Opinion
No. 767 CAP
11-06-2019
COMMONWEALTH of Pennsylvania, Appellee v. Paul Gamboa TAYLOR, Appellant
ORDER
PER CURIAM
AND NOW, this 6th day of November, 2019, the order of the Court of Common Pleas is AFFIRMED by operation of law, as the votes among the participating Justices are equally divided.
Appellant's applications to correct omission from the record and to present oral argument are DENIED . With respect to appellant's application to waive conflict, a jurist's decision to recuse is a matter of individual discretion or conscience. See Commonwealth v. O'Shea , 523 Pa. 384, 567 A.2d 1023, 1034 (1989) ; In re Crawford's Estate , 307 Pa. 102, 160 A. 585, 587 (1931). As each member of this Court has resolved his or her own participation in this appeal, the application to waive conflict, as well as the application to file a reply in support thereof, are DENIED .
Chief Justice Saylor and Justices Baer and Todd did not participate in the consideration or decision of this matter.
OPINION IN SUPPORT OF REVERSAL
JUSTICE WECHT
On December 8, 2014, Paul Gamboa Taylor filed his fourth petition pursuant to the Post Conviction Relief Act ("PCRA") seeking a new appeal to this Court from the denial of his third PCRA petition. The PCRA court dismissed the fourth petition, holding that the court lacked the authority to grant the relief that Taylor sought. The PCRA court did, in fact, have the authority to grant the requested relief, if warranted on the merits of Taylor's claim. Accordingly, we would reverse the order of the PCRA court and would remand for further proceedings. On May 20, 1991, Taylor was arrested and charged with five counts of first-degree murder. On December 19, 1991, Taylor pleaded guilty to five counts of homicide generally. Following a degree-of-guilt hearing on January 10, 1992, the trial court found Taylor guilty of first-degree murder on all five counts. That same day, the trial court proceeded to a sentencing hearing, at which the trial court sentenced Taylor to four death sentences on four counts of first-degree murder and a life without parole sentence on the fifth count. On January 23, 1992, the trial court formally imposed the sentences. This Court affirmed Taylor's judgment of sentence on direct appeal. Commonwealth v. Taylor , 535 Pa. 266, 634 A.2d 1106 (1993) ( Taylor I ).
See 42 Pa.C.S. §§ 9541 -46.
Taylor sought relief under the PCRA. The PCRA court denied relief, and this Court affirmed. Commonwealth v. Taylor , 553 Pa. 144, 718 A.2d 743 (1998) ( Taylor II ). In February 1999, Taylor filed a second PCRA petition. Once again, the PCRA court denied relief, and this Court affirmed. Commonwealth v. Taylor , 562 Pa. 70, 753 A.2d 780 (2000) ( Taylor III ).
In 2008, Taylor filed a third PCRA petition, in which he alleged that trial counsel had a conflict of interest. The Commonwealth was represented by the Office of Attorney General ("OAG"). The PCRA court denied relief on jurisdictional grounds. This Court affirmed. Commonwealth v. Taylor , 620 Pa. 429, 67 A.3d 1245 (2013) ( Taylor IV ).
On December 8, 2014, Taylor filed the present PCRA petition, his fourth. Taylor asserted that news articles began to emerge in the fall of 2014 regarding former Attorney General Kathleen Kane's discovery of inappropriate emails on OAG servers that had been exchanged between employees of the OAG and the judiciary. On October 2, 2014, news accounts revealed that pornographic email chains included former Justice Seamus McCaffery and employees of the OAG. See Karen Langley, High Court Justice Sent Emails with Explicit Content , PITTSBURGH POST GAZETTE , Oct. 2, 2014; PCRA Petition, 12/8/2014, at Ex. A. According to Taylor, beginning on October 8, 2014, news accounts reported that the emails between Justice McCaffery and employees of the OAG were not limited to pornographic emails, but also included thousands more emails of an undisclosed nature between the Justice and OAG employees. News accounts also revealed that hundreds more emails were exchanged between members of the Supreme Court and OAG staff. See Brad Bumsted & Adam Brandolph, Castille Expects Emails' Delivery , PITTSBURGH TRIBUNE REVIEW , Oct. 8, 2014; PCRA Petition, 12/8/2014, at Ex. A; Brad Bumsted, Castille Clears All Justices but McCaffery in Porn Scandal , PITTSBURGH TRIBUNE REVIEW , October 16, 2014; PCRA Petition, 12/8/2014, at Ex. A.
In his fourth PCRA petition, Taylor relied upon this email scandal to argue that he did not receive the "impartial and disinterested tribunal" that due process requires. See Marshall v. Jerrico, Inc. , 446 U.S. 238, 242, 100 S.Ct. 1610, 64 L.Ed.2d 182 (1980). Taylor alleged that the impartiality of this Court was called into question by the number and content of emails exchanged between employees of the OAG and Justices of the Supreme Court at the time that Taylor IV was pending. Taylor asserted that these emails included, and demonstrated an apparent tolerance for, misogyny, racism, Islamophobia, anti-immigrant sentiment, and insensitivity to domestic violence, all in the guise of humor. Taylor claimed that, because he is of Hispanic and African-American descent, the emails demonstrated that former Justice McCaffery was biased against him. Additionally, according to Taylor, "[t]he disclosures reveal a virtual torrent of communications between the court deciding [Taylor's] fate and his party-opponent, the Attorney General's Office, during the pendency of his appeal, many of which have been found to be improper." PCRA Petition, 12/8/2014, 11-12. Taylor further alleged that two members of the OAG who represented the Commonwealth during the appeal in Taylor IV were named in news reports as having been engaged in communications with Justice McCaffery that included pornographic content.
Taylor acknowledged that his fourth PCRA petition facially was untimely. See 42 Pa.C.S. § 9545(b)(1) ("Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final ...."). Taylor relied upon two exceptions to this time bar: Subsection 9545(b)(1)(i) (requiring the petitioner to allege and prove that "the failure to raise the 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"), and Subsection 9545(b)(1)(ii) (requiring the petitioner to allege and prove that "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"). In 2014, both exceptions required the petitioner to file the petition invoking these exceptions within sixty days of the date the claim first could have been presented. 42 Pa.C.S. § 9545(b)(2) (2014).
As amended, Section 9545(b)(2) now permits a petitioner invoking these exceptions to file the petition within one year of the date the claim could have been presented. See Act of Oct. 24, 2018, P.L. 894, No. 146.
Taylor filed the petition on December 8, 2014. According to Taylor, this was within sixty days of October 8, 2014, and October 16, 2014, when the first news accounts revealed that communications were not limited to pornographic images sent by Justice McCaffery, but included thousands of emails from Justice McCaffery to members of the OAG. Taylor requested the PCRA court to remedy this alleged due process violation (i.e. , Justice McCaffery's participation in his appeal while exhibiting bias) by ordering a new appeal to the Supreme Court from the denial of relief on his third PCRA petition.
Shortly thereafter, on December 15, 2014, Taylor filed a motion to disqualify the OAG from representing the Commonwealth and a motion seeking discovery from the Commonwealth. The discovery motion asked that the Commonwealth be compelled to produce: "[c]opies of any and all emails, including attachments, exchanged between any employee of the [OAG] and any sitting or former member of the Supreme Court of Pennsylvania between the dates of April 8, 2009 and May 29, 2013, regardless of whom was the sender or recipient." Motion for Discovery, 12/15/2014, at 7.
While discovery was ongoing, media outlets began to report that Justice J. Michael Eakin also was involved in exchanges of inappropriate emails with OAG employees. On December 19, 2016, the Commonwealth filed responses to Taylor's disqualification and discovery motions. The Commonwealth supplied Taylor and the PCRA court with a copy of a Report prepared by Special Deputy Attorney General Douglas F. Gansler, entitled "Misuse of Commonwealth of Pennsylvania Government Email Communication System" (the "Gansler Report"), that was released to the public on November 22, 2016. This report was the culmination of a lengthy independent review of emails sent to and from the OAG and Supreme Court Justices between August 2008 and December 2015. On February 17, 2017, and March 2, 2017, the Commonwealth supplemented its filings.
On July 12, 2017, the PCRA court ordered a status conference: to identify the issues that Taylor was pursuing; to address whether additional discovery was warranted; to examine whether and how Taylor was prejudiced by email communications between Supreme Court Justices and the OAG; and to consider the authority of the PCRA court to award a new PCRA appeal to the Supreme Court. Prior to the status conference, on April 20, 2018, Taylor requested the appointment of a special master to assist in reviewing the 6.4 million emails that he believed were in the OAG's possession.
At the April 26, 2018 status conference, counsel for Taylor affirmed that Taylor was seeking relief for an alleged due process violation resulting from email communications between the OAG and former Justices McCaffery and Eakin. Because the validity of this due process claim depended upon fact-finding, counsel requested a hearing. Counsel further affirmed that the appropriate relief for this claim would be a new appeal from the PCRA court's denial of relief on Taylor's third PCRA petition.
Because information pertaining to Justice Eakin's role in the email scandal became public after Taylor filed his PCRA petition, Taylor would later seek leave to amend the petition to include Justice Eakin's conduct as an additional ground for relief.
Shortly after the status conference, on May 1, 2018, the PCRA court issued a notice of intent to dismiss the petition. See Pa.R.Crim.P. 909. Even assuming that there was a factual basis to support Taylor's requested relief, the PCRA court believed that it had no authority to direct the Supreme Court to permit another appeal in connection with Taylor's third PCRA petition.
On May 21, 2018, Taylor filed a response and objection to the notice of intent to dismiss, and sought permission to amend his PCRA petition to provide the PCRA court with information pertaining to emails exchanged between Justice Eakin and members of the OAG. On May 23, 2018, the PCRA court dismissed the petition and denied leave to amend. On June 21, 2018, the PCRA court issued an opinion pursuant to Pa.R.A.P. 1925(a).
On appeal to this court, Taylor raises three issues: whether the PCRA court had the authority to grant the requested post-conviction relief; whether the PCRA court erred or abused its discretion in denying discovery or the appointment of a special master; and whether the PCRA court erred or abused its discretion in denying Taylor's motion to amend the petition. We review the PCRA court's legal conclusions de novo and its findings of fact for record support. Commonwealth v. Williams, 196 A.3d 1021, 1026-27 (Pa. 2018).
I. PCRA Court's Authority
In his first issue, Taylor argues that the PCRA court erred in concluding that it lacked the authority to grant Taylor a new appeal from the denial of his third PCRA petition. Taylor asserts that he is prepared to demonstrate that his Fourteenth Amendment right to due process of law and his rights under Article I, Sections 1, 6, 9, 11, and 14, as well as Article V, Section 9 of the Pennsylvania Constitution, were violated by the participation of two allegedly biased jurists in his appellate proceedings, or at least that there existed the appearance thereof. The remedy for such violations is, according to Taylor, a new appeal.
Taylor maintains that the PCRA court has the authority to order the relief requested, if warranted, by virtue of the PCRA, which, he asserts, is the exclusive mechanism for redressing constitutional violations after a conviction has become final. As an example of a court of common pleas providing exactly the type of relief that Taylor is requesting, Taylor directs the Court's attention to the Philadelphia Court of Common Pleas, which has been granting new appeals to this Court to defendants impacted by the United States Supreme Court's decision in Williams v. Pennsylvania , 579 U.S. ––––, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016).
See infra at 1280–81.
In response, the Commonwealth agrees with the PCRA court that that court lacked the authority to direct this Court to hear Taylor's appeal anew because the PCRA court is subordinate to this Court. In addition, the Commonwealth argues that this Court's published disposition of Taylor's third PCRA appeal is binding precedent and the law of the case, and, therefore, may not be upset or set aside for any reason.
In his Opinion in Support of Affirmance ("OISA"), Justice Dougherty agrees with Taylor that the claim of appellate court error is cognizable under the PCRA, and that nunc pro tunc relief is at least theoretically an available remedy. Justice Dougherty, however, agrees with the PCRA court and with the Commonwealth that the lower court lacks the authority to authorize an appeal nunc pro tunc to remedy an appellate-level constitutional error. Because the lower courts are inferior to this Court, the lower courts cannot, according to Justice Dougherty, direct this Court to hear an appeal nunc pro tunc and simultaneously nullify the prior (purportedly tainted) judicial opinion.
The circumstances presented in this case are indeed unusual. Taylor seeks relief in the form of a nunc pro tunc appeal awarded by the PCRA court to remedy a constitutional deprivation purportedly committed by this Court. While this case presents a novel question regarding the PCRA court's authority to grant the requested relief, we ultimately agree with Taylor that the PCRA vests the lower courts with the authority to remedy appellate-level constitutional violations by awarding a new appeal to this Court, if warranted by the facts and circumstances of the case.
Our legislature has determined that an action pursuant to the PCRA is "the sole means of obtaining collateral relief," encompassing "all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect." 42 Pa.C.S. § 9542 ; see also Commonwealth v. Yarris , 557 Pa. 12, 731 A.2d 581, 586 (1999) ("By its own language, and by judicial decisions interpreting such language, the PCRA provides the sole means for obtaining state collateral relief."). To be eligible for relief, a petitioner is required to demonstrate that the conviction or sentence resulted from one or more of the following:
(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken place.
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.
(iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.
(v) Deleted.
(vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced.
(vii) The imposition of a sentence greater than the lawful maximum.
(viii) A proceeding in a tribunal without jurisdiction.
This statutory framework designates the courts of common pleas, serving as PCRA courts, as the repositories for petitions filed pursuant to the PCRA. Id. § 9545(a) ("Original jurisdiction over a proceeding under this subchapter shall be in the court of common pleas."). Collateral relief is directed at vindicating a convicted defendant's rights, and is available in limited circumstances only after a judgment has become final. 42 Pa.C.S. § 9545(b)(1) (providing generally that a petition must be filed "within one year of the date the judgment becomes final"). A judgment does not become final until "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 the review." Id. § 9545(b)(3).
Thus, a PCRA petition may only be filed to raise claims attacking the validity of a final judgment. A final judgment necessarily depends upon the conclusion of direct appellate review (if sought). If an error of constitutional magnitude occurs during the appellate process, the PCRA is the sole means of collaterally attacking the final judgment on that basis. Contrary to the apparent misperception of the PCRA court, there is no requirement that a post-conviction claim be premised upon a violation of rights occurring at trial, nor is there any suggestion in the PCRA itself or in this Court's precedent that alleged errors occurring in the appellate process are immune from collateral attack, or that only an appellate court can redress appellate errors.
This is true even when the alleged error implicates the fairness of an appellate jurist. Due process demands the absence of judicial bias. See In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). A litigant's due process rights are violated if a biased appellate judge decides the fate of the litigant's appeal. See, e.g. , Williams , 136 S.Ct. at 1904.
In Williams , the petitioner filed a successive PCRA petition based upon newly discovered facts. The PCRA court directed the Commonwealth to turn over its files. The Commonwealth complied, revealing the trial prosecutor's sentencing memorandum, which bore then-District Attorney Ronald Castille's authorization to pursue the death penalty. The PCRA court ultimately granted relief and stayed Williams' execution. The Commonwealth sought emergency relief from this Court. By the time of the Commonwealth's filing, Ronald Castille had been elected to this Court and was serving as Chief Justice. Williams sought Chief Justice Castille's recusal, which the Chief Justice denied. In an opinion authored by Justice Eakin, this Court ultimately vacated the PCRA court's grant of relief, and reinstated Williams' death sentence. Chief Justice Castille joined Justice Eakin's majority opinion and authored a separate concurrence.
Williams appealed to the Supreme Court of the United States, asserting that Chief Justice Castille's decision as district attorney to seek a death sentence against Williams barred the Chief Justice from later adjudicating Williams' petition to overturn that sentence. Williams argued that Chief Justice Castille's decision to act as both accuser and judge violated the Due Process Clause of the Fourteenth Amendment. The Supreme Court of the United States agreed, holding "that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant's case." Williams , 136 S.Ct. at 1905. The Court vacated this Court's appellate decision and remanded for de novo appellate review without Chief Justice Castille's participation. Id. at 1909-10. Following Williams , the courts of common pleas have reinstated appellate rights to petitioners who brought claims based upon Williams. The due process right to an impartial tribunal was vindicated in Williams through the award of a new appeal. If Taylor is able to plead and prove the unconstitutional potential for judicial bias in his prior post-conviction appeal, he too would be entitled to a new appeal without the participation of the allegedly biased justices.
By the time this remand occurred, Chief Justice Castille had retired from this Court. See Williams , 136 S.Ct. at 1905.
See, e.g. , Opinion, Commonwealth v. Jones , No. CP-51-CR-1035061-1991 (Phila. Cty. CCP Dec. 14, 2017); Order, Commonwealth v. Reid , No CP-51-CR-1024821-1988 (Phila. Cty. CCP June 22, 2017); Order, Commonwealth v. Lee , No. CP-51-CR-0511562-1986 (Phila. Cty. CCP June 1, 2017); Order, Commonwealth v. Murphy , No. CP-51-CR-0126101-1984 (Phila. Cty. CCP May 3, 2017); Opinion, Commonwealth v. Rollins , No. CP-51-CR-0405851-1986 (Phila. Cty. CCP Oct. 19, 2017).
To avoid rendering the Due Process Clause meaningless in the context of an unconstitutional potential for appellate-level judicial bias, Section 9543(a)(2)(i) of the PCRA vindicates constitutional errors that occur at the appellate level. The PCRA requires in Section 9543(a)(2)(i) that the petitioner prove that the conviction or sentence resulted from a constitutional violation which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." A claim that an appellate jurist harbored an unconstitutional potential for bias during a prior proceeding calls into question the constitutionality of that proceeding and undermines the truth-determining process that resulted in that appellate decision.
The unconstitutional potential for bias of an appellate court judge presents a claim no different in any substantive way from one based upon unconstitutionally deficient representation by appellate counsel. Both are errors of constitutional magnitude that occur at the appellate level. This Court has embraced the PCRA as the sole means of seeking redress for the latter, holding that unconstitutionally deficient representation by appellate counsel may undermine the truth-determining process. See, e.g. , Commonwealth v. Liebel , 573 Pa. 375, 825 A.2d 630, 635-36 (2003). If a claim based upon the constitutional right to the effective assistance of counsel on appeal is cognizable under the PCRA, there is no basis to hold that a claim of appellate-level judicial bias pursuant to the Due Process Clause is not. A constitutional violation occurring at the appellate level may undermine the truth-determining process, whatever its source.
Justice Dougherty would hold that there is no support for the idea that a constitutional violation occurring at the appellate level is redressable through the PCRA. In particular, Justice Dougherty believes that the lower courts have no authority to remedy claims of constitutional magnitude occurring at the appellate level. We disagree. We find such authority in the PCRA itself. If a petitioner can plead and prove that the facts and circumstances of a particular case demonstrate that the conviction or sentence resulted from a violation of the Pennsylvania Constitution or the Constitution or laws of the United States that "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place," 42 Pa.C.S. § 9543(a)(2)(i), then the petitioner is entitled to relief under the PCRA. The fact that this Court sits atop the judiciary of Pennsylvania does not elevate this Court above the law, nor can it support a conclusion that constitutional deprivations attributable to this Court are insulated from review. The rule of law applies to us as it does to all. And, to be sure, if this Court disagrees with the merits of the claim of judicial bias, this Court can overturn the relief afforded by the PCRA court.
Contrary to the Commonwealth's argument, the law of the case doctrine does not bar relief. Departure from the law of the case is warranted "where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create manifest injustice if followed." Commonwealth v. Starr , 541 Pa. 564, 664 A.2d 1326, 1332 (1995). As in Williams , when new evidence arises indicating the potential bias of a sitting jurist, there could be a change in the law and facts that would warrant reconsideration of the prior opinion.
While the law of the case doctrine determines the binding effect of prior judicial determinations against the same parties, precedent concerns the binding effect of legal principles upon different parties in cases involving substantially similar facts. See, e.g. , Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 903 (1996) ; State Hosp. for Criminal Insane v. Consol. Water Supply Co. , 267 Pa. 29, 110 A. 281, 284 (1920).
The Commonwealth also asserts that the PCRA court lacks the authority to grant a nunc pro tunc appeal because Taylor IV is binding precedent. Justice Dougherty agrees with the Commonwealth that, if the PCRA Court were to grant an appeal nunc pro tunc premised upon a claim of appellate-level judicial bias, it would "for all practical purposes, wipe Taylor IV from the record books." OISA at 10. This conclusion ignores what follows the PCRA court's ruling. Assuming the Commonwealth appeals the grant of relief, Taylor IV would be nullified only if this Court subsequently affirmed the PCRA court's grant of relief. It would not be the PCRA court, but rather this Court, that has the final say on whether the record supports the relief awarded by the PCRA court. Instead of allowing for reinstatement of appellate rights upon pleading and proof of the unconstitutional potential for appellate-level judicial bias, Justice Dougherty would limit the available relief to the reinstatement of the rule-based right to seek reargument. See OISA at 12; Pa.R.A.P. 2543.
It is interesting to ponder the ramifications of Justice Dougherty's position in a scenario where the appellate court that purportedly committed the constitutional violation is not this Court, but the Superior Court. The basis of Justice Dougherty's position is that the PCRA court lacks the authority to nullify precedent established by a higher court. Suppose, then, that we have two similarly situated post-conviction petitioners, each making a claim that the Superior Court committed a constitutional error in adjudicating the prior appeal. By happenstance, the Superior Court's decision in the first petitioner's case was published, but the Superior Court's decision in the second petitioner's case was not. The Superior Court decision for the second petitioner would not, therefore, be precedential. Accordingly, the PCRA court would not be disturbing precedent by awarding the second petitioner a nunc pro tunc appeal, while the PCRA court would be disturbing precedent by awarding the same relief to the first petitioner. While clearly beyond the scope of this appeal, we would suggest that the availability of redress for constitutional errors should not rest on so frail a distinction.
Such limitation does not comport with law. A request for reargument cannot suffice to vindicate the constitutional right at issue. As the United States Supreme Court stated in Williams :
A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part. An insistence on the appearance of neutrality is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication. Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.
Williams , 136 S.Ct. at 1899, 1909-10.
Given the High Court's insistence on the appearance of neutrality, it is not at all clear that exercising the rule-based right to seek reargument would remedy the potential bias in the initial decision and preserve the appearance and reality of impartial justice. As in Williams , the remedy for demonstrating that an appellate tribunal included a jurist with an unconstitutional likelihood of bias would be a new appeal to that tribunal without the participation of the partial jurist.
Moreover, limiting relief to the right to seek reargument would render this constitutional violation subordinate to other similar violations. All that would be available to a petitioner alleging a constitutional claim of appellate-level judicial error would be the chance to ask for relief from the same body that purportedly committed the constitutional violation. No other constitutional right necessitates such a discretionary threshold; certainly that was not the case in Williams , nor for claims premised upon appellate counsel ineffectiveness.
The parties agree that the PCRA court's legal conclusion prevented it from reaching the merits of Taylor's due process claim. Indeed, the Commonwealth has not yet filed an answer to Taylor's petition. The Commonwealth requests that, in the event that this Court disagrees with the PCRA court about its ability to provide the requested relief, this action be remanded to the PCRA court with instructions to proceed in the normal course, including the filing of an answer to the petition and, if warranted, an evidentiary hearing. We agree that this is the appropriate course of action. Because we have found that the PCRA court has the authority to grant the requested relief, if warranted, we would remand for the PCRA court to reconsider the PCRA petition in the normal course. II. Discovery
Contrary to Justice Dougherty's view, we do not believe that it is appropriate at this juncture to ascertain the timeliness of Taylor's petition. Although the timeliness of the petition determines the jurisdiction of the PCRA court, the PCRA court did not resolve the petition on timeliness grounds, and we have no developed record upon which to evaluate timeliness. Indeed, because the Commonwealth has yet to file an answer, the Commonwealth has not been afforded the opportunity to assert that the petition is not timely. The Commonwealth requests the ability to file an answer and to have the PCRA court consider it.
The timeliness of the petition will depend upon the PCRA court's analysis of whether "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," 42 Pa.C.S. § 9545(b)(1)(ii), and whether the petition was "filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2). Taylor filed his petition on December 8, 2014. He asserts that this was within sixty days of news reports between October 8-16, 2014, revealing the extensive exchange of emails between Justice McCaffery and employees of the OAG.
Whether the earlier articles upon which Justice Dougherty relies provided the facts upon which Taylor's claim of judicial bias is based, thus triggering the sixty-days within which Taylor had to file his petition, is a question that should be resolved in the first instance by the PCRA court after hearing from both sides. Not only should the Commonwealth be given the opportunity to argue that the petition is untimely, but Taylor should also be given the opportunity to respond if the PCRA court resolves the case on jurisdictional grounds. See Pa.R.Crim.P. 909.
Additionally, after Taylor filed the relevant PCRA petition, this Court held in Commonwealth v. Burton , 638 Pa. 687, 158 A.3d 618, 637-38 (2017), that "the presumption that information which is of public record cannot be deemed ‘unknown’ for purposes of subsection 9545(b)(1)(ii) does not apply to pro se prisoner petitioners." The parties should be afforded the opportunity to argue concerning the applicability of Burton to the timeliness considerations of this case.
We next consider whether Taylor is entitled to discovery. Taylor requested discovery of all emails exchanged between employees of the Attorney General's Office and any sitting or former member of this Court between April 8, 2009 and May 29, 2013. The Commonwealth produced the Gansler Report and twenty-six emails exchanged between OAG counsel of record in Taylor's case and former Justices of this Court. Taylor filed a motion for the appointment of a special master to review the 6.4 million emails in the possession of the OAG to determine whether they revealed additional evidence of impropriety. The PCRA court scheduled a status conference in part to discuss whether additional discovery was needed. In its notice of intent to dismiss the PCRA petition, the PCRA court denied the discovery request because Taylor had failed to seek additional discovery and otherwise "failed to effectively and timely prosecute his claim." Notice, at 4.
In his report, Mr. Gansler indicated that he had reviewed 6.4 million emails that had passed through OAG servers from 2008-2015 for inappropriate language and images, and had found 11,930 that he believed to be inappropriate. Gansler discussed these emails in general terms in his report. According to Taylor, the report is heavily redacted, only discusses the content of a small subset of emails, and omits the identity of senders and recipients.
Discovery is appropriate in a serial PCRA petition "upon leave of court after a showing of exceptional circumstances." Pa.R.Crim.P. 902(E)(1). We review the denial of a post-conviction discovery request for an abuse of discretion. Commonwealth v. Edmiston , 619 Pa. 549, 65 A.3d 339, 353 (2013).
It is not clear what the PCRA court believed Taylor could have done to prosecute his claim effectively. Taylor moved for discovery, sought the appointment of a special master, and addressed the need for discovery at the status conference. On the other hand, Taylor already has a number of emails involving former members of this Court that he asserts are, as a general matter, offensive and inappropriate. Taylor's apparent belief that there may be additional offensive and inappropriate emails would appear to be speculative.
Nonetheless, the PCRA court's decision not to permit further discovery may have been informed by the court's mistaken belief that, in any event, it could not award a new appeal to this Court. Because the PCRA court may wish to reconsider its discovery order in light of our opinion, and because we would remand to the PCRA court to allow the case to proceed, it would be prudent to permit the PCRA court to reconsider Taylor's discovery request in light of these changed circumstances.
III. Amendment
The PCRA court may grant leave to amend a PCRA petition at any time, and the court should freely allow amendment "to achieve substantial justice." Pa.R.Crim.P. 905(A). Taylor asserts that he obtained new information that was probative of his claims after he filed his petition, and he moved to amend his petition to present this additional evidence to the PCRA court. Taylor's amendment sought to incorporate information that became available in the judicial conduct proceedings against former Justice Eakin, in the Gansler Report, in the October 2015 deposition of Justice Eakin, and in the report of an expert.
See In re Eakin , 150 A.3d 1042 (Pa. Ct. Jud. Disc. 2016).
Taylor's expert, Jason Okonofua, Ph.D., would have offered opinions about how bias can affect judicial decision-making.
The PCRA court denied leave to amend in order to avoid further delaying consideration of the petition. To the extent that the PCRA court arrived at this decision under its mistaken belief that it had no authority to grant a new appeal, notwithstanding any information Taylor could provide in an amendment, we once more believe that the PCRA court should reconsider this request on remand.
Because the PCRA court has the authority to grant a new appeal from the denial of Taylor's third PCRA petition, if warranted, we would reverse the PCRA court's contrary conclusion and would remand for further proceedings. To the extent this mistaken belief influenced the PCRA court's denial of discovery and denial of Taylor's request for leave to amend, we would direct the PCRA court to reconsider its holdings in regard.
Taylor has filed several miscellaneous applications, which remain outstanding. First, Taylor has filed an application to correct the omission from the record of the PCRA court's orders scheduling, and postponing, the status conference. We would deny this application without prejudice for Taylor to renew his request upon remand.
Second, Taylor has filed an application to waive conflict, anticipating that members of this Court may choose to recuse themselves from consideration of this case. A jurist's decision to recuse is a matter of individual discretion or conscience. See Commonwealth v. O'Shea , 523 Pa. 384, 567 A.2d 1023, 1034 (1989) ; In re Crawford's Estate , 307 Pa. 102, 160 A. 585, 587 (1932). Accordingly, each member of this Court may resolve his or her own participation in this appeal.
Finally, Taylor has sought permission to file a reply brief in support of his application to waive conflict, and has sought permission to present oral argument to this Court. We would deny both of these applications.
Justice Donohue joins this opinion in support of reversal.
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE DOUGHERTY
This case forces us to confront a question of immense constitutional significance: whether a lower court possesses authority to order a higher tribunal to rehear an appeal where a defendant alleges that a constitutional error — in this case, a due process claim predicated on supposed judicial bias — occurred during the original appellate process. Without hesitation or meaningful analysis, Justice Wecht would conclude lower courts do possess this power, effectively authorizing those courts to undo our prior, binding decisions. Respectfully, this conclusion is indefensible. As I explain below, whether an allegation of appellate court error is cognizable under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546, is an issue of first impression for this Court, and the answer to that question is far from obvious. Even if the Legislature had intended to make appellate court errors of the nature alleged here cognizable under the PCRA, I conclude the remedy sought by appellant and sanctioned in the Opinion in Support of Reversal ("OISR") offends the Pennsylvania Constitution. Accordingly, I would affirm the order of the PCRA court.
Appellant filed the instant, facially untimely PCRA petition — his fourth — on December 8, 2014. In his petition, appellant alleged he learned through various newspaper articles issued in the fall of 2014 that former Justice Seamus P. McCaffery had engaged in "ex parte emails with [appellant's] party opponent, the [Office of] Attorney General[,]" between 2008 and 2014. PCRA Petition at 1. During that period, this Court unanimously affirmed on untimeliness grounds the order dismissing appellant's third PCRA petition. See Commonwealth v. Taylor , 620 Pa. 429, 67 A.3d 1245 (2013) (" Taylor IV "). In appellant's view, the fact that former Justice McCaffery traded emails with members of the OAG during the pendency of Taylor IV "raise[s] a serious risk of actual bias" implicating due process concerns. PCRA Petition at 1. The remedy for this alleged constitutional violation, appellant argued, is the grant of "a new PCRA appeal" in this Court. Id. at 13. See also N.T. 4/26/2018, at 13-14 (arguing "[t]he issue is ... a due process violation" and "the remedy that we are asking [for] is a new appeal").
Throughout his brief before this Court, appellant asserts that he filed his petition on December 5, 2014. See, e.g. , Appellant's Brief at 4, 36 n.7. Neither the docket nor the time-stamp on the petition contained within the certified record supports this assertion.
The PCRA court was not persuaded. See id. at 14 ("What authority do I have to order the Supreme Court to grant your client a new appeal? I have been waiting for that response for a year and a half now, and I haven't seen it."). Accordingly, it issued a notice of its intent to dismiss appellant's petition on May 1, 2018. In its notice the court explained that, even assuming appellant could support his allegation of actual judicial bias with real evidence, the PCRA court is inferior to this Court; therefore, it lacked the authority to order this Court to rehear appellant's prior PCRA appeal anew. See Notice of Intent to Dismiss, 5/1/2018, at 3, citing PA. CONST. art. V, §§ 2, 10. On May 23, 2018, the PCRA court formally dismissed appellant's petition.
Faced on appeal with the opposing positions forwarded by appellant and the Commonwealth (which adopts the PCRA court's position), Justice Wecht summarily credits the former and assails the latter. Without citing any authority, the OISR proclaims that "[i]f an error of constitutional magnitude occurs during the appellate process, the PCRA is the sole means of collaterally attacking the final judgment on that basis." OISR at 9. Further, and again without identifying any supporting authority, the OISR declares "there is no requirement that a post-conviction claim be premised upon a violation of rights occurring at trial, nor is there any suggestion in the PCRA itself or in this Court's precedent that alleged errors occurring in the appellate process are immune from collateral attack, or that only an appellate court can redress appellate errors." Id. at 9-10. To my knowledge, and as appellant apparently agrees, see Appellant's Reply Brief at 2, this is an issue of first impression for this Court. As such, it deserves far greater attention than the OISR accords to it — particularly because I do not believe the answer is nearly as simple as the hasty conclusions expressed in the OISR suggest.
The scope of the PCRA is explicitly defined in the Act as follows:
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis. This subchapter is not intended to limit the availability of remedies in the trial court or on direct appeal from the judgment of sentence, to provide a means for raising issues waived in prior proceedings or to provide relief from collateral consequences of a criminal conviction. Except as specifically provided otherwise, all provisions of this subchapter shall apply to capital and noncapital cases.
42 Pa.C.S. § 9542 (emphasis added). We have explained this language "demonstrates quite clearly that the General Assembly intended that claims that could be brought under the PCRA must be brought under that Act." Commonwealth v. Hall , 565 Pa. 92, 771 A.2d 1232, 1235 (2001) (emphasis in original). See also Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 223 (1999) ("the PCRA subsumes the writ of habeas corpus with respect to remedies offered under the PCRA"), citing Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638 (1998). The precise question we must answer first, then, is whether appellant's claim can be brought under the PCRA.
"In order to state a cognizable claim under the PCRA, a PCRA petitioner must plead and prove by a preponderance of the evidence that his conviction resulted from one or more of the errors or defects listed in 42 Pa.C.S. § 9543(a)(2)." Commonwealth v. Liebel , 573 Pa. 375, 825 A.2d 630, 632 (2003). Although not explicitly stated in his petition, the only error even arguably implicated by appellant's judicial bias-based due process claim is Section 9543(a)(2)(i). See N.T. 4/26/2018, at 14 (arguing that under the PCRA, "if it is a constitutional violation, [a PCRA court] has jurisdiction"). That section permits relief where a petitioner's conviction or sentence resulted from "[a] violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." 42 Pa.C.S. § 9543(a)(2)(i).
I have little conceptual difficulty accepting that this language encompasses judicial bias-based due process claims related to a judge who presided over a trial or sentencing proceeding; it is considerably more difficult, however, to reach the same conclusion with respect to a supposed bias harbored by an appellate jurist. This is so because appellate jurists, and the appellate process generally, have no connection to "the truth-determining process" or the reliability of the "adjudication of guilt or innocence." Thus, contrary to Justice Wecht's belief, see OISR at 9-10, a literal reading of Section 9543(a)(2)(i) in fact supports the notion that appellate court errors, even those of constitutional magnitude, are not cognizable under the Act.
But I also recognize this Court has repeatedly expressed concern that the unavoidable result of a literal reading of this "truth-determining process" language "is a bifurcated system of post-conviction review, in which certain claims for relief are considered under the PCRA, while other claims for relief are considered outside its framework." Commonwealth v. Lantzy , 558 Pa. 214, 736 A.2d 564, 569 (1999). Such a system, we have remarked, would run contrary to the legislature's intent to make the PCRA the exclusive vehicle for obtaining collateral review. See id. ; 42 Pa.C.S. § 9542. For this reason, at least in the context of ineffective assistance of counsel claims, we have "taken great pains on multiple occasions to explain why we believe the General Assembly preferred a broader construction of the PCRA's scope," regardless of the "truth-determining process" language contained in Section 9543(a)(2)(ii). Commonwealth v. Haun , 613 Pa. 97, 32 A.3d 697, 705 (2011). See, e.g. , Liebel , 825 A.2d at 635-36 (counsel's failure to file petition for allowance of appeal on direct appeal "sufficiently establishes that the truth-determining process has been undermined"); Commonwealth ex rel. Dadario v. Goldberg , 565 Pa. 280, 773 A.2d 126, 130 (2001) (claim that counsel had been ineffective during plea-bargaining process was cognizable under Section 9543(a)(2)(ii) despite fact that ineffectiveness may not have undermined truth-determining process in traditional sense); Commonwealth v. Chester , 557 Pa. 358, 733 A.2d 1242, 1250 (1999) ("truth-determining" and "guilt or innocence" language used in Section 9543(a)(2)(ii) does not foreclose post-conviction review of penalty phase issues in capital case); see also Lantzy , 736 A.2d at 569-70 (rejecting Superior Court's conclusion that for a petitioner's claim to be cognizable under Section 9543(a)(2)(ii), the claim must raise a question of whether an innocent individual has been convicted).
On the other hand, "the boundaries of cognizable claims under the PCRA can only be extended so far as is consistent with the purposes of the statute[.]" Commonwealth v. Judge , 591 Pa. 126, 916 A.2d 511, 520 (2007). Indeed, despite our recognition of the legislature's intent to channel the widest possible category of post-conviction claims into the PCRA's framework, we have on occasion recognized that certain issues fall outside the PCRA. See Commonwealth v. West , 595 Pa. 483, 938 A.2d 1034, 1044 (2007) (substantive due process challenge to the continued validity of a judgment of sentence after a nine-year pre-incarceration delay not cognizable under the PCRA); Judge , 916 A.2d at 520 (allegation that Canada violated appellant's rights under the International Covenant for Civil and Political Rights by deporting him to face a death sentence not cognizable under the PCRA because claim has "no connection to the truth-determining process and do[es] not render the underlying adjudication of guilt or innocence ... unreliable"). In these unique situations, we found the claims "did not implicate any of the remedies available pursuant to the PCRA and, accordingly, we held that habeas review was warranted." West , 938 A.2d at 1043. See PA. CONST. art. I, § 14 ("[T]he privilege of the writ of habeas corpus shall not be suspended[.]"); 42 Pa.C.S. § 6501 (same).
What we must decide here is whether an alleged constitutional error occurring during the appellate process — one that does not relate to counsel's performance — can be channeled into those broad categories of claims that are cognizable under the PCRA, or whether such a claim is too far removed from the truth-determining process to fall within the ambit of the PCRA. On balance, and especially without more pointed advocacy to the contrary, I am satisfied for purposes of this appeal that appellant's claim of appellate court error is (at least theoretically) cognizable under the PCRA. This conclusion hews most closely to this Court's jurisprudence regarding the cognizability of a broader scope of claims under the PCRA, regardless of the statute's facially-limiting "truth-determining process" language.
On this point, I observe this Court has on two occasions recognized, albeit implicitly, that its broad construction of the "truth-determining process" language in Section 9543(a)(2)(ii) applies with equal force to the identical language found in Section 9543(a)(2)(i). See Commonwealth v. Hackett , 598 Pa. 350, 956 A.2d 978, 985 (2008) (rejecting argument that a Batson claim is "unrelated to the reliability of the verdict rendered" and so does not implicate a cognizable constitutional violation under Section 9543(a)(2)(i) ); Commonwealth v. Cruz , 578 Pa. 263, 851 A.2d 870, 875, 878 (2004) (holding relief was "available on collateral review in the particularized circumstances presented" even though the petitioner's claim he was denied due process and equal protection on direct appeal, on the basis of disparate treatment from his co-defendant, "asserts a breakdown in the appellate process, not trial").
Notwithstanding my conclusion that appellate court errors are cognizable under Section 9543(a)(2)(i), I sharply disagree with Justice Wecht's position regarding the proper relief available for such errors — i.e. , an appeal nunc pro tunc. As a general matter, I have no doubt that an appeal nunc pro tunc falls within the range of available remedies under the PCRA. See 42 Pa.C.S. § 9546(a) ("If the court rules in favor of the petitioner, it shall order appropriate relief and issue supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that are necessary and proper."). In fact, this Court has specifically embraced the nunc pro tunc reinstatement of appellate rights in certain situations where counsel is ineffective with respect to the appellate process. See, e.g. , Liebel , 825 A.2d at 636 (reversing with instructions for PCRA court to consider whether petitioner was entitled to file petition for allowance of appeal nunc pro tunc due to counsel's failure to do so); Lantzy , 736 A.2d at 572-73 (restoration of appellate rights nunc pro tunc warranted where counsel failed to file a requested direct appeal). In such circumstances, an appeal nunc pro tunc "is intended as a remedy to vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances." Commonwealth v. Stock , 545 Pa. 13, 679 A.2d 760, 764 (1996). But I am aware of no instance in which this Court has held the PCRA authorizes the grant of an appeal nunc pro tunc to remedy a constitutional error committed by the appellate tribunal itself, rather than counsel. Nor, after careful consideration, do I believe a PCRA court is constitutionally authorized to afford this relief.
All Pennsylvania courts derive their judicial power or authority from the Constitution and the laws of the Commonwealth. PA. CONST. art. V, § 1 ("The judicial power of the Commonwealth shall be vested in a unified judicial system[.]"). "At the apex of the Unified Judicial System is the Pennsylvania Supreme Court." In re Bruno , 627 Pa. 505, 101 A.3d 635, 663 (2014), citing PA. CONST. art. V, § 2 (a) (Supreme Court is "highest court of the Commonwealth and in this court shall be reposed the supreme judicial power of the Commonwealth"). See 42 Pa.C.S. § 501 (codifying PA. CONST. art. V, § 2 (a)). In addition to its supreme judicial power, this Court has "general supervisory and administrative authority over all the courts and [magisterial district judges.]" PA. CONST. art. V, § 10 (a). "This power implicates a dual authority: (1) over personnel of the system, among them jurists; and (2) over inferior tribunals[.]" Bruno , 101 A.3d at 678.
The General Assembly has also recognized this Court has "[a]ll powers necessary or appropriate in aid of its original and appellate jurisdiction which are agreeable to the usages and principles of law" and any power vested in it by statute. 42 Pa.C.S. § 502. As well, the Court has "the power generally to minister justice to all persons and to exercise the powers of the court, as fully and amply, to all intents and purposes, as the justices of the Court of King's Bench, Common Pleas and Exchequer, at Westminster, or any of them, could or might do on May 2, 1722." Id.
Considering the clear judicial hierarchy enshrined in these various constitutional and statutory provisions, it is beyond peradventure that "[i]f a majority of the Justices of this Court, after reviewing an appeal before us (taken either by way of direct appeal or grant of allowance of appeal), join in issuing an opinion, our opinion becomes binding precedent on the courts of this Commonwealth." Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 903 (1996) (citation omitted). See, e.g. , Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc. , 610 Pa. 371, 20 A.3d 468, 480 (2011) ("intermediate appellate courts are duty-bound to effectuate this Court's decisional law") (citation omitted); Commonwealth v. Provident Trust Co. of Philadelphia , 319 Pa. 385, 180 A. 16, 17 (1935) (same with respect to trial courts). "Our majority opinion is binding not only on the parties before us, under the doctrine of law of the case, but is precedent as to different parties in cases involving substantially similar facts, pursuant to the rule of stare decisis. " Tilghman , 673 A.2d at 903 (footnotes omitted). Unless the United States Supreme Court reverses a decision of this Court, or this Court overrules its own prior decision, "the law emanating from the decision remains law." Fiore v. White , 562 Pa. 634, 757 A.2d 842, 847 (2000).
The need for scrupulous adherence to this hierarchical system is manifest: it "lends uniformity and certainty to the law but allows sufficient flexibility for change by the highest court, but only the highest court, in our judicial system." Lovrinoff v. Pennsylvania Tpk. Comm'n , 3 Pa.Cmwlth. 161, 281 A.2d 176, 178 (1971). See also Malinder v. Jenkins Elevator & Mach. Co. , 371 Pa.Super. 414, 538 A.2d 509, 513 (1988) (inferior courts have an obligation to follow and apply Supreme Court decisions "so as to establish some measure of predictability and stability in our case law"). In that vein, we have cautiously guarded our role as the highest court in the Commonwealth and exhibited no tolerance for inferior courts that attempt to ignore or overturn our binding precedent. See, e.g. , Commonwealth v. Buehl , 540 Pa. 493, 658 A.2d 771, 782 (1995) (PCRA court's vacation of death sentence, based on its conclusion this Court erred when it failed to vacate sentence on direct appeal, was improper; there is no authority "which permits the Courts of Common Pleas of this Commonwealth to overrule the decisions of this Court").
As I see it, Justice Wech's position that PCRA courts should be afforded the power to order appellate courts to rehear nunc pro tunc appeals based on supposed appellate court error would run afoul of these constitutionally-grounded principles. To understand why this is so, we need only apply the OISR's proposed rule to the case at hand. Suppose that, upon remand, the PCRA court concludes a former Justice of this Court was biased when he participated in deciding Taylor IV. As appellant points out, see Appellant's Brief at 25, that conclusion would necessarily entail a concomitant finding that the prior appellate tribunal was tainted in its entirety. See Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 1909, 195 L.Ed.2d 132 (2016) ("a due process violation arising from the participation of an interested judge is a defect ‘not amenable’ to harmless-error review, regardless of whether the judge's vote was dispositive"; "the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part"). In this way, the grant of an appeal nunc pro tunc premised on judicial bias would operate to undo the prior "tainted" decision, clearing a path for the appellate tribunal to issue a new decision without the interested jurist's participation. Stated differently, the grant of an appeal nunc pro tunc under these circumstances would, for all practical purposes, wipe Taylor IV from the record books. As explained, only this Court or the United States Supreme Court has the power to undo our prior decisions.
I do not mean to suggest that a PCRA court has the authority to make a factual finding of judicial bias on the part of an appellate jurist. In my view, that discrete issue raises a host of constitutional concerns in its own right. See generally In re Bruno , 101 A.3d at 688 ("the Supreme Court has supreme and general authority over the Unified Judicial System, which includes inferior tribunals and its personnel"); Commonwealth v. Whitmore , 590 Pa. 376, 912 A.2d 827, 832-33 (2006) (noting the constitutional authority to exercise superintendency over the courts is exclusive to the Supreme Court). For the sole purpose of highlighting the faults in the OISR's analysis, however, I hypothetically assume a PCRA court is empowered to make a finding of judicial bias in the first instance.
This distinguishes the instant situation from those in which we have approved the grant of an appeal nunc pro tunc to remedy the deprivation of the right to appeal based on ineffective assistance of counsel. See, e.g. , Liebel , supra ; Lantzy , supra . In those cases, the grant of a new appeal did not nullify or cast doubt upon the propriety of the prior judicial decision in any way. The same cannot be said here.
In reaching the opposite conclusion, Justice Wecht relies solely upon the fact that the Philadelphia County Court of Common Pleas has reinstated appellate rights nunc pro tunc to petitioners who brought claims based upon the United States Supreme Court's decision in Williams. See OISR at 10-11. According to the OISR, "[t]he due process right to an impartial tribunal was vindicated in Williams through the award of a new appeal[,]" and appellant should be entitled to the same relief from the PCRA court if he can successfully plead and prove his claim. Id. at 11. But this is not so.
Briefly, the Williams Court held that former Chief Justice Ronald D. Castille's failure to recuse where he earlier had significant, personal involvement as the District Attorney in a critical decision regarding the defendant's case — specifically, he authorized a trial prosecutor to seek the death penalty against Williams — gave rise to an unacceptable risk of actual bias under the federal Due Process Clause. Williams , 136 S.Ct. at 1908. The High Court further held the error affected this Court's whole adjudicatory framework, and it therefore vacated this Court's decision so that Williams could present his claims without Chief Justice Castille's involvement. Id. at 1910.
With respect to Williams , I agree with the PCRA court that it is "of no help to [appellant]" in this matter. Notice of Intent to Dismiss, 5/1/2018, at 3. There is no question that the United States Supreme Court was empowered in Williams to vacate this Court's decision after it found that Williams's federal right to due process was violated when former Chief Justice Castille declined to recuse from his case. See, e.g. , Council 13, Am. Fed'n of State, County & Mun. Emps., AFL-CIO v. Rendell , 604 Pa. 352, 986 A.2d 63, 77 (2009) ("It is fundamental that by virtue of the Supremacy Clause, the State courts are bound by the decisions of the Supreme Court with respect to the federal Constitution and federal law, and must adhere to extant Supreme Court jurisprudence."). It is a far different matter, however, for a PCRA court to undo a decision of this Court based on its own conclusions that this Court or a particular member of it committed a constitutional violation. Moreover, the fact that the Philadelphia County Court of Common Pleas has afforded appellate relief nunc pro tunc to a number of PCRA petitioners in the wake of the Williams decision carries little weight, as it is well settled that decisions of the courts of common pleas are not binding on this Court. E.g. , City of Philadelphia v. Price , 419 Pa. 564, 215 A.2d 661, 663 (1966). This is especially true where those decisions out of Philadelphia remain pending before this Court and we have yet to opine on the propriety of the PCRA court's actions in those matters.
In sum, while I find appellant's claim is cognizable under the PCRA, the relief championed by appellant and endorsed by the OISR would pose a direct threat to this Court's constitutional role as the highest court in this Commonwealth.
Justice Wecht apparently is unconcerned with granting PCRA courts unbridled power to undo our prior decisions because "[i]t would not be the PCRA court, but rather this Court, that has the final say on whether the record supports the relief awarded by the PCRA court." OISR at 14; see also id. at 13 ("if this Court disagrees with the merits of the claim of judicial bias, this Court can overturn the relief afforded by the PCRA court"). But importantly, this "[a]ssum[es] the Commonwealth appeals the grant of relief," id. at 13-14, which recent experience has taught us is not a certainty. Indeed, under the OISR's reasoning, this Court would be powerless to review the grants of relief in the Philadelphia cases cited in the OISR, since there are no pending Commonwealth appeals in those cases. For the reasons I have discussed, the Court should not willingly allow its hands to be tied in this manner, particularly when our Constitution dictates otherwise.
However, there is in my view a constitutionally-permissible remedy for the exceptional case where a petitioner successfully pleads and proves in a timely PCRA petition that a constitutional violation occurred during the appellate process: a PCRA court can lawfully reinstate the petitioner's nunc pro tunc right to seek reargument of the original appellate decision pursuant to Pa.R.A.P. 2543. Although reargument is not a matter of right, but of sound judicial discretion, an appellate court may grant it "when there are compelling reasons therefor." Pa.R.A.P. 2543. From my perspective, a legitimate claim of constitutional error committed during the appellate process which is supported by credible evidence would ordinarily present a compelling reason warranting reargument. And crucially, an order reinstating a petitioner's right to seek reargument would not offend the judicial hierarchy set forth in the Pennsylvania Constitution, as it would merely present the appellate tribunal with the opportunity to reconsider its prior decision. In the same way that the nunc pro tunc reinstatement of the right to file a petition for allowance of appeal in this Court does not encroach on this Court's powers, neither would the nunc pro tunc reinstatement of the right to seek reargument. This remedy is, in my considered opinion, the only lawful one available to PCRA courts faced with a viable claim of appellate court error. In light of my determination that relief in the form of nunc pro tunc reinstatement of the right to seek reargument is theoretically available for a constitutional error committed by an appellate tribunal, I proceed to address whether a remand would be appropriate in this case. I conclude it would not be.
In Justice Wecht's view, the right to seek reargument is insufficient to vindicate the constitutional right at issue because it imposes a discretionary threshold, which allegedly "was not the case in Williams [.]" OISR at 15. Again, however, Justice Wecht misunderstands what actually occurred in Williams. In that case, Williams filed a motion requesting that Chief Justice Castille recuse himself, but Chief Justice Castille denied the request without explanation or referral to the full Court. Williams , 136 S.Ct. at 1905. The United States Supreme Court subsequently granted Williams's petition for a writ of certiorari and ultimately vacated this Court's opinion, remanding for reconsideration without Chief Justice Castille's involvement. Id. at 1910. Given this procedural posture, the assertion in the OISR that the "due process right to an impartial tribunal was vindicated in Williams through the award of a new appeal[,]" OISR at 11, is imprecise. Properly understood, Williams demonstrates only that a higher tribunal is empowered to vacate a lower court's decision when it determines the lower court committed a constitutional violation — the precise proposition I forward here. Furthermore, in every practical sense, restoring a PCRA petitioner's right to seek reargument would place the petitioner on the same footing as Williams: it would allow this Court an opportunity to determine whether a due process violation occurred and, if the Court declines to grant reargument, the petitioner could seek review of that decision before the United States Supreme Court, just as Williams did. Thus, the OISR position that the right to seek reargument renders appellate-based due process violations subordinate to other similar violations, see OISR at 15, and that it insulates from review constitutional errors attributable to this Court, see id. at 13, is without foundation.
Notably, my review of the record reveals that appellant's petition was untimely. According to appellant, he "timely filed his [p]etition on December 5, 2014, within sixty days of the first public revelations that Justices of this Court were involved in the email exchanges." Appellant's Brief at 36 n.7. See 42 Pa.C.S. § 9545(b)(2) ("Any petition invoking an exception [to the timebar] shall be filed within 60 days of the date the claim could have been presented."). As previously noted, see supra n.1, appellant's petition was filed on December 8, 2014, not December 5, 2014. More importantly, the newspaper articles attached to appellant's own petition proves he was aware, or at least should have been aware, of the allegations against Justice McCaffery as early as October 2, 2014. See PCRA Petition, 12/8/2014, at Exhibit A, citing Karen Langley, High Court Justice Sent Emails with Explicit Content , PITTSBURGH POST-GAZETTE (Oct. 2, 2014) ("The (Allentown) Morning Call reported state Supreme Court Justice Seamus McCaffery forwarded at least eight sexually explicit emails from his personal email account to an employee in the state attorney general's office who later shared them with more than a dozen others."; "Justice McCaffery is identified as recipient or sender of 54 emails reviewed by The Morning Call, and the emails ... are part of an extensive email chain, with some including photos of nude centerfolds, sex videos, sex jokes and political humor."). The trigger date for appellant's claim that Justice McCaffery was improperly communicating with appellant's party-opponent was thus October 2, 2014 — more than sixty days before appellant filed his petition.
As of December 24, 2018, Section 9545(b)(2) was amended to provide that any PCRA petition invoking a timeliness exception must be filed within one year of the date the claim first could have been presented. However, this amendment does not apply to appellant's case, which arose before the effective date of the amendment.
Surely recognizing his petition did not satisfy Section 9545(b)(2)'s sixty-day filing requirement, appellant attempted to move the goalposts, arguing the trigger date for his due process claim was not until between October 8th and 16th, 2014, when news accounts "revealed that communications were not limited to pornographic images sent by one Justice from his personal account, but included thousands of other emails from multiple Justices[.]" PCRA Petition, 12/8/2014, at 12. This argument, however, cuts squarely against appellant's assertion in his petition that the pornographic emails revealed by October 2, 2014 "betray[ ] a degree of familiarity that itself could trigger a duty to disclose." Id. at 11. In fact, as appellant explained in his motion for discovery, former Chief Justice Castille took that exact position even before Justice McCaffery's involvement became known. See Motion for Discovery, 12/8/2014, at 5 and Exhibit A, citing Marc Levy, Top Judge Warns of More Fallout from Porn Emails , ASSOCIATED PRESS (Sept. 29, 2014) ("[Castille] warned Monday that some court cases could be affected if it is true that judges were among those state employees who exchanged pornographic material by email with members of the attorney general's office. For the judges, the exchange of such material with government lawyers who appeared before them could represent a conflict of interest[.]"; "Asked later by The Associated Press if a conflict-of-interest finding could open up a new avenue of appeal in previously decided cases, Castille responded through a spokeswoman, ‘yes, that potential does exist.’ "); Steve Esack, Castille Asks Kane to Check Porn Emails for Judges' Names , ALLENTOWN MORNING CALL (Sept. 30, 2014) ("A judge could be in violation of judicial rules of conduct for sending pornographic emails on government-owned or personal computers, Castille said.... And not just because of the sexually explicit nature of the alleged emails, he said. A judge should not be fraternizing too closely with either prosecutors or defense attorneys by sending personal emails of any kind[.]").
These articles convince me that appellant could have raised his claim as early as October 2, 2014, when the first news articles revealed Justice McCaffery had exchanged emails with members of the OAG. As appellant concedes, the revelation of these exchanges was sufficient to trigger his due process claim, and the simple fact that still more emails eventually became known does not excuse his failure to file sooner. Consequently, pursuant to 42 Pa.C.S. § 9545(b)(2), appellant had until December 1, 2014 in which to raise his due process claim. Because he waited until December 8, 2014 to do so, his petition is untimely and no purpose would be served by remanding to the PCRA court.
Justice Wecht considers it inappropriate to assess the timeliness of appellant's petition at this juncture, asserting we lack a developed record upon which to evaluate the PCRA court's jurisdiction. See OISR at 15 n.9. I disagree. Appellant included within the record the very news articles that definitively prove he did not raise his claim within sixty days of the date the claim could have been presented, as Section 9545(b)(2) requires, and no additional arguments will alter this reality. To the extent the OISR suggests our decision in Commonwealth v. Burton , 638 Pa. 687, 158 A.3d 618 (2017), may impact the timeliness considerations of this case, it is incorrect. While it is true we held in Burton that the presumption that information which is of public record cannot be deemed "unknown" for purposes of Section 9545(b)(1)(ii) does not apply to pro se petitioners, the record unequivocally demonstrates appellant has been continuously represented by the Federal Community Defender Office for more than twenty years. In fact, current counsel listed on this appeal, Matthew C. Lawry, Esq. and David L. Zuckerman, Esq., began representing appellant in 2008, when they filed a third PCRA petition on his behalf. The record and docket reveal counsel have never sought leave of court to withdraw their representation of appellant as would be required by Pa.R.Crim.P. 120(B)(1). It is thus irrefutable that petitioner was represented by counsel at all relevant times, and the OISR's invocation of Burton is nothing more than a red herring.
In previous similar cases concerning former Justice J. Michael Eakin, who was ensnared in the same email scandal, this author reached the conclusion that the petitioners failed to satisfy the newly-discovered fact exception to the PCRA's timebar because "the emails are simply not facts upon which the belated claim of a due process violation can be predicated." Commonwealth v. Robinson , 204 A.3d 326, 352 (Pa. 2018) (Dougherty, J., Opinion in Support of Affirmance). See also Commonwealth v. Blakeney , 193 A.3d 350, 369 (Pa. 2018) (Dougherty, J., Opinion in Support of Affirmance) ("In my view, an accusation of judicial bias based on the mere receipt of an email should not be elevated to a finding of the existence of judicial bias as a material fact."). Appellant's case is in a different posture since it concerns the conduct of Justice McCaffery, which was not at issue in Blakeney or Robinson. However, because appellant failed to satisfy 42 Pa.C.S. § 9545(b)(2), there is no need to decide whether, unlike the petitioners in Blakeney and Robinson , he demonstrated a sufficient nexus between the emails and the alleged constitutional violation.
Even if appellant had timely filed his petition, I would affirm the PCRA court's decisions to deny discovery and petition amendment. With respect to discovery, the scope of the materials sought by appellant — 6.4 million emails that had passed through OAG servers between 2008 and 2015 — is grossly overbroad. Moreover, appellant failed to make a showing of exceptional circumstances warranting discovery under Pa.R.Crim.P. 902(E)(1). The OAG provided appellant with the Gansler Report, which "did not uncover a single email that could be characterized as an ex parte case-related communication." Commonwealth's Supplemental Response in Opposition to Discovery, 3/3/2017, at 3. As well, the OAG voluntarily conducted an internal search of its own servers for any emails involving a jurist of this Court and any attorney of record in appellant's case, which yielded 26 irrelevant communications; a search of emails including appellant's name yielded no results whatsoever. See id. at 10. Based on these proffers, I agree with the PCRA court that discovery was unwarranted since appellant "has not directed this Court's attention to one bit of evidence suggesting improper conduct by any of the Justices." Notice of Intent to Dismiss, 5/1/2018, at 3. See also OISR at 17 (conceding appellant's "belief that there may be additional offensive and inappropriate emails would appear to be speculative"). Regarding petition amendment, I likewise agree with the PCRA court that denial was appropriate where petitioner waited until April 2018 — nearly three and one-half years after he initially filed his petition — to amend his petition to incorporate additional due process claims aimed at former Justice Eakin.
--------
For the foregoing reasons, I would affirm the order of the PCRA court.
Justice Mundy joins this opinion in support of affirmance.