                                   [J-51-2018]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT

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


    COMMONWEALTH OF PENNSYLVANIA,               :   No. 720 CAP
                                                :
                       Appellee                 :   Appeal from the Order dated
                                                :   12/8/2015 in the Court of Common
                                                :   Pleas, Cumberland County, Criminal
                v.                              :   Division at No. CP-21-CR-0001183-
                                                :   1996
                                                :
    ANTYANE ROBINSON,                           :   SUBMITTED: June 11, 2018
                                                :
                       Appellant                :


                         OPINION IN SUPPORT OF REVERSAL


JUSTICE DONOHUE                                          DECIDED: December 14, 2018

        In this capital appeal, we review the dismissal, on timeliness grounds, of the third

petition for relief filed by Appellant Antyane Robinson (“Robinson”) pursuant to the Post

Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (“PCRA”).1 Robinson’s petition, raising

a due process violation, is premised upon the receipt and delivery of offensive emails by

former Pennsylvania Supreme Court Justice J. Michael Eakin (“Eakin”) and possible ex



1   A PCRA petition must be filed within one year of the date a criminal defendant’s
judgment of sentence becomes final for a court to have jurisdiction to decide the merits
of the claims raised therein. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Mitchell, 141
A.3d 1277, 1284 (Pa. 2016). The PCRA provides several exceptions to the one-year time
bar including circumstances wherein “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” and the petition is filed within sixty days of the date the claim could have been
presented. 42 Pa.C.S. § 9545(b)(1)(ii), (2).
parte communication between Eakin and members of the Office of the Cumberland

County District Attorney (the “DA”). We are also asked to decide whether the DA should

be disqualified from participating in this matter based on the connection between the DA

and Eakin that was exposed through Eakin’s disciplinary proceedings. For the reasons

that follow, we would conclude that Robinson satisfied the newly discovered fact

exception to the PCRA’s one-year time requirement and filed his petition within sixty days

of the date his claim could have first been brought. We further would conclude that the

particular facts and circumstances of this case require the disqualification of the DA from

further proceedings.   We would hold that, on remand, the President Judge of the

Cumberland County Court of Common Pleas must refer the matter to the Office of the

Attorney General (“OAG”) who, in the absence of a conflict, would represent the

Commonwealth in this matter. The PCRA court would also be ordered to give renewed

consideration to Robinson’s requests to amend his PCRA petition, for discovery and for

an evidentiary hearing.2

      The backdrop of this case is an email scandal that first came to light in 2014

following an investigation conducted by former Attorney General Kathleen Kane into her

predecessor’s handling of an unrelated matter. This investigation uncovered emails sent

from and received by members of her office on Commonwealth owned computers that

contained racist, sexist, misogynistic, homophobic, and religiously and ethnically

insensitive content. Their piecemeal release revealed individuals from all three branches

of the Commonwealth’s government as having sent and/or received these emails.


2 As we discuss herein, our decision regarding Robinson’s PCRA claims are solely limited
to whether Robinson satisfied an exception to the PCRA’s timeliness requirements. We
have not considered the merits of the substantive claims raised in the PCRA petition.


                                     [J-51-2018] - 2
      Of relevance to the case at bar, in October 2014, news articles reported that former

Pennsylvania Supreme Court Justice Seamus McCaffery sent and received numerous of

these offensive emails. Shortly thereafter, Eakin was also implicated in the scandal. As

discussed herein, the story of Eakin’s involvement broke on or about October 8, 2014,

and continued to evolve and develop through his suspension from judicial and

administrative responsibilities on December 22, 2015, resignation on March 15, 2016,

and decision by the Court of Judicial Discipline (“CJD”) on March 24, 2016.

      With this background in mind, we turn to the case before us. On March 13, 1997,

a jury convicted Robinson of the attempted murder of Tara Hodge, Robinson’s on-

again/off-again paramour, and the first-degree murder of Rashawn Bass, Hodge’s

boyfriend.3 The evidence at trial revealed that on June 29, 1996, sometime after receiving

a letter from Hodge ending their relationship, Robinson drove from his home outside of

Washington, D.C. to her apartment in Carlisle, Pennsylvania. Upon learning that she was

not alone, Robinson and Hodge began to argue. Robinson requested that Hodge tell her

guest to leave. When she refused, Robinson pulled a gun from his waistband and shot

Hodge in the head. She lost consciousness but survived. Robinson then went into the

bathroom where Bass was showering and shot him seven times, killing him almost

instantly. Robinson then fled the scene.

      The elected DA at that time, Merle L. Ebert, Jr. (“Ebert”), tried the case on behalf

of the Commonwealth. The theme of the prosecution was that Robinson was a gun-toting



3  See 18 Pa.C.S. §§ 2502(a), 901(a). The jury also convicted Robinson of related
charges, including aggravated assault, using a firearm in the commission of a crime, and
carrying a firearm without a license. 18 Pa.C.S. §§ 2702(a)(1), 6103, 6106(a)(1).



                                     [J-51-2018] - 3
criminal from the “big city” who came to Cumberland County with the intent to kill because

he had been “disrespected” by Hodge.4 See, e.g., N.T., 3/12/1997, at 6; N.T., 3/13/1997,

at 271, 273, 277. In his defense, Robinson did not deny that he shot both Hodge and

Bass, but contended that he lacked the intent to kill or to attempt to kill. See N.T.,

3/13/1997, at 265-67; N.T., 3/14/1997, at 366-67.

        The jury sentenced Robinson to death the following day. This Court affirmed his

judgment of sentence on November 24, 1998. Commonwealth v. Robinson, 721 A.2d

344 (Pa. 1998) (“Robinson I”). The United States Supreme Court denied his petition for

certiorari on January 10, 2000, at which time Robinson’s judgment of sentence became

final. Robinson v. Pennsylvania, 528 U.S. 1082 (2000); see 42 Pa.C.S. § 9545(b)(3) (“For


4   For example, in his closing argument to the jury, DA Ebert stated:
               Now, there was an image projected here, and it’s that big city
               image. You’ll get to look at this. [“]Man, I got to carry a gun
               wherever I go.[”] He’s not the person in here that [“]all my life
               I’ve been treated so badly.[”] This is the image of a kind of
               person capable of forming specific intent to kill. This is a
               lifestyle.
                                          *    *   *
               I would say an ordinary person doesn’t want to do that, but a
               person that wants to project this kind of image, the kind of guy
               that has to drive into Cumberland County and have guns in
               his waistband and his home has to have a bullet proof vest,
               those are the kind of guys I submit to you that say [“]I ain’t
               going to be disrespected, disrespect me and you’re going to
               have to pay.[”]
N.T., 3/13/1997, at 273, 277. This theme was buttressed at trial with the admission of
guns and ammunition unrelated to the crimes at issue, photographs of money and
unrelated firearms, pictures of Robinson posing holding several different guns (none of
which were used in the perpetration of the crime in question), and a bulletproof vest.
Commonwealth’s Exhibits 36, 38, 39. The Commonwealth used these exhibits to
demonstrate Robinson’s “lifestyle and image” and that he “was capable of forming the
specific intent to kill.” See Robinson I, 721 A.2d at 351.


                                       [J-51-2018] - 4
purposes of this subchapter, a judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United Sates and the Supreme

Court of Pennsylvania, or at the expiration of time for seeking the review.”).

       Represented by new counsel, Robinson filed a timely PCRA petition on October

16, 2000. Following an evidentiary hearing, the Honorable Edgar B. Bayley, who also

served as the trial court judge, denied the petition on April 22, 2002.

       Robinson appealed the denial of his PCRA petition to this Court. Robinson raised

twelve issues for the Court’s review. In a divided four-to-three opinion, this Court affirmed.

The majority opinion, authored by Eakin, found five issues were previously litigated and

the remaining seven meritless. Commonwealth v. Robinson, 877 A.2d 433 (Pa. 2005)

(“Robinson II”). Notably, Robinson, an African-American man, raised a claim that the

DA’s portrayal of him as a big-city criminal who killed out of retribution for perceived

disrespect “had a definite racial overtone” that constituted prosecutorial misconduct and

that trial counsel was ineffective for failing to object to the DA’s injection of race into the

case.5 Id. at 441. He further alleged counsel’s ineffectiveness for failing to present

evidence at his penalty phase hearing regarding, inter alia, his exposure to domestic

violence. Id. at 438 n.3.6


5  A finding that trial counsel rendered ineffective assistance requires a PCRA petitioner
to plead and prove that “(1) the claim has arguable merit; (2) counsel had no reasonable
basis designed to advance the petitioner’s interest for his/her act or omission; and (3) the
petitioner suffered prejudice as a result, which, for PCRA purposes, means but for
counsel’s act or omission, there is a reasonable probability that the result of the
proceeding would have been different.” Commonwealth v. Sepulveda, 144 A.3d 1270,
1273 n.9 (Pa. 2016) (citing Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015)).
6  Robinson’s claim concerning his exposure to domestic violence was stated as an
entitlement to PCRA relief based on “[t]rial counsel’s failure to investigate and present at
sentencing the readily available evidence of [Robinson’s] increasingly paranoid behavior,



                                       [J-51-2018] - 5
       In the majority opinion, Eakin did not specifically address the domestic abuse

averment, but rather decided the issue based on trial counsel’s efforts to obtain

information about Robinson’s family background. See id. at 448. The majority opinion

addressed the race-related argument by finding that the Commonwealth did nothing

improper: “Here, the prosecutor’s remarks were not a deliberate attempt to destroy the

objectivity of the jury, but merely summarized the evidence presented at trial with

oratorical flair permitted during argument.” Id. at 442. Because the DA did not mention

Robinson’s race, the majority concluded that the claim that trial counsel was ineffective

for failing to object was without merit. Then-Justice (now-Chief Justice) Saylor authored

a comprehensive dissenting opinion wherein he stated his view that the prosecutor’s

statements in this latter regard were improper. Id. at 451 (Saylor, J., dissenting).7

       In 2005, Ebert was elected to serve as a judge in the Cumberland County Court of

Common Pleas and was succeeded as DA by Attorney David J. Freed (“Freed”).

Robinson filed a counseled writ of habeas corpus in the United States District Court for

the Middle District of Pennsylvania, and Chief Deputy DA Matthew P. Smith (“Smith”) and



paranoid schizophrenia, family dysfunction and abuse, diminished capacity and
emotional trauma at the time of the offenses deprived him of his constitutional right to the
effective assistance of counsel.” Robinson II, 877 A.2d at 438 n.1.
7 Justice Saylor ultimately agreed with the majority that Robinson’s ineffectiveness claim
could not succeed, however, based on Robinson’s failure to meet the reasonable basis
and prejudice prongs of the test for ineffective assistance of counsel. Robinson II, 877
A.2d at 451 (Saylor, J., dissenting). Notably, two Justices also in a dissenting posture –
Justices Nigro and Baer – agreed with Justice Saylor that Robinson should receive a new
penalty phase hearing based on trial counsel’s ineffectiveness for failing to object to the
section 9711(d)(6) aggravating circumstance (killing committed “while in the perpetration
of a felony”). Justices Nigro and Saylor also would also have granted Robinson a new
penalty phase hearing based on trial counsel’s legally unsupportable concession that the
grave-risk aggravator of section 9711(d)(7) applied where the two victims were shot
separately and in different rooms. Id. at 452-53; id. at 450 (Nigro, J., dissenting).


                                      [J-51-2018] - 6
Assistant DA Charles J. Volkert, Jr. (now Chief Deputy DA) began representing the

Commonwealth in this matter. The district court denied relief on September 30, 2011.

The United States Court of Appeals for the Third Circuit affirmed the denial and the United

States Supreme Court denied a petition for certiorari on October 5, 2015.

       With his habeas petition pending before the Third Circuit, Robinson filed a second

PCRA petition pro se in the Cumberland County Court of Common Pleas on September

30, 2013. The court appointed counsel on October 3, 2013, who filed an amended petition

on Robinson’s behalf. The PCRA court dismissed the petition as untimely, and this Court

affirmed on June 20, 2016. See Commonwealth v. Robinson, 139 A.3d 178 (Pa. 2016)

(“Robinson III”).

       Robinson filed the instant, counseled PCRA petition on November 30, 2015, while

decision on his second petition was pending before this Court.8 In this petition, Robinson

sought reinstatement of his appellate rights from his first PCRA petition, alleging newly



8  Robinson filed his third PCRA petition prematurely. See Commonwealth v. Lark, 746
A.2d 585, 588 (Pa. 2000) (holding that “when an appellant’s PCRA appeal is pending
before a court, a subsequent PCRA petition cannot be filed until the resolution of review
of the pending PCRA petition by the highest state court in which review is sought, or upon
the expiration of the time for seeking such review,” and that the petitioner must file the
subsequent petition “within sixty days of the date of the order which finally resolves the
previous PCRA petition, because this is the first ‘date the claim could have been
presented.’”). The holding in Lark was premised on a PCRA court’s lack of jurisdiction to
rule on the subsequent PCRA petition while the appeal of a prior PCRA petition in the
case was pending. Id. Robinson recognized the jurisdictional concern, but because of
the factual differences between Lark and the case at bar, stated that he filed the petition
“in an abundance of caution to preserve [his] constitutional claims.” PCRA Petition,
11/30/2015, ¶ 14. As this Court’s review in Robinson III was completed by the time the
PCRA court finally adjudicated Robinson’s third PCRA petition, and because the
Commonwealth does not raise an objection pursuant to Lark, in the interest of justice, we
will regard as done that which ought to have been done and treat Robinson’s third PCRA
petition as though it was filed after our decision in Robinson III.



                                     [J-51-2018] - 7
discovered facts regarding Eakin’s transmission and receipt of offensive emails and

possible ex parte communication with prosecutors.9 Robinson alleged a violation of his

due process rights based on Eakin’s bias or the appearance of bias. Robinson noted that

he raised claims in his first PCRA appeal, decided by Eakin, concerning the improper

injection of race into his guilt phase trial by Ebert and the failure of his counsel to present

evidence of his exposure to domestic violence – abuse sustained by his mother and sister

at the hands of his father – as a mitigating circumstance at his penalty phase hearing.

PCRA Petition, 11/30/2015, ¶¶ 39-42.

       According to Robinson, Eakin’s involvement in the email scandal was not known

until October 8, 2015, when an online news outlet, philly.com, published the content of

some of the emails that Eakin had sent and received from a personal email account he

created using the pseudonym “John Smith.” Id., ¶ 43 (citing William Bender, A Supreme

Court Justice’s Indecent Inbox, philly.com, Oct. 8, 2015). Further, Robinson averred that

a news article further reported that Ebert had received at least one of the “blast” emails

sent to Eakin, which Robinson stated showed “a close relationship” that too created “an

actual bias or, at a minimum, the appearance of bias.” Id., ¶ 46 (citing Wallace McKelvey,


9  In his petition, Robinson raised an additional argument to overcome the one-year time
limitation, asserting that “the failure to raise the claim previously was the result of
interference by government officials with the presentation of the claim” based on “the
relevant government officials conceal[ing] the relationships and emails.” PCRA Petition,
11/30/2015, ¶¶ 11-12; 42 Pa.C.S. § 9545(b)(1)(i). In a later filing, he also claimed that
his right to a new PCRA appeal was a newly recognized constitutional right by the United
States Supreme Court in Williams v. Pennsylvania, 136 S. Ct. 1899 (2016), that applies
retroactively to his case. Response and Objections to Rule 909(B) Notice, 6/14/2017, at
7-9; 42 Pa.C.S. § 9545(b)(1)(iii); see Williams, 136 S. Ct. at 1910 (holding that a biased
jurist’s participation in decision of a case “was an error that affected the State Supreme
Court’s whole adjudicatory framework” in the matter). Because we would decide that
Robinson’s claim satisfies the newly discovered fact exception to the PCRA’s timeliness
requirement, we need not address the applicability of his other claimed exceptions.


                                       [J-51-2018] - 8
Porn emails raise questions about judicial ethics in Pa., pennlive.com, Oct. 23, 2015).

Robinson asserted that because only emails from the OAG’s server had been disclosed

at that time, it was unknown whether there were additional emails exchanged between

Eakin and members of the DA’s office. Id., ¶ 60.

       Robinson contended that Eakin’s conduct in both respects denied him his right to

a fair and impartial court, and that this constituted a “structural error” requiring no showing

of prejudice. Id., ¶¶ 53-57, 61, 65 (citing, e.g., Tumey v. Ohio, 273 U.S. 510, 532 (1927);

In re Murchison, 349 U.S. 133, 136 (1955); Johnson v. United States, 520 U.S. 461, 468-

69 (1997); Commonwealth v. Basemore, 744 A.2d 717, 734 (Pa. 2000)). According to

Robinson, failing to provide review by an “impartial and disinterested tribunal” that was

free of bias denied him his right to a full and fair review of his initial PCRA petition, as well

as effective assistance of counsel. Id., ¶¶ 65-67 (quoting Marshall v. Jerrico, Inc., 446

U.S. 238, 242 (1980)).

       Robinson acknowledged that Eakin’s involvement in the email scandal was first

suggested in 2014, but he noted that former Chief Justice Castille promptly cleared Eakin

of any wrongdoing. Id., ¶¶ 50-51 (citing Brad Bumsted, Castille: No Justices Except

McCaffery Involved in Porn Scandal, Pittsburgh Tribune-Review Oct. 15, 2014). He

stated that even at the time of the filing of his PCRA petition, the contents of the emails

most relevant to his case had not been disclosed, but that he filed his petition “[i]n an

abundance of caution … within sixty days of the first occasion on which he had any basis

to raise the claim.”     Id., ¶ 11.   Robinson recognized the developing nature of the

information disclosed regarding the emails. Id., ¶ 34.




                                        [J-51-2018] - 9
        The Commonwealth filed a response, attacking the merits of the issue raised, but

making no argument concerning Robinson’s failure to overcome the PCRA’s one-year

time bar. On December 8, 2015, the PCRA court entered an order dismissing the petition

“for lack of jurisdiction in light of [Robinson’s] pending appeal” of his second PCRA

petition. PCRA Court Order, 12/8/2015. Robinson filed a motion for reconsideration of

that order, raising therein the PCRA court’s failure to comply with Rule of Criminal

Procedure 909,10 and further attempting to distinguish the circumstances of his case from

that of Commonwealth v. Lark, 746 A.2d 545 (Pa. 2000), stating his concern that review

of his claim regarding Eakin’s bias would be forfeited. See supra, note 8. The PCRA

court denied his request, but stated in its order that Robinson “clearly raised the issue of

Justice Eakin’s emails, which will be preserved pending the outcome of [Robinson’s]

current appeal.” PCRA Court Order, 1/5/2016.

        The next day, Robinson filed a motion to vacate the above orders and sought

recusal of the entire Cumberland County bench. He filed the motion upon learning that

on December 18, 2015, all but one of the sitting judges11 signed a letter that was sent to

the CJD in support of Eakin after the Judicial Conduct Board (“JCB”) filed formal charges

against him.12 The Honorable Albert H. Masland, who was sitting as the PCRA court



10  Rule 909 requires, in relevant part, that the PCRA court send a capital petitioner notice
of its intent to dismiss a pending PCRA petition without a hearing, stating reasons for the
dismissal, and provide the petitioner twenty days to respond to the notice. Pa.R.A.P.
909(B)(2).
11   The exception was Senior Judge Wesley J. Oler, Jr.
12 The JCB filed its complaint against Eakin on December 8, 2015, alleging violations of
the 1974 Code of Judicial Conduct and Article V, Sections 17(b) and 18(d)(1) of the
Pennsylvania Constitution. See Petitioner’s Motion to Vacate the Court’s December 8,



                                      [J-51-2018] - 10
judge, granted the order, recusing himself “to avoid the appearance of a conflict of interest

and allow this matter to proceed on its merits,” and vacated the December 8 and January

5 orders dismissing Robinson’s petition. PCRA Court Order, 1/8/2016. Judge Masland

referred Robinson’s request for the whole court’s recusal to the Honorable Edward E.

Guido, President Judge of Cumberland County. Judge Guido entered an order the same

day stating “that all Common Pleas Judges of the 21st Judicial District are recused from

hearing this matter in order to avoid the appearance of a conflict of interest or impropriety.”

Order of President Judge Guido, 1/8/2016.

       In the meantime, on January 7, 2016, Robinson appealed the dismissal of his

PCRA petition to this Court.      On January 19, 2016, he informed the Court of the

intervening change in circumstances and filed a motion to remand the case, which we

granted. See Order, 3/18/2016.

       On April 18, 2016, Robinson filed a motion in the common pleas court seeking the

disqualification of the DA’s office from participating further in the proceedings. The motion

stated that Robinson had recently become aware that Freed had received at least one of

the offensive emails in his work email account. Petitioner’s Motion to Disqualify the DA’s

Office, 4/16/2016, ¶ 5; see also id. at Exhibit A. Further, Robinson had learned that both

Freed and Smith sent letters in support of Eakin to the JCB. Petitioner’s Motion to

Disqualify the DA’s Office, 4/16/2016, at Exhibits B and C. Robinson contended that

these circumstances required the DA’s disqualification because Freed’s receipt of the

email made him a witness to the events giving rise to Robinson’s petition, and thus the


2015 Order of Dismissal and Recuse the Cumberland County Court of Common Pleas,
1/6/2016, at Exhibit A.



                                      [J-51-2018] - 11
DA’s continued participation “runs afoul of the Advocate-Witness Rule.” Id., ¶¶ 14-15

(citing Pa.R.P.C. 3.7).13 Further, Robinson asserted that Freed had a personal interest

in the outcome of the petition, giving rise of an actual conflict of interest that precluded

his representation of the Commonwealth in this matter. Id., ¶ 16. According to Robinson,

a judicial finding in his favor “would potentially affect the reputations of Ebert and Freed”

because of their receipt of blast emails, which demonstrates “a personal stake in the

outcome of the case and an actual conflict of interest that impairs the [DA’s] independent

judgment as a prosecutor.” Id., ¶¶ 17-18 (citing Commonwealth v. Eskridge, 604 A.2d

700, 701 (Pa. 1992)). “Due process requires that a prosecutor be disinterested and

impartial,” the absence of which, Robinson stated, constitutes a violation of his “right to a

fundamentally fair proceeding.” Id., ¶ 23 (citing, e.g., Young v. United States ex rel.

Vuitton et Fils S.A., 481 U.S. 787, 807-08 (1987)). Even in the absence of an actual

conflict, Robinson stated that the DA’s continued participation creates “the appearance

of unfairness and undermines confidence in the proceedings.” Id., ¶ 24.


13   Rule 3.7 of the Pennsylvania Rules of Professional Conduct provides:
               (a) A lawyer shall not act as advocate at a trial in which the
               lawyer is likely to be a necessary witness unless:

               (1) the testimony relates to an uncontested issue;

               (2) the testimony relates to the nature and value of legal
               services rendered in the case; or

               (3) disqualification of the lawyer would work substantial
               hardship on the client.

               (b) A lawyer may act as advocate in a trial in which another
               lawyer in the lawyer’s firm is likely to be called as a witness
               unless precluded from doing so by Rule 1.7 or Rule 1.9.

Pa.R.P.C. 3.7.

                                      [J-51-2018] - 12
       The Commonwealth filed a response. Therein, the Commonwealth advocated for

the PCRA court to deny Robinson’s motion because (1) the PCRA court lacked

jurisdiction of the underlying PCRA petition pursuant to Lark; (2) the issues raised in the

underlying PCRA petition were frivolous and should be dismissed out of hand; and (3)

Robinson failed to demonstrate that the DA is burdened by bias or conflict. Judge Guido

appointed Senior Judge Douglas W. Herman of Franklin County to specially preside and

scheduled argument on the petition and the motion for June 17, 2016.

       On June 15, 2016, Robinson filed a motion in which he requested discovery,

permission to supplement and amend his PCRA petition, and an evidentiary hearing on

his petition. Therein, Robinson asserted that the complaint filed by the JCB against Eakin

revealed numerous additional racially insensitive and otherwise offensive emails

(including several making light of domestic violence) that Eakin had sent and/or received,

and that even more were entered as exhibits in the proceedings before the CJD.

Robinson also identified emails that revealed an association between Eakin and members

of the DA’s office and between Eakin and Judges Bayley and Masland, respectively, as

well as the aforementioned letters sent by Freed and Smith in support of Eakin, all of

which were entered at the former Justice’s disciplinary proceeding. Robinson contended

that he should be entitled to amend his petition to include this information and additional

allegations of bias, and claimed his entitlement to an evidentiary hearing on his petition.

See Pa.R.Crim.P. 905(a) (“The judge may grant leave to amend or withdraw a petition for

post-conviction collateral relief at any time. Amendment shall be freely allowed to achieve

substantial justice.”).




                                     [J-51-2018] - 13
       Further, he stated that his case presented “exceptional circumstances” to warrant

the grant of discovery. Pa.R.Crim.P. 902(E)(1). The information disclosed to date,

Robinson averred, included the disclosure of “thousands of emails” exchanged between

prosecutors, defense attorneys and members of the judiciary, exhibiting “racial, ethnic,

gender, class and religious bias,” which “creates a grave question about the actual

fairness, and appearance of fairness, of the judicial processes in which those parties were

involved.” Motion, 6/15/2016, ¶ 34. He noted, however, that until now, “investigation has

been limited to those emails that remain on the servers of Pennsylvania’s Attorney

General,” and asserts that discovery is required to uncover “the full scope and impact of

improper biases on the resolution of [Robinson]’s case.” Id. He thus requested discovery

of the following:

              Any and all electronic messages (including emails and text
               messages) and attachments exchanged between employees
               working in the Cumberland County District Attorney’s Office
               or other law enforcement departments and judges of the
               Cumberland County Court of Common Pleas, Pennsylvania
               Superior Court and justices on the Pennsylvania Supreme
               Court from June 1996 to March 15, 2016 that relate to
               Petitioner or his case, or which may reasonably be deemed
               offensive because of content that relates to race, gender,
               ethnicity, violence toward women, xenophobia, homophobia,
               sexism, religious intolerance, class or immigration or
               stereotypes relating thereto[;]

              Any and all communications, including but not limited to notes,
               letters, emails, text messages, attachments and facsimiles
               exchanged between Cumberland County District Attorney
               Employees, including District Attorney Freed, and Justice
               Eakin and/or his attorneys, including, but not limited to
               Attorneys Williams C. Costopolous, Heidi F. Eakin and David
               J. Foster[;]

              Any and all communications captured on Cumberland County
               computer servers, including but not limited to notes, letters,
               memoranda, writings, records, emails, attachments and


                                      [J-51-2018] - 14
                 facsimiles exchanged between Cumberland County jurists,
                 specifically Judge Ebert, Judge Bayley and Judge Masland,
                 and Justice Eakin and/or Justice Eakin’s attorneys, including,
                 but not limited to, Attorneys William C. Costopolous, Heidi F.
                 Eakin and David J. Foster[;]

                Any and all communications, including but not limited to
                 emails, attachments, notes, text messages, letters, writings,
                 records, memoranda and facsimiles exchanged between
                 Cumberland County jurists relating to Justice Eakin’s
                 disciplinary hearing and/or emails involving Justices Eakin or
                 McCaffery;

                Any and all documents previously disclosed to press
                 organizations and/or otherwise made public;

                Any and all electronic communications (including emails and
                 text messages), attachments, communications, writings,
                 memoranda, documents or records, including all associated
                 material on Cumberland County servers that have been sent
                 from and/or sent to Pennsylvania Supreme Court Justice J.
                 Michael Eakin's private email account(s), including but not
                 limited to his yahoo email account: wap092001yahoo.com;

                Any and all emails, attachments, communications, writings,
                 memoranda, documents or records, including all associated
                 material on Cumberland County servers that have been sent
                 from and/or sent to Justice Eakin’s state-issued email
                 account: justice.eakin@pacourts.us;

                Any and all emails, attachments, communications, writings,
                 memoranda, documents or records, including all associated
                 material on Cumberland County servers sent from and/or sent
                 to any email account used by Justice Eakin under any aliases,
                 including but not limited to “John Smith”; and

                Any and all material exculpatory evidence arising from these
                 communications for which the prosecution is under a
                 continuing obligation to disclose. See Brady v. Maryland 373
                 U.S. 83, 87 (1963); Imbler v. Patchman, 424 U.S. 409, 427
                 n.25 (1979).

Id., ¶ 35.




                                       [J-51-2018] - 15
      Following argument on June 17, 2016, Judge Herman entered an order for

additional briefing on Robinson’s motion seeking the DA’s disqualification. Both parties

complied. In the interim, this Court issued its decision in Robinson III affirming the

dismissal of Robinson’s second PCRA petition as untimely.

      In an opinion and order filed on November 28, 2016, the PCRA court denied

Robinson’s motion to disqualify the DA from the case. The PCRA court stated that

removal of a prosecutor from a case is warranted only where there is “an actual conflict

of interest affecting the prosecutor,” and that mere allegations and animosity are

insufficient. PCRA Court Opinion and Order, 11/28/2016, at 3 (Superior Court case

citations omitted).   Addressing Robinson’s claims of bias and possible ex parte

communication, the PCRA court found that Robinson made only a “generalized assertion

of bias and impropriety” without “any examples of inappropriate ex parte communication

between Freed and Justice Eakin.” Id. at 4.

      The PCRA court further found that the Advocate-Witness Rule was inapplicable

because “Freed’s passive receipt of an email that does not reference or implicate

[Robinson] and his penning of a letter of support does not make him a necessary witness

to the events referenced in the PCRA petition.” Id. at 5. Once again, the court found that

Robinson’s failure to plead specific allegations related to the DA militated against

disqualifying the DA from the case. PCRA Court Opinion and Order, 11/28/2016, at 6.

      Lastly, the PCRA court found that Robinson’s claim that the DA had a personal

reputational interest in the outcome of the case lacked support. The court stated that

Robinson failed to provide evidence that the outcome of his PCRA petition placed Freed’s

reputation in jeopardy or that he had any interest in preserving Ebert’s reputation. Id. at




                                     [J-51-2018] - 16
7. As Robinson did not establish that the DA had an actual conflict of interest, the PCRA

court concluded that the DA’s disqualification was unwarranted.

      Thereafter, the Commonwealth filed a motion to dismiss Robinson’s PCRA petition

and discovery request without a hearing.        This motion was again based on the

Commonwealth’s assessment of the merits of the case. In support, the Commonwealth

pointed to two “email-controversy-based PCRA filings” that common pleas courts had

recently dismissed without evidentiary hearings. Commonwealth’s Request to Dismiss,

12/8/2016, at 2 (citing Commonwealth v. Housman, CP-21-CR-0246-2001, and

Commonwealth v. Shannon, CP-22-CR-2306-2005)).

      Robinson responded, seeking an extension of time to file an answer to the

Commonwealth’s motion to dismiss and renewing his request for discovery. Robinson

also made an another request for permission to amend his PCRA petition, this time based

on additional information he received following the completion of the investigation of and

report compiled regarding the email scandal by Special Deputy Attorney General Douglas

F. Gansler (the “Gansler Report”). On December 28, 2016, the PCRA court granted

Robinson’s requested time extension.        On January 27, 2017, the PCRA court

supplemented its order by authorizing “general discovery as requested in [Robinson’s]

motion of June 15, 2016.” Supplemental Order of the PCRA Court, 1/27/2017.

      In response, the Commonwealth filed a new motion to dismiss and a request for

the PCRA court to vacate and reconsider its grant of discovery, or, in the alternative, to

allow the Commonwealth to appeal the grant of discovery. Of relevance to this appeal,

for the first time, the Commonwealth asserted in this motion that the PCRA court lacked

jurisdiction of the matter on timeliness grounds. The Commonwealth averred that its




                                    [J-51-2018] - 17
review of the Gansler Report revealed newspaper articles detailing Eakin’s receipt of at

least one racially insensitive email dating back to October 2014, including one published

on philly.com, the same online media source that published the October 8, 2015 article

relied on by Robinson in his PCRA petition.           Commonwealth’s Motion to Dismiss,

2/7/2017, ¶ 3 (citing Jeremy Roebuck, Pa. Supreme Court meltdown over e-mails

worsens, philly.com, Oct. 18, 2014; Kate Giammarise and Bill Toland, Pennsylvania

Justice Eakin dragged into lewd email scandal; accuses McCaffery of blackmail,

Pittsburgh Post-Gazette, Oct. 18, 2014).

       In addition to the news articles, the Commonwealth appended a press release

authored on October 17, 2014 by Eakin, wherein he acknowledged that he received (but

denied that he viewed) emails sent to his personal email address that contained

inappropriate content. Id. at Exhibit H. Therein, he informed the media that he self-

reported this to the JCB for its investigation as to whether his “unsolicited” receipt of these

emails violated the canons of judicial conduct. Id.

       Based on all of this information available in October 2014, the Commonwealth

contended that Robinson’s November 30, 2015 petition was not filed within sixty days of

the date his claimed due process violation could have been presented. Id., ¶ 2; see 42

Pa.C.S. § 9545(b)(2). Finding that the Commonwealth “raised a substantial question of

fact and law” as to the PCRA court’s jurisdiction, the PCRA court ordered Robinson to file

an answer to the motion. It further vacated its January 27 order granting discovery,

pending the resolution of the jurisdictional question.

       Robinson filed a response to the Commonwealth’s motion, asserting, in relevant

part, that the 2014 articles did not provide a basis for his claim that Eakin’s bias violated




                                      [J-51-2018] - 18
his due process rights. Robinson included a generalized timeline of the events leading

up to the discovery of Eakin’s involvement in the email scandal, averring that it was not

until the 2015 articles (and the information that came to light thereafter), which detailed a

pattern of sending and receiving offensive emails and connected both Eakin and

prosecutors involved in Robinson’s case, that his claim could have been made. Thus, by

filing his petition on November 30, 2015, Robinson asserted that he met the sixty-day

deadline.

       The PCRA court held argument on the Commonwealth’s motion to dismiss on April

7, 2017. Thereafter, on May 4, 2017, it entered an opinion and order pursuant to Rule of

Criminal Procedure 909(B)(2), stating its intent to dismiss Robinson’s PCRA petition

without a hearing. The PCRA court recognized that Robinson’s claims raised in the

instant petition “were predicated upon [his] contention that the bias of Justice Eakin was

demonstrated both through the sending and receiving of objectionable emails and the

potential for inappropriate ex parte communication to have occurred through those

emails.” PCRA Court Opinion and Order, 5/4/2017, at 6. The court concluded, however,

that the petition was not timely filed. In particular, the court found that “Justice Eakin was

publicly tied to the email scandal on October 18, 2014, and potentially earlier.” Id. The

court stated that “the public availability of facts,” and not “the publication of a specific

report on or compilation of those facts,” triggers the running of the sixty-day clock for filing

a facially untimely PCRA petition. Id. at 6-7; see Commonwealth v. Hackett, 956 A.2d

978, 984 (Pa. 2008). Further, because counsel represented Robinson at the time, the

PCRA court concluded that Robinson was presumed to have been aware of the October

2014 publications, and therefore, that Robinson’s November 30, 2015 PCRA petition was




                                       [J-51-2018] - 19
not filed within sixty days of the date the claim could have been raised. Id. at 7; cf.

Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017) (holding that “the public record

presumption … cannot reasonably be applied to pro se PCRA petitioners who are

incarcerated”) (emphasis omitted).

           Robinson filed a response to the Rule 909 notice, renewing his request for

permission to amend his PCRA petition, an evidentiary hearing, and discovery from the

Commonwealth. He attached sixteen exhibits to his filing, divided into two volumes,14 as



14    The exhibits included:
     (1)   the December 2015 JCB Complaint;
     (2)   the Cumberland County judges’ letter to the CJD in support of Eakin;
     (3)   an October 2015 press release issued by the CJD, October 2014 press releases
           issued by the JCB and Eakin, and Eakin’s 2014 letter self-reporting to the JCB;
     (4)   the 2014 report by Special Counsel Robert L. Byer regarding Eakin’s emails;
     (5)   the JCB’s 2014 letter dismissing its investigation of Eakin;
     (6)   the transcript of the October 20, 2015 deposition of Eakin for the CJD proceedings;
     (7)   a disc containing all of the offensive emails involving Eakin disclosed thus far;
     (8)   Eakin’s answer to the JCB’s 2015 complaint;
     (9)   the CJD’s 2016 opinion;
     (10) letters from Freed and Smith in support of Eakin;
     (11) the Gansler Report;
     (12) a press release issued by Attorney General Bruce Beemer;
     (13) the resume and report of Dr. Jason Okonofua regarding implicit bias and bridging
          Eakin’s deposition testimony and involvement in the email scandal with his
          decision on Robinson’s first PCRA appeal;
     (14) the report and resume of John Baugh regarding a survey conducted concerning
          the language used by the prosecution during Robinson’s trial;



                                         [J-51-2018] - 20
well as a fifty-seven-page supplement to his third PCRA petition. The Commonwealth

filed a response.      In an order filed August 2, 2017, the PCRA court denied all of

Robinson’s requests and dismissed the petition as untimely.

          Robinson appealed the dismissal to this Court.15 Thereafter, in December 2017,

Freed left the DA’s office and the Cumberland County Board of Judges appointed Ebert

to fill the remainder of his term as DA. Ebert now represents the Commonwealth before

this Court. On March 1, 2018, counsel for Robinson wrote to Ebert, requesting that he

disqualify himself and his office from participating in the matter and to refer the case to

the OAG. In a letter dated March 23, 2018, Ebert declined.

          On appeal, Robinson raises the following issues for our review:

                I. Did the court below err in concluding, without holding a
                hearing, that the claims in [Robinson’s] successor PCRA
                petition were untimely pursuant to 42 Pa.C.S. § 9545(b)?

                II. Are [Robinson’s] claims for relief sufficiently meritorious to
                require a hearing, necessitating a remand to the court below?

                III. Did the court below err in denying [Robinson’s] motions to
                amend the petition?

                IV. Did the court below err in denying [Robinson’s] motions for
                discovery and to supplement his discovery request?

                V. Did the court below err by denying [Robinson’s] motion to
                disqualify the Cumberland County District Attorney’s Office?


     (15) the October 30, 2015 report of special counsel Joseph A. Del Sole recommending
          that the Court refer Eakin to the JCB, but not exercise extraordinary jurisdiction
          over the matter; and
     (16) a May 2017 affidavit by a juror in Robinson’s case stating, inter alia, that she
          believed the prosecution’s theme “tapped into jurors’ racial prejudice and Black
          Fear.”
15    We have jurisdiction pursuant to 42 Pa.C.S. § 9546(b).



                                        [J-51-2018] - 21
Robinson’s Brief at 1-2.16 We review the PCRA court’s legal conclusions de novo and its

findings of fact for record support. Commonwealth v. Stanton, 184 A.3d 949, 954 (Pa.

2018).

                                  Timeliness Exception

         In his first issue, Robinson challenges the PCRA court’s determination that he

failed to satisfy any of the exceptions to the PCRA’s timeliness requirement.17 Addressing

the newly discovered facts exception of section 9545(b)(1)(ii), he asserts that the articles

he relied upon, published in October 2015, were “the earliest publicly available source[s]

of the facts upon which his claim was predicated.” Id. at 18-19. Accordingly, he argues

that his third PCRA petition, filed within sixty days of those publications, overcame the

one-year time bar. Although recognizing that the PCRA court correctly found that the

2014 articles “publicly tied” Eakin to the email scandal, Robinson states that these articles

did not contain the facts upon which his claim is predicated, i.e., that Eakin sent and

received offensive emails and communicated ex parte with prosecutors. Id. at 20. To the

contrary, Robinson states that the 2014 publications about Eakin’s involvement in the

email scandal all reported that he denied asking for or even opening the offending

messages, and did not indicate that he sent any offensive emails to anyone. Robinson



16 On April 17, 2018, Robinson filed an additional motion before this Court to disqualify
the DA from further proceedings based on Ebert’s resumption of the position of DA. We
address this motion in conjunction with our resolution of his claim of PCRA court error for
denying the same request.
17 The PCRA court’s discussion of this issue in its opinion filed pursuant to Pa.R.A.P.
1925(a) mirrors, in pertinent part, its discussion of this claim addressed in its May 4, 2017
opinion and order. Compare PCRA Court Opinion, 10/23/2017, at 5-7, with PCRA Court
Opinion and Order, 5/4/2017, at 4-7.


                                      [J-51-2018] - 22
also points to numerous investigations that the 2014 publications generated – including

those conducted by the JCB and this Court – all of which had cleared Eakin of any

wrongdoing.

       Moreover, Robinson contends that the content and volume of the emails (three)

discussed in the 2014 publications did not give rise to a claim of bias on the part of Eakin

or connect prosecutors involved in Robinson’s case to the scandal. Robinson argues that

these are the facts that form the basis of his claim, and he asserts that this information

was not known until publication of the October 2015 articles. Id.

       The Commonwealth responds, contending that Robinson’s claim fails based on

the absence of a connection between the newly discovered fact and the underlying

substantive issue raised. Commonwealth’s Brief at 14. In support of this argument, the

Commonwealth points to our recent decision in Commonwealth v. Chmiel, 173 A.3d 617

(Pa. 2017), stating: “[T]he majority of our Supreme Court believes that while we need not

find a ‘direct connection’ between the newly-discovered facts and the claims asserted by

a petitioner, the statutory language requires there be some relationship between the two.”

Commonwealth’s Brief at 13 (citing Chmiel, 173 A.3d at 624-25).18 The Commonwealth

suggests that the newly discovered facts alleged here are too “attenuated” from the

underlying claim to merit review. Id. at 15. It states that because the offensive emails

exchanged by Eakin occurred “over a decade after [Robinson’s] trial and several years

after his 2005 initial PCRA case concluded,” and there is no connection between the



18 The Commonwealth incorrectly purports to quote this sentence from our decision in
Chmiel. See Commonwealth’s Brief at 13. Rather, this statement is a quote from the
Superior Court’s decision in Commonwealth v. Shannon, 184 A.3d 1010 (Pa. Super.
2018). See id. at 1017.


                                     [J-51-2018] - 23
emails and either Robinson personally or his case, “the claims on their face are meritless

and remand is not warranted.” Id. at 17.

       The Commonwealth also assails Robinson’s claim that the information regarding

Eakin’s involvement in the email scandal were unknown to him in 2014, pointing to Eakin’s

2014 press release and the news articles published at that time. Id. at 17, 23-28. It

contends, “The ‘fact’ [Robinson] champions as ‘new’ was easily decipherable from these

public sources in 2014.” Id. at 28. As to Robinson’s claim of ex parte communications

between the Commonwealth and Eakin, the Commonwealth states that this cannot

constitute a new fact, as Robinson as failed to provide any instances of such

communications. Id. at 20.

       A PCRA petition is facially untimely, and a court lacks jurisdiction to decide the

claims raised therein, if filed more than a year after the petitioner’s judgment of sentence

becomes final. 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Mitchell, 141 A.3d 1277, 1284

(Pa. 2016). One exception to this general rule, often referred to as the “newly discovered

facts” exception, bestows jurisdiction upon a court to decide a facially untimely petition if

“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).

Any petition asserting the newly discovered facts exception must be filed within sixty days

of the date the claim could have been raised. 42 Pa.C.S. § 9545(b)(2).

       As the PCRA court observed, an incarcerated petitioner represented by counsel

at the time that information becomes publicly available is subject to the “public record

presumption.” See, cf., Burton, 158 A.3d at 638. As we have previously held, the “public

record presumption” generally requires a court to find that facts and information that are




                                      [J-51-2018] - 24
a matter of public record are not unknown. Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013). In a similar vein, we have held that facts used to overcome the timeliness

requirement of the PCRA must not merely be from “a newly discovered or newly willing

source for previously known facts.” Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa.

2013). Robinson was indeed represented by counsel in October 2014, which was during

the pendency of his second PCRA petition and his federal habeas petition. See supra,

p. 7. Therefore, if the information publicly available in 2014 provided Robinson with

information such that, with the exercise of due diligence, he could have discovered the

facts underlying his claim, the 2015 articles do not save his third PCRA petition from

dismissal on timeliness grounds.

       Our review of the news articles, press releases, and other information included in

the record in this matter from 2014 reveals that they all state that at that time, Eakin had

received three emails – two that were sexist and misogynistic and one that was racially

insensitive. According to all of the publicly available sources of record, however, Eakin

categorically denied that he either welcomed these emails or that he opened them to view

their contents. See, e.g., Roebuck, Pa. Supreme Court meltdown over e-mails worsens,

philly.com;19 Charles Thompson, Colleague says Pa. Supreme Court Justice in porn



19 The Commonwealth misrepresents the contents of the October 2014 philly.com article,
stating that it “definitively says the former justice ‘opened’ a ‘racist’ email on his private
account.” See Commonwealth’s Brief at 25 n.12. In fact, the portion of the article that
the Commonwealth quotes only states that Eakin “opened” an email account using the
pseudonym “John Smith.” Roebuck, Pa. Supreme Court meltdown over e-mails worsens,
philly.com (“The messages - first reported by the Philadelphia Daily News - include at
least three e-mails sent in 2010 to a Yahoo.com account Eakin had opened under the
alias ‘John Smith.’”). In a separate section, the article uses the term “racist” to describe
the content of an email alleged to have been received by Eakin, but that Eakin denied
that he opened that message. Id. (“Responding to reports that he had received racist and



                                      [J-51-2018] - 25
email case threatened he was: “not going down alone”, pennlive.com, Oct. 17, 2014. See

also J. Michael Eakin, Press Release, Oct. 17, 2014 (“I have not seen the material, nor

do I wish to”); J. Michael Eakin, Letter to the JCB, Oct. 17, 2014 (“To be clear, I still have

not seen [the emails]. I have no reason to question the media’s description of them, and

that these were received, not sent.”). In its disciplinary decision, the CJD found that

unless Eakin responded to or forwarded an email, there was no way to refute Eakin’s

claim that he did not open them. See In re Eakin, 150 A.3d 1042, 1045-46 (Pa. Ct. Jud.

Disc. 2016).

       To the extent we could conclude that the uninvited receipt of three offensive emails

put Robinson on notice in 2014 that Eakin may have been biased in his decision making,

such a notion was put to rest by the various investigations conducted of the then-available

emails Eakin sent and received. On October 15, 2014, a news outlet reported that former

Chief Justice Castille stated that he reviewed 4000 emails that had been exchanged

between the sitting Justices of the Pennsylvania Supreme Court and the OAG and

“exonerate[d]” all Justices other than McCaffery of sending or receiving offensive emails.

Bumsted, Castille: No Justices Except McCaffery Involved in Porn Scandal, Pittsburgh

Tribune-Review.

       On December 17, 2014, the JCB concluded its investigation of claims that Eakin

received “racy” emails at his personal “John Smith” email account. See JCB Letter,

12/17/2014, at 2.     The JCB conducted three interviews with Eakin and reviewed

subpoenaed emails ranging from 2009-2012 from the OAG. The JCB determined that


pornographic content on a private e-mail account, Justice J. Michael Eakin said he never
viewed those messages and accused another colleague caught up in the scandal, Justice
Seamus P. McCaffery, of threatening to leak them to the media.”).


                                      [J-51-2018] - 26
Eakin “did not receive any material that was illegal, such as obscenity, or any material

that contained ‘racist’ images,” and that although Eakin received some emails with

“pornographic” content to his “John Smith” account, he did not send any such emails. Id.

at 3. The JCB found no improper communications in the emails submitted by the OAG

to or from his Court-issued email address. Id. The JCB concluded that Eakin’s “receipt

of a handful of mildly pornographic emails from a private attorney and from members of

[his] personal circle of friends to [his] personal email address did not constitute a violation

of the Constitution or the Code of Judicial Conduct,” and dismissed the pending

complaints. Id. at 4.

       This conclusion was echoed in the December 19, 2014 report completed by

Attorney Robert L. Byer, who was specially engaged by this Court to review email

messages recovered by the OAG involving Justices of the Pennsylvania Supreme Court

(hereinafter referred to as the “Byer Report”). Of relevance to the matter at bar, he

concluded:

              1. Other than the previously disclosed email messages from
              [McCaffery] transmitting pornographic materials, there were
              no email messages of an improper nature sent by any
              Justice of the Supreme Court to any representative of OAG
              or from any representative of OAG to any Justice of the
              Supreme Court.

                                          *    *   *

              3. There was no reason for any Justice of the Supreme Court
              to be recused from any case as the result of any email
              communication or any relationship evidenced by email
              communication.

Byer Report at 1 (emphasis added). Attorney Byer detailed his review of emails provided

to him from the OAG’s server pertaining to each Justice. Regarding Eakin, he reviewed




                                      [J-51-2018] - 27
a total of 2234 emails that members of the OAG either sent to or received from Eakin, all

of which Attorney Byer found to be “unremarkable.” Id. at 4.

      In conducting his review, Attorney Byer observed “a critical distinction between

email messages sent from an account and email messages sent to an account,” as a

person does not have “control over what others send.” Id. at 5. He noted that “there was

one message received by Eakin that contained offensive sexual content,” but stated that

the “message was not from someone at OAG or associated with the judicial system, and

Justice Eakin did not reply to or forward that message.” Id. Attorney Byer found no

messages discussing any cases or legal issues. Id. at 4.

      Based on the information publicly available in 2014, we conclude that Robinson

did not have a basis to allege that Eakin was biased in order to bring his due process

claim at that time. As is evident from the investigations undertaken by this Court and the

JCB, both of which requested all email communications (sent and received) between

Eakin and members of the OAG, no amount of diligence could have uncovered the facts

upon which Robinson’s claim is predicated, i.e., that Eakin sent and received offensive

emails. See, e.g., JCB Complaint, 12/8/2015, ¶ 50 (“Despite the Board’s prior subpoenas,

OAG did not inform the Board of its possession of any emails from Justice Eakin’s ‘John

Smith’ email address beyond the 48 Outlook files received by the Board on November 5,

2014, and did not provide them to the Board until September 28, 2015.”).

      That all changed, however, in 2015, when news outlets revealed additional

offensive emails that Eakin had not only received from various sources, but also had sent,

in contradiction to his 2014 claim that he had never opened or welcomed these emails.

On October 8, 2015, a report disclosed the existence of additional emails, which




                                    [J-51-2018] - 28
contained descriptions of racist, sexist, homophobic and misogynistic content, and which

indicated that Eakin both received and sent these emails. These emails, sent to the media

by the OAG, were also sent directly to the JCB by the OAG on discs on September 28,

2015 (but were not made public at that time) and October 15, 2015, and the JCB’s

complaint confirmed that the emails had not previously been disclosed. Id., ¶ 67 (“Based

on their review, Board staff concluded that the September 28, 2015 disc [sent by the OAG]

contained emails that had not been seen by any Board staff member during the 2014

investigation of Justice Eakin.”).

       We considered analogous circumstances when deciding Commonwealth v.

Chmiel. In that case, we held that the FBI’s public acknowledgement (in the form of a

press release that was published in several newspapers) that testimony regarding

microscopic hair analysis was “flawed” in the great majority of cases constituted a “new

fact” for PCRA purposes. Chmiel, 173 A.3d at 626. In so holding, we rejected the

contention that earlier reports and articles that indicated that the FBI was questioning the

validity of its methodology, or scientific studies challenging the reliability of the principles

of hair analysis, rendered the press release “simply a confirmation of information that was

already available in the public domain.” Id. at 625. Instead, we held that the facts

contained in the press release, including (1) the FBI’s public admission about the flawed

nature of its analysists’ testimony and statements about microscopic hair comparison

analysis and (2) the FBI’s statement that it had trained state and local analysists to give

the same flawed testimony in state criminal proceedings, were new. We thus found that

the publication of the press release triggered the sixty-day window for the petitioner to file

his claim concerning the microscopic hair comparison analysis testimony provided at his




                                       [J-51-2018] - 29
own criminal trial. Id. at 626. “Although the scientific foundation of such conclusory

assertions was called into question beginning as early as 1974, and continually thereafter,

this substantial shift in understanding was not embraced or acknowledged by the FBI until

it went public with the preliminary results of its independent review.” Id. at 27 (internal

citation omitted).

       As in Chmiel, although there was some publicly available information about Eakin’s

involvement in the email scandal in 2014, those news articles did not contain the facts

upon which the claim raised in Robinson’s third PCRA petition is predicated. Those facts

were not knowable or made public until October 8, 2015, when the information concerning

Eakin’s sending and receiving of offensive emails became publicly available. This places

Robinson’s November 30, 2015 petition squarely within sixty days of that date. See 42

Pa.C.S. § 9545(b)(2). Not until the release of these newly disclosed emails did the “fact”

of Eakin’s active participation in the transmission of offensive emails become known.

Indeed, the disclosure of these new emails prompted the JCB to open a new ethics

investigation against Eakin, which resulted in the JCB filing a complaint against him,

disclosing numerous additional offensive emails both sent and received by Eakin. See

JCB Complaint, 12/8/2015, ¶¶ 78, 80-81 (detailing the emails disclosed in 2015); id., ¶¶

96, 99, 100 (alleging that Eakin’s transmission and receipt of sexist, racist, homophonic,

and religiously and ethnically insensitive emails constituted violations of the Pennsylvania

Constitution and Canons of Judicial Conduct). The CJD ultimately sanctioned Eakin for




                                     [J-51-2018] - 30
these violations based on his exchange of these emails. See In re Eakin, 150 A.3d at

1061.20

       The Commonwealth does not raise a claim regarding the overarching relationship

between the facts and the claim (i.e., the emails reflect bias against people of color and

those affected by domestic abuse). Rather, it argues that the emails postdate Eakin’s

participation in Robinson’s first PCRA appeal and that the emails do not mention his case

(or any case) in particular, rendering Robinson’s underlying due process claim meritless.

This argument implicates the merits of the claim raised, not the timeliness of the petition.



20The CJD did not make a finding of whether Eakin’s behavior reflected bias in his judicial
decisions. It noted only that the JCB did not present any evidence that Eakin
demonstrated bias in his written opinions and that Eakin presented witnesses to contest
any such claim. In re Eakin, 150 A.3d at 1048, 1060. It observed, however, that Eakin’s
exchange of these emails “could cause citizens to wonder whether their cases received
unbiased consideration by [him].” Id. at 1058.
Justice Dougherty’s Opinion in Support of Affirmance (“OISA”) misleadingly transforms
the CJD’s statement that the JCB did not present evidence that Eakin’s writings
demonstrated bias into a finding of fact of some importance. See OISA (Dougherty, J.)
at 2 & n.2 (remarking upon the CJD’s statement that the JCB failed to present this
evidence and criticizing “the [Opinion in Support of Reversal’s] minimization of this
important aspect of the CJD’s ruling”); id. at 5 (stating that the CJD “determined there was
no evidence of bias”). Contrary to the OISA, the CJD did not find that there was no
evidence of bias in Eakin’s decisions, but simply that the JCB did not present any such
evidence in the disciplinary proceeding. There are myriad reasons why the JCB may
have opted not to present evidence of bias in Eakin’s writings, including, most notably,
the fact that Eakin resigned from service as a Justice of this Court prior to the disciplinary
proceedings, rendering any findings related to his writings irrelevant and unnecessary to
the question of the consequences for his behavior. The CJD certainly did not make a
finding of fact that Eakin’s writings did not reflect bias, instead finding it to be “significant[]”
that the emails could suggest Eakin’s bias in his consideration of the cases before him,
which the CJD found “abhorrent to the principles to which [Eakin] has ostensibly
dedicated his entire professional career.” In re Eakin, 150 A.3d at 1058. It further
observed, “A reasonable inference that [Eakin] lacked the impartiality required of judges
also fundamentally lessens public confidence in the judiciary.” Id. The question of
whether the bigoted emails sent and received by Eakin reflect bias in his decision making
remains an open question that should be decided by Pennsylvania courts.


                                        [J-51-2018] - 31
Indeed, as stated hereinabove, the Commonwealth argues that the absence of a

connection between the emails and Robinson’s case renders the claims raised in his

petition to be facially “meritless.” Commonwealth’s Brief at 17. “Whether a petitioner has

carried his burden [of proving an exception to the PCRA’s timeliness requirement] is a

threshold inquiry that must be resolved prior to considering the merits of any claim.”

Robinson III, 139 A.3d at 186. The only elements required for the newly discovered facts

exception to apply are that (1) the facts upon which the claim is predicated were unknown

and (2) these facts could not have been discovered by the exercise of due diligence. 42

Pa.C.S. § 9545(b)(1)(ii); Commonwealth v. Bennett, 930 A.2d 1264 1272 (Pa. 2007)).

We therefore find the Commonwealth’s argument to be premature at this stage of the

case.

        In reaching a contrary conclusion, Justice Dougherty in his Opinion in Support of

Affirmance (“OISA”) overlooks not only the Commonwealth’s concession that a nexus

between the emails and Robinson’s case implicates the merits of the claim, but also this

Court’s longstanding interpretation of the newly discovered fact exception as requiring

only the establishment of the two elements, described above. The OISA contends that

racist, sexist and misogynistic emails cannot serve as facts upon which a due process

violation can be predicated because the emails that have been disclosed thus far do not

specifically mention Robinson or his case. See OISA (Dougherty, J.) at 1-2. The notion

that Robinson was required to establish an individualized case reference in order to




                                     [J-51-2018] - 32
establish a claim of bias under these circumstances is not only myopic, it is dangerous,

and could serve to eviscerate the newly discovered fact exception.21

       The fundamental flaw in the OISA’s approach is revealed in its conclusion that

Robinson fails to meet the newly discovered fact exception because the “mere existence

[of the emails] does not demonstrate the fact of bias.” See OISA (Dougherty, J.) at 5

(quoting Commonwealth v. Blakeney, 193 A.3d 350, 369 (Pa. 2018) (Dougherty, J.,

Opinion in Support of Affirmance)).      The newly discovered “fact” here is the email

communications by Eakin, not the existence of bias. According to Robinson, the emails

reflect Eakin’s bias; i.e., the claim (Eakin’s bias in his decision making) is predicated on

a newly discovered fact (the bigoted emails sent and received by Eakin). The OISA would

require Robinson to demonstrate that Eakin was biased in his decision making in order

to overcome the timeliness hurdle, but Eakin’s bias is the underlying claim that Robinson

has brought in the instant PCRA petition – Robinson asserts that a biased Court reviewed

the resolution of his first PCRA petition, violating his right to due process. As stated

hereinabove, and repeatedly throughout this Court’s precedent, “the [timeliness]

exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the

underlying claim. Rather, ‘the exception merely requires that the ‘facts' upon which such

a claim is predicated must not have been known to appellant, nor could they have been



21 Moreover, the OISA ignores that Robinson requested discovery, which, if permitted,
would allow him to obtain emails from other sources and timeframes that might enable
him to make the precise connection between the emails and his case that the OISA
somehow believes to be necessary at this stage of the proceeding. The OISA also
disregards that in his request to amend his PCRA petition, Robinson offered expert
witnesses who, again, could potentially provide the connection between Robinson’s case
and the bigoted emails sent and received by Eakin that the OISA criticizes him for
omitting.


                                     [J-51-2018] - 33
ascertained by due diligence.’” Bennett, 930 A.2d at 1271-72 (quoting Commonwealth v.

Lambert, 884 A.2d 848, 852 (Pa. 2005)). In short, based on the record in this case and

the precedent that binds this Court, the OISA’s view is wholly unsupportable.

       As the PCRA court correctly found, Eakin’s transmission and receipt of offensive

emails were the facts upon which Robinson’s claimed due process violation was

predicated, as Robinson contends that the exchange of these emails reflects Eakin’s bias.

PCRA Court Opinion, 10/23/2017, at 7. Its conclusion that these facts were ascertainable

in October 2014, however, finds no record support. See id. As discussed herein, the

facts underlying Robinson’s claim could not have been discovered through the exercise

of due diligence until October 8, 2015. As Robinson satisfies the newly discovered fact

exception to the PCRA’s time bar, we would vacate the PCRA court’s decision dismissing

Robinson’s third PCRA petition on timeliness grounds.

                    Amendment to Petition and Evidentiary Hearing

       Robinson next asks us to consider whether the PCRA court erred by failing to

permit him to amend his third PCRA petition and by denying his request for an evidentiary

hearing. Our review of the PCRA court’s decision reveals that it denied both requests

based solely on its conclusion that the petition was untimely. See PCRA Court Opinion,

10/23/20117, at 8, 11. In fact, the PCRA court stated that although it disallowed his

request to amend his petition, it reviewed Robinson’s proposed amended petition “for the

purpose of determining if [the proposed amendments] might somehow cure [Robinson’s]

lack of timeliness in filing and grant jurisdiction to the [c]ourt.” Id. at 10.

       A PCRA petitioner must seek permission from the PCRA court to amend, and such

requests are to be “freely allowed to achieve substantial justice,” “at any time.”




                                        [J-51-2018] - 34
Pa.R.Crim.P. 905(A). See also Commonwealth v. Williams, 828 A.2d 981, 998 (Pa. 2003)

(“the Rules demand liberal amendment of a PCRA petition”). Similarly, a PCRA court is

required to hold an evidentiary hearing if it finds the petitioner raised any material issues

of fact. Pa.R.Crim.P. 908(A)(2). Because the PCRA court found that it was without

jurisdiction to reach the merits of the issues raised in Robinson’s third PCRA petition, we

do not fault the PCRA court for denying his requests on that basis. See Commonwealth

v. Marshall, 947 A.2d 714, 723 (Pa. 2008) (finding no error in the PCRA court’s refusal to

hold an evidentiary hearing for an untimely PCRA petition to which no exceptions

applied); Commonwealth v. Sepulveda, 144 A.3d 1270, 1278 (Pa. 2016) (stating that

courts should allow amendment pursuant to Rule 905(A) to allow a petitioner “to avoid

dismissal due to a correctable defect in claim pleading or presentation”).

       Because we would have found that the PCRA court has jurisdiction to decide the

merits of Robinson’s petition, on remand we would have ordered the PCRA court to

reconsider its decision on Robinson’s requests to amend his petition and for a hearing.

Cf., Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008) (stating that an analysis of the

merits of the claims raised in a PCRA petition “is separate and distinct from” a

consideration of the timeliness of the petition).

                                         Discovery

       We next consider whether the PCRA court erred by denying Robinson’s request

for discovery. In its Rule 1925(a) opinion, the PCRA court indicated that even if Robinson

had timely filed his petition, Robinson was not entitled to discovery because he did not

make “a showing of ‘exceptional circumstances’” to support his request. PCRA Court

Opinion, 10/23/2017, at 11-12; see Pa.R.Crim.P. 902(E)(1). Specifically, it found that he




                                      [J-51-2018] - 35
failed to adduce any proof that the exchange of offensive emails by Justice Eakin occurred

“during the time of his conviction and appeal or that it affected his case in any way.” PCRA

Court Opinion, 10/23/2017, at 14. Further, the PCRA court faulted Robinson for “cast[ing]

a wide net” in his discovery request, referring to it as “generic, all-encompassing,” and “a

forbidden fishing expedition.” Id.

       These additional, non-jurisdictional bases for denying discovery are highly

questionable. As stated hereinabove, the record reflects that the PCRA court, in fact,

initially granted Robinson’s June 15, 2016 discovery request.         PCRA Court Order,

1/27/2017. It was not until the Commonwealth argued, and the PCRA court agreed, that

the instant petition did not satisfy an exception to the PCRA’s timeliness requirements

that the court decided that Robinson was not entitled to discovery in this matter. We note

that at least some of the information sought may be solely within the possession of the

DA. However, the DA’s arguments against the grant of discovery, and one of the PCRA

court’s alternative basis for denying Robinson’s request, are based on Robinson’s failure

to present evidence in support of his claim. We further observe that there has been no

fact finding conducted regarding the scope and breadth of this email scandal. The CJD

did not conduct a full trial in Eakin’s disciplinary matter (it adjudicated the case on

stipulated facts) and the Disciplinary Board of the Pennsylvania Supreme Court has not

reported any action taken against any of the attorney senders and receivers of these

emails. The only emails sent or received by Eakin that have been disclosed to date are

those that were housed on the OAG’s server.

       Nonetheless, as the issue of discovery implicates the merits of the claims raised,

and because we would remand the case for the PCRA court to review the merits of his




                                     [J-51-2018] - 36
pending PCRA petition, we think it would have been prudent to allow the PCRA court to

reconsider this issue as well. This would have allowed Robinson to file an amended

request for discovery, modifying his request (if he deems it necessary) to address the

concerns raised in the PCRA court’s 1925(a) opinion. See Robinson’s Brief at 58 (“To

the extent, however, that the lower court thought the request was overly broad, it could

have granted the discovery request only in part or directed Mr. Robinson to tailor a more

narrow request.”).

                 Disqualification of the DA from Further Proceedings

       In his final issue on appeal, Robinson asserts that the PCRA court erred by denying

his request to disqualify the DA from participating in further proceedings in this case. The

PCRA court found that Robinson failed to establish that there were any ex parte

communications between Eakin and the DA (or any members of the DA’s office) or that

an actual conflict of interest existed precluding the DA from representing the

Commonwealth in this matter.        It therefore found that he was not entitled to the

appointment of a new prosecutor.

       Robinson contends that this finding was erroneous. In his brief before this Court,

he states that the receipt by both Freed and Ebert of Eakin’s emails “potentially reflects

on their reputations individually and on the reputation of the District Attorney’s office” and

“potentially colors their assessment of the offensiveness of the emails” and the impact

they had on the appellate review of Robinson’s case. Robinson’s Brief at 61. Further,

Robinson states that bias is established based on the letters sent to the CJD from Freed

and Smith, both of whom indicated their close relationship with Eakin and expressed their

personal opinions about the central issue involved in this case, i.e., whether Eakin




                                      [J-51-2018] - 37
exhibited bias in his judicial decisions. Id. at 61-62. He contends that they both have

“personal stakes” in the claims raised in his PCRA petition “in ensuring that their

longstanding friend suffered no consequences for his conduct.” Id. at 62

       In his motion before this Court, he asserts that Ebert’s resumption of his role as

DA continues to require the disqualification of that office in this matter. He observes that,

as a judge, Ebert was a signatory to a letter sent to the CJD in support of Eakin, wherein

he “candidly acknowledges the close personal ties” between the two. Robinson’s Motion

to Disqualify the DA’s Office, 4/17/2018, ¶¶ 5, 7. This letter resulted in Judge Guido

recusing the entire Cumberland County bench from deciding Robinson’s PCRA petition

based on “the appearance of a conflict of interest or impropriety,” a finding that Robinson

asserts necessarily should carry over to Ebert’s decision making as the prosecutor in this

matter. Id., ¶¶ 6, 7. Further, Robinson states that the now-publicly available emails reveal

Ebert to have been “a recipient of roughly twenty … ‘blast’ emails that Justice Eakin also

received, including a few that contained objectionable content.” Id., ¶ 9. Robinson states

that this information regarding Ebert reveals his personal interest in defending against the

claims raised in Robinson’s PCRA petition, as he would want to “minimize the significance

of the emails” for his personal reputation and that of Eakin, his close friend, and “impairs

[his] independent judgment as a prosecutor.” Id., ¶¶ 13-14. He asserts that Ebert’s

conflict, when combined with the aforementioned information regarding Freed and Smith

and their relationships with Eakin, compounds the reputational concerns of the DA as an

office. Id., ¶ 11. According to Robinson, the continued participation of that office in his

case “threatens the fundamental fairness of these proceedings, and violates [his] right to

due process of law.” Id., ¶ 17.




                                      [J-51-2018] - 38
       In response, the Commonwealth contends that because this case is on appeal,

any prejudice arising from the alleged conflict the DA has “is far less” as “the prosecution

has far less discretion” at the appellate stage. Commonwealth’s Response to Motion to

Disqualify, 5/2/2018, at 1 (quoting Commonwealth v. Harris, 460 A.2d 747, 750 (Pa. 1983)

(plurality)). The Commonwealth asserts that Robinson was required to prove “an actual

impropriety, which taints the proceedings,” and that he has failed to satisfy this burden.

Id. at 2 (quoting Commonwealth v. Breakiron, 729 A.2d 1088, 1092 (Pa. 1999)). It states

that Robinson “has not presented anything demonstrating bias in the opinions or

proceedings of his case,” and that the disqualification of the DA in this matter – which it

contends is an “untimely, previously-litigated, and meritless serial PCRA petition” – is

unsupported by Pennsylvania precedent and would be “a great disservice to the citizens

of this Commonwealth.” Id. at 3.

       A criminal prosecutor serves in a capacity unique from that of a traditional lawyer,

as “[a] prosecutor has the responsibility of a minister of justice and not simply that of an

advocate.” Pa.R.P.C. 3.8, Comment [1]. See also Berger v. United States, 295 U.S. 78,

88 (1935) (describing the role of the prosecutor as “the representative not of an ordinary

party to a controversy, but of a sovereignty whose obligation to govern impartially is as

compelling as its obligation to govern at all; and whose interest, therefore, in a criminal

prosecution is not that it shall win a case, but that justice shall be done”).

       A prosecutor’s duty to act as a minister of justice does not end when a conviction

is obtained. This role, and the responsibilities attendant to it, extend into the appellate

and collateral stages of a criminal case. See, e.g., Commonwealth v. Williams, 86 A.3d

771, 788 (Pa. 2014) (prosecutors have “an affirmative and continuing duty” under Brady




                                      [J-51-2018] - 39
v. Maryland22 to disclose exculpatory information to a criminal defendant). See also

Chmiel, 173 A.3d at 631 (Donohue, J., concurring) (stating that the prosecutor, as a

minister of justice, had an ethical obligation, outside of the discovery process, to provide

information that was solely within its possession to the defendant at the collateral stage

of the proceeding).

        A district attorney is not only subject to the Rules of Professional Conduct, which

govern attorneys, but also to “the canons of ethics as applied to judges in the courts of

common pleas of this Commonwealth insofar as such canons apply to … conflict of

interest.” 16 P.S. § 1401(o).23 The Rules of Professional Conduct provide that a lawyer

has a conflict of interest that prohibits the lawyer from representing a client in a matter if,

inter alia, “there is a significant risk that the representation … will be materially limited …

by a personal interest of the lawyer.” Pa.R.P.C. 1.7(a)(2). Canon 2 of the Code of Judicial

Conduct requires, in relevant part, that a judge “disqualify himself or herself in any

proceeding in which the judge's impartiality might reasonably be questioned.” Pa.C.J.C.

Rule 2.11(A); see also id., Comment [2] (“A judge’s obligation not to hear or decide

matters in which disqualification is required applies regardless of whether a motion to

disqualify is filed.”). Further, Canon 1 provides that a judge must “avoid impropriety and

the appearance of impropriety.” Pa.C.J.C. Rule 1.2.




22Brady held that “suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963).
23   Act of Aug. 9, 1955, P.L. 323, § 1401, as amended.


                                      [J-51-2018] - 40
        Our prior precedent on the disqualification of a prosecutor because of an alleged

conflict of interest generally proceeds along two lines. The first, relied upon by the

Commonwealth, involves cases in which the actions of a prosecutor constitute an “actual

impropriety” of sufficient severity to have tainted the proceedings and thus prejudiced the

defendant. See, e.g., Breakiron, 729 A.2d 1088; Harris, 460 A.2d 747. The second,

relied upon by Robinson (and the PCRA court), involves cases in which the prosecutor

has an actual conflict of interest that threatens his or her independent judgment in fairly

prosecuting the case in accordance with professional standards.                    See, e.g.,

Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011); Eskridge, 604 A.2d 700; see also

Commonwealth v. Jermyn, 709 A.2d 849 (Pa. 1998).

        The first line of cases, which typically involve circumstances where defense

counsel becomes the district attorney during the pendency of the case, originates with a

two-Justice24 plurality decision in Harris. In Harris, during the pendency of Harris’ first

collateral appeal, the attorney appointed to represent him was appointed to serve as

district attorney. Former counsel, now district attorney, assigned his first assistant to

represent the Commonwealth in Harris’ matter, as well as any other cases in which he

was involved as a defense attorney. Id. at 748-49.

        Harris subsequently filed a second petition for collateral review alleging, inter alia,

ineffectiveness of his former counsel based on his appointment as district attorney, and

asserting his right to withdraw his guilty plea on that basis. This Court unanimously

agreed that Harris was not entitled to relief, but disagreed as to the reasoning. Justices

Zappala and Larsen stated that the “appearance of impropriety” standard advocated by


24   Justice Zappala authored the plurality opinion, which Justice Larsen joined.


                                       [J-51-2018] - 41
Harris was “not viable” because “it would allow a defendant to have his case dismissed

any time a special prosecutor was not appointed to his case when a member of the public

defender’s staff has been appointed to the staff of the [d]istrict [a]ttorney during the

pendency of the defendant’s post-trial proceedings.” Id. at 749. Instead, these Justices

found that the question should require the application of “a more objective and flexible

standard,” on a case-by-case basis, to determine “whether the acts of a public prosecutor

have actually tainted the proceedings so as to require a new trial with a special prosecutor

appointed.” Id. As such, they indicated that in situations where defense counsel switched

to prosecutor during the course of criminal proceedings, they would require “that a

defendant show an actual impropriety in order to establish the requisite prejudice to a

defendant.”25 Id. (emphasis added).

       Justices Zappala and Larsen made clear that their decision was influenced in part

by the procedural posture of the case when the switch occurred, i.e., at the appellate

stage of the proceeding. They observed that counsel “was not privy to any confidences

which may have been devulged [sic] during the pre-trial and trial stages,” and “the

resolution of the case rested upon arguments and conclusions of law which would be of

no value to him when he became [d]istrict [a]ttorney.” Id. at 750. “The danger of prejudice


25  Although not employing the “actual impropriety” language, in a case decided just two
days before Harris, this Court identified a circumstance in which the prosecutor’s actions
resulted in prejudice to the defendant and thus required a new trial. In Commonwealth v.
Lowery, 460 A.2d 720 (Pa. 1983) (per curiam), the attorney who had represented the
defendant on a suppression matter in the trial court had become the district attorney at
the time of appeal. Id. at 720. On appeal, he instructed his office to attack the adequacy
of his own defense on the suppression issue. Id. In requiring a new trial, the Court
indicated that an attack by an attorney on his own work is a “direct attack on the adversary
system which undermines the total trust and confidence between an attorney and his
client necessary to its functioning … [since] all individuals must be assured that their
lawyer can never assert his own failures against them.” Id. at 721.


                                     [J-51-2018] - 42
is far less when prosecutorial conflict arises during appellate proceedings. At this stage,

the prosecution has far less discretion; its role is to answer arguments made by the

defendant.” Id. (quoting Pisa v. Commonwealth, 393 N.E.2d 386, 390 (Mass. 1979)).

       The remainder of the Court concurred only in the result reached by the two-Justice

plurality. Chief Justice Roberts disagreed that the “appearance of impropriety” standard

was not applicable, but concluded that there was no demonstrated impropriety, “actual or

apparent,” that would entitle Harris to the relief he sought (i.e., to withdraw his guilty plea).

Id. at 750 (Roberts, C.J., concurring). Notably, Chief Justice Roberts stated that Harris

would “at best … be entitled to the disqualification of the District Attorney of Lehigh County

on the present appeal from the denial of post-conviction relief,” but because that was not

the relief he sought, he declined to discuss further this avenue of relief. Id. at 751.

       Justice Hutchinson, joined by Justice Flaherty, found that “[n]o conflict of any kind

exist[ed],” but likewise disagreed with the plurality’s decision to reject the “appearance of

impropriety” standard. Id. at 751 (Hutchinson, J., concurring) (“I also believe we should

not imply or even hint that the appearance of impropriety is generally excusable.”).

Justices Nix and McDermott concurred in the result without authoring separate opinions.

       In Breakiron, the OAG assumed prosecutorial responsibility at the PCRA stage at

the request of the district attorney because Breakiron’s trial and direct appeal counsel

(both former public defenders) became members of the district attorney’s office. Shortly

thereafter, Breakiron sought the removal of the OAG and the appointment of a special

prosecutor because the OAG allegedly asked Breakiron’s trial counsel to review a file that

remained in the public defender’s office and to review PCRA filings before filing them in

court. Breakiron, 729 A.2d at 1092. This Court agreed with the PCRA court that removal




                                       [J-51-2018] - 43
of the OAG from the case was unnecessary, as any prejudice suffered by the OAG’s

actions was de minimis. Further, and without discussion or recognition of Harris’ lack of

precedential value, the Court applied the Harris plurality’s “actual impropriety standard.”

Id. (“Breakiron did not meet his burden of proof in showing that there was any actual

impropriety in Attorney Graci’s conduct.”) (citing Harris).26 Accordingly, the Court ruled

that Breakiron was not entitled to the removal of the prosecutor. Id.

      The second line of precedent in this area, which does not require a showing of an

“actual impropriety,” involves prosecutors who have a personal interest in the outcome of

the case. See, e.g., Briggs, 12 A.3d at 330-31; Eskridge, 604 A.2d at 701. In Eskridge,

the district attorney’s private law firm was engaged to represent the victims of a car

accident, which also resulted in the filing of criminal charges against Eskridge. We found

that this constituted an impermissible conflict of interest that preluded any members of

the district attorney’s office from prosecuting the defendant. In so concluding, the Court

observed that a prosecutor could not proceed in a criminal matter if his professional

judgment may be affected by extraneous considerations. “A defendant does not have a

right not to be prosecuted; he does, however, have a right to have his case reviewed by

an administrator of justice with his mind on the public purpose, not by an advocate whose

judgment may be blurred by subjective reasons.” Eskridge, 604 A.2d at 701 (quoting

Commonwealth v. Dunlap, 355 A.2d 364, 368 (Pa. Super. 1975) (Hoffman, J.,



26   The holding in Breakiron, requiring proof of an “actual impropriety” and not the
appearance of impropriety for the disqualification of a prosecutor, arguably conflicts with
the Canon 1 of the Code of Judicial Conduct and the statute making the canons applicable
to prosecutors. See 16 P.S. § 1401(o); Pa.C.J.C. 1.2.; supra, p. 38. Robinson does not
argue this point or ask that we overrule Breakiron, and we therefore do not discuss this
further in this Opinion.


                                     [J-51-2018] - 44
dissenting)). We thus held that “a prosecution is barred when an actual conflict of interest

affecting the prosecutor exists in the case; under such circumstances a defendant need

not prove actual prejudice in order to require that the conflict be removed.” Id. at 702.

       Our more recent decision in Briggs involved a defendant’s challenge to the

appointment of the OAG following the district attorney’s assertion of a conflict of interest

that precluded his office’s participation in the prosecution of the case. The district attorney

requested that the OAG handle Briggs’ prosecution because, of relevance here, the

district attorney believed that there was a potential conflict of interest based on his close

personal relationship with the murder victims (two sheriff’s deputies). He was concerned

that his relationship “would cloud his professional judgment and possibly interfere with his

ability to make critically important legal decisions regarding the conduct of this

prosecution.”   Briggs, 12 A.3d at 330-31.        This Court found the district attorney’s

recognition of this potential conflict to be “commendabl[e],” and agreed, based on our

prior holding in Eskridge, that “[h]is representations in the letter concerning this potential

impairment were sufficient to establish a potential conflict of interest on his part sufficient

to justify the attorney general’s intervention under 71 P.S. § 732-205(a)(3).” Id. at 331.27

       Robinson’s case falls squarely within the second line of cases. As with Eskridge

and Briggs, this case centers on a claim that the current DA has a personal interest in the



27  Pursuant to section 205(a)(3) of the Commonwealth Attorneys Act, “The Attorney
General shall have the power to prosecute in any county criminal court … [u]pon the
request of a district attorney who lacks the resources to conduct an adequate
investigation or the prosecution of the criminal case or matter or who represents that there
is the potential for an actual or apparent conflict of interest on the part of the district
attorney or his office.” 71 P.S. § 732-205(a)(3), Act of Oct. 15, 1980, P.L. 950, No. 164,
§ 205.



                                      [J-51-2018] - 45
outcome of Robinson’s PCRA proceedings.28 The record establishes, and Ebert admits,

that Eakin is a close, personal friend. See Answer to Motion to Disqualify the DA’s Office,

4/30/2018, at attachment (Letter from Ebert to counsel for Robinson, 3/23/2018). Ebert

and other members of his office have been vocal in their support of Eakin. Ebert, Freed

and Smith all sent letters in support of Eakin to the JCB and advocated against disciplinary

action for his conduct. The letter signed by Ebert and other members of the Cumberland

County bench acknowledged his friendship with Eakin and expressed concern about “the

reputation and career of Justice Eakin.” Motion to Disqualify the DA’s Office, 4/16/2016,

at Exhibit A. Freed’s letter, written on DA letterhead, was authored during the pendency

of the instant PCRA proceedings below. The letter professed Freed’s “bias as … a great

admirer of Justice Eakin,” and described both his history with Eakin and that of other

members of Freed’s family. Id. at Exhibit C. Smith’s letter referred to Eakin as his “friend,

colleague, and mentor,” and likewise detailed his longstanding relationship with him. Id.

at Exhibit D.

       The letters submitted by Ebert, Freed and Smith in support of Eakin also

downplayed the offensiveness of the content of the emails and included their personal




28  The Commonwealth’s reliance upon Harris’ focus on the procedural posture of the
case (i.e., on appeal) is unavailing in this case. As discussed below, the conflict of interest
in the case at bar preceded this appeal and has pervaded all aspects of these PCRA
proceedings. It has touched nearly every member of the DA’s office who has been
involved in representing the Commonwealth in the instant PCRA matter. Moreover,
because we would remand this case for further proceedings, the DA would have had
greater prosecutorial discretion in the PCRA court. He would no longer simply be
responding to Robinson’s arguments, but would make decisions regarding what position
the Commonwealth would take as to the challenges leveled by Robinson before the
PCRA court, and may have chosen to advocate and present evidence (or not) in support
of or against those claims.



                                      [J-51-2018] - 46
opinions regarding a critical issue at the heart of this case, i.e., whether the emails were

reflective of Eakin’s bias. The letter signed by Ebert promoted the view that the emails in

question merely constituted “private communications with [Eakin’s] … personal friends,”

and though perhaps not “political[ly] correct[],” did not warrant disciplinary action against

him. Id. at Exhibit A.29 Freed expressed his belief that regardless of the emails, Eakin’s

judicial decisions included no “indication of racism, misogyny or homophobia.” Id. at

Exhibit C. Smith similarly stated his view that “there is no evidence [that his sending or

receiving the offensive emails] affected his judicial temperament or influenced his

judgment,” and referred to the emails as “[j]uvenile and puerile, but not unethical.” Id. at

Exhibit D.

       Moreover, Ebert and other members of the DA’s office have received some of the

emails that form the basis of Robinson’s claim of Eakin’s bias. It would seem incongruous

for the DA to acknowledge that the emails are offensive and bigoted when he and

members of his staff also received them, apparently without objection.

       Based on the record before us, Ebert and other members of his staff have several

“subjective reasons,” outside of their “public purpose,” to advocate against granting

Robinson PCRA relief. See Eskridge, 604 A.2d at 701. Granting Robinson relief on the

instant PCRA petition would result in a finding that the emails sent and received by Eakin

reflected his bias against various types of crimes and classes of people. Ebert has a

clear interest in advocating against such a finding to protect his own reputation, the



29 As stated hereinabove, the letter Ebert and the other judges signed caused the
Cumberland County President Judge to conclude that no Cumberland County Common
Pleas Court judge could preside over Robinson’s case because of “the appearance of a
conflict of interest or impropriety.” See Order of President Judge Guido, 1/8/2016.


                                      [J-51-2018] - 47
reputation of his office, and that of his close friend, Eakin.         These “extraneous

considerations” could undoubtedly cloud Ebert’s professional judgment. See id.

       While any prosecutor may defend against Robinson’s request for PCRA relief, the

decision to do so must be pursuant to the law and guided by a public purpose.

Prosecutorial discretion cannot be driven separately or simultaneously by the attorney’s

motivation to defend reputational concerns. In other words, as stated hereinabove,

Robinson is entitled to a prosecutor whose judgment is neither “clouded” nor “blurred by

subjective reasons.” See Eskridge, 604 A.2d at 701; Briggs, 12 A.3d at 330-31.

       As Ebert’s personal interest in the outcome of the case could materially affect his

representation of the Commonwealth in this matter, there exists a conflict of interest, and

continued participation by Ebert would be improper. See Pa.R.P.C. 1.7(a)(2); Pa.C.J.C.

Rules 1.2, 2.11(A). This conflict is not remedied by transferring the matter to another

member of the DA’s office; as we recognized in Eskridge, because the DA has a conflict

of interest, the entire office is barred from handling the matter. See Eskridge, 604 A.2d

at 701 (delegation of the case by the district attorney to another member of the office was

insufficient to cure conflict as the prosecutor “remained subject to the district attorney’s

guidance, control, and supervision”).

       The OAG has the power to act as prosecutor in a county criminal matter on the

request of the president judge of the county in which the case is proceeding where the

OAG agrees that the case is appropriate for its intervention. 71 P.S. § 732-205(a)(5).

Because there exists a conflict of interest that precludes the DA’s participation in this

matter, on remand, we would direct the President Judge of the Cumberland County Court

of Common Pleas to request the OAG’s intervention in this matter. Absent a conflict of




                                     [J-51-2018] - 48
interest or other reason prohibiting the OAG’s participation, the OAG would represent the

Commonwealth in any further proceedings.

      Jurisdiction relinquished.

      Justice Wecht joins this opinion in support of reversal.




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