                            [J-78-2019] [MO: Wecht, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                   :   No. 768 CAP
                                                :
                    Appellee                    :   Appeal from the Order dated June 29, 2018 in
                                                :   the Court of Common Pleas, Bradford County,
                                                :   Criminal Division at No. CP-08-CR-0000309-
             v.                                 :   1995.
                                                :
                                                :   SUBMITTED: July 19, 2019
JOHN JOSEPH KOEHLER, JR.,                       :
                                                :
                    Appellant                   :



                                CONCURRING STATEMENT


JUDGE CAROLYN NICHOLS                                             DECIDED: April 24, 2020
      I join the Majority opinion in all respects and write separately to emphasize that

there is a long history of cases that have been remanded to trial level courts in order to

determine whether judicial bias existed that violated the due process rights of litigants,

and whether relief is merited. The instant case differs in the sense that it seeks to

resolve the atypical question of whether a PCRA court has the authority to resolve a

post-conviction claim that alleges appellate judicial bias occurred which violated due

process.

      In order for due process protection to be meaningful, I agree with the Majority

that claims of post-conviction appellate judicial bias should not be treated differently

than other post-conviction collateral claims. A PCRA court is the appropriate forum to

address collateral challenges to appellate-level constitutional errors, including the

adjudication of claims of ineffectiveness of appellate counsel, and further, that the court

may grant a new appeal nunc pro tunc, if merited, as a well-established form of relief.

See Majority Op. at 13-14, 15-17; see also Commonwealth v. Taylor, 218 A.3d. 1275

(Pa. 2019); Commonwealth v. Robinson, 204 A.3d 326 (Pa. 2018).

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      The review of several cases is instructive. The Supreme Court of the United

States concluded that a Justice of the Alabama Supreme Court’s participation in the

multimember tribunal’s adjudication of Appellant’s case violated Appellant’s due process

rights, and that the appearance of justice would be best served by vacating the decision

and remanding it for further proceedings because the Justice had a direct, personal and

pecuniary interest in the outcome of Appellant’s case, which enhanced the settlement

value of his own litigation. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 824 (1986);

Tumey v. Ohio, 273 U.S. 510, 523 (1927)). The High Court further stated that “[t]he Due

Process Clause ‘may sometimes bar trial by judges who have no actual bias and who

would do their very best to weigh the scales of justice equally between contending

parties. But to perform its high function in the best way, ‘justice must satisfy the

appearance of justice.’’” Aetna, 475 U.S. at 824 (quoting In re Murchison, 349 U.S. 133,

136 (1955)).

      The United States Court of Appeals for the Ninth Circuit, in Hurles v. Ryan, 752

F.3d 768 (9th Cir. 2014), summarized a long history of United States Supreme Court

decisions as follows:

      The Supreme Court held long ago that a “fair trial in a fair tribunal is a
      basic requirement of due process.” In re Murchison, 349 U.S. 133, 136, 75
      S. Ct. 623, 99 L. Ed. 942 (1955). “Fairness of course requires an absence
      of actual bias in the trial of cases. But our system of law has always
      endeavored to prevent even the probability of unfairness.” Id.; cf. Mistretta
      v. United States, 488 U.S. 361, 407, 109 S. Ct. 647, 102 L. Ed. 2d 714
      (1989) (“The legitimacy of the Judicial Branch ultimately depends on its
      reputation for impartiality and nonpartisanship.”). This most basic tenet of
      our judicial system helps to ensure both the litigants’ and the public’s
      confidence that each case has been adjudicated fairly by a neutral and
      detached arbiter.



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       “The Due Process Clause of the Fourteenth Amendment establishes a
       constitutional floor, not a uniform standard,” for a judicial bias claim. Bracy
       v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997).
       While most claims of judicial bias are resolved “by common law, statute, or
       the professional standards of the bench and bar,” the “floor established by
       the Due Process Clause clearly requires a ‘fair trial in a fair tribunal’ before
       a judge with no actual bias against the defendant or interest in the
       outcome of his particular case.” Id. at 904-05, 117 S. Ct. 1793 (quoting
       Withrow v. Larkin, 421 U.S. 35, 46, 95 S. Ct. 1456, 43 L. Ed. 2d 712
       (1975)). The Constitution requires recusal where “the probability of actual
       bias on the part of the judge or decisionmaker is too high to be
       constitutionally tolerable.” Withrow, 421 U.S. at 47, 95 S. Ct. 1456.

Hurles, 752 F.3d. at 789. 1
       Similarly, in Bracy, the High Court determined that given the facts of the case, “it

would be an abuse of discretion not to permit discovery,” the scope and extent of which

was to be determined by the federal district court, and the case was remanded for

further proceedings. Bracy, 520 U.S. at 909 (emphasis added). In Bracy, the petitioner

was tried, convicted, and sentenced to death before a trial judge that was ultimately

convicted in federal court of racketeering and related charges for taking bribes and

“fixing” cases. Id. at 900-02. Although the judge was not bribed in the petitioner’s case,

the High Court determined that the allegations were sufficiently specific to permit

discovery. Id. at 903-04, 908-10 (citing Harris v. Nelson, 394 U.S. 286, 300 (1969)).

       “Justice must satisfy the appearance of justice,” words written by United States

Supreme Court Justice Black 2 over sixty years ago in In re Murchison, 349 U.S. at 136,

1 The Hurles court remanded the case to the federal district court for an evidentiary
hearing on the petitioner’s claim of judicial bias after the district court denied his habeas
corpus petition challenging his conviction for capital murder and the imposition of his
death sentence in Arizona state court. Essentially, the petitioner alleged judicial bias
based on the trial judge’s responsive pleadings to his pre-trial special action petition that
the appellate court ruled improper for a judge to file and dismissed for lack of standing.
The appellate court ultimately dismissed the petitioner’s claim, and the trial judge
presided over petitioner’s jury trial, including the penalty phase, which resulted in the
imposition of his death sentence. Hurles, 752 F.3d at 776-77.
2 Justice Black was quoting Justice Frankfurter from his opinion in Offut v. United
States, 348 U.S. 11, 14 (1954).
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that still resonate in today’s judicial system. This principle is evident in the above-

referenced cases that were remanded to trial level federal courts and state courts in the

interest of justice to address judicial bias issues, and this principle applies equally to the

instant case, albeit allegations of post-conviction appellate judicial bias.

       No one is above the law. As the Majority correctly observes, the proper forum to

adjudicate post-conviction collateral challenges alleging appellate judicial bias is the

PCRA court which has original jurisdiction over PCRA proceedings pursuant to 42

Pa.C.S. § 9545(a). Further, there is no dispute that a PCRA court has jurisdiction to

develop a record of pertinent facts and evidence through discovery, the scope and

extent of which it will determine, in addition to evidentiary hearings. Additionally, a

PCRA court has the authority to grant relief, including a new appeal if merited, and the

court’s decisions are subject to appellate review if an appeal is pursued.




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