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

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    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 REVERSAL


JUSTICE WECHT                                             DECIDED: November 6, 2019
        On December 8, 2014, Paul Gamboa Taylor filed his fourth petition pursuant to the

Post Conviction Relief Act (“PCRA”)1 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

1       See 42 Pa.C.S. §§ 9541-46.
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,

634 A.2d 1106 (Pa. 1993) (Taylor I).

      Taylor sought relief under the PCRA. The PCRA court denied relief, and this Court

affirmed. Commonwealth v. Taylor, 718 A.2d 743 (Pa. 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, 753 A.2d 780 (Pa. 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, 67 A.3d 1245 (Pa. 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




                                       [J-36-2019] - 2
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 (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)




                                       [J-36-2019] - 3
(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).2

       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.


2     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.

                                       [J-36-2019] - 4
       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.3 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.


3       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.

                                     [J-36-2019] - 5
       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




                                     [J-36-2019] - 6
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 (2016).4

       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.


4      See infra at 10-11.

                                       [J-36-2019] - 7
       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, 731 A.2d 581, 586 (Pa. 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.


                                       [J-36-2019] - 8
       (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.

42 Pa.C.S. § 9543(a)(2).

       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




                                       [J-36-2019] - 9
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 (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




                                     [J-36-2019] - 10
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 1909-10.5 Following Williams, the courts of common pleas have reinstated appellate

rights to petitioners who brought claims based upon Williams.6 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.

       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




5    By the time this remand occurred, Chief Justice Castille had retired from this Court.
See Williams, 136 S.Ct. at 1905.
6       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).

                                      [J-36-2019] - 11
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, 825 A.2d 630, 635-36 (Pa. 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




                                     [J-36-2019] - 12
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, 664 A.2d 1326,

1332 (Pa. 1995).7 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.

         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



7      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, 673 A.2d 898, 903 (Pa. 1996); State Hosp. for Criminal
Insane v. Consol. Water Supply Co., 110 A. 281, 284 (Pa. 1920).




                                        [J-36-2019] - 13
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.8

       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.

       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.

8       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.

                                     [J-36-2019] - 14
       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.9

9       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



                                       [J-36-2019] - 15
II. Discovery

      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 Report10 and twenty-six emails exchanged

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, 158 A.3d 618, 637-38 (Pa. 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.
10    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



                                     [J-36-2019] - 16
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.

       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, 65 A.3d 339, 353 (Pa. 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




redacted, only discusses the content of a small subset of emails, and omits the identity of
senders and recipients.

                                     [J-36-2019] - 17
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,11 and in the report of an

expert.12

       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




11     See In re Eakin, 150 A,3d 1042 (Pa. Ct. Jud. Disc. 2016).
12     Taylor’s expert, Jason Okonofua, Ph.D., would have offered opinions about how
bias can affect judicial decision-making.




                                    [J-36-2019] - 18
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.13



       Justice Donohue joins this opinion in support of reversal.




13      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, 567 A.2d 1023, 1034 (Pa. 1989); In re Crawford's Estate, 160 A. 585, 587 (Pa.
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.

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