") that

after the
I The undersigned did not become involved in Mr. Robinson's case until
petition
NID was entered. It is now noted that Mr. Robinson filed his pro se PCRA
appears to
in both Case 1 and Case 2 in 2015. No direct appeal from Case 2
2
have ever been filed, and - as a result - the judgement of sentence for Case
became final in 2012, i.e., after denial of Mr. Robinson's post-sentence motions
PCRA filings
as a matter of law and the lack of a direct appeal. Mr. Robinson's
Pa. C.S.
as they relate to Case 2 are, the Court believes, time barred. See 42
§9545(b)(1).
4
Mr. Robison submitted a response to the NID, and this Court - on December 5,

2019 - entered the Order dismissing Mr. Robinson's amended PCRA petition

without a hearing.

Mr. Robinson timely appealed the Order and filed a Pa.R.A.P. 1925(b)

statement ("Concise Statement") in accordance with this Court's directive to do

SO.

II Mr. Robinson's Allegations Of Error

Mr. Robinson's Concise Statement advances five purported errors. None

provide a basis to reverse or vacate the Order.

A. The Court Did Not Error In Failing To Find Trial Counsel Ineffective (i)
For His Handling Of The Mistrial and Jury Instructions Regarding
Murder Or (ii) For Not Moving To Dismiss Mr. Robinson's Second Trial
As A Possible Double Jeopardy Argument.

In Mr. Robinson's first trial, the Court instructed the jury as follows regarding

murder:

At this point I'm going to give you some instructions that
are more particular to this case and I ask that you pay
especially close attention.
***

[Mr. Robinson] is charged with taking the life of Davon
Williams by criminal homicide. There are three possible
verdicts that you might reach in this case, not guilty or
guilty of one of the following crimes: first degree
murder or third degree murder.

Before defining each of these crimes I will tell you about
malice which is an element of murder. A person who
kills must act with malice to be guilty of any degree or
murder. The word malice, as I'm using it, has a special
legal meaning. It does not mean hatred, spite or ill-will.
5
Malice is a shorthand way of referring to any three
different mental states that the law regards as being
bad enough to make a killing murder.
of
The type of malice is different for each degree
murder. Thus, for first degree murder a killing is with
or, as
malice if the perpetrator acts with an intent to kill,
deliberate or
I will explain later, the killing is willful or
premeditated.
the
For third degree murder a killing is with malice if
perpetrator's actions show his wanton and willful
that
disregard of an unjustified and extremely high risk
bodily injury
his conduct would result in death or serious
to another.
need not
In this form of malice the Commonwealth
intended to kill
prove that the perpetrator specifically
another. The Commonwealth must prove however
knowingly,
that he took action while consciously, that is
disregarding the most serious risk that he was creating
his
and by disregarding that risk he demonstrated
extreme indifference to the value of human life.
murder. The
I'll charge you now regarding first degree
defendant has been charged with the crime of first
degree murder. First degree murder is a murder in
kill. To
which the perpetrator has the specific intent to
must find
find the defendant guilty of this crime you
beyond a
that the following three elements are proven
dead.
reasonable doubt. One, that Davon Williams is
the
Two, that the defendant killed him. Three, that
kill and with
defendant did so with the specific intent to
he has
malice. A person has the specific intent to kill if
of his own
a fully formed intent to kill and is conscious
intention.
a killing by a
As my earlier definition of malice indicates,
killing with
person who has the specific intent to kill is a
specific
malice. Stated differently, a killing is with the
premeditated.
intent to kill if it is willful or deliberate or
premeditation
The specific intent to kill including the
needed for first degree murder does not require
length
planning or previous thought for any particular
6
of time. It can occur quickly. All that is necessary is
that there is time enough so that the defendant can
and does fully form an intent to kill and is conscious of
that intention.

When deciding whether the defendant had the
specific intent to kill, you should consider all the
evidence regarding his words and conduct and
attending circumstances that may show his state of
mind. If you believe that the defendant intentionally
used a deadly weapon on a vital part of the victim's
body, you may regard that as an item of circumstantial
evidence if you choose to infer that the defendant had
the specific intent to kill.

If you find that the defendant used a firearm in
committing acts constituting murder and that the
defendant did not have a license to carry that firearm
as required by law, you may regard that as one item of
circumstantial evidence on the issue of whether the
defendant intended to commit the crime of murder as
otherwise charged.

It is for you to determine what weight, if any, you will
give to that item of circumstantial evidence. Evidence
of non-licensure [of a firearm] alone is not sufficient to
prove that the defendant intended to commit the
offense of murder.

I'm going to charge you now on third degree murder.
Third degree is any killing with malice that is not first
degree murder. The defendant has been charged with
third degree murder. To find the defendant guilty of
this crime you must find that the following three
elements have been proven beyond a reasonable
doubt. One, that Davon Williams is dead. Two, that
the defendant killed him. Three, that the defendant
did so with malice. The word malice, as I'm using it, has
a special legal meaning. It does not mean simply
hatred, spite or It is a shorthand way of referring
to a particular mental state that the law regards as
making a killing murder. For any killing to be with
malice if the perpetrator's actions shows his wanton
and willful disregard of an unjustified and extremely
7
high risk that his conduct would result in death or serious
bodily injury to another. In this form of malice the
Commonwealth need not prove that the perpetrator
specifically intended to kill another. The
Commonwealth must prove however that the
perpetrator took action while consciously, that is
knowingly, disregarding the most serious risk that he was
creating and that by his disregard of that risk the
perpetrator demonstrated his extreme indifference to
the value of human life.

When deciding whether the defendant acted with
malice you should consider all the evidence regarding
his words, conduct and attending circumstances that
may show his state of mind. If you believe that the
defendant intentionally used a deadly weapon on a
vital part of the victim's body, you may regard that as
an item of circumstantial evidence that you may, if you
choose, to infer that the defendant acted with malice.

I have defined the elements of the two types of
criminal homicide that you might possibly find in this
case. Beginning with the most serious they are in order
of seriousness first degree murder and third degree.
You have the right to bring in a verdict finding the
defendant not guilty or finding him guilty of one of
these two types of criminal homicide.

It may help you to remember each type of criminal
homicide if I review some highlights. First degree
murder requires a specific intent to kill. Third degree
murder is any other murder.
* **

Now regarding the homicide there are two lines on the
verdict slip. You will see this. I'm sure it will be self-
explanatory when you do see it. There is third degree
[sic] murder and third degree murder listed. With
respect to the homicide charge, in considering your
verdict consider the charges in the order in which they
appear on the verdict slip. First consider the charge of
first degree murder. If you find the defendant guilty of
first degree murder, indicate that and you need not
8
 deliberate any further. If you find the defendant not
guilty of first degree murder, then consider third degree
murder. When you see the verdict slip that will be very
clear for you.

See First Trial Transcript ("FIT") at 391-397 & 405-406.

Eventually, the jury submitted a note to the Court stating that it was

deadlocked. See id. at 415. The Court subsequently informed the jury that it

should continue to deliberate in an attempt to reach a verdict. Id. at 417-419.

After further deliberations, the jury again wrote to the Court, noting that they

were deadlocked. Id. at 420-22. The Court then polled the jury, and each

member thereof stated that he or she did not believe further deliberations

would cause the jury to reach a unanimous verdict. Id. at 420-424. As a result,

the Court found that the jury, which had been deliberating for almost two full

days, was, indeed, deadlocked. Id. at 424. The Court then declared a mistrial

for reasons of manifest necessity. Id.

According to Mr. Robinson, trial counsel should have objected to the

declaration of a mistrial; requested that the Court instruct the jury to proceed to

considering the charge of third degree murder; and finally, following the mistrial,

moved to have Mr. Robinson's second trial dismissed as a Double Jeopardy

violation. See Concise Statement at ¶ 3; see also Amended PCRA Petition at 7-

8. Because trial counsel took no such actions, Mr. Robinson maintains that he

was ineffective and that this Court erred in not so finding.

The legal standard for determining whether or not counsel is ineffective is

well-settled:
9
 that
[C]ounsel is presumed effective, and to rebut
demonstrate
presumption, the PCRA petitioner must
and that
that counsel's performance was deficient
Accordingly, to
such deficiency prejudiced him....
must
prove counsel ineffective, the petitioner
demonstrate that (1) the underlying legal issue has
an
arguable merit; (2) counsel's actions lacked
petitioner was
objective reasonable basis; and (3) the
claim of
prejudiced by counsel's act or omission. A
ineffectiveness will be denied if the petitioner's
prongs.
evidence fails to satisfy any one of these
omitted).
Commonwealth v. Roane, 142 A.3d 79, 88 (citation
contentions regarding the Court's
There is no merit to Mr. Robinson's
retrial. The Court properly
declaration of mistrial and jury instructions or his
murder, including the portion of said
instructed the jury on first- and third-degree
consider first-degree murder before
charge informing the jury to initially
Commonwealth v. Hart, 565 A.2d 1212, 1216-
deliberating on third-degree. See
progression charge in a homicide case
18 (Pa. Super. Ct. 1989)("we find that a

improper"). Indeed, the jury was (i) informed of the elements of each
is not
jury
offense, and Mr. Robinson makes no claim as to said portion of the
homicide
before the other, wrongly challenged
charge; (ii) told to consider one offense
find Mr.
Mr. Robinson as revealed by Hart; and (iii) instructed that it could
by
murder offenses, first- or third-
Robinson not guilty or guilty of only one of the
could not settle on a verdict.
degree. No error occurred. The jury simply
and discharge a jury when the jury is
A trial court may declare a mistrial

verdict and is hopelessly deadlocked. See Commonwealth
unable to reach a
manifest
mistrial may be granted due to
v. Murry, 447 A.2d 612, 613(Pa. 1982)(a

10
necessity, which "justifies discharge of a jury[ ] when it appears there is no

reasonable probability of agreement on a verdict"). When that occurs, i.e.,

when a "jury is discharged for failure to reach a verdict," retrial is permissible.

Commonwealth v. Santiago, 424 A.2d 870, 873 (Pa. 1981).

Because the Court properly charged the jury regarding first- and third-

degree murder, was forced to declare a mistrial after the jury became

hopelessly deadlocked and could not reach a verdict, and appropriately

ordered that Mr. Robinson be retried as a result, Mr. Robison's arguments

regarding his trial counsel's failure to object to those actions lack merit. Counsel

"cannot be considered ineffective for failing to assert a meritless claim[,]" see

Commonwealth v. Durst, 559 A.2d 504, 505 (Pa. 1989), or for failing to seek a

change in the law, see Commonwealth v. Bryant, 855 A.2d 726, 749 (Pa. 2004)

("counsel cannot be deemed ineffective for failing to advance the change in

the law"). Accordingly, the Court did not err in rejecting as unmeritorious Mr.

Robinson's contention that trial counsel was ineffective in his handling of the

homicide instructions, mistrial, and the ability of the Court to retry his client.

B. The Court Did Not Err In Failing To Find Appellate Counsel Ineffective
Regarding The Court's Instructions For Carrying A Firearm Without A
License.

During Mr. Robinson's second trial, the Court - when instructing on the

specific intent to kill necessary for a conviction of first-degree murder - stated

the following to the jury:

When deciding whether the defendant had the
specific intent to kill, you should consider all the
11
 evidence regarding his words and conduct and the
attending circumstances that show his state of mind. If
you believe that the defendant intentionally used a
deadly weapon on a vital part of the victim's body you
may regard that as an item of circumstantial evidence
from which you may, if you choose, infer that the
defendant had the specific intent to kill.

If you find that the defendant used a firearm in
committing acts constituting murder and that the
defendant did not have a license to carry that firearm
as is required by law, you may regard that as one item
of circumstantial evidence on the issue of whether the
defendant intended to commit the crime of murder as
otherwise charged. It is for you to determine what
weight, if any, you will give to the item of circumstantial
evidence. Evidence of non-licensure alone is not
sufficient to prove that the defendant intended to
commit the offense of murder.

See Second Trial Transcript at 489-90. Trial counsel objected to "carrying a

firearm without a license being circumstantial evidence of intent to commit first

degree murder." Id. at 452. Said objection and argument, however, were not

advanced on direct appeal.

Mr. Robinson now contends that the Court erred in not finding appellate

counsel to be ineffective for failing to argue on appeal that it was error to

instruct the jury that Mr. Robinson's carrying a firearm without a license could be

relevant to the intent necessary for a first-degree murder conviction. See

Concise Statement at ¶ 4. Such an argument fails.

In Commonwealth v. Hall, 830 A.2d 537, 545-550 (Pa. 2003), our Supreme

Court held that an instruction that permits, rather than requires, a jury to infer

that carrying a firearm without a license constituted circumstantial evidence of

12
 intent is valid so long as there is also a rational way for the jury to make the

connection permitted by the inference. Here, the instruction clearly involves a

permissible - not mandatory - inference, and the facts of this case provide a

rational way to connect Mr. Robinson's firearm offense to the murder: days

before the homicide, Mr. Robinson and the victim had an argument; on the day

of the homicide, Mr. Robinson spoke aggressively to the victim without

provocation at a bar; the two men continued their argument outside the bar;

and then Mr. Robinson shot and killed the victim.

That the instruction here was proper under the law is recognized by Mr.

Robinson, who acknowledges the existence of Hall in the amended PCRA

petition and states: "[Hall] approved of the instruction so long as it is permissive

and not mandatory. However,[Mr. Robinson] desires to assert an objection to

the majority reasoning in that decision and contends instead that the reasoning

of [the Hall dissent] ... is the correct analysis." See Amended PCRA Petition at

10.

Given the state of the law, the evidentiary record, and Mr. Robinson's

concession that the instruction as given was of the type approved in Hall,

appellate counsel had no basis to further advance an argument that this Court

erred in instructing the jury about the interplay between the specific intent

necessary for first-degree murder and carrying a firearm without a license. Such

a claim was not supported by the law or facts; it instead depended upon a

change in the law. As noted above, counsel cannot be ineffective for failing to

13
. assert a meritless claim, see Durst, 559 A.2d at 505, or for failing to seek a change

in the law, see Bryant, 855 A.2d at 749. Accordingly, the Court did not err in

rejecting Mr. Robin's argument that appellate counsel rendered ineffective

assistance.

C. The Court Did Not Err In Declining To Find That Mr. Robinson Was
Entitled To PCRA Relief As A Result Of The Denial Of His Pretrial
Request To Remove Trial Counsel From The Case.

According to Mr. Robinson, this Court erred in not granting him relief

pursuant to the claim advanced in paragraph 19(D) of his amended PCRA

petition. See Concise Statement at ¶ 5. Said claim concerned the Court's

pretrial denial of Mr. Robinson's request for new counsel. The Court properly

denied the claim set forth in paragraph 19(D) of Mr. Robinson's amended PCRA

petition.

Between his first and second trial, Mr. Robinson informed the Court that he

"no longer wanted Mr. Waltman[, i.e., the attorney who represented him at his

first trial and, ultimately, at his second trial,] to represent [him]." See June 3,

2011, Motion Transcript at 2. After having a hearing on the issue, the Court

denied Mr. Robinson's request to replace Mr. Waltman, id. at 8-9, and the

parties eventually proceeded to trial. Mr. Robinson did not advance the denial

of his oral motion for new trial counsel on appeal.

He did, however, raise such a claim in paragraph 19(D) of his amended

PCRA petition, contending that he was "denied his constitutional rights to due

process, fundamental fairness and the effective assistance of counsel by virtue

14
 motion for change of trial
of the [C]ourt's denial of his meritorious pretrial
failure to inquire ex
counsel due to conflict of interest, and the ...[C]ourt's
the motion." See
parte into the nature of the conflict prior to rejecting
sounds in trial court error and,
Amended PCRA Petition at 12. Such an assertion
advanced on direct appeal.
given that it was raised pretrial, could have been
direct appeal, he waived it for
Because Mr. Robinson did not argue the claim on
be eligible for PCRA
purposes of the PCRA. See 42 Pa. C.S. § 9543(a)(3) (to
the allegation of error purportedly
relief, a petitioner must plead and prove that
waived); see also 42 Pa. C.S. §
entitling the petitioner to relief has not been
could have raised it but failed to do
9544(b)("an issue is waived if the petitioner
review, on appeal or in a prior state
so before trial, at trial, during unitary

postconviction proceeding").
denying the claim advanced in
This Court, therefore, did not err in
PCRA petition. He should have
paragraph 19(D) of Mr. Robinson's amended
having not done so, he waived the
advanced the issue on direct appeal; and

claim.2

paragraph 19(D) of the amended
2 TheCourt notes that the claim advanced in
ineffective assistance of appellate
PCRA petition is not framed in terms of pretrial
Court's denial of Mr. Robinson's
counsel for failing to raise on appeal the
allegation of error pertaining to
request for new counsel. In addition, the
petition contained in Mr. Robinson's
paragraph 19(D) of the amended PCRA appellate
on ineffective assistance of
Concise Statement is also not predicated
paragraph 19(D) of the amened
counsel. Both claims - i.e., that advanced in
and that contained in paragraph 5 of the Concise Statement -
PCRA petition
trial.
involve this Court's purported errors prior to
15
 D. The Court Did Not Err In Failing To Hold A Hearing On Mr. Robinson's
Claims.

Mr. Robinson argues that the Court erred in failing to hold a hearing on

the following claims advanced in his amended PCRA petition: (i) ineffective

assistance of trial counsel for failing at Mr. Robinson's second trial to call a

witness who had testified at his first trial ("Claim 1"); (ii) ineffective assistance of

trial counsel for (a) failing to object to the declaration of mistrial and the

homicide-progression charge and (b) failing to move for the dismissal of the

second trial on Double Jeopardy grounds (collectively, "Claim 2"); (iii)

ineffective assistance of appellate counsel for failing to raise on appeal a

challenge to the Court's instruction regarding the interplay between specific

intent for first-degree murder and carrying a firearm without a license ("Claim

3"); and (iv) the Court's denial of Mr. Robinson's pretrial request for new counsel

("Claim 4"). See Concise Statement at 112. Each of those claims, Mr. Robinson

asserts, "required an evidentiary hearing ... [, and the s]ummary denial of the

ineffectiveness claims deprived [him] of a meaningful opportunity to prove his

entitlement to relief." Id. Such arguments lack merit.

A PCRA petitioner is "not entitled to a PCRA hearing as a matter of right."

Commonwealth v. Johnson, 945 A.2d 185, 188 (Pa. Super. Ct. 2008) (citation

omitted). The PCRA court can "decline to hold a hearing if there is no genuine

issue concerning any material fact and the petitioner is not entitled to post-

conviction collateral relief, and no purpose would be served by any further

proceedings." Id. (citation omitted).
16
 Here, Claim 2, Claim 3, and Claim 4 have been addressed above; and

each failed for lack of merit. There were no issues of material fact that could

have been presented to entitle Mr. Robinson to relief on those meritless claims.

Regarding Claim 1, Mr. Robinson does not, in his Concise Statement,

include as alleged error the Court's denial of Claim 1, which was advanced in

the amended PCRA petition at paragraph 19(A). Mr. Robinson only contends

that it was error to dismiss Claim 1 without a hearing. Compare Concise

Statement at ¶11 3-6; id. at ¶ 2. The Court, however, did not believe a hearing on

Claim 1 was needed.

The witness that trial counsel did not call in Mr. Robinson's second trial -

i.e., Mr. Robert Young - testified at Mr. Robinson's first trial. See FTT at 71-82. Mr.

Robinson relied on the transcript of Mr. Young's testimony to support the

ineffectiveness claim he advanced in his amended PCRA petition. See

Amended PCRA Petition at 16, ¶ D; see also Petitioner's Response To Notice Of

Intention To Dismiss And Supplemental Certification Of Witnesses ("NID

Response") at 8 ("Petitioner is relying upon Young's prior sworn testimony in

support of his claim and not on any new testimony from him"). Given that Mr.

Young's testimony already existed and Mr. Robinson affirmed that no new

testimony from Mr. Young was needed, the Court, which found Claim 1 to be

meritless (a finding Mr. Robinson has not challenged in his Concise Statement),

determined that there were "no genuine issue[s] concerning any material fact

and the petitioner is not entitled to post-conviction collateral relief, and no

17
 purpose would be served by any further proceedings"
with respect to Claim 1.
Johnson, 945 A.2d at 188 (citation omitted).

Accordingly, based on the foregoing, the Court did not believe
a hearing
was warranted on Claim 1, Claim 2, Claim 3, or Claim
4. The record was
sufficiently developed to permit the Court to determine that
each of those
claims failed. No further evidence was needed, not
even from Mr. Young, as Mr.
Robinson acknowledges. See NID Response at 8.

E. The Court Did Not Err In Declining To Find That The
Cumulative
Prejudicial Effect Of All Prior Counsel's Conduct Entitled Mr.
Robinson
To PCRA Relief.

Finally, Mr. Robinson asserts that the Court "erred in
declining to find that
[he] was unfairly prejudiced by the cumulative prejudicial
effect of prior
counsels' errors and omissions, as well as Trial Court error (which are
identified in
111119(A) -(D) of the Amended PCRA Petition." See Concise
Statement at ¶ 6. In
addition, Mr. Robinson maintains that "[t]he cumulative effect of
these
prejudicial errors and omissions adversely affected the truth
-determining
process, denied [him] a fair trial, and entitled him to a post
-conviction
evidentiary hearing and relief on the merits." Id. Those arguments
fail.
Our Supreme Court has:

repeatedly held that no number of failed
ineffectiveness claims may collectively warrant relief if
they fail to do so individually. Thus, to the extent claims
are rejected for a lack of arguable merit, there is no
basis for an accumulation claim. When the failure of
individual claims is grounded in lack of prejudice,
however, then the cumulative prejudice from those
individual claims may be properly assessed.

18
Commonwealth v. Koehler, 36 A.3d 121, 161 (Pa. 2012). The claims advanced in

paragraphs 19(A) through 19(D) of the amended PCRA petition - i.e., Claim 1,

Claim 2, Claim 3, and Claim 4- were, as noted above, all rejected for lack of

merit. No basis for "an accumulation claim" existed. Accordingly, the Court did

not err by failing to grant Mr. Robinson PCRA relief by accumulating the alleged

prejudice involved in said claims.

Mr. Robinson's final assertion of error should, therefore, be denied.

III. Conclusion

For the foregoing reasons, the Superior Court should affirm this Court's

Order of December 5, 2019, dismissing Mr. Robinson's amended PCRA petition.

BY THE COURT:

Dated: 7III IP) J.
Susan Evashavik DiLucente

19