J-S06010-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS ROBINSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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Super. 2016) (non-precedential decision), appeal denied, 157 A.3d 481 (Pa. 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 

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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 C43) (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