J-A05043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




*Former Justice specially assigned to the Superior Court.
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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
____________________________________________


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, co-
      defendant 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




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