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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THOMAS ROBINSON :
:
Appellant : No. 1339 EDA 2021
Appeal from the PCRA Order Entered May 28, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005071-2012.
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 24, 2022
Thomas Robinson appeals pro se from the order denying his second
petition pursuant to the Post Conviction Relief Act (“PCRA”) as untimely filed.
42 Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On September
16, 2014, a jury convicted Robinson of second-degree murder and related
charges after he and several others, including Terrell Toson, confronted the
victim outside a bar. Thereafter, the trial court imposed an aggregate term
of life in prison. Following the denial of his post-sentence motions, Robinson
appealed to this Court. On April 26, 2016, we affirmed Robinson’s judgment
of sentence, and our Supreme Court denied his petition for allowance of appeal
on September 13, 2016. Commonwealth v. Robinson, 145 A.3d 793 (Pa.
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Super. 2016) (non-precedential decision), appeal denied, 157 A.3d 481 (Pa.
2016).
On September 22, 2017, Robinson filed a timely pro se PCRA petition,
and the PCRA court appointed counsel. On March 15, 2018, PCRA counsel
filed a motion to withdraw and a “no-merit” letter pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On April 20, 2018, the
PCRA court issued a Pa.R.A.P. 907 notice of its intent to dismiss Robinson’s
PCRA petition without a hearing. Robinson did not file a response. By order
entered June 14, 2018, the PCRA court denied Robinson’s petition. He did not
file an appeal.
On October 7, 2020, Robinson filed the pro se PCRA petition at issue,
his second. The Commonwealth filed a motion to dismiss the petition as
untimely filled. On April 9, 2021, the PCRA court issued Rule 907 notice of its
intent to dismiss Robinson’s second petition. Robinson filed a response. By
order entered May 28, 2021, PCRA court dismissed Robinson’s latest PCRA
petition because it was untimely filed, and he failed to establish any time-bar
exception. This appeal followed. Both Robinson and the PCRA court have
complied with Pa.R.A.P. 1925.
Robinson raises the following three issues:
1. Did the [PCRA] court abuse its discretion when it
dismissed the new evidence PCRA petition as being
untimely filed and not meeting the exception set forth to
the time-bar in 42 Pa.C.S.A. § 9545(b)(1)(ii); and (b)(2).
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2. Did the [PCRA] court [err] when it failed to recognize the
Brady v. Maryland, [373 U.S. 83 (1963),] due process
violation, when the Commonwealth failed to reveal the
leniency promise made [to Toson] that did not result in
Toson’s open burglary offenses adding no added prison
time to his guilty plea to third degree murder.
3. Was the leniency promise made to Toson that added no
prison time to his sentence, the same effect as the
burglary cases (5) dismissed, for purposes of sentencing
impact upon Toson concerning prison time that Toson
must serve?
Robinson’s Brief at 4 (excess capitalization and emphasis omitted).
In his first issue, Robinson challenges the PCRA court’s conclusion that
his second PCRA petition was untimely filed, and that he failed to establish a
time-bar exception. The timeliness of a post-conviction petition is
jurisdictional. Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013). Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition is met.
The three narrow statutory exceptions to the one-year time bar are as
follows: “(1) interference by government officials in the presentation of the
claim; (2) newly discovered facts; and (3) an after-recognized constitutional
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)
(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). Here, because Robinson’s underlying
claim arose prior to December 24, 2017, he was required to file his PCRA
petition invoking one of these statutory exceptions within 60 days of the date
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the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2) (repealed).1
In addition, exceptions to the PCRA’s time bar must be pled in the petition and
may not be raised for the first time on appeal. Commonwealth v. Burton,
936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing
that issues not raised before the lower court are waived and cannot be raised
for the first time on appeal).
Finally, if a PCRA petition is untimely and the petitioner has not pled and
proven an exception “neither this Court nor the [PCRA] court has jurisdiction
over the petition. Without jurisdiction, we simply do not have the legal
authority to address the substantive claims.” Commonwealth v.
Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).
Here, Robinson’s judgment of sentence became final on December 12,
2016, ninety days after our Supreme Court denied his petition for allowance
of appeal, and the time for filing a writ of certiorari to the United States
Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule
13. Therefore, Robinson had until December 12, 2017 to file a timely petition.
Because Robinson filed his second PCRA petition in 2020, it is untimely unless
he has satisfied his burden of pleading and proving that one of the enumerated
exceptions applies. See Hernandez, supra.
Robinson has failed to plead and prove an exception to the PCRA’s time
bar. At Robinson’s trial, Toson testified against him, in return for Toson’s plea
____________________________________________
1 The current statutory subsection extends the period to one year.
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to third-degree murder. In this PCRA petition, Robinson claims he met the
newly discovered fact exception based on the actual plea deal the
Commonwealth made with Toson. Robinson maintains that the prosecutor
withheld from the jury the fact that Toson’s plea deal encompassed not only
the murder and other charges he faced with Robinson involving this incident,
but also five unrelated burglary charges. According to Robinson, as soon as
he was able to critique the criminal case history of Toson, and determine that
Toson received hidden leniency for his unrelated burglary charges, Robinson
filed this PCRA petition. See Robinson’s Brief at 10.
As this Court has previously summarized:
The newly-discovered fact exception 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.
Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016) (citation
omitted).
Here, the PCRA court found no merit to Robinson’s claim because it was
refuted by the record. The court explained:
[T]he trial record establishes that the alleged “new fact”
upon which the instant claim is predicated, that is, that
Toson’s plea agreement included the resolution of his five
burglary charges, was disclosed to the jury and known to
[Robinson] at the time of trial in 2014. Therefore, the
record refutes [Robinson’s] claim that the newly-discovered
facts exception to the PCRA time-bar applies to his claim.
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Accordingly, the record establishes that [Robinson’s]
Second Petition is time-barred.
PCRA Court Opinion, 7/26/21, at 8-9 (citations and footnotes omitted).
Our review of the record supports the PCRA court’s conclusions.
Initially, when testifying for the Commonwealth, Toson not only acknowledged
that he had already pled guilty to the third-degree murder and related charges
in return for a sentence of 20 to 40 years of imprisonment, but that the
Commonwealth also included five unrelated counts of burglary in his plea
agreement. See N.T., 9/9/14, at 209.
Moreover, the prosecutor introduced the plea agreement into the record
and discussed its terms with Robinson. Id. at 210-11. This agreement,
introduced as an exhibit by the Commonwealth, included the following:
“[Toson] will enter pleas of guilty to one count of 3rd Degree
Murder, in violation of 18 Pa.C.S.A. §2502, one count of
Robbery, in violation of 18 Pa.C.S.A. §370 . . . one count of
Criminal Conspiracy, in violation of 18 Pa.C.S.A. §903 . . .
and five (5) counts of Burglary, in violation of 18
Pa.C.S.A. §3501.”
See PCRA Court Opinion, 7/26/21, at 7-8 (citing Commonwealth’s Exhibit C-
43) (emphasis in original).
Finally, on cross-examination, defense counsel questioned Toson
extensively about the fact that his unrelated burglary charges were included
in the plea agreement. See N.T., 9/9/14, at 223-25. Indeed, at one point in
his cross-examination of Toson, defense counsel stated that “we’ve essentially
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discussed over and over again the fact that this deal included five burglaries[,]
and Toson answered affirmatively. N.T., 9/10/14, at 107-08.
Given the above, it is clear from the record that Robinson knew of the
purported “newly-discovered fact” at the time of his trial in 2014. Thus, the
PCRA court correctly determined that he could not meet the newly-discovered
fact exception to the PCRA’s time bar. As such, we lack jurisdiction to address
Robinson’s remaining issues. Derrickson, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2022
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