Com. v. Robertson, P. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PORTIE A. ROBERTSON
Appellant No. 389 EDA 2016
Appeal from the PCRA Order January 20, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1111151-1982
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 14, 2016
Portie A. Robertson (“Appellant”) appeals, pro se, from the order
entered in the Court of Common Pleas of Philadelphia County dismissing his
fifth petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546. After careful review, we affirm.
On June 22, 1987, Appellant was sentenced to life imprisonment after
a jury convicted him of two counts of first-degree murder and six counts of
aggravated assault. In the ensuing twenty-eight years, this Court has
affirmed his judgment of sentence, which became final in 1990, and affirmed
orders denying him collateral relief in each of four PCRA petitions filed in
1992, 2001, 2006, and 2014, respectively. Appellant filed the present PCRA
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*
Former Justice specially assigned to the Superior Court.
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petition, his fifth, on October 19, 2015. By order of January 20, 2016, the
PCRA court denied Appellant relief on his patently untimely petition for which
Appellant invoked no cognizable exception to statutory time-bar. This
appeal followed.
This Court's standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error. See
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). We will not
disturb the PCRA court's findings unless there is no support for them in the
certified record. See Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.
Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the
petition if the PCRA court determines that petitioner's claim is patently
frivolous and is without a trace of support in either the record or from other
evidence. See Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa.
Super. 2001).
Because this is Appellant's fifth petition for post-conviction relief, he
must meet a stringent standard. “A second or any subsequent post-
conviction request for relief will not be entertained unless a strong prima
facie showing is offered to demonstrate that a miscarriage of justice may
have occurred.” Commonwealth v. Burkhardt, 833 A.2d 233, 236 (Pa.
Super. 2003) (en banc) (citations omitted). “A petitioner makes a prima
facie showing if he demonstrates that either the proceedings which resulted
in his conviction were so unfair that a miscarriage of justice occurred which
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no civilized society could tolerate, or that he was innocent of the crimes for
which he was charged.” Id. (citations omitted).
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Robinson, 12 A.3d 477 (Pa.Super. 2011). A court may
not examine the merits of a petition for post-conviction relief that is
untimely. Commonwealth v. Abu-Jamal, 574 Pa. 724, 735, 833 A.2d
719, 726 (2003), cert. denied, 541 U.S. 1048, 124 S.Ct. 2173, 158 L.Ed.2d
742 (2004). To be eligible for relief under the PCRA, a petitioner must plead
and prove, inter alia, his allegations of error were not previously litigated or
waived. 42 Pa.C.S.A. § 9543(a)(3). A PCRA petition must be filed within
one year of the date the underlying judgment becomes final. 42 Pa.C.S.A. §
9545(b)(1). A judgment is deemed 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).
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. To invoke an exception, a petition must allege and the
petitioner must prove:
(i) the failure to raise a claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
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(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). A petitioner asserting a timeliness
exception must file a petition within sixty days of the date the claim could
have been presented. 42 Pa.C.S.A. § 9545(b)(2).
Appellant contends his fifth PCRA petition invoked the timeliness
exception of Section 9545(b)(1)(iii) by asserting that the Commonwealth
committed prosecutorial misconduct when it elicited from its witness, an
investigating detective, testimony that Appellant declined his invitation to
answer questions prior to arrest. Specifically, Appellant cites the
Pennsylvania Supreme Court’s plurality decision in Commonwealth v.
Molina, 104 A.3d 430 (Pa. 2014) (holding exploited reference to a
defendant’s pre-arrest silence violated defendant’s right against self-
incrimination under the Pennsylvania Constitution) as creating a new
constitutional right excluding references to pre-arrest silence. We disagree.
Setting aside the question of whether the Opinion Announcing the
Judgment of the Court authored in Molina represents precedential authority,
we note, initially, that previous decisional law of this Commonwealth has
interpreted the constitutional right against self-incrimination generally to
prohibit prosecutors from referencing a defendant’s silence as substantive
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evidence of guilt. See, e.g., Commonwealth v. Adams, 104 A.3d 511(Pa. 2014) (Opinion Announcing Judgment of Court) (citing
Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005);
Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998) as recognizing
unconstitutionality of such references). As nothing about Appellant’s claim
takes it outside the boundaries of this established precedent, we reject his
argument that Molina represents a newly-recognized constitutional right
bearing on his case.
Moreover, we are further persuaded by the reasoning within a
contemporaneous plurality decision of the Pennsylvania Supreme Court that
Molina is inapposite to the present case. In Adams, supra, a plurality of
the Court1 distinguished the mere reference of a defendant’s pre-arrest
silence from the exploitation of such a reference as occurred in Molina. In
Molina, the investigating detective testified how the defendant had
answered several questions but then refused to go to the police station for
further questioning. In closing arguments, the prosecutor relied on this
silence as constituting evidence of guilt. In contrast, the detective in
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1
Of the five justices deciding Adams, three agreed that the reference to
appellant’s pre-arrest silence during the police investigation did not impinge
on the defendant’s constitutional rights. Among the three was then-Chief
Justice Ronald Castille, who, in concurrence, offered his view that reference
to pre-arrest silence would not violate a defendant’s constitutional rights
“irrespective of whether the prosecution later exploited the reference.” See
Adams, 104 A.3d at 518. (Castille, J., concurring)
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Adams testified, over objection, that he attempted to interview the
defendant about the homicide, telling defendant that his name had come up
in the matter, but the defendant responded that he had nothing to say. Id.
at 513. No further reference was made to the defendant’s pre-arrest
silence.
The plurality in Adams relied on precedent, noted above, that mere
reference to a defendant’s silence does not necessarily impinge
constitutional rights when guilt is not implied. Id. at 517. “While we have
interpreted the constitutional right against self-incrimination generally to
prohibit prosecutors from referencing a defendant’s silence as substantive
evidence of guilt,” the plurality continues, “this Court has also concluded
that the right against self-incrimination is not burdened when the reference
to silence is “circumspect” and does not “create an inference of an admission
of guilt.” Id.
In the case sub judice, Appellant’s PCRA petition alluded to trial
testimony wherein the investigating detective explained that he was in the
company of Appellant, his attorney, and several females in the lobby of
homicide headquarters when he told everyone that he would be taking
Appellant upstairs. According to the detective, Appellant and his attorney
spoke to the others briefly before the detective escorted the two upstairs.
When asked by the prosecutor whether he extended to them an opportunity
to supply information if they so desired, the detective replied that he was
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available for any information. Petitioner’s Memorandum in Support of PCRA
petition, 10/19/15, at 3-4 (quoting N.T. 5/3/1983, at 4338-4340).
Though assailed by Appellant as an impermissible exploitation of his
pre-arrest silence under Molina, the testimony in question refers to the
group’s silence in response to the detective’s invitation to provide
information and was not offered as substantive indicia of the defendant’s
guilt. Indeed, Appellant’s petition failed to aver that the prosecutor
otherwise used the detective’s testimony as evidence of guilt. Accordingly,
because we would conclude that the present case aligns with Adams and
not Molina, we would discern no merit to Appellant’s argument that the
time-bar exception at Section 9545(b)(1)(iii) applies even if Molina
constituted precedent announcing a newly-recognized right, as we would
deem such right inapposite to the facts of Appellant’s case.
Order is AFFIRMED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2016
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