                                 [J-36-2019]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                :   No. 767 CAP
                                              :
                     Appellee                 :   Appeal from the Order dated May 23,
                                              :   2018 in the Court of Common Pleas,
                                              :   York County, Criminal Division at No.
              v.                              :   CP-67-CR-0001762-1991.
                                              :
                                              :   SUBMITTED: March 11, 2019
 PAUL GAMBOA TAYLOR,                          :
                                              :
                     Appellant                :


                      OPINION IN SUPPORT OF AFFIRMANCE


JUSTICE DOUGHERTY                                      DECIDED: November 6, 2019
      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, 2014.1       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, 67 A.3d 1245 (Pa. 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”).

       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,



1 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.


                                       [J-36-2019] - 2
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


                                       [J-36-2019] - 3
the PCRA must be brought under that Act.” Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001) (emphasis in original). See also Commonwealth v. Fahy, 737 A.2d 214, 223

(Pa. 1999) (“the PCRA subsumes the writ of habeas corpus with respect to remedies

offered under the PCRA”), citing Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 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, 825 A.2d 630, 632 (Pa. 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




                                      [J-36-2019] - 4
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, 736 A.2d 564, 569 (Pa. 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, 32 A.3d 697, 705 (Pa. 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, 773 A.2d 126, 130 (Pa. 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, 733 A.2d 1242, 1250 (Pa. 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).




                                        [J-36-2019] - 5
       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, 916 A.2d 511, 520 (Pa. 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, 938 A.2d 1034, 1044 (Pa. 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




                                      [J-36-2019] - 6
of claims under the PCRA, regardless of the statute’s facially-limiting “truth-determining

process” language.2

       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, 679 A.2d 760, 764



2 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, 956 A.2d 978, 985 (Pa. 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, 851 A.2d 870, 875, 878 (Pa. 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”).


                                      [J-36-2019] - 7
(Pa. 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, 101 A.3d 635, 663

(Pa. 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 678.3

       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, 673 A.2d

898, 903 (Pa. 1996) (citation omitted). See, e.g., Walnut St. Assocs., Inc. v. Brokerage

3 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.


                                       [J-36-2019] - 8
Concepts, Inc., 20 A.3d 468, 480 (Pa. 2011) (“intermediate appellate courts are duty-

bound to effectuate this Court’s decisional law”) (citation omitted); Commonwealth v.

Provident Trust Co. of Philadelphia, 180 A. 16, 17 (Pa. 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, 757 A.2d 842, 847 (Pa. 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, 281 A.2d 176, 178 (Pa. Cmwlth. 1971). See also Malinder v. Jenkins Elevator

& Mach. Co., 538 A.2d 509, 513 (Pa. Super. 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, 658 A.2d 771, 782 (Pa. 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




                                       [J-36-2019] - 9
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.4 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, 136 S.Ct.

1899, 1909 (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.5 As explained, only this Court or the United States

Supreme Court has the power to undo our prior decisions.



4I 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, 912 A.2d 827, 832-33 (Pa. 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.
5 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.



                                        [J-36-2019] - 10
       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.6 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.

       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, 986 A.2d 63, 77 (Pa. 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


6 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, 135 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.


                                      [J-36-2019] - 11
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, 215 A.2d 661, 663 (Pa. 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.7

       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

7 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.



                                      [J-36-2019] - 12
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.8

       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.



8 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, 135 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.



                                      [J-36-2019] - 13
       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.”).9 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.

       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


9 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.


                                     [J-36-2019] - 14
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




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emails with members of the OAG.10 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.11 Because he waited until December 8, 2014 to



10 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, 158 A.3d 618 (Pa. 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.
11  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.



                                      [J-36-2019] - 16
do so, his petition is untimely and no purpose would be served by remanding to the PCRA

court.12

       For the foregoing reasons, I would affirm the order of the PCRA court.

       Justice Mundy joins this opinion in support of affirmance.




12 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.


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