J-S81040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


*
    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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