Com. v. Robertson, P., 389 EDA 2016

Background

Appellant Portie A. Robertson was convicted of two counts of first-degree murder and six counts of aggravated assault and sentenced to life on June 22, 1987; his conviction became final in 1990.
Robertson filed multiple collateral challenges; this was his fifth PCRA petition filed October 19, 2015.
The PCRA court dismissed the petition as patently untimely under 42 Pa.C.S. § 9545(b)(1) and because no timeliness exception was adequately pled.
Robertson relied on Section 9545(b)(1)(iii), arguing Molina announced a new constitutional rule barring references to pre-arrest silence and that Molina therefore excused his late filing.
The contested trial testimony involved a detective saying he invited Appellant (and others present) to provide information; Appellant allegedly remained silent after the invitation.
The PCRA court and this Court concluded Molina did not create a right applicable to Robertson’s facts and affirmed dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether PCRA court has jurisdiction over untimely petition	Robertson: Molina created a new constitutional right re: pre-arrest silence, invoking §9545(b)(1)(iii) to excuse untimeliness	Commonwealth: Petition is untimely; no cognizable timeliness exception; Molina (even if new) is inapposite	Court held petition untimely; no timeliness exception established and dismissal affirmed
Whether Molina announces a new retroactive constitutional right applicable here	Robertson: Molina’s plurality decision should be read as newly recognizing prohibition on exploiting pre-arrest silence	Commonwealth: Preexisting Pennsylvania precedent already limited use of silence; Molina not controlling or does not apply to these facts	Court held Molina does not provide a new right that helps Robertson; his case aligns with prior precedent and Adams, not Molina
Whether the detective’s testimony constituted unconstitutional exploitation of pre-arrest silence	Robertson: Detective’s testimony invited information but silence was effectively used against him	Commonwealth: Testimony was a circumspect invitation, not used as substantive evidence of guilt	Court held testimony described an invitation to speak and was not shown to have been exploited as evidence of guilt; no constitutional violation proven
Whether successive PCRA petition met the prima facie miscarriage-of-justice standard	Robertson: Alleged constitutional error at trial could show miscarriage of justice	Commonwealth: Successive petition lacks strong prima facie showing; claim previously litigated/waived and untimely	Court held Robertson failed to meet the stringent standard for a successive PCRA petition

Key Cases Cited

Halley v. Commonwealth, 870 A.2d 795 (Pa. 2005) (standard of review for PCRA dismissal)
Carr v. Commonwealth, 768 A.2d 1164 (Pa. Super. 2001) (appellate review and factual findings deference)
Jordan v. Commonwealth, 772 A.2d 1011 (Pa. Super. 2001) (PCRA court may deny hearing on patently frivolous claims)
Burkhardt v. Commonwealth, 833 A.2d 233 (Pa. Super. 2003) (stringent standard for successive PCRA petitions)
Robinson v. Commonwealth, 12 A.3d 477 (Pa. Super. 2011) (timeliness is jurisdictional under the PCRA)
Commonwealth v. Abu-Jamal, 833 A.2d 719 (Pa. 2003) (court may not reach merits of untimely PCRA petition)
Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014) (plurality opinion addressing exploitation of pre-arrest silence)
Commonwealth v. Adams, 104 A.3d 511 (Pa. 2014) (plurality distinguishing mere reference to pre-arrest silence from exploitation)
Commonwealth v. DiNicola, 866 A.2d 329 (Pa. 2005) (limitations on using silence as substantive evidence)
Commonwealth v. Whitney, 708 A.2d 471 (Pa. 1998) (constitutional concerns about referencing a defendant’s silence)