J-A05043-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS ROBINSON,

Appellant No. 269 EDA 2015

Appeal from the Judgment of Sentence September 16, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005071-2012

BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 26, 2016

This is an appeal from the judgment of sentence imposed after a jury 

convicted Appellant of second-degree murder, robbery, and conspiracy to 

commit robbery.1 We affirm. 

The trial court summarized the pertinent facts and procedural history 

as follows:

On September 29, 2011, into the early morning hours of 

September 30, 2011, [the victim] met with friends at J’s Big 

Shot Lounge, a bar at the corner of Stenton Avenue and 

Narragansett Street in Philadelphia. [The victim] had recently 

purchased a Buick LeSabre, which he parked on the street near 

the bar. 

While [the victim] was in the bar, [Appellant] was on the 

street outside that bar with Daniel Riley, Terell Toson, Derick 

____________________________________________

1 See 18 Pa.C.S.A. §§ 2502, 3701, and 903, respectively.
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Toliver, and Markese Martin. Riley stated that he wanted to rob 

[the victim] who was known by the group to sell drugs in that 

area. Each member of the group agreed to rob [the victim]. 

While [the victim] was still inside the bar, Riley left the scene in 

order to obtain a firearm. Before leaving, Riley directed 

[Appellant] and Toson to break the window of [the victim’s] car, 

in order to delay [the victim] should he try to leave the bar 

before Riley returned. Toson attempted to break the car window 

with a rock, but was unsuccessful. [Appellant] then took a 

larger rock and threw it through the car window, breaking it. 

[Appellant] and Toson then walked away from the car without 

entering it or taking anything from it. Riley returned with the 

gun shortly after the window was broken. [Appellant] and Riley 

stood near the bar awaiting [the victim’s] exit, while Toson, 

Martin, and Toliver stayed down the street. 

[The victim] stayed in the bar until approximately 3:15 

a.m. Upon leaving, he was accompanied by his friend[,] Warren 

Roane, the bar manager, Julie Fluellen, the barmaid Mae, and 

the victim’s ex-girlfriend, Missy. They were going to go eat 

breakfast together after the bar closed. 

After leaving the bar, [the victim] went to his car with 

Mae, where he was confronted by [Appellant] and Riley. Riley 

ordered [the victim] to “give it up” while pointing his gun at [the 

victim’s] chest. [The victim] told Riley “you goin’ have to shoot 

me” and pushed the gun away. Riley then fired multiple shots at 

[the victim] as [the victim] began to flee back towards the bar. 

[Appellant] picked up two phones which had fallen to the ground 

during the shooting, a flip phone and a smart phone. 

[Appellant] and Riley then fled down Narragansett Street, away 

from the bar. Surveillance cameras captured the entire incident 

on video.

[The victim] was shot in the left side and leg. [The victim] 

told Roane he knew who shot him, though he never stated a 

name before dying. [The victim] and his friends flagged down a 

police vehicle that was in the area, which transported him to 

Einstein Hospital. [The victim] did not regain consciousness 

while in the hospital and eventually died on October 8, 2011.

[Appellant], Riley, Toson, Toliver, and [Martin] later met at 

Toson’s house. While at Toson’s house, [Appellant] gave the flip 

phone that he had picked up to Toson, while keeping the smart 

phone for himself. The flip phone belonged to [the victim].
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[Appellant] was transported to the Homicide Unit on 

December 9, 2011, where he waived his Miranda rights and gave 

a statement. [Appellant] informed the police that he had broken 

the window to [the victim’s] vehicle and then had picked up the 

two dropped phones on the street after the shooting. However, 

[Appellant] denied conspiring to rob [the victim].

Trial Court Opinion, 3/30/15, at 2-4 (citations and footnotes omitted).

Appellant and Riley were tried together. Appellant was found guilty of 

the aforementioned crimes, and the trial court immediately sentenced him to 

mandatory life in prison for his second-degree murder conviction.2 This 

timely appeal follows. Both Appellant and the trial court have complied with 

Pa.R.A.P. 1925.

Appellant raises the following issues:

A.

Whether the trial court improperly denied Appellant’s 

request for an instruction to the jury as to the defense 

theory of the case – that Appellant’s acts constituted the 

crimes of conspiracy and attempt to commit theft for the 

victim’s automobile and not conspiracy to rob, and 

robbery of the victim?

B.

Whether the trial court erred in denying the defense 

request for an instruction to the jury that [Appellant] was 

in no way involved in co-defendant Riley’s sudden violent 

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2 Riley was convicted on all charges, including first-degree murder, and the 

trial court immediately sentenced him to the mandatory term of life in 

prison. Riley filed an appeal, which is docketed at 212 EDA 2015 and shall 

be addressed in a separate decision. 
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outburst during trial and therefore the jury should not 

draw any adverse inference against [Appellant] from the 

incident?

Appellant’s Brief at 2.

Both of Appellant’s assertions involve the trial court’s jury instructions. 

Our standard of review is well settled:

In reviewing a challenged jury instruction, we must review the 

charge as a whole, and not simply isolated portions, to ascertain 

whether it fairly conveys the required legal principles at issue. 

We are reminded, as well, that a trial court possesses broad 

discretion in phrasing its instructions to the jury and is not 

limited to using particular language provided that the law is 

clearly, adequately and accurately presented to the jury. 

Commonwealth v. Bracey, 831 A.2d 678, 684 (Pa.Super. 2003) (citations 

omitted). “A jury instruction will be upheld if it clearly, adequately, and 

accurately reflects the law.” Commonwealth v. Smith, 956 A.2d 1029, 

1034-35 (Pa.Super. 2008) (en banc) (citation omitted). 

In his first issue, Appellant asserts that he was entitled to a “theory of 

defense” jury instruction. Appellant’s Brief at 12. Prior to the jury charge, 

defense counsel submitted the following for the trial court’s consideration:

DEFENSE THEORY INSTRUCTION

[Appellant] in this case contends he agreed and intended, only, 

to aid theft from [the victim’s] motor vehicle, not the armed 

robbery of the person of the [victim] and that he picked up the 2 

phones, 1 of which, happened to belong to the [victim], and 

both of which did not belong to him, merely, unrelated to the 

robbery, because the opportunity presented itself.

[Appellant] is not charged with the crimes of conspiracy to 

commit theft from [a] motor vehicle, theft from [a] motor 

vehicle, or theft of the cell phones.
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It is the prerogative of the Prosecutor to choose the charges to 

bring against [Appellant].

The burden is on the prosecution to prove beyond a reasonable 

doubt all the elements of the crimes charged, specifically that 

[Appellant] agreed and intended to aid the armed robbery of the 

person of the [victim] and not only theft from [the victim’s] 

motor vehicle, and theft of the 2 phones, 1 of which, happened 

to belong to the decedent, and both of which did not belong to 

him, merely, unrelated to the robbery, because the opportunity 

presented itself. 

The defendant cannot be convicted of those charges if he was 

merely present with others, or even because he knew what the 

other or others planned and were doing.

On the other hand, if you find that the Commonwealth has 

proven all of the elements of all or some of the crimes charged, 

you must find [Appellant] guilty of those charges.

Unopposed Motion to Supplement the Record with Proposed Jury Instruction 

Submitted by Appellant to Trial Court, 3/16/16, Exhibit A.3

Appellant argues:

The fact defense counsel was free to argue the defense theory 

was not sufficient to protect [his] due process right to a fair trial, 

since from the jury’s point of view only the [trial] court was 

authoritative as to the law and therefore as to as to [Appellant’s] 

criminal liability for attempt theft and conspiracy to commit 

theft. 

Appellant’s Brief at 12. He further asserts:

____________________________________________

3 We note that, following the trial court’s charge to the jury, Appellant 

objected to the trial court’s failure to give his proposed jury instruction. 

N.T., 9/15/14, at 209. See Commonwealth v. Pressley, 584 Pa. 624, 887 

A.2d 220 (2005). Moreover, we note that, on March 16, 2016, Appellant 

filed in this Court an unopposed Motion to Supplement the Record, and we 

grant Appellant’s motion.
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The fact that the Commonwealth chose not to charge [Appellant] 

with conspiracy and attempted theft from the car could hardly 

suffice to preclude the defense from presenting as a theory of 

defense that those crimes were all he was guilty of. Similarly 

irrelevant was the [trial] court’s excuse that the attempt theft 

and conspiracy to commit theft were not lesser included offenses 

of the robbery. In short, the [trial] court failed to understand 

that the fact that [Appellant] could not actually be found guilty 

of attempt theft from the car and conspiracy to commit theft 

hardly meant that he could not present those crimes as an 

explanation for his conduct. Thus, the [trial] court’s error 

greatly prejudiced [Appellant’s] due process right to a fair trial.

Id. Finally, Appellant argues “the fact that [he] could not actually be found 

guilty of attempt theft from the car and conspiracy to commit theft hardly 

meant that he could not present those crimes as an explanation for his 

conduct.” Id. at 18. Appellant’s claim is meritless.

Appellant conflates his ability to present a defense at trial with the 

entitlement to a jury instruction regarding that theory. Appellant was in no 

way precluded from presenting his theory that he was “a two-bit opportunity 

thief, but not an armed robber and felony murderer.” N.T., 9/15/14, at 18. 

The fact that Appellant was able to present such a defense does not, as a 

matter of constitutional due process, require the trial court to give 

Appellant’s proposed “defense theory” instruction. See Commonwealth v. 

Dykes, 541 A.2d 1, 4 (Pa.Super. 1988), appeal denied, 553 A.2d 965 (Pa. 

1988) (citation omitted) (rejecting the defendant’s claim that the trial court 

failed in explaining to the jury his theory of the case in more detail; 

“[a]though it is the duty of the trial court when charging the jury to clarify 

the issues, it is not compelled to comment upon nor review the accused’s 
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theory of the case.”). See also Commonwealth v. Lesko, 15 A.3d 345, 

397 (Pa. 2011) (explaining that “[i]nstructions to the jury are to be fair and 

accurate; they are not required to embody points that a party more properly 

should make in argument.”).

In dismissing this claim, the trial court states that Appellant “never 

cited, and the Court is unaware of, any authority that requires the Court to 

lay out [a] defendant’s theory of defense to the jury in the Court’s 

instructions.” Trial Court Opinion, 3/30/15, at 13. Within his brief, 

Appellant reiterates his assertion made during trial that Chambers v. 

Mississippi, 410 U.S. 284, 302 (1973) supports his claim, and that his 

entitlement to a “defense theory” instruction is authorized by United States 

Supreme Court’s decision in Mathews v. United States, 485 U.S. 58, 63 

(1998). Appellant’s Brief at 14. Such reliance is misplaced, as Chambers

involved the right to present a defense, while never specifically discussing 

jury instructions, and Mathews, unlike the present case, involved the 

recognized affirmative defense of entrapment.

Our review of the jury charge as a whole establishes that the trial 

court’s instructions to the jury clearly, adequately, and accurately reflected 

the law applicable to the charges filed by the Commonwealth. Smith, 

supra. Indeed, following the conclusion of its instructions, the trial court at 

Appellant’s request, specifically instructed the jury as follows:

THE COURT: Okay. Ladies and gentlemen, just to make 

sure in an abundance of caution [that] there’s no confusion, 
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you’ll see when you look at the verdict sheet that the conspiracy 

charge its says conspiracy to commit robbery. That’s the 

conspiracy charged in this case and to find defendant guilty of 

conspiracy in this case you must find that the Commonwealth 

has proved beyond a reasonable doubt that the conspiracy he’s 

[sic] guilty of is a conspiracy to commit the crime of robbery.

Conspiracy to commit the lesser included offenses that 

were discussed in this case such as conspiracy to commit theft 

from a motor vehicle, that would not suffice. Okay. I think 

that’s made clear by my instructions.

Also, of you forget, you’ll see it’s both in the written form 

of the instructions it says conspiracy to commit robbery and it 

says it on the verdict sheet as well.

N.T., 9/15/14, at 211-12. Thus, the trial court’s instruction included the 

basic premise of Appellant’s proposed “defense theory” instruction and 

allowed the jury to fully consider his defense. The fact that the entire 

proposed instruction was not used, or that it was phrased differently, does 

not entitle Appellant to relief. Bracey, supra.

In his remaining claim, Appellant asserts that the trial court erred in 

falling to instruct the jury properly with regard to co-defendant Riley’s 

disruptive behavior during their joint trial. The trial court summarized the 

pertinent facts regarding this event, as well its subsequent instructions to 

the jury, as follows:

At trial, during the testimony of Derick Toliver, codefendant Riley, in a fit of rage, threw all of his trial counsel’s 

files onto the floor and attacked his trial counsel[.] During this 

confrontation, [Appellant] was not involved in the fight. The 

defendants, the witness, and the jury were removed from the 

room as the sheriffs responded to the attack. Thereafter, with 

the agreement of counsel, the Court ended the trial for the day 

and cleared the courtroom of everyone except the court staff. 

Then again, with agreement of counsel, the court brought out 
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the jury to give instructions regarding the incident without the 

defendants, defense counsel, or the prosecutor being present. 

The Court instructed the jurors that they were to put the episode 

out of their heads and not hold it against anyone involved with 

the case. This instruction was repeated multiple times. The 

Court also questioned the jurors to ensure that all of them could 

disregard the matter and that they were not extremely upset by 

the fight. These instructions were transcribed overnight and 

provided to the lawyers prior to trial resuming the next day.

The next day, all parties, including defense counsel, 

indicated that they had received the transcribed instructions and 

did not object to them or otherwise wish to amplify or correct 

the instructions. However, counsel for [Appellant] did request 

that the Court give the following additional instruction before the 

trial resumed: “I instruct you [Appellant] was not involved and 

you shouldn’t consider it in any way against him. You must give 

each defendant your individual, independent, and separate 

consideration.” Instead of giving that instruction, before the trial 

resumed the Court repeated to the jurors that they should put 

the incident out of their memory and not hold it against anyone 

involved with the case. 

Trial Court Opinion, 3/30/15, at 18-19.

Within his brief Appellant asserts that he was denied a fair trial 

because “Riley’s outburst was so violent and sudden at least some jurors 

may not have perceived the event clearly and very likely inferred that 

[Appellant] was involved in some manner.” Appellant’s Brief at 13. 

Additionally, Appellant contends that “the court’s instruction to the jury not 

to draw inferences against ‘anybody’ permitted if not encouraged the jurors 

to infer that there was the possibility that [Appellant] was involved in some 

manner.” Id. According to Appellant, “the [trial] court’s instruction to the 

jury out of concern with trying to insure that Riley’s right to a fair trial was 
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not prejudiced by his outburst was issued at the expense of [Appellant’s] 

right to a fair trial[.]” Appellant’s Brief at 13. We disagree.

Appellant’s assertions are based inappropriately on speculation and 

conjecture.4 It is well-settled that it is within the trial court’s discretion to 

evaluate whether a defendant was prejudiced by a courtroom outburst and 

to determine the appropriate response. Commonwealth v. Sanchez, 36 

A.3d 24, 47 (Pa. 2011). We agree with the trial court’s conclusion that its 

“instruction, while not exactly what [Appellant] requested, was more than 

sufficient to be sure that no jurors would draw any inference adverse to 

[Appellant] from the fact that the co-defendant [Riley] was involved in a 

skirmish with his lawyer and the deputies.” Trial Court Opinion, 3/30/15, at 

19. The trial court further acknowledged that, during its final instructions, 

“the jury was clearly told to consider each defendant’s case separately.” Id. 

Appellant cites no authority for his proposition that if the outburst occurs 

during a joint trial, the trial court must provide a separate response tailored 

to each defendant. Thus, because the jury is presumed to abide by the trial 

court’s instructions, Commonwealth v. Tyson, 119 A.3d 353, 360 

(Pa.Super. 2015) (en banc), Appellant’s claim does not entitle him to relief. 

See Commonwealth v. Philistin, 53 A.3d 1, 33 (Pa. 2012) (concluding 

____________________________________________

4 Although Appellant joined in co-defendant’s motion for mistrial based upon 

this incident, he does not challenge its denial on appeal. See N.T., 9/10/14, 

at 243.
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that, because the jury is presumed to follow the trial court’s instructions, the 

defendant could not demonstrate that an outburst by spectator police 

officers in response the jury’s guilty verdict tainted the penalty phase in a 

capital murder case).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/26/2016