J-S71040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ROBERT E. ROBINSON

Appellant No. 3515 EDA 2015

Appeal from the PCRA Order October 27, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0718101-1982

BEFORE: BOWES, PANELLA, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED MARCH 30, 2017

Appellant, Robert E. Robinson, appeals pro se from the order denying 

his serial petition for post-conviction relief filed pursuant to the Post 

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. Appellant claims 

he is entitled to relief based on his recent discovery of his trial counsel’s 

substance abuse issues and ineffective assistance, as well as sentencing 

relief based on Miller v. Alabama, 132 S. Ct. 2455 (2012), and 

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We affirm in part, 

vacate in part, and remand for further proceedings.

A summary of the pertinent facts and procedural history follows. 

Appellant was eighteen-years-old when he committed the offenses giving 

rise to the underlying conviction. On July 1, 1983, Appellant pleaded guilty

 

*

Former Justice specially assigned to the Superior Court.
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to second-degree murder and criminal conspiracy. On August 22, 1983, the 

trial court sentenced him to life imprisonment for murder and a concurrent 

period of ten to twenty years of imprisonment for conspiracy. Appellant did 

not file a post-sentence motion seeking to withdraw his guilty plea. 

Appellant filed a timely appeal to this Court. In an unpublished 

memorandum filed on March 1, 1985, we concluded that Appellant’s failure 

to file a motion to withdraw his plea before the trial court waived his right to 

challenge the plea on direct appeal. See Commonwealth v. Robinson, 

2384 PHL 1983 (Pa. Super. filed Mar. 1 1985) (unpublished memorandum).

Between 1986 and 2007, Appellant filed numerous petitions for postconviction relief, which were dismissed as either lacking in merit or being 

untimely. In 2010, Appellant filed his seventh PCRA petition, in which he 

claimed that he discovered new evidence in his school records of his 

borderline intelligence. He asserted that this mental deficiency, along with 

bad advice from the trial court and/or trial counsel regarding his eligibility 

for parole from a life sentence, caused him to enter an invalid plea. In an 

unpublished memorandum filed on June 4, 2013, this Court concluded that 

Appellant’s seventh petition was untimely and that he failed to establish any 

exception to the PCRA’s time bar. Commonwealth v. Robinson, 1485 EDA 

2012 (Pa. Super. filed June 4, 2013) (unpublished memorandum). On 

December 4, 2013, our Supreme Court denied Appellant’s petition for 

allowance of appeal. Commonwealth v. Robinson, 81 A.3d 77 (Pa. 2013). 
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Meanwhile, on August 21, 2012, Appellant filed his eighth PCRA petition in 

which he claim he was entitled to relief pursuant to the United States 

Supreme Court’s decision in Miller. 

While Appellant’s eighth petition was pending in the PCRA court, 

Appellant filed another PCRA petition on June 19, 2015. Appellant asserted 

that he possessed newly-discovered evidence that his trial counsel had a 

substance abuse issue in the early 1980s, and that counsel’s addiction 

caused Appellant to enter an invalid plea. Appellant further raised a claim of 

governmental interference with the presentation of his assertion regarding 

counsel’s drug abuse, suggesting that the Commonwealth was aware of 

counsel’s drug issues and withheld the information from him. 

On September 22, 2015, the PCRA court issued a Pa.R.Crim.P. 907 

notice of intent to dismiss Appellant’s eighth and ninth petitions without a 

hearing. Appellant filed a response on September 30, 2015. After reviewing 

the response, the court denied the petitions on October 27, 2015. This 

timely appeal follows.1

Appellant raises the following issues:

Whether the PCRA court erred in denying [Appellant’s 

PCRA] petition as untimely filed when [Appellant] 

established that his newly-discovered evidence claims were 

within the exception of the plain language under 42 

Pa.C.S.A. § 9545(b)(1)(ii) and [§] 9545(b)(2)?

 

1

 Appellant complied with the PCRA court’s order to submit a Pa.R.A.P. 

1925(b) statement, and the court filed a responsive opinion.
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Whether [Appellant] is entitled to a new trial, or remand 

for an evidentiary hearing based upon the personal 

“Presentence Hearing and Sentencing Transcripts of [trial 

counsel], the attorney admitted he [] had a drug problem 

[with] cocaine and he [] has been ingesting cocaine for 

fourteen (14) years from 1979 to 1990?

Whether the District Attorney’s Office failure to disclose 

exculpatory evidence that their former [colleague, trial 

counsel,] has a drug problem [with] cocaine and has been 

ingesting cocaine from 1970 [sic] to 1990, until [trial 

counsel] was suspended and had to [resign] from the 

District Attorney’s Office in 1982, to [Appellant], violates 

the prosecutor’s obligation under the Fourteenth 

Amendment’s Due Process Clause?

Whether it is cruel and unusual punishment to impose a 

mandatory sentence of life without parole, on [Appellant] 

who was a “minor” of 18 years of age, and who is 

classified of those “adolescents” as defined the class of 

developing adolescents under Pennsylvania law, violates 

the equal protection of the laws. In [Miller], the U.S. 

Supreme Court held [] that the mandatory imposition of 

life without parole sentences violates the Eighth 

Amendment’s prohibition on cruel and unusual 

punishment[, a] claim now held to be retroactive by the 

U.S. Supreme Court in [Montgomery] . . . requiring a 

hearing for resentencing under [the PCRA].

Appellant’s Brief at vi (excess capitalization omitted).

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. 

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). 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). Moreover, a PCRA court may decline to hold a 
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hearing on the petition if the “petitioner’s claim is patently frivolous and 

lacks a trace of support in either the record or from other evidence.” 

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

Because this is an appeal from Appellant’s eighth and ninth petitions 

for post-conviction relief, we note that his petitions must meet a more 

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 and quotation marks 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 

no civilized society could tolerate, or that he was innocent of the crimes for 

which he was charged.” Id. (citations and quotation marks omitted). 

The timeliness of a post-conviction petition is jurisdictional. 

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). 

Generally, a PCRA petition, including a second or subsequent petition, must 

be filed within one year of the date the judgment is final unless the petition 

alleges, and the petitioner proves, that an exception to the time for filing the 

petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is met.2 See

 

2 The exceptions to the timeliness requirement are:
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42 Pa.C.S § 9545(a), (b). A petition invoking one of these statutory 

exceptions must “be filed within 60 days of the date the claims could have 

been presented.” See Hernandez, 79 A.3d at 651-52 (citation omitted); 

see also 42 Pa.C.S. § 9545(b)(2). Finally, exceptions to the PCRA’s time 

bar must be pleaded 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) (citations omitted).

Appellant filed his ninth petition in June 2015 seeking relief from a 

judgment of sentence that became final over thirty years ago. Therefore, 

that petition was facially untimely unless he has satisfied his burden of 

pleading and proving that one of the enumerated exceptions applies. See

Hernandez, 79 A.3d at 651-52.

 

(i) the failure to raise the claim previously was the result 

of interference of 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;

(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. § 9545(b)(1)(i)-(iii).
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As to his June 2015 petition, Appellant claims that he timely filed it 

within sixty days of receiving information from a fellow prisoner about trial 

counsel’s drug problem. Appellant attached as exhibits several supporting 

documents, including his affidavit in which he explains how and when the 

fellow prisoner gave him the information, copies of newspaper articles 

regarding trial counsel’s criminal conduct, and a 2011 letter from trial 

counsel—in which counsel continued to opine that Appellant was eligible for 

parole. Additionally, Appellant attached a copy of trial counsel’s 1994 

arraignment and a transcript of the April 29, 1994 plea hearing at which 

counsel pleaded guilty to unlawful possession of cocaine in the United States 

District Court for the Eastern District of Pennsylvania.

When considering a PCRA’s petitioner’s claim that he has established 

an exception to the PCRA’s time bar under Section 9545(b)(1)(ii), the 

petitioner must establish only that the facts upon which the claims are 

predicated were unknown to him, and that he could not have ascertained the 

facts earlier despite the exercise of due diligence. Commonwealth v. 

Bennett, 930 A.2d 1264, 1270-72 (Pa. 2007). The determination of 

timeliness does not require a merits analysis.3 See id.; see also

 

3

 To obtain relief based upon an “after-discovered” evidence claim, a PCRA 

petitioner “must demonstrate that the evidence: (1) could not have been 

obtained prior to the conclusion of the trial by exercise of due diligence; (2) 

is not merely corroborative or cumulative; (3) will not be used solely to 

impeach the credibility of a witness; and (4) would likely result in a different 
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Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008); 

Commonwealth v. Brown, 141 A.3d 491, 500 (Pa. Super. 2016). 

Compare 42 Pa.C.S. § 9545(b)(1)(ii) with 42 Pa.C.S. § 9543(a)(2)(vi). 

In its Pa.R.A.P. 1925(a) opinion, the PCRA court concluded that 

Appellant’s claim did not constitute newly-discovered evidence:

[Appellant] also claims that he is entitled to a new trial 

due to “after-discovered” evidence. Specifically, 

[Appellant] argues that his trial attorney had a substance 

abuse issue in the early 1980’s [sic] that prevented 

counsel from effectively representing him. In support of 

this claim, [Appellant] cited a portion of [a] 1982 

newspaper article, and a portion of a 1994 U.S. District 

Court guilty plea transcript, wherein trial counsel pled 

guilty to drug trafficking. 

[Appellant’s] claim does not constitute after-discovered 

evidence, and his argument is not convincing. Trial 

counsel represented [Appellant] in 1983. Counsel pled 

guilty to drug trafficking offense that occurred between 

1991 and 1992. [Appellant] cannot reasonably claim that 

the trial counsel’s subsequent legal problems impacted his 

decision to plead guilty a decade earlier. Aside from 

allegations contained in an article, [Appellant] has not 

provided any evidence to suggest that counsel’s 

representation as it related to [Appellant’s] case was 

improper. [Appellant] has failed to demonstrate that any 

of the exceptions to the time limitations of the PCRA apply 

to his case.

PCRA Ct. Op., 11/16/15, at 4.

In reaching this conclusion, the PCRA court “appear[s] to conflate the 

newly-discovered fact exception with an after-discovered evidence claim.” 

 

verdict if a new trial were granted.” Commonwealth v. Pagan, 950 A.2d 

270, 292 (Pa. 2008) (citations omitted). 
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See Brown, 141 A.3d at 500. The PCRA court, without first determining 

whether Appellant exercised due diligence in discovering the new evidence, 

found the claim unconvincing as a basis for withdrawing his plea. Thus, we 

vacate the PCRA court’s order insofar as it relates to Appellant’s newlydiscovered evidence claim, and remand for an evidentiary hearing to 

determine whether Appellant has pled and proved the applicability of the 

newly-discovered fact exception. See Brown, 141 A.3d at 500. To the 

extent Appellant’s third issue impacts the decision on Appellant’s first two 

issues, Appellant may proffer any additional evidence to support his claim 

upon remand.

In his final issue, Appellant asserts that the PCRA court erred in 

denying him post-conviction relief based upon the United States Supreme 

Court’s recent opinions in Miller, and Montgomery.

4

 As acknowledged by 

Appellant, the high court in Miller held that a statute requiring a mandatory 

life sentence without possibility of parole for a juvenile convicted of first or 

second-degree murder violates the Eighth Amendment’s prohibition against 

cruel and unusual punishment. Furthermore, in Montgomery, the high 

court concluded that Miller applied retroactively. Our review of the record 

in this case, however, supports the PCRA court’s conclusion that this federal 

 

4 Appellant filed his 2012 PCRA petition while his appeal of the dismissal of 

his 2010 petition was still pending. See Commonwealth v. Lark, 746 A.2d 

585 (Pa. 2000). However, because the PCRA court did not dismiss the 2012 

petition and subsequently denied relief, we will consider Appellant’s reliance 

on Miller and Montgomery as exceptions to the PCRA time bar. 
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precedent is inapplicable to Appellant because he was not a juvenile at the 

time he committed the murder. See PCRA Ct. Op. at 4. Moreover, 

Pennsylvania precedent has rejected Appellant’s equal protection arguments 

regarding Miller’s application. See, e.g., Commonwealth v. Cintora, 69 

A.3d 759 (Pa. Super. 2013). Thus we affirm that portion of the order 

denying Appellant post-conviction relief on this claim.

Order affirmed in part and vacated in part. Case remanded for 

proceedings consistent with this memorandum. Jurisdiction relinquished.

Judge Panella joins the memorandum.

Judge Bowes files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2017