                           [J-98-2012] [MO: Per Curiam]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :                   No. 638 CAP
                              :
              Appellee        :                   Appeal from the Order entered on
                              :                   08/31/2011 in the Court of Common Pleas,
                              :                   Criminal Division of Lancaster County at
          v.                  :                   No. CP-36-CR-0002324-2000
                              :
                              :
TEDOR DAVIDO,                 :
                              :
              Appellant       :                   SUBMITTED: August 3, 2012


                                CONCURRING OPINION


MR. CHIEF JUSTICE CASTILLE                                DECIDED: December 15, 2014
       I join the Per Curiam Opinion in its entirety. I write separately for two reasons: (1)

to supplement the Opinion’s analysis of appellant’s claim of trial counsel ineffectiveness

in failing to seek the suppression of evidence obtained via warrantless entry into

appellant’s residence; and (2) to address the role of the Federal Community Defender’s

Office (“FCDO”) in this case, a point stressed by the Commonwealth at the outset of its

brief, because it illustrates the mischief occasioned by that entity’s tactic of playing the

state and federal court systems off against each other.



                                             I.

       Respecting the suppression issue, I agree with Justice Saylor that the PCRA

court’s alternative holding, premised upon inevitable discovery, is sufficient to require

rejection of the claim.     However, I am also persuaded by the Court’s exigent

circumstances analysis, which I would supplement with the following point. The Court
states that the “anonymity” of the 911 call (a call later revealed to have been made by

appellant’s own sister) reporting probable domestic abuse and giving police the address

was “not fatal” to establishing exigent circumstances. In my view, even though the caller

did not identify herself, the police reasonably could understand the call as being from an

ordinary citizen reporting an incident out of concern for another’s life and wellbeing. In

short, the caller did not suffer from any apparent motive to falsify; there was no quid pro

quo for the information so provided as there might be, for example, with a criminal

informant seeking leniency. Many of the cases involving concerns with anonymous calls

involve drug crimes or other circumstances implicating the criminal underworld.

“Concerned citizen” calls reporting criminal activity to police, on the other hand, are

generally understood as having a modicum of reliability and credibility. See Wayne R.

LaFave, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 3.4(a), at 266-73

(5th ed. 2012) (collecting cases and concluding that “when an average citizen tenders

information to the police, the police should be permitted to assume that they are dealing

with a credible person in the absence of special circumstances suggesting that such

might not be the case.”).

      Of course, any anonymous call may be of dubious worth – the call could be a

prank, it could be intended to harass a neighbor, or the report could be premised upon an

unsubstantiated hunch.      But, counterbalanced against this prospect is that many

neighbors and family members wish to go unnamed out of concern for their own safety,

should the perpetrator learn who reported him, or for family or neighborhood harmony.

See id. at 283-87. That said, in the totality of circumstances, a call like the one made

here stands on its own merits and specifics. Ultimately, the context of the information

matters. See Commonwealth v. Torres, 764 A.2d 532, 545-48 (Pa. 2001) (Castille, J.,

concurring and dissenting). In this case, the specifics and context did matter, leading




                            [J-98-2012] [MO: Per Curiam] - 2
police straight to the victim, although not in time to save her life. As the Court indicates,

the volatility and violence of domestic abuse demands that reports to police, even if

anonymous, must be taken seriously and acted upon rapidly. In my view, police did

nothing arbitrary, unreasonable, or wrong under these circumstances; the constable not

having blundered, there is no reason that the criminal should go free.                  See

Commonwealth v. Henderson, 47 A.3d 797, 808 (Pa. 2012) (Castille, C.J., concurring)

(quoting Davis v. U.S., 131 S.Ct. 2419, 2434 (2011), quoting in turn People v. Defore, 150

N.E. 585, 587 (N.Y. 1926) (Cardozo, J.)).



                                             II.

                                             A.

       In response to an August 15, 2012 order from this Court directing the FCDO to

produce a copy of any federal appointment order authorizing it to represent appellant in

Pennsylvania state court proceedings, the FCDO admitted in an August 27, 2012

response that it had no such order. Instead, the FCDO attached a copy of a March 7,

2006 federal district court order authorizing the FCDO to represent appellant in pursuit of

a “to-be-filed” federal habeas corpus petition. The order granted the FCDO 120 days to

file that habeas petition.   Eight years on now, according to the PACER docket in

appellant’s federal habeas matter, which is attached to a filing in this appeal, the FCDO

still has not filed any such petition. See Davido v. Beard, No. 2:06-cv-00917 (E.D. Pa.

filed Mar. 1, 2006).

       But, the FCDO has been busy. After the FCDO’s appointment for federal habeas

purposes, appellant filed a nominally pro se petition for relief in the Court of Common

Pleas of Lancaster County under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546, on May 31, 2006. On November 9, 2006, the FCDO came out of the




                             [J-98-2012] [MO: Per Curiam] - 3
woodwork and entered an appearance in the PCRA court, just before the PCRA’s

one-year time-bar was set to expire. See Davido v. Pennsylvania, 546 U.S. 1020 (2005)

(denying certiorari on Nov. 14, 2005)).      The FCDO then secured leave to file an

amended PCRA petition, which they finally filed with the PCRA court on May 30, 2008,

two years after appellant’s state collateral challenge commenced.

      During this time, while the FCDO actively pursued PCRA relief in our courts, the

March 7, 2006 federal court directive that the FCDO file a federal habeas petition

remained pending. According to the federal PACER docket, it was not until March 28,

2008, that the federal district court vacated the extended deadline it had allowed the

FCDO for filing the habeas petition. The order vacated the long-since-passed deadline

because “[the FCDO] indicated that petitioner anticipates filing a PCRA petition.” Order,

3/28/08. Query: why did the FCDO keep the federal petition open, even though it was

already pursuing a PCRA petition in state court, and apparently without informing the

federal court of the truth? The Commonwealth’s brief explains, and the PACER docket

corroborates, that the FCDO was abusing the federal discovery process in order to

develop state law claims:

                     Rather than pursuing post-conviction relief in state
             court after his judgment of sentence was affirmed, Defendant
             filed motions in the United States District Court for the Eastern
             District of Pennsylvania and requested, inter alia, that the
             [FCDO] be appointed to represent him in connection with the
             anticipated filing of a petition for writ of habeas corpus.
             Attorney Matthew Lawry was subsequently appointed to
             represent Defendant in connection with the federal case.

                    Instead of pursuing a petition for writ of habeas corpus,
             however, on June 30, 2006, Defendant filed a motion for
             discovery indicating that the federal habeas petition would
             challenge the Commonwealth’s theory of the cause and
             manner of death. Specifically, Defendant averred that the
             victim suffered from a pre-existing condition and injuries that


                            [J-98-2012] [MO: Per Curiam] - 4
             contributed to her death. Despite the fact that the issue
             had not been litigated on direct appeal to this Court,
             Defendant claimed that he was entitled to discovery in
             federal court because the “Pennsylvania state courts
             were given an opportunity to, and did in fact, address
             this claim.” Defendant’s discovery motion was granted and
             the Commonwealth took an appeal to the Third Circuit Court
             of Appeals arguing that Defendant was not entitled to
             discovery prior to actually filing a petition for writ of habeas
             corpus. On January 19, 2007, the Third Circuit dismissed
             the appeal as interlocutory. In March of 2007, Defendant's
             attorneys viewed the requested tissue sample slides along
             with their pathologist.

                    N. No petition for writ of habeas corpus has been filed
             to date.     Prior to filing [an amended] PCRA petition,
             Defendant requested an order [from the trial court] directing
             the Commonwealth to produce a copy of the file of Lancaster
             County Forensic Pathologist Wayne K. Ross who had
             performed the autopsy on Angela Taylor. On May 18, 2007,
             the trial court granted the motion and the Commonwealth
             provided a copy of the file to defense counsel.
Commonwealth’s Brief at 3-4 (emphasis supplied).

      This maneuver proves two preliminary points respecting the FCDO’s tactics: first,

the FCDO obviously had no intention of pursuing a federal habeas petition before it had

exhausted appellee’s PCRA rights.      Thus, its request for federal discovery was an

obvious (and successful) ploy to skirt Pennsylvania law with respect to PCRA discovery,

which is embodied by Criminal Rule 902(E)(2): “On the first counseled petition in a death

penalty case, no discovery shall be permitted at any stage of the proceedings, except

upon leave of court after a showing of good cause.” Pa.R.Crim.P. 902(E)(2); see also

Commonwealth v. Williams, 86 A.3d 771, 781 (Pa. 2014) (“The rule establishes no

discovery as the default, with an exception when good cause is shown by the party

requesting discovery.”).     The FCDO obviously does not like this restriction.

Nevertheless, the federal district court, perhaps duped by the FCDO, looked the other



                           [J-98-2012] [MO: Per Curiam] - 5
way.     The FCDO certainly knew, if the district court judge did not, that the

Commonwealth had no effective federal appellate remedy from a ruling that -- whether

intended by the district court or not -- was contemptuous of Pennsylvania state processes

and was designed to subvert this Court’s rules concerning PCRA discovery.

        Second, if Pennsylvania courts had already decided appellant’s federal claims

arising out of the cause and manner of the victim’s death -- as the FCDO represented to

the federal court in order to secure extra-PCRA discovery -- those claims would be

unavailable on PCRA review.       Yet, in fact, claims respecting the cause and manner of

the victim’s death are front and center in appellant’s PCRA petition, and are renewed on

this appeal. The near-exclusive purpose1 of federal habeas review of state convictions

is to pass upon the reasonableness of state courts’ determinations of federal

constitutional claims that have already been actually and fairly presented to the state

courts (“exhausted” in habeas parlance). In conducting habeas review, federal courts of

course are to confine themselves to the record made, and the presentations made, in the

state courts. See Commonwealth v. Jones, 54 A.3d 14, 19 (Pa. 2012) (Castille, C.J.,

concurring) (“With very rare exceptions, the point of federal habeas review is not to go on

fishing expeditions to find new facts and claims not already presented in state court;

federal courts are to review only the federal constitutional claims properly presented to

state courts, while showing required deference to the reasonable decisions of the

sovereign state courts.”). The U.S. Supreme Court recently had to step in with a primer

to remind the lower federal judiciary of this bedrock principle in Cullen v. Pinholster, 131

S.Ct. 1388 (2011):

                      We now hold that review under [28 U.S.C.] §
               2254(d)(1) [(Habeas Corpus)] is limited to the record that was

1   There are arcane exceptions not relevant here.



                             [J-98-2012] [MO: Per Curiam] - 6
before the state court that adjudicated the claim on the merits.
Section 2254(d)(1) refers, in the past tense, to a state-court
adjudication that “resulted in” a decision that was contrary to,
or “involved” an unreasonable application of, established law.
This backward-looking language requires an examination of
the state-court decision at the time it was made. It follows
that the record under review is limited to the record in
existence at that same time i.e., the record before the state
court.

          This understanding of the text is compelled by “the
broader context of the statute as a whole,” which
demonstrates Congress’ intent to channel prisoners’ claims
first to the state courts. Robinson v. Shell Oil Co., 519 U.S.
337, 341 (1997). “The federal habeas scheme leaves primary
responsibility with the state courts . . . .” [Woodford v.
Visciotti, 537 U.S. 19, 27 (2002)]. Section 2254(b) requires
that prisoners must ordinarily exhaust state remedies before
filing for federal habeas relief. It would be contrary to that
purpose to allow a petitioner to overcome an adverse
state-court decision with new evidence introduced in a federal
habeas court and reviewed by that court in the first instance
effectively de novo.

        Limiting [Section] 2254(d)(1) review to the state-court
record is consistent with our precedents interpreting that
statutory provision. Our cases emphasize that review under
[Section] 2254(d)(1) focuses on what a state court knew and
did. State-court decisions are measured against this Court’s
precedents as of “the time the state court renders its
decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
To determine whether a particular decision is “contrary to”
then-established law, a federal court must consider whether
the decision “applies a rule that contradicts such law” and how
the decision “confronts the set of facts” that were before the
state court. Williams v. Taylor, 529 U.S. 362, 405, 406
(2000) (Terry Williams). If the state-court decision “identifies
the correct governing legal principle” in existence at the time,
a federal court must assess whether the decision
“unreasonably applies that principle to the facts of the
prisoner’s case.” Id. at 413. It would be strange to ask
federal courts to analyze whether a state court’s adjudication



              [J-98-2012] [MO: Per Curiam] - 7
              resulted in a decision that unreasonably applied federal law to
              facts not before the state court.

131 S.Ct. at 1398-99.
       Moreover, whether it squares with the FCDO’s global agenda or not, the fact

remains that states retain sovereign power to regulate procedural matters in their courts,

including the procedures by which state collateral attacks are pursued. If a defendant

believes that state procedural provisions, such as our discovery rules, are

unconstitutional (which is the only federal objection he could raise), that objection itself

must be raised and exhausted in state court. Properly managed by attentive and dutiful

federal courts, federal habeas review is decidedly not designed to allow a state defendant

to subvert state courts – on discovery matters or any other matters. And, of course, it is

unethical for a lawyer not only to affirmatively misrepresent the reasons for seeking

federal habeas discovery, but also to be less than candid about the true reasons for a

discovery request. And, it would be doubly offensive if the federal courts were complicit

in the undermining, rather than simply being duped by unethical legal ploys.

       It is bad enough when a prisoner who has already properly and honestly

exhausted his state court remedies proceeds to federal habeas review, and then

demands and improperly receives additional discovery. See Jones, 54 A.3d at 20 (citing

Commonwealth v. Abdul-Salaam, 42 A.3d 983 (Pa. 2012) and Commonwealth v.

Abdul-Salaam, 996 A.2d 482 (Pa. 2010), two pre-Cullen FCDO cases where serial PCRA

petitions were premised upon federal habeas discovery orders).            But, the FCDO

subversion of our discovery rules suggested by this case is worse: it appears that the

FCDO managed to improperly secure discovery from the federal courts before even

bothering to file appellant’s amended PCRA petition in our courts, and it used the fruit of

this ill-gotten federal habeas “discovery” in that very amended PCRA petition – all while

effectively delaying the case on both tracks.



                            [J-98-2012] [MO: Per Curiam] - 8
       This end-around is what happens when a dubiously authorized, federally-financed

entity such as the FCDO, whose proper role is representing defendants for purposes of

ripe federal habeas litigation, instead pursues its own collateral agenda, operating

stealthily in both court systems, playing one off of the other, creating delays, and looking

for ways to subvert state processes. See Commonwealth v. Spotz, 18 A.3d 244, 329-49

(Pa. 2011) (Castille, C.J., concurring, joined by McCaffery, J.) (outlining multiple similar

abuses). Tellingly, as indicated by the Majority, when given an opportunity to prove that

it did not divert federal taxpayer funds for its state court agenda in cases such as

Commonwealth v. Mitchell, 617 CAP, the FCDO has refused to come clean (and has

gone to great lengths and pains to do so).



                                              B.

       In the years since the filing of my concurrence in Spotz, multiple additional

examples of the FCDO’s global agenda in Pennsylvania capital cases have revealed

themselves.     I addressed the circumstances in painstaking detail recently in a

single-Justice opinion disposing of tangential motions the FCDO filed in Spotz, including

its request that I withdraw my Concurring Opinion, which I denied. Commonwealth v.

Spotz, 99 A.3d 866 (Pa. 2014). In that opinion, I described the extent of the problem

posed by the FCDO’s comprehensive, obstructionist, and ethically-dubious insinuation of

itself into Pennsylvania capital cases:


                Consideration of the post-decisional motions in this case, and
       intervening developments in other capital matters involving FCDO
       appearances in state court, have confirmed and heightened the grounded
       concern with the conduct of the FCDO in this case, and more importantly,
       with its global agenda in Pennsylvania capital cases. . . . [T]he incremental
       insinuation of the FCDO into Pennsylvania capital cases has been
       remarkable in its stealth and pervasiveness. The FCDO has designated
       itself the de facto State Capital Defender’s Office, involving itself not only in


                             [J-98-2012] [MO: Per Curiam] - 9
virtually all capital PCRA litigation, but also in direct capital appeals, and
even, in one instance, as amicus curiae on behalf of a foreign nation,
Mexico, in support of a Mexican national who murdered three people. No
authority -- state or federal -- appointed the FCDO to take on this statewide
role, and no authority has approved the arrangement. Pennsylvania does
not have a statewide capital prosecutor’s office; and notably, in a great
many capital cases, the chief law enforcement officer of the
Commonwealth, the Attorney General, echoed by county prosecutors, has
taken the position that the FCDO should not be permitted to continue in
Pennsylvania capital cases without proving its specific federal authorization
to do so.

         In addition to comprehensively involving itself in state capital
litigation without any authorization, the FCDO has established its monopoly
through means known only to itself. Remarkably, when directed by this
Court to provide simple and modest information confirming a claim that it
has not supported its private capital case agenda in Pennsylvania with
improperly diverted federal funds, the FCDO response -- the response of
these officers of the court, to the Court with supervisory authority over the
practice of law in Pennsylvania -- has been refusal and the removal of cases
to federal court, ensuring yet more FCDO delay in those capital matters.

        The circumstances and obstructionist effect of the FCDO’s silent
takeover of the capital PCRA defense function in Pennsylvania requires
that Pennsylvania reassert control over the litigation of state capital matters.
Death penalty opponents, such as the FCDO, can then redirect their efforts
to the political arena, where they belong. This Court has a responsibility
for the entire Pennsylvania judicial system, to ensure the delivery of swift,
fair, and evenhanded justice in all cases. We are not obliged to indulge or
countenance a group which manipulates and abuses the judicial process in
Pennsylvania in the hopes of achieving a global political result that it has
failed to secure through the political process.

       This restoration of proper authority will leave a void in the short run.
But, the void is an opportunity to return capital case advocacy to principled
moorings. The restoration will require that Pennsylvania authorities,
including this Court, step up and ensure the provision of the funding,
training and resources necessary to ensure that capital defense
representation in Pennsylvania fully meets Sixth Amendment standards,
with competent, properly compensated and dedicated lawyers who act
zealously to advance the cause of their clients, but who act ethically as well,
mindful of their duties to the courts and the justice system overall. I believe
the Commonwealth is up to the challenge.


                     [J-98-2012] [MO: Per Curiam] - 10
               I do not in the least criticize principled representation of indigent
       capital defendants; such a principled endeavor represents lawyering in the
       best tradition of the bar. But, [as explained later in the Opinion], the FCDO
       continues to pursue an agenda beyond mere zealous representation, one
       which routinely pushes, and in frequent instances, as here, far exceeds
       ethical boundaries. FCDO lawyers appear in Pennsylvania courts only as
       officers of this Court; consequently, they are answerable to the Court. So
       long as the organization remains unauthorized to pursue its global agenda
       by any Pennsylvania authority, and so long as the FCDO refuses to be
       candid with the Court about its authorization and funding, it cannot be
       permitted to continue its representation of capital defendants in
       Pennsylvania, absent a specific federal court order authorizing the specific
       endeavor in state court in an individual case.


Id. at 866-68 (footnotes omitted).

       As explained in Spotz, if the FCDO persists in a war on candor in our courts, this

Court has the sovereign power to remove FCDO lawyers from Pennsylvania cases. I

suggest to the trial court here that, if and when the FCDO appears before it again, with a

serial PCRA petition in hand on appellant’s behalf, seeking to delay further, it be removed

as counsel.




                           [J-98-2012] [MO: Per Curiam] - 11
