J-S78027-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

DESMOND ROBINSON 

 Appellant No. 156 EDA 2013 

Appeal from the PCRA Order December 17, 2012 

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013009-2007 

BEFORE: SHOGAN, J., OTT, J., and PLATT, J.*

 

MEMORANDUM BY OTT, J. FILED AUGUST 13, 2014 

 Desmond Robinson appeals from the order entered on December 17, 

2012, in the Court of Common Pleas of Philadelphia County denying his 

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 

9541 et seq. Robinson claims the PCRA court erred in denying his petition 

without a hearing because he raised a meritorious claim that his guilty plea 

 

____________________________________________ 

*

 Retired Senior Judge assigned to the Superior Court.
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was unknowing and involuntary. After a thorough review of the submissions 

by the parties, relevant law, and the certified record, we affirm.1, 2

We adopt the procedural history and facts from the PCRA Court’s 

Pa.R.A.P. 1925(a) opinion. 

On July 31, 2001, a cab driver picked up Robinson and another 

man shortly after 3:00 a.m. Robinson and the other man 

attempted to rob the driver at gunpoint; the cab driver tried to 

speed off in the cab, but was unsuccessful. The cab driver was 

shot two times in the back; he later died as a result of these 

gunshot wounds. Robinson left his baseball cap in the cab, from 

which DNA evidence was later recovered, ultimately leading to 

Robinson’s arrest and prosecution. Homicide detectives then 

interviewed Robinson and he admitted to planning and

participating in the robbery. Robinson’s statement to the 

detectives was recorded, in writing and on videotape. The facts 

presented at Robinson’s guilty plea hearing confirm that 

Robinson planned to rob the cab driver at gunpoint. During the 

course of Robinson’s prosecution, several counsel accepted 

appointment and later withdrew as Robinson’s counsel, including 

Christopher J. Evarts, Esquire, Bernard L. Siegel, Esquire, and 

Barbara McDermott, Esquire. Bernard L. Siegel ultimately 

represented Robinson at his guilty plea hearing. 

On April 13, 2009, Robinson entered a negotiated guilty plea to 

Third Degree Murder (18 Pa.C.S. § 2502(c)), Robbery (18 

Pa.C.S. § 3701(a)(1)(i)), Conspiracy (18 Pa.C.S. § 903) and 

Possession of an Instrument of Crime (“PIC” 18 Pa.C.S. § 

____________________________________________ 

1

 This matter was previously remanded for counsel to file a Pa.R.A.P. 

1925(b) statement of errors complained of on appeal and trial court opinion. 

See Commonwealth v. Robinson, ___ A.3d. ___, [156 EDA 2013], (Pa. 

Super., February 3, 2014) (unpublished memorandum). 

2

 On May 27, 2014, this Court also granted Robinson an extension of time, 

until July 12, 2014, to file a brief following remand. However, no brief has 

been filed. 
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907(b)) before this Court in the Philadelphia Court of Common 

Pleas. 

That same day, Robinson was sentenced to an aggregate term of 

imprisonment of thirty (30) to sixty (60) years to run

concurrently with other sentences Robinson was already serving 

for unrelated matters. Robinson did not seek to withdraw his 

plea or file a direct appeal of his judgment of sentence. 

Therefore, his judgment of sentence became final on May 14, 

2009. 

The docket in this matter reveals that Robinson filed a pro se

Post-Conviction Relief Act (“PCRA”) Petition on June 8, 2010, 

pursuant to 42 Pa.C.S. § 9541 et seq, alleging ineffective 

assistance of counsel and that his guilty plea was unlawfully 

induced. Lee Mandell, Esquire was appointed to serve as 

Robinson’s PCRA Counsel. On July 12, 2011, PCRA Counsel filed 

a Finley Letter pursuant to Commonwealth v. Finley, 550 

A.2d 213 (Pa. Super. Ct. 1988), wherein stating that Robinson’s 

PCRA Petition should be dismissed as untimely filed. 

On August 4, 2011, Robinson filed a pro se response to PCRA 

Counsel’s Finley Letter, wherein alleging that his pro se PCRA 

Petition was timely filed pursuant to the Prisoner Mailbox Rule. 

The Prisoner Mailbox Rule provides that “when the appellant is 

(a) acting pro se and (b) incarcerated at the time he or she 

seeks to file an appeal, justice requires the appeal be deemed 

“filed” on the date that the appellant deposits the appeal with 

prison authorities and/or places it in the prison mailbox.” 

Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997). 

Courts of the Commonwealth may accept any reasonable 

verifiable evidence of such deposit or placement of documents in 

the prison mailbox. Id. Robinson attached a “Cash Slip” to his 

response indicating that he deposited his pro se PCRA Petition 

with prison authorities on May 9, 2010, which is within the oneyear filing deadline mandated by the PCRA. On August 12, 

2011, Robinson filed a pro se Amended PCRA Petition. 

On October 7, 2011, upon review of Robinson’s PCRA Petition, 

the [PCRA] Court issued a notice of Intent to Dismiss pursuant to 

Pa.R.A.P. 907. Robinson filed a response to the Notice of Intent 

to Dismiss in the form of a Motion for Reconsideration on 

November 18, 2011. The [PCRA] Court, upon further review, 

granted Robinson’s Motion for Reconsideration and ordered PCRA 
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Counsel to submit a response specifically on the issue of the 

application of the Prisoner Mailbox Rule as it applied to 

Robinson’s PCRA Petition. Six continuances were granted by the 

Court to this end. On August 10, 2012, PCRA Counsel filed an 

Amended PCRA Petition on Robinson’s behalf, wherein stating 

that Robinson’s pro se PCRA Petition was timely filed. 

On November 2, 2012, the Commonwealth filed its Motion to 

Dismiss Robinson’s PCRA Petition. Upon independent review of 

Robinson’s PCRA Petition and the Commonwealth’s Motion to 

Dismiss, the [PCRA] Court issued a Notice of Intent to Dismiss 

pursuant to Pa.R.A.P. 907, on November 21, 2012. On

December 17, 2012, the [PCRA] Court issued an Order 

dismissing Robinson’s PCRA Petition as meritless. 

On January 10, 2013, PCRA Counsel filed a Notice of Appeal on 

Robinson’s behalf in the Superior Court of Pennsylvania. On 

January 15, 2013, pursuant to Pa.R.A.P. 1925(b), th[e PCRA] 

Court ordered Robinson to file a Concise Statement of Matters 

Complained of on Appeal (“1925(b) Statement”) within twentyone (21) days. As of March 8, 2013, when th[e PCRA] Court 

filed its prior Opinion in this matter, Robinson had not filed his 

1925(b) Statement.[3]

 Therefore, th[e PCRA] Court concluded 

that Robinson had waived all issues on appeal and as a result his 

appeal should be quashed. 

On February 3, 2014, the Superior Court remanded the matter 

to permit Robinson to file a 1925(b) Statement nunc pro tunc

and directed th[e PCRA] Court thereafter to prepare and file its 

Pa.R.A.P. 1925(a) opinion. On February 24, 2014, Robinson, 

through court appointed counsel, timely filed his 1925(b) 

Statement pursuant to the Superior Court’s Order. Unlike its 

usual custom, the [PCRA] Court will not recite Robinson’s

complaints of error on appeal. Essentially, Robinson avers that 

th[e PCRA] Court erred in dismissing his PCRA Petition without 

an evidentiary hearing, at which Robinson would have been able 

to prove that (1) his guilty plea was not knowingly, intelligently, 

and voluntarily entered; and (2) Trial Counsel was ineffective for 

____________________________________________ 

3 We wish to note our displeasure with PCRA Counsel’s failure to ensure the 

certified record was complete, leading to further delay in the resolution of 

this petition and appeal. 
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failing to fully explain the possibility of motioning the Court to 

suppress Robinson’s statement to homicide detectives.

PCRA Court Opinion, 3/25/2014, at 1-4.

 We note the standard of review for the instant matter: 

[T]his Court's standard of review regarding an order denying 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. Commonwealth v. Ragan, 592 Pa. 217, 923 A.2d 

1169, 1170 (2007). The PCRA court's findings will not be 

disturbed unless there is no support for the findings in the 

certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 

(Pa. Super. 2001). 

Commonwealth v. Davis, 86 A.3d 883, 886 (Pa. Super. 2014). 

 The PCRA court has appropriately noted that this PCRA petition has 

been timely filed. Therefore, we will dispense with a recitation and analysis 

of the timeliness/jurisdictional requirements. 

 Robinson has raised two issues under his central claim that the PCRA 

court improperly denied him a hearing on his petition. Pursuant to 

Pa.R.Crim.P. 907, upon receipt of the PCRA petition:

The judge shall promptly review the petition, any answer by the 

attorney for the Commonwealth, and other matters of record 

relating to the defendant’s claim(s). If the judge is satisfied 

from this review that there are no genuine issues concerning any 

material fact and that the defendant is not entitled to postconviction collateral relief, and no purpose would be served by 

any further proceedings, the judge shall give notice to the 

parties of the intention to dismiss the petition and shall state in 

the notice the reasons for the dismissal. The defendant may 

respond to the proposed dismissal within 20 days of the date of 

the notice. The judge thereafter shall order the petition 

dismissed, grant leave to file an amended petition of direct that 

proceedings continue. 

Pa.R.Crim.P. 907(1). 
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 Accordingly, 

[a] PCRA court may decline to hold a hearing if the petitioner's 

claim is patently frivolous and is without a trace of support in 

either the record or from other evidence. A reviewing court on 

appeal must examine each of the issues raised in the PCRA 

petition in light of the record in order to determine whether the 

PCRA court erred in concluding that there were no genuine 

issues of material fact and denying relief without an evidentiary 

hearing. 

Commonwealth v. Jordan, 772 A.2d 1011, 1014 (Pa. Super. 2001) 

(citations omitted). 

Robinson’s first claim is that his guilty plea was involuntary because he 

was medicated at the time and dozed off during the colloquy. Therefore, he 

did not fully understand the nature and consequences of his plea. 

 The PCRA Court properly noted that this claim was not raised in 

connection with any allegation of counsel’s ineffectiveness. Therefore, the 

claim should have been raised on direct appeal, but was not. Because the 

claim was not raised in the first instance, the issue has been waived. See

42 Pa.C.S. § 9544(b) (issue waived if petitioner could have raised it but 

failed to do so before trial, at trial, during unitary review on appeal or in a 

prior state post-conviction proceeding); Commonwealth v. Steele, 961 

A.2d 786, 796 (Pa. 2008). Therefore, we agree with the PCRA Court that 

this issue has been waived. 

 Even if we accepted the issue as having been properly preserved, 

Robinson would not be entitled to relief. We have reviewed the notes of 

testimony from the guilty plea and Robinson is shown to have been a full 
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participant in the proceeding. He provided cogent answers to all questions 

put to him as well as allocution. The certified record belies this aspect of 

Robinson’s claim.

 Next, Robinson claims counsel was ineffective for failing to explore the 

viability of a suppression motion, seeking to exclude his incriminating 

statement made to the police. 

The written guilty plea colloquy form, however, specifically addressed 

the subject of suppression motions as well as the fact that by pleading guilty 

he would be giving up the right to challenge evidence or to appeal a decision 

that had denied suppression. See Written Guilty Plea Colloquy, 4/13/2009, 

at 2. 

Furthermore, the notes of testimony from the guilty plea hearing 

demonstrate that Robinson read and understood the written guilty plea 

colloquy. 

THE COURT: Okay. Now I have in my hand the Written Guilty 

Plea Colloquy. Are you familiar with this document? 

[ROBINSON]: Yes. 

THE COURT: It appears to have your signature on Page 3. It 

that your signature there? 

[ROBINSON]: Yes. 

THE COURT: All right. Now, that signature indicates to me and 

anyone else who would read this in the future that you read it, 

you understood it, you discussed it with your attorney and you’re 

satisfied with the contents of it and you’re satisfied with your 

attorney and you signed it because you agree with everything 

that’s in it; is that correct?
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[ROBINSON]: Yes. 

THE COURT: Is that correct? 

[ROBINSON]: Yes, sir. 

N.T. Guilty Plea, 4/13/2009, at 10-11.

 It is well settled that, 

“[a] defendant may not assert grounds for withdrawing the plea 

that contradict statements made when he pled guilty. Because 

Lewis stated at his colloquy that he was satisfied with his 

counsel's representation, he is foreclosed from now asserting 

that counsel's representation was ineffective.” 

 

Commonwealth v. Lewis, 708 A.2d 497, 501 (Pa. Super. 1998) (citation 

omitted). 

 Because the certified record demonstrates Robinson conferred with 

trial counsel regarding the written guilty plea colloquy and was satisfied with 

counsel’s representation, he is foreclosed from asserting the contrary now. 

Therefore, Robinson is not entitled to relief on this aspect of his claim. 

Because the certified record confirms Robinson’s claims were patently 

frivolous and there would be no purpose to further proceedings, the PCRA 

Court properly dismissed his petition without a hearing. 

 Order affirmed. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/13/2014