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


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


                      CONCURRING AND DISSENTING OPINION


JUSTICE DOUGHERTY                                                DECIDED: April 24, 2020
       In one fell swoop, the Majority today implicitly constitutionalizes, as a matter of

federal law, collateral attacks alleging only the appearance of judicial bias; permits inferior

courts to meddle into administrative and supervisory functions over which this Court

possesses exclusive authority; endorses the policing of alleged violations of the Code of

Judicial Conduct in post-conviction proceedings; and authorizes lower courts to

unilaterally undo this Court’s prior published decisions. The flaws of the Majority’s opinion

are flagrant and many. It significantly misstates and expands the applicable federal law.

It divests this Court of powers granted exclusively to it by the Pennsylvania Constitution

and held in trust for the people.       It subjects former and sitting jurists to post-hoc

accusations of wrongdoing by disaffected litigants, making them vulnerable to

unwarranted ridicule. And it inverts the constitutionally-defined judicial hierarchy in this

Commonwealth and casts doubt upon the continued viability of an untold number of our

prior published opinions. Worst of all, it does all of this despite the fact that we presently
lack jurisdiction to decide the hypothetical and unripe question the Majority is so eager to

reach. For these reasons, I emphatically dissent.

                                      I. Background

       The Majority appropriately recounts the factual and procedural background of this

matter. See Majority Opinion at 1-10. To summarize, in 1996, a jury convicted appellant,

a self-proclaimed hit man for the mob, of two counts of first-degree murder and related

offenses after he directed an 18-year-old man to kill appellant’s girlfriend and her nine-

year-old son as part of the young man’s recruitment into the profession. After the jury

returned two sentences of death, this Court affirmed the judgment of sentence on direct

review. Commonwealth v. Koehler, 737 A.2d 225 (Pa. 1999) (“Koehler I”), cert. denied,

531 U.S. 829 (2000).

       In 2001, appellant filed a timely PCRA petition alleging, as relevant here, that his

penalty-phase counsel was ineffective for failing to investigate and present mitigation

evidence demonstrating he “had a history of family abuse and neglect[.]” Commonwealth

v. Koehler, 36 A.3d 121, 147 (Pa. 2012) (“Koehler II”). The PCRA court denied relief

following an evidentiary hearing. In 2012, this Court affirmed that ruling in an opinion

authored by Justice Baer and joined in full by Justice Todd, former Chief Justice Castille,

and former Justices Eakin, McCaffery, and Orie Melvin. Then-Justice Saylor authored a

partially joining concurring opinion. Notably, in rejecting appellant’s mitigation-based

ineffectiveness claim, the Court acknowledged appellant’s witnesses’ PCRA testimony

“contained much more detail and painted a clearer picture of [a]ppellant’s unfortunate

childhood[,]” but nevertheless held that it “pale[d] in comparison with the aggravating

circumstances found by the jury.” Id. at 151. The Court concluded: “the mitigation

evidence of [a]ppellant’s unfortunate childhood is clearly outweighed by the aggravating




                             [J-78-2019] [MO: Wecht, J.] - 2
circumstance of senseless multiple murders of two innocent victims in a bizarre exercise

to train another individual to become an assassin.” Id. at 151-52.

       Nearly four years later, on December 7, 2015, appellant filed a second, facially

untimely PCRA petition. Therein, he asserted he “seeks a new PCRA appeal in the wake

of the extraordinary revelation that during the pendency of [Koehler II], [former] Justice

[J.] Michael Eakin sent and received emails demonstrating a disregard for domestic

violence victims.” PCRA Petition, 12/7/2015, at i. In this regard, appellant explained:
       On or about October 8, 2015, an on-line article appeared in philly.com
       reporting that the news outlet had come into possession of a number of
       emails sent by, or received from, Justice Eakin through a ‘private’
       Yahoo.com inbox that he had set up under the alias ‘John Smith.’ The
       article reported that ‘Eakin’s email address repeatedly appears within a
       network of law-enforcement officials who received inappropriate emails on
       their government accounts,’ and then describes named and unnamed
       judges, prosecutors (including prosecutors from the Attorney General’s
       Office) and police officials as either recipients or senders of various racist,
       sexist and culturally insensitive emails and attachments.
Id. at 11 (citations omitted). More specifically, appellant pointed to the article’s description

of “[a]n email sent by Eakin containing a ‘joke’ about a woman complaining to a doctor

that her husband ‘beats me to a pulp,’ to which the doctor recommends that she ‘swish

tea in her mouth’ and not ‘swallow’ until her husband is asleep, concluding: ‘You see how

much keeping your mouth shut helps?’” Id. at 12 (citation omitted). 1


1 The Court of Judicial Discipline, which concluded in 2016 that Justice Eakin violated
former Canon 2A of the of the Code of Judicial Conduct, and derivatively, violated Article
V, §17(b) of the Pennsylvania Constitution, provided a more detailed description of the
email in question as follows:
       An e-mail bearing the subject line “Marital advice,” sent Tuesday, July 6,
       2010, at 1:20 p.m.
       This e-mail contains text that states the following: “A woman goes to the
       doctor, beaten black and Blue.
       Doctor: ‘What happened?’



                               [J-78-2019] [MO: Wecht, J.] - 3
       In appellant’s view, “[g]iven the ‘joke’ generated by Justice Eakin regarding spousal

abuse, [appellant]’s claim [in his 2001 PCRA petition] regarding counsel’s failure to

develop and present evidence of [appellant]’s family dysfunction including spousal abuse

could not have received a fair review from Justice Eakin.” Id.; see also id. at i (“Because

[appellant]’s mitigation claim was based on him both witnessing and being a victim of

domestic violence and abuse, Justice Eakin’s exchange of emails reflecting a dismissive

attitude about domestic violence raises a serious risk of actual bias[.]”). Observing that

the Code of Judicial Conduct “protects litigants where there may be a risk of impartiality[,]”

see id. at 15, appellant averred he “has established at a minimum that Justice Eakin’s

participation in [Koehler II] violated Due Process on the basis of the appearance of bias

and, following full discovery and an evidentiary hearing, [appellant] expects to

demonstrate the presence of an actual bias requiring relief.” Id. at 18. 2 In his closing

       Woman: ‘Doctor, I don't know what to do.
       Every time my husband comes home drunk he beats me to a pulp.’
       Doctor: ‘I have a real good medicine for that. When your husband comes
       home drunk, just take a glass of sweet tea and start swishing it in your
       mouth. Just swish and swish but don’t swallow until he goes to bed and is
       asleep.’
       Two weeks later the woman comes back to the doctor looking fresh and
       reborn.
       Woman: ‘Doctor that was a brilliant idea! Every time [m]y husband came
       home drunk, I swished that sweet tea. I swished and swished, and he didn’t
       touch me!’
       Doctor: ‘You see how much keeping your mouth shut helps?’
In re Eakin, 150 A.3d 1042, 1070 (Pa. Ct. Jud. Disc. 2016).
2Subsequently, on November 7, 2016, appellant filed a motion for discovery wherein he
more pointedly alleged, “Justice Eakin’s exchange of offensive and inappropriate emails
amounted to a potential violation of the Code of Judicial Conduct.” Motion for Discovery,
11/7/2016, at 17-18. With respect to the scope of his discovery request, appellant
submitted that he “is entitled to a complete accounting of the [Office of Attorney General]’s



                              [J-78-2019] [MO: Wecht, J.] - 4
request for relief, and in seeming tension with his initial, more limited request for “a new

PCRA appeal,” appellant broadly asked that his “convictions and death sentence be

vacated, and a new trial and/or sentencing be ordered, post-conviction proceedings

reopened, or such further relief as the Court deems appropriate.” Id. at 21.

       The PCRA court was understandably circumspect about its jurisdiction to entertain

appellant’s judicial bias claim, as well as its authority to grant the requested relief. See

PCRA Ct. Order, 6/26/2016, at 1 (concluding appellant’s request that the PCRA court

declare Justice Eakin “engaged in judicial misconduct, or that he should have recused

[from participating in Koehler II] . . . is beyond the original jurisdiction and authority of this

court”). Operating under the belief that only this Court could entertain appellant’s claim,

the PCRA court transferred the matter to this Court. However, after accepting briefing

from the parties concerning our jurisdiction to hear the matter in the first instance, on

November 2, 2016, we remanded the case back to the PCRA court. In so doing, we cited



email correspondence with Supreme Court justices so that he can definitively determine
the scope of the constitutional violation.” Id. at 20; see also id. (seeking “to review the
universe of inappropriate emails”). Appellant also sought the compelled production of
any emails the OAG provided to the special counsels that investigated the email scandal,
and all evidence provided to the Judicial Conduct Board. See id. at 20-21. According to
appellant, this production is necessary so he can personally sort out “what was provided
to whom and when[,]” since, he alleges, “the Judicial Conduct Board, the reports of [the]
special counsel, and the OAG have all made contradictory statements as to whether and
at what point the OAG disclosed the emails relating to Justice Eakin[.]” Id. at 20-21.
Appellant also suggests he is entitled to review the emails to “determine if there were any
case-related communications between the [OAG] and the justices of [this Court,]” id. at
21, even though the Court of Judicial Discipline has already found as fact that “[n]one of
the e-mails . . . were related to matters pending before the Supreme Court or involve the
business of the Judiciary of Pennsylvania.”            In re Eakin, 150 A.3d at 1049.
Notwithstanding these assertions by appellant, the Court of Judicial Discipline concluded
Justice Eakin’s conduct did not “prejudice the proper administration of justice[,]” nor did
the Judicial Conduct Board allege “that judicial decisions were made for or influenced by
improper reasons.” Id. at 1060; see also id. (Justice Eakin “presented credible witnesses
that his judicial opinions were not reflective of any of the biases expressed in any of the
emails, but instead were decided, in each case, in accordance with the facts and law”).


                               [J-78-2019] [MO: Wecht, J.] - 5
only 42 Pa.C.S. §9545(a) (“Original jurisdiction over a proceeding under this subchapter

shall be in the court of common pleas.”), and made no further observations beyond that

threshold jurisdictional matter. Commonwealth v. Koehler, 160 A.3d 782 (Pa. 2016) (per

curiam).

       The parties engaged in additional briefing upon remand; appellant also sought

leave to amend his PCRA petition and filed a motion for discovery. See supra, n.2.

Thereafter, on December 28, 2017, the PCRA court issued notice of intent to dismiss the

petition without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA court acknowledged

it previously erred in transferring the matter to this Court, candidly explaining it failed “to

observe the distinction between a court’s competency to enter on the inquiry and its power

to grant the requested relief.” Rule 907 Notice, 12/28/2017, at ¶6, citing Alpha Tau

Omega Fraternity v. Univ. of Pa., 464 A.2d 1349, 1353 (Pa. Super. 1983) (“[C]ase law in

Pennsylvania distinguishes between the competency of the court to act and whether it is

able to grant the requested relief once it assumes jurisdiction.”). But even though the

PCRA court conceded it was competent to act on appellant’s petition, it remained

steadfast in its determination that, as an inferior court, it “is powerless to conclude that

Justice Eakin demonstrated bias, or that he violated the Code of Judicial Conduct, or that

he should have recused himself from consideration of [Koehler II].” Id. at ¶7; see also id.

at ¶10 (“The relief [appellant] seeks here is beyond this court’s power.”). Consequently,

the PCRA court dismissed the petition on June 28, 2018. This appeal followed.

                                         II. Analysis

       The primary issue in this appeal involves “a question of immense constitutional

significance: whether a lower court possesses authority to order a higher tribunal to

rehear an appeal where a defendant alleges that a constitutional error — in this case, a

due process claim predicated on supposed judicial bias — occurred during [a prior]




                              [J-78-2019] [MO: Wecht, J.] - 6
appellate process.”    Commonwealth v. Taylor, 218 A.3d 1275, 1285-86 (Pa. 2019)

(Dougherty, J., Opinion in Support of Affirmance (“OISA”)). 3 Previously, in Taylor, this

Court affirmed, by way of an equally divided court, a PCRA court’s dismissal of a similar

judicial bias-based due process claim collaterally aimed at another former member of this

Court. In the present case, we are once again called upon to consider whether a PCRA

court’s hesitancy to order this Court to rehear an appeal without the participation of a

former Justice of this Court, was correct as a matter of law. However, it has become

abundantly clear to me that we lack jurisdiction to answer this unripe question, as the

PCRA court never determined whether appellant’s PCRA petition was timely filed, much

less did it proceed to decide whether his claim warranted relief on the merits. In the

absence of such findings, there is no present case and controversy regarding the proper

relief that may be afforded to a hypothetical petitioner who presents a meritorious judicial

bias-based due process claim in a timely PCRA petition. Accordingly, the only option is

to reverse and remand with instructions for the PCRA court to determine whether

appellant’s petition is timely; everything the Majority purports to do beyond that is entirely

advisory and non-binding as applied to future cases.

       In any event, in response to the Majority’s purely academic exercise, I explain

below why there is good reason for the unanimous restraint shown by those PCRA courts

that have recently confronted collateral allegations of appellate-level judicial bias: a

PCRA court is not authorized, under the Pennsylvania Constitution, to investigate matters

of judicial misconduct; or to undo this Court’s precedents by means of ordering us to


3 Appellant’s brief actually presents four discrete questions for our review, as the Majority
details in its opinion. See Majority Opinion at 10-11. Preliminarily, I note my concurrence
with the Majority’s disposition of several of those tangential issues. Specifically, I agree
with the Majority that “[o]ur [prior] remand order did not resolve whether the PCRA court
is empowered to afford the requested relief[,]” id. at 12, and its conclusion that appellant
“complied with his obligations under [Pa.R.A.P.] 1925(b).” Id. at 13.


                              [J-78-2019] [MO: Wecht, J.] - 7
rehear an appeal; or to impose judicial discipline, in the form of retroactive removal from

an appellate panel, for perceived violations of the Code of Judicial Conduct. Such matters

are beyond the power of inferior courts in this Commonwealth. Nevertheless, as I will

demonstrate, there is a path by which petitioners can collaterally vindicate legitimate

judicial bias-based due process claims in a manner that does not offend the Pennsylvania

Constitution.

                                       a. Jurisdiction

       It is well-settled that “if a PCRA petition is untimely, neither this Court nor the trial

court has jurisdiction over the petition. Without jurisdiction, we simply do not have the

legal authority to address the substantive claims.” Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (quotation and citation omitted); see Commonwealth v. Cox, 146

A.3d 221, 227 (Pa. 2016) (“a court may not address the merits of any claim raised unless

the petition was timely filed or the petitioner proves that one of the three exceptions to the

timeliness requirement applies”); Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68

(Pa. 2008) (“The PCRA’s timeliness requirements are jurisdictional in nature and must be

strictly construed; courts may not address the merits of the issues raised in a petition if it

is not timely filed.”). For that reason, we have repeatedly stated that even when the

parties or a PCRA court do not address the timeliness of a PCRA petition, “this Court will

consider the issue sua sponte, as it is a threshold question implicating our subject matter

jurisdiction[.]” Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003). Moreover,

“[j]urisdiction of subject matter can never attach nor be acquired by consent or waiver of

the parties[.]” McGinley v. Scott, 164 A.2d 424, 428 (Pa. 1960). Considering these

mandates, our starting point for analysis purposes necessarily must begin with an

assessment of jurisdiction over this matter.




                              [J-78-2019] [MO: Wecht, J.] - 8
       As noted, because the PCRA court initially believed appellant’s due process claim

fell exclusively within our original jurisdiction, it transferred the case to this Court for our

consideration in the first instance. We disagreed and remanded to the PCRA court “for

disposition of [appellant]’s PCRA petition.” Koehler, 160 A.3d at 783 (per curiam)

(emphasis added). Although our order cited only 42 Pa.C.S. §9545(a) and did not

otherwise “specify with particularity the process that the lower court needed to follow,”

Appellant’s Brief at 21, the PCRA court’s task upon remand should have been obvious.

Through our instruction to “dispos[e] of” appellant’s PCRA petition, we clearly intended

for the court to do what every PCRA court must: first, assess its own jurisdiction to

entertain the petition by determining whether it is timely, see 42 Pa.C.S. §9545(b);

second, if the petition is timely, proceed to decide whether the petitioner has met his

burden of pleading and proving by a preponderance of the evidence that he is eligible for

relief, see 42 Pa.C.S. § 9543(a); and third, if and only if “the court rules in favor of the

petitioner, [then] it shall order appropriate relief[.]” 42 Pa.C.S. §9546(a).

       The PCRA court here got it exactly backwards. Instead of sequentially considering

the issues of timeliness, eligibility for relief, and then relief, the PCRA court jumped

straight to the issue of relief and decided that, since it could not grant the requested relief,

it need not determine either the threshold jurisdictional issue or whether there was any

merit at all to appellant’s claim. This was error. Nothing in the PCRA or our precedents

permits a PCRA court to rule upon an issue concerning relief before first determining

whether it has jurisdiction over the petition and then whether the claims raised therein are

meritorious.   See, e.g., Commonwealth v. Pursell, 749 A.2d 911, 914 (Pa. 2000)

(timeliness of PCRA petition “presents a threshold question concerning whether there is

jurisdiction to grant relief”). Consequently, as the PCRA court failed to comply with our

prior instruction to “dispos[e] of” appellant’s PCRA petition — i.e., determine whether it




                               [J-78-2019] [MO: Wecht, J.] - 9
was timely and then, if warranted, address the merits of his claims — the proper course

is to reverse the PCRA court’s order denying relief and remand for further consideration

of those issues by that court. Indeed, this is precisely what appellant asks us to do. See

Appellant’s Brief at 26 (requesting that we “remand for the lower court to comply with this

Court’s prior order and adjudicate [his] petition”).

       Rather than simply end matters there, however, the Majority proceeds as if we

have jurisdiction to consider the substantive issue concerning the appropriate relief for a

petitioner who pleads and proves in a timely PCRA petition that he suffered a due process

violation as a result of judicial bias. We do not. Undoubtedly, had the PCRA court

determined appellant’s petition was timely and meritorious but still refused to grant him

his requested relief, the issue would properly be before us in this appeal. But that is not

what happened, as the Majority rightfully acknowledges. See, e.g., Majority Opinion at

37 (“it remains to be seen whether [appellant] is entitled to relief at all”); id. (recognizing

the Commonwealth was never even afforded the opportunity to file an answer in response

to appellant’s petition, wherein it could have challenged the timeliness of his petition).

Surely, since “courts may not address the merits of the issues raised in a petition if it is

not timely filed[,]” see Abu-Jamal, 941 A.2d at 1267-68, then they are equally precluded

from considering substantive legal issues regarding the appropriate relief unless and until

they have first established their own jurisdiction and the petitioner’s entitlement to some

form of relief. Without these critical findings by the PCRA court, we are presently without

jurisdiction to consider this substantive issue. 4


4 The Majority argues the PCRA court “did not run afoul of the jurisdictional requirements
of the PCRA” but, rather, “avoided applying the PCRA entirely[.]” Majority Opinion at 31;
see id. at 33 (suggesting jurisdiction is not at issue since “that is not how the PCRA court
proceeded” here). This is nonsensical. A PCRA court does not possess subject matter
jurisdiction to consider issues — hypothetical ones, no less — outside the parameters of
the PCRA. Moreover, contrary to the Majority’s belief, the issue of relief is indisputably



                              [J-78-2019] [MO: Wecht, J.] - 10
       Beyond our lack of jurisdiction (which, of course, is alone dispositive and cannot

be circumvented), issues of justiciability are also implicated by the Majority’s lack of

restraint. We have long recognized that “judicial intervention is appropriate only where

the underlying controversy is real and concrete, rather than abstract.” City of Phila. v.

Commonwealth, 838 A.2d 566, 577 (Pa. 2003). Along these lines, we have declared that

courts “should not give answers to academic questions or render advisory opinions or

make decisions based on assertions as to hypothetical events that might occur in the

future.” Phila. Entm’t and Dev. Partners v. City of Phila., 937 A.2d 385, 392 (Pa. 2007).

See, e.g., Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655, 659 (Pa.

2005) (courts in this Commonwealth do not render decisions in the abstract or offer purely

advisory opinions); Dep’t of Envtl. Res. v. Jubelirer, 614 A.2d 204, 212-13 (Pa. 1992)

(“This Court will not break now with its long tradition of refusing to give advisory

opinions.”); Pa. Pub. Util. Comm’n. v. Allgeheny Cty., 203 A.2d 544, 546 (Pa. 1964) (“[W]e

will not render a decision which would be solely advisory in character.”).

       Similar concerns arise when issues in a case are unripe or moot. See, e.g.,

Stuckley v. Zoning Hearing Bd. of Newtown Twp., 79 A.3d 510, 516 (Pa. 2013) (“Where

“premised upon the PCRA[,]” id. at 32, as demonstrated by the inclusion of Section 9546
within the Act itself. See 42 Pa.C.S. §9546 (relief and order). Thus, substantive issues
concerning relief, like substantive issues concerning the merits of a petition, may only be
considered once a PCRA court is satisfied the petition is timely, thereby establishing the
court’s jurisdiction. The simple fact that the PCRA court in this case erred by prematurely
addressing the issue of relief before fulfilling its statutory obligations to first assess
timeliness and eligibility for relief, does not somehow expand this Court’s own subject
matter jurisdiction or give us license to perpetuate the PCRA court’s mistake. Neither trial
courts nor reviewing courts are permitted to evade the strict jurisdictional mandates of the
PCRA to answer unripe, hypothetical issues that may never actually come to pass. See,
e.g., Pursell, 749 A.2d at 914 (timeliness of PCRA petition “presents a threshold question
concerning whether there is jurisdiction to grant relief”). This is precisely why we
remanded this case the first time and it is why we must do so again now. What we may
not do, however, is use the PCRA court’s error as a basis for circumventing the PCRA’s
timebar and resolving a legal inquiry in the abstract, especially where that issue may
never come to fruition in this particular case.


                             [J-78-2019] [MO: Wecht, J.] - 11
the issues in a case are moot, any opinion issued would be merely advisory and,

therefore, inappropriate.”) (citation omitted); Town of McCandless v. McCandless Police

Officers Ass’n, 901 A.2d 991, 1002 (Pa. 2006) (“Mootness poses a question of

justiciability and is related to the concepts of standing and ripeness[.]”); In re Gross, 382

A.2d 116, 120 (Pa. 1978) (expressing the Court’s special reluctance to consider moot

questions which raise constitutional issues).

       Without question, the Majority’s analysis of the substantive relief issue in this case

amounts to nothing more than an improper advisory opinion. Again, here, the PCRA court

never determined whether appellant’s PCRA petition was timely filed, let alone that his

claim of judicial bias is meritorious and warrants some relief. In contrast, the Majority’s

entire analysis necessarily presumes an unripe, hypothetical situation where a petitioner

files a timely PCRA petition raising a meritorious claim that his due process rights were

violated by the participation of a biased jurist in a prior appeal. See, e.g., Majority Opinion

at 14 n.7 (“the question is whether a PCRA court, vested with jurisdiction over a

cognizable claim, has the authority to grant a well-established form of relief to remedy a

constitutional deprivation that has been proven on the merits”). Quite plainly, that is not

the situation presently before us. Here, any issue concerning relief is obviously unripe at

this time; and, if the PCRA court upon remand ultimately determines appellant’s PCRA

petition was untimely filed, or that it was timely filed but meritless, then the issue of relief

will never ripen — it will be moot. Thus, by going out of its way to provide an answer to

an academic question “based on assertions as to hypothetical events that might occur in

the future[,]” Phila. Entm’t and Dev. Partners, 937 A.2d at 392, the Majority renders what

is “clearly an advisory opinion; and such an opinion is without legal effect.” Okkerse v.

Howe, 556 A.2d 827, 833 (Pa. 1989). As such, courts in this Commonwealth are not




                              [J-78-2019] [MO: Wecht, J.] - 12
bound to follow the Majority’s analysis in this regard, and we will have to await another

case to definitively resolve the question.

                b. Cognizability of Collateral Claims of Judicial Bias

       Notwithstanding the fact that the Majority’s substantive analysis constitutes a non-

binding advisory opinion, I offer the following responses to guide future courts in the event

they may actually face the hypothetical situation discussed by the Majority. Initially, I

agree with the Majority that an allegation of appellate court error is generally cognizable

under the PCRA. See Majority Opinion at 15. However, contrary to the Majority’s belief

there is “nothing novel” about this conclusion, id., as I observed in Taylor, it is in fact a

matter of first impression for this Court. Taylor, 218 A.3d at 1286 (Dougherty, J., OISA).

For that reason, and because the Majority’s analysis gives short shrift to the topic, I find

it helpful to restate the relevant analysis set forth in my OISA in Taylor:

               We have explained [42 Pa.C.S. §9542’s] language “demonstrates
       quite clearly that the General Assembly intended that claims that could be
       brought under the PCRA must be brought under that Act.” Commonwealth
       v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (emphasis in original). See also
       Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“the PCRA
       subsumes the writ of habeas corpus with respect to remedies offered under
       the PCRA”), citing Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998).
       The precise question we must answer first, then, is whether appellant’s
       claim can be brought under the PCRA.

               “In order to state a cognizable claim under the PCRA, a PCRA
       petitioner must plead and prove by a preponderance of the evidence that
       his conviction resulted from one or more of the errors or defects listed in 42
       Pa.C.S. §9543(a)(2).” Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa.
       2003). Although not explicitly stated in his petition, the only error even
       arguably implicated by appellant’s judicial bias-based due process claim is
       Section 9543(a)(2)(i). . . . That section permits relief where a petitioner’s
       conviction or sentence resulted from “[a] violation of the Constitution of this
       Commonwealth or the Constitution or laws of the United States which, in
       the circumstances of the particular case, so undermined the truth-
       determining process that no reliable adjudication of guilt or innocence could
       have taken place.” 42 Pa.C.S. §9543(a)(2)(i).




                             [J-78-2019] [MO: Wecht, J.] - 13
         I have little conceptual difficulty accepting that this language
encompasses judicial bias-based due process claims related to a judge who
presided over a trial or sentencing proceeding; it is considerably more
difficult, however, to reach the same conclusion with respect to a supposed
bias harbored by an appellate jurist. This is so because appellate jurists,
and the appellate process generally, have no connection to “the truth-
determining process” or the reliability of the “adjudication of guilt or
innocence.” Thus, contrary to [the Majority]’s belief, see [Majority Opinion
at 15], a literal reading of Section 9543(a)(2)(i) in fact supports the notion
that appellate court errors, even those of constitutional magnitude, are not
cognizable under the Act.

        But I also recognize this Court has repeatedly expressed concern
that the unavoidable result of a literal reading of this “truth-determining
process” language “is a bifurcated system of post-conviction review, in
which certain claims for relief are considered under the PCRA, while other
claims for relief are considered outside its framework.” Commonwealth v.
Lantzy, 736 A.2d 564, 569 (Pa. 1999). Such a system, we have remarked,
would run contrary to the legislature’s intent to make the PCRA the
exclusive vehicle for obtaining collateral review. See id.; 42 Pa.C.S. §9542.
For this reason, at least in the context of ineffective assistance of counsel
claims, we have “taken great pains on multiple occasions to explain why we
believe the General Assembly preferred a broader construction of the
PCRA’s scope,” regardless of the “truth-determining process” language
contained in Section 9543(a)(2)(ii). Commonwealth v. Haun, 32 A.3d 697,
705 (Pa. 2011). See, e.g., Liebel, 825 A.2d at 635-36 (counsel’s failure to
file petition for allowance of appeal on direct appeal “sufficiently establishes
that the truth-determining process has been undermined”); Commonwealth
ex rel. Dadario v. Goldberg, 773 A.2d 126, 130 (Pa. 2001) (claim that
counsel had been ineffective during plea-bargaining process was
cognizable under Section 9543(a)(2)(ii) despite fact that ineffectiveness
may not have undermined truth-determining process in traditional sense);
Commonwealth v. Chester, 733 A.2d 1242, 1250 (Pa. 1999) (“truth-
determining” and “guilt or innocence” language used in Section
9543(a)(2)(ii) does not foreclose post-conviction review of penalty phase
issues in capital case); see also Lantzy, 736 A.2d at 569-70 (rejecting
Superior Court’s conclusion that for a petitioner’s claim to be cognizable
under Section 9543(a)(2)(ii), the claim must raise a question of whether an
innocent individual has been convicted).

       On the other hand, “the boundaries of cognizable claims under the
PCRA can only be extended so far as is consistent with the purposes of the
statute[.]” Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007). Indeed,
despite our recognition of the legislature’s intent to channel the widest
possible category of post-conviction claims into the PCRA’s framework, we
have on occasion recognized that certain issues fall outside the PCRA. See



                      [J-78-2019] [MO: Wecht, J.] - 14
       Commonwealth v. West, 938 A.2d 1034, 1044 (Pa. 2007) (substantive due
       process challenge to the continued validity of a judgment of sentence after
       a nine-year pre-incarceration delay not cognizable under the PCRA);
       Judge, 916 A.2d at 520 (allegation that Canada violated appellant’s rights
       under the International Covenant for Civil and Political Rights by deporting
       him to face a death sentence not cognizable under the PCRA because claim
       has “no connection to the truth-determining process and do[es] not render
       the underlying adjudication of guilt or innocence . . . unreliable”). In these
       unique situations, we found the claims “did not implicate any of the remedies
       available pursuant to the PCRA and, accordingly, we held that habeas
       review was warranted.” West, 938 A.2d at 1043. See PA. CONST. art. I, §14
       (“[T]he privilege of the writ of habeas corpus shall not be suspended[.]”); 42
       Pa.C.S. §6501 (same).

                What we must decide here is whether an alleged constitutional error
       occurring during the appellate process — one that does not relate to
       counsel’s performance — can be channeled into those broad categories of
       claims that are cognizable under the PCRA, or whether such a claim is too
       far removed from the truth-determining process to fall within the ambit of the
       PCRA. On balance, and especially without more pointed advocacy to the
       contrary, I am satisfied for purposes of this appeal that appellant’s claim of
       appellate court error is (at least theoretically) cognizable under the PCRA.
       This conclusion hews most closely to this Court’s jurisprudence regarding
       the cognizability of a broader scope of claims under the PCRA, regardless
       of the statute’s facially-limiting “truth-determining process” language.2
       _____________
       2. On this point, I observe this Court has on two occasions recognized, albeit

       implicitly, that its broad construction of the “truth-determining process”
       language in Section 9543(a)(2)(ii) applies with equal force to the identical
       language found in Section 9543(a)(2)(i). See Commonwealth v. Hackett,
       956 A.2d 978, 985 (Pa. 2008) (rejecting argument that a Batson claim is
       “unrelated to the reliability of the verdict rendered” and so does not implicate
       a cognizable constitutional violation under Section 9543(a)(2)(i));
       Commonwealth v. Cruz, 851 A.2d 870, 875, 878 (Pa. 2004) (holding relief
       was “available on collateral review in the particularized circumstances
       presented” even though the petitioner’s claim he was denied due process
       and equal protection on direct appeal, on the basis of disparate treatment
       from his co-defendant, “asserts a breakdown in the appellate process, not
       trial”).
Taylor, 218 A.3d at 1287-89 (Dougherty, J., OISA) (emphasis in original).

       In short, I agree with the Majority that appellate court errors of constitutional

magnitude are cognizable under Section 9543(a) of the PCRA — subject, of course, to

the ordinary eligibility constraints imposed by the Act.


                             [J-78-2019] [MO: Wecht, J.] - 15
           c. Judicial Bias Claims Arising Under the Due Process Clause

       Before addressing my primary source of disagreement with the Majority’s analysis

— i.e., the proper relief available for those exceptional cases where a petitioner

successfully proves in a timely PCRA petition that a constitutional violation occurred

during the appellate process — I find it crucial to define more precisely those judicial bias

claims implicating due process, since any judicial bias claim that falls short of a

constitutional violation would not provide a basis for post-conviction relief under Section

9543(a)(2)(i).

       Nearly one hundred years ago, the Supreme Court of the United States declared

that not all questions of judicial qualification “involve constitutional validity.” Tumey v.

State of Ohio, 273 U.S. 510, 523 (1927). Rather, because the federal “Due Process

Clause demarks only the outer boundaries of judicial disqualifications[,]” Aetna Life Ins.

Co. v. Lavoie, 475 U.S. 813, 828 (1986), “most matters relating to judicial disqualification

[will] not rise to a constitutional level.” FTC v. Cement Institute, 333 U.S. 683, 702 (1948)

(citation omitted). “Thus matters of kinship, personal bias, state policy, remoteness of

interest would seem generally to be matters merely of legislative discretion.” Tumey, 273

U.S. at 523 (emphasis added). This is so because “the traditional common-law rule was

that disqualification for bias or prejudice was not permitted.” Lavoie, 475 U.S. at 820

(citations omitted); see also Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 877

(2009) (“Personal bias or prejudice alone would not be sufficient basis for imposing a

constitutional requirement under the Due Process Clause.”) (internal quotation marks and

citation omitted). Instead, “the Due Process Clause incorporated the common-law rule

that a judge must recuse himself when he has ‘a direct, personal, substantial, pecuniary

interest’ in a case.” Caperton, 556 U.S. at 876, quoting Tumey, 273 U.S. at 523; see also

Frank, Disqualification of Judges, 56 YALE L.J. 605, 609 (1947) (“The common law of




                             [J-78-2019] [MO: Wecht, J.] - 16
disqualification . . . was clear and simple: a judge was disqualified for direct and pecuniary

interest and for nothing else.”).

       Over time, however, new problems emerged that were not determined at common

law, prompting the Supreme Court to identify “additional instances which, as an objective

matter, require recusal.” Caperton, 556 U.S. at 877. The first instance involved situations

where “a judge had a financial interest in the outcome of a case, although the interest

was less than what would have been considered personal or direct at common law.” Id.

See, e.g., Tumey, 273 U.S. at 535 (where town mayor presided over certain bench trials

in “mayor’s court” and received salary supplement that was derived directly from court

costs assessed upon conviction, due process required mayor’s recusal); Ward v. Village

of Monroeville, Ohio, 409 U.S. 57, 60 (1972) (where town mayor presided over municipal

traffic cases and resulting fines upon conviction constituted major revenue stream for

town, due process required mayor’s recusal); Lavoie, 475 U.S. at 823-24 (in case

involving bad faith refusal to pay insurance claim, where state supreme court justice cast

deciding vote to uphold punitive damage award against defendant insurance company,

while at the same time serving as lead plaintiff in nearly identical lawsuit pending against

different insurance company, due process required justice’s recusal).

       The second instance involved cases where judges had no pecuniary interest in the

case, but had a conflict arising from participation in an earlier proceeding — a so-called

“one-man grand jury” situation. Caperton, 556 U.S. at 880. See, e.g., In re Murchison,

349 U.S. 133, 136 (1955) (where judge sitting as a one-person secret grand jury charged

two witnesses with contempt, due process required judge’s recusal from the witnesses’

subsequent bench trial on those charges; “no man can be a judge in his own case and

no man is permitted to try cases where he has an interest in the outcome”); Mayberry v.

Pennsylvania, 400 U.S. 455, 465-66 (1971) (although “not every attack on a judge . . .




                              [J-78-2019] [MO: Wecht, J.] - 17
disqualifies him from sitting[,]” where judge hearing criminal matter was repeatedly

insulted and demeaned by pro se defendant during course of trial, due process required

judge to recuse himself from defendant’s subsequent contempt proceedings, because

defendant’s personal attacks against judge made it unlikely that judge could maintain the

“calm detachment necessary for fair adjudication”). Importantly, in each of these cases

the Supreme Court “was careful to distinguish the extreme facts of the cases before it

from those interests that would not rise to a constitutional level.” Caperton, 556 U.S. at

887 (citations omitted).

       Aside from the two defined situations above, the Supreme Court had otherwise

declined to require judicial recusal under the Due Process Clause. Then, however, the

Court decided Caperton, in which it considered how its due process precedents applied

to the unique circumstances where the Supreme Court of Appeals of West Virginia, in a

3 to 2 vote, reversed a $50 million jury verdict entered against a defendant coal company

and its affiliates. Before the case reached the Supreme Court of Appeals, the CEO of the

coal company contributed or made expenditures totaling approximately $3 million to help

the electoral campaign of an attorney running to unseat one of the court’s then-incumbent

justices. The attorney won his election, declined to recuse from the case, and ultimately

provided the dispositive vote as a member of the Supreme Court of Appeals in favor of

the coal company.

       The High Court reversed, and in the process, adopted a new standard requiring

recusal “when the probability of actual bias on the part of the judge or decisionmaker is

too high to be constitutionally tolerable.” Id. at 872 (internal quotation marks and citation

omitted).   The Court framed the inquiry as “whether, under a realistic appraisal of

psychological tendencies and human weakness, the interest poses such a risk of actual

bias or prejudgment that the practice must be forbidden if the guarantee of due process




                             [J-78-2019] [MO: Wecht, J.] - 18
is to be adequately implemented.” Id. at 883-84 (internal quotation marks and citation

omitted). Moreover, the Court explained the “inquiry is an objective one. The Court asks

not whether the judge is actually, subjectively biased, but whether the average judge in

his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for

bias.’” Id. at 881. Applying these principles to the “extreme facts” in Caperton, the Court

concluded there is a serious risk of actual bias “when a person with a personal stake in a

particular case had a significant and disproportionate influence in placing the judge on

the case by raising funds or directing the judge’s election campaign when the case was

pending or imminent.” Id. at 884. However, the Court reiterated that it is “an extraordinary

situation where the Constitution requires recusal[,]” id. at 887, and reasoned that because

state “codes of judicial conduct provide more protection than due process requires, most

disputes over disqualification will be resolved without resort to the Constitution.” Id. at

890; see id. (“Application of the constitutional standard implicated in this case will . . . be

confined to rare instances.”).

       Most recently, the Supreme Court applied the standard it adopted in Caperton to

the facts in Williams v. Pennsylvania, 136 S.Ct. 1899 (2016). There, the Court considered

how its due process precedents applied to a situation where a judge — former Chief

Justice Ronald D. Castille of this Court — had prior involvement in a case as a prosecutor.

The Court explained “the principles on which [its] precedents rest dictate the rule that

must control[,]” and held that “under the Due Process Clause there is an impermissible

risk of actual bias when a judge earlier had significant, personal involvement as a

prosecutor in a critical decision regarding the defendant’s case.” Id. at 1905. The Court

also proceeded to consider whether a due process violation arising from a jurist’s failure

to recuse amounts to harmless error if the jurist is on a multimember court and the jurist’s

vote was not decisive, and answered that question in the negative. See id. at 1909 (“a




                              [J-78-2019] [MO: Wecht, J.] - 19
due process violation arising from the participation of an interested judge is a defect not

amenable to harmless-error review, regardless of whether the judge’s vote was

dispositive”) (internal quotation and citation omitted); see also id. (“an unconstitutional

failure to recuse constitutes structural error even if the judge in question did not cast a

deciding vote”).

       Collectively, the Supreme Court’s jurisprudence dictates the proper standards that

govern appellant’s claim, and can be summarized as follows. Recusal is required under

the Federal Due Process Clause — and, by extension, the State Due Process Clause5

— only when “the probability of actual bias on the part of the judge or decisionmaker is

too high to be constitutionally tolerable.” Caperton, 556 U.S. at 872. 6 A court considering

a judicial bias claim must ask “not whether a judge harbors an actual, subjective bias, but

instead whether, as an objective matter, ‘the average judge in his position is ‘likely’ to be

neutral, or whether there is an unconstitutional ‘potential for bias.’” Williams, 136 S.Ct. at

1905, quoting Caperton, 556 U.S. at 881. 7 When such a claim is raised collaterally in a

5 See, e.g., Commonwealth v. Wallace, 97 A.3d 310, 320 (Pa. 2014) (“This Court has
found that the guarantees associated with the due process clause of the federal
constitution are generally coextensive with those under the Pennsylvania Constitution.”)
(internal quotation marks and citation omitted).
6 At times throughout its opinion, the Majority implies due process is violated where there
is only the appearance of bias. See, e.g., Majority Opinion at 26 (noting the “importance
of protecting against even the appearance of partiality”); see also Concurring Opinion at
3 (“Justice must satisfy the appearance of justice[.]”) (citation omitted). Appellant
forwarded similar iterations of this standard before the PCRA court, see, e.g., PCRA
Petition, 12/7/2015, at 18 (“Justice Eakin’s participation . . . violated Due Process on the
basis of the appearance of bias”), and does the same in his appellate brief, see, e.g.,
Appellant’s Brief at 20 (arguing his claims are “aimed at bias, the risk of bias, or the
appearance of bias that affected his appeal”). This “appearance of bias” standard is
indisputably less strict than the one imposed by the Due Process Clause, and to the extent
the Majority is subtly attempting to broaden the proper constitutional standard, it is
improper.
7The Majority asserts that “claims of judicial bias [ ] require precisely the kind of factual
development best suited to the courts of common pleas[,]” potentially including “an



                             [J-78-2019] [MO: Wecht, J.] - 20
timely PCRA petition, the onus is on the petitioner to plead and prove by a preponderance

of the evidence that (1) his due process rights have been violated by the jurist’s failure to

recuse — i.e., that, viewed objectively, the probability of actual bias on the part of the

judge is too high to be constitutionally tolerable — and (2) the violation “so undermined

the truth-determining process that no reliable adjudication of guilt or innocence could have

taken place.” 42 Pa.C.S. §9543(a)(2)(i). 8 Relief may be granted only where a petitioner

meets this burden and satisfies the PCRA’s other eligibility requirements.

                d. Available Relief for a Proven Due Process Violation



evidentiary hearing to resolve disputed facts.” Majority Opinion at 27. This would seem
to imply that a petitioner asserting a collateral claim of judicial bias is entitled to call as a
witness the jurist in question to root out any bias. I strongly disagree with this implication.
For one thing, evaluation of a due process claim based on judicial bias requires only an
objective inquiry; the task is not to “determine whether there was actual bias.” Caperton,
556 U.S. at 882. Moreover, the power to investigate or police alleged judicial misconduct
or bias — by, for example, permitting a jurist to be called as a witness, or authorizing
discovery against the jurist — is surely beyond the authority of a PCRA court. See
generally In re Melograne, 812 A.2d 1164, 1167 (Pa. 2002) (“It is beyond cavil that the
Court of Judicial Discipline has jurisdiction over the general subject matter presented
here, namely, determining whether an individual engaged in judicial misconduct. In fact,
that is the tribunal’s constitutional raison d’etre.”); In re Avellino, 690 A.2d 1138, 1143
(Pa. 1997) (“The 1993 amendments to [PA. CONST. art. V, §18] altered the mechanism for
investigating and adjudicating charges of judicial misconduct by . . . creating the Judicial
Conduct Board and the Court of Judicial Discipline.”).
8 It is an open question whether a petitioner is entitled to automatic relief if he successfully
pleads and proves by a preponderance of the evidence that a judicial bias-based due
process violation occurred, or whether he must also prove the violation “so undermined
the truth-determining process that no reliable adjudication of guilt or innocence could have
taken place.” 42 Pa.C.S. §9543(a)(2)(i). Cf. Appellant’s Brief at 26 (“the constitutional
violations at issue in the instant petition are not amenable to [a prejudice] analysis” since
they “constitute structural error”). Although it is true the Supreme Court in Williams held
that “an unconstitutional failure to recuse constitutes structural error[,]” 136 S.Ct. at 1909,
the Court has elsewhere recognized that “the term ‘structural error’ carries with it no
talismanic significance as a doctrinal matter[,]” and some structural errors, when raised
collaterally (as here), as opposed to on direct review (as in Williams), still require a
showing of prejudice. Weaver v. Massachusetts, 137 S.Ct. 1899, 1910 (2017). In any
event, resolution of this issue is not necessary for present purposes.


                              [J-78-2019] [MO: Wecht, J.] - 21
       Having established that a judicial bias-based due process claim is cognizable

under the PCRA, and having defined the appropriate framework for assessing the merits

of such a claim, the question that remains is: what relief may lawfully be afforded to

remedy a due process violation occasioned by the participation of a biased jurist in a prior

appellate proceeding? Answering this complex question requires due consideration of a

multitude of factors, including the authority vested in this Court by the Pennsylvania

Constitution and the judicial hierarchical system established therein; principles of stare

decisis, binding precedent, and the law of the case; and enforcement of the Code of

Judicial Conduct.

       Turning first to the power of this Court, the proper place to begin is the

Pennsylvania Constitution itself, which “is explicit regarding the breadth of the Court’s

authority over the Unified Judicial System.” In re Bruno, 101 A.3d 635, 663 (Pa. 2014).

In this respect, I have previously observed:
               All Pennsylvania courts derive their judicial power or authority from
       the Constitution and the laws of the Commonwealth. PA. CONST. art. V, §1
       (“The judicial power of the Commonwealth shall be vested in a unified
       judicial system[.]”). “At the apex of the Unified Judicial System is the
       Pennsylvania Supreme Court.” In re Bruno, 101 A.3d [at] 663[,] citing PA.
       CONST. art. V, §2(a) (Supreme Court is “highest court of the Commonwealth
       and in this court shall be reposed the supreme judicial power of the
       Commonwealth”). See 42 Pa.C.S. §501 (codifying PA. CONST. art. V, §2(a)).
       In addition to its supreme judicial power, this Court has “general supervisory
       and administrative authority over all the courts and [magisterial district
       judges.]” PA. CONST. art. V, §10(a). “This power implicates a dual authority:
       (1) over personnel of the system, among them jurists; and (2) over inferior
       tribunals[.]” Bruno, 101 A.3d at 678.3
       _____________
       3 The General Assembly has also recognized this Court has “[a]ll powers

       necessary or appropriate in aid of its original and appellate jurisdiction which
       are agreeable to the usages and principles of law” and any power vested in
       it by statute. 42 Pa.C.S. §502. As well, the Court has “the power generally
       to minister justice to all persons and to exercise the powers of the court, as
       fully and amply, to all intents and purposes, as the justices of the Court of
       King’s Bench, Common Pleas and Exchequer, at Westminster, or any of
       them, could or might do on May 2, 1722.” Id.



                             [J-78-2019] [MO: Wecht, J.] - 22
Taylor, 218 A.3d at 1289-90 (Dougherty, J., OISA). Relatedly, “[i]n furtherance of our

exclusive right to supervise the conduct of all courts and officers of the judicial branch of

government pursuant to . . . our Constitution, we have adopted rules of judicial conduct

for ourselves and all members of the judicial branch.” Reilly by Reilly v. SEPTA, 489 A.2d

1291, 1298 (Pa. 1985).

       Our “supervisory power over the Unified Judicial System is beyond question.” In

re Bruno, 101 A.3d 635 at 678. In fact, we have gone so far as to say that, “[b]y its

‘supreme’ nature, the inherent adjudicatory, supervisory, and administrative authority of

this Court . . . is very high and transcendent[.]” In re Bruno, 101 A.3d 635 at 669 (internal

quotation marks and citation omitted). And we have long warned “against any judicial

inclination to narrow that authority, lest the members of the Court abandon their duty to

exercise the power they hold in trust for the people.” Id. at 679; see also id. at 668 (“as it

is a trust for the people of Pennsylvania, judges have no right, from motives of ease and

convenience, to surrender, weaken, or obscure, by judicial refinements, one single one

of the powers granted”); id. at 660 (“our charter is a fundamental document” which

“provides essential checks and balances whose complexity is to be neither undervalued

nor disregarded”). To that end, we have consistently and firmly rejected invitations to

interpret our powers narrowly — particularly our supervisory authority over inferior courts

and judicial personnel. Two examples prove the point.

       In Reilly, the defense in a personal injury action alleged for the first time on appeal

that the trial court had a prior relationship with plaintiff’s counsel, in violation of the Code

of Judicial Conduct. On appeal, the Superior Court agreed and sua sponte directed that

a different judge take over the case on remand; the court also purported to establish a

rule that in any recusal motion, a different judge would be required to rule on the motion,

because the judge being asked to recuse could not objectively address the issue of his




                              [J-78-2019] [MO: Wecht, J.] - 23
impartiality. We granted allowance of appeal to consider “an apparent usurpation by an

intermediate appellate court of administrative power reserved exclusively to us by the

Constitution of our Commonwealth[,]” and subsequently reversed. 489 A.2d at 1296. We

held: “Perceived violations of [the Code of Judicial Conduct] do not permit the trial courts

or the intermediate appellate courts to alter the rules of law, evidentiary rules,

presumptions or burdens of proof.” Id. at 1299. “More importantly,” we concluded,

“violations of [the Code] are not a proper subject for consideration of the lower courts to

impose punishment for . . . judicial misconduct.” Id. In this regard, we noted “we have

not abdicated or delegated any of our supervisory authority in enforcing these standards

of conduct to Superior Court[,]” and thus that court’s consideration of such matters was

“an impermissible meddling into the administrative and supervisory functions of this Court

over the entire judiciary.” Id.

       The result in Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006), was similar.

There, upon review of a discretionary sentencing claim, the Superior Court concluded

that because there was nothing in the record indicating the defendant received an

individualized sentence, “‘the integrity of the re-sentencing proceeding must be protected

by ensuring that any appearance of bias is dispelled.’” Id. at 832. Accordingly, the court

ordered a new trial judge be assigned to preside over the re-sentencing hearing. We

granted discretionary review to consider “whether the Superior Court has the power to

order the removal of a judge from a case, where that judge has made no ruling concerning

recusal because he or she was never asked.” Id. Once more, we reversed, concluding

that such a question “falls within the scope of supervisory and administrative powers over

all of the courts.” Id.; see also id. at 834 (“the sua sponte removal of the trial judge on

remand for sentencing exceeded the authority of the Superior Court”).




                              [J-78-2019] [MO: Wecht, J.] - 24
       Before considering how the principles undergirding Reilly and Whitmore apply to

the present matter, it is beneficial to first examine the other relevant concepts at play. As

noted at the outset, any relief that we may sanction to remedy a judicial bias-based due

process violation must also take into account the principles of stare decisis, binding

precedent, and the law of the case. Again, these are concepts developed in my OISA in

Taylor:

               Considering the clear judicial hierarchy enshrined in these various
       constitutional and statutory provisions, it is beyond peradventure that “[i]f a
       majority of the Justices of this Court, after reviewing an appeal before us
       (taken either by way of direct appeal or grant of allowance of appeal), join
       in issuing an opinion, our opinion becomes binding precedent on the courts
       of this Commonwealth.” Commonwealth v. Tilghman, 673 A.2d 898, 903
       (Pa. 1996) (citation omitted). See, e.g., Walnut St. Assocs., Inc. v.
       Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa. 2011) (“intermediate
       appellate courts are duty-bound to effectuate this Court’s decisional law”)
       (citation omitted); Commonwealth v. Provident Trust Co. of Philadelphia,
       180 A. 16, 17 (Pa. 1935) (same with respect to trial courts). “Our majority
       opinion is binding not only on the parties before us, under the doctrine of
       law of the case, but is precedent as to different parties in cases involving
       substantially similar facts, pursuant to the rule of stare decisis.” Tilghman,
       673 A.2d at 903 (footnotes omitted). Unless the United States Supreme
       Court reverses a decision of this Court, or this Court overrules its own prior
       decision, “the law emanating from the decision remains law.” Fiore v. White,
       757 A.2d 842, 847 (Pa. 2000).

                The need for scrupulous adherence to this hierarchical system is
       manifest: it “lends uniformity and certainty to the law but allows sufficient
       flexibility for change by the highest court, but only the highest court, in our
       judicial system.” Lovrinoff v. Pennsylvania Tpk. Comm’n, 281 A.2d 176,
       178 (Pa. Cmwlth. 1971). See also Malinder v. Jenkins Elevator & Mach.
       Co., 538 A.2d 509, 513 (Pa. Super. 1988) (inferior courts have an obligation
       to follow and apply Supreme Court decisions “so as to establish some
       measure of predictability and stability in our case law”). In that vein, we
       have cautiously guarded our role as the highest court in the Commonwealth
       and exhibited no tolerance for inferior courts that attempt to ignore or
       overturn our binding precedent. See, e.g., Commonwealth v. Buehl, 658
       A.2d 771, 782 (Pa. 1995) (PCRA court’s vacation of death sentence, based
       on its conclusion this Court erred when it failed to vacate sentence on direct
       appeal, was improper; there is no authority “which permits the Courts of
       Common Pleas of this Commonwealth to overrule the decisions of this
       Court”).


                             [J-78-2019] [MO: Wecht, J.] - 25
Taylor, 218 A.3d at 1290 (Dougherty, J., OISA).

       Taking this constellation of principles into consideration, I conclude, as I did in

Taylor, that the Majority’s “position that PCRA courts should be afforded the power to

order appellate courts to rehear nunc pro tunc appeals based on supposed appellate

court error would run afoul of these constitutionally-grounded principles.” Id. In my view,

although a PCRA court possesses jurisdiction to consider a timely and properly raised

judicial bias-based due process claim and to rule upon the legal merits thereof, as an

inferior court, it is constitutionally precluded from affording relief in the form of a nunc pro

tunc appeal. There are a number of reasons why this is the case.

       First, as I articulated in Taylor, “the grant of an appeal nunc pro tunc premised on

judicial bias would operate to undo the prior ‘tainted’ decision” — indeed, for all practical

purposes, the grant of a nunc pro tunc appeal would “wipe [the prior decision] from the

record books.” Id. at 1291. The Majority curtly asserts otherwise, arguing the decision in

Koehler II “would be vacated, overturned, or modified only if this Court, in Koehler’s new

appeal, decided to vacate, overturn, or modify Koehler II.” Majority Opinion at 29. This

ignores reality and misses the point. Whether a new appellate panel ultimately reaches

the same disposition as the original appellate panel is irrelevant; what matters is that,

once a nunc pro tunc appeal has been granted, the prior opinion, as written by the original

panel of jurists, ceases to exist as binding authority. 9 See generally Jackson ex rel.

Sanders v. Hendrick, 746 A.2d 574, 579 (Pa. 2000) (Zappala, J., concurring) (decision to

grant reconsideration “has the effect of vacating the original order; until the court enters


9 Notably, “[t]his distinguishes the instant situation from those in which we have approved
the grant of an appeal nunc pro tunc to remedy the deprivation of the right to appeal based
on ineffective assistance of counsel. See, e.g., Liebel, supra; Lantzy, supra. In those
cases, the grant of a new appeal did not nullify or cast doubt upon the propriety of the
prior judicial decision in any way. The same cannot be said here.” Taylor, 218 A.3d at
1291 n.5 (Dougherty, J., OISA).


                              [J-78-2019] [MO: Wecht, J.] - 26
its decision on reconsideration, the status of the case is as if no order had been entered”);

Barron v. City of Philadelphia, 754 A.2d 738, 740 (Pa. Cmwlth. 2000) (“when a court

enters an order expressly granting reconsideration, it would follow that the order under

reconsideration is effectively vacated”); DARLINGTON, MCKEON, SCHUCKERS & BROWN, 20A

WEST’S PA. PRAC., APPELLATE PRACTICE §2546:3 (where reargument of appellate decision

is granted, the order granting reargument “effectively vacates [the] prior order”). But this

is precisely what cannot be permitted, because the opinion in Koehler II, as it exists in its

current form today, is binding precedent, and no inferior court may constitutionally alter

that reality via a nunc pro tunc order or any other means. See, e.g., In re Bruno, 101 A.3d

at 655, 688 (agreeing that because Supreme Court is the highest court of the

Commonwealth, vested with “supreme” judicial power, its orders are “preeminent” and

may not be modified, altered, amended, set aside, or disturbed by an inferior court); see

generally United States v. Gillespie, 666 F.Supp. 1137, 1139 (N.D. Ill. 1987) (“Nunc pro

tunc orders are not some Orwellian vehicle for revisionist history — creating ‘facts’ that

never occurred in fact.”). “[O]nly this Court or the United States Supreme Court has the

power to undo our prior decisions[,]” or to even agree to reconsider our prior decisions.

Taylor, 218 A.3d at 1291 (Dougherty, J., OISA). 10



10 The fallacy of the Majority’s contrary argument is easy to illustrate. Much like this Court
is at the apex of the Unified Judicial System, the Supreme Court of the United States sits
atop the federal judiciary. The High Court, like this Court, has made crystal clear that
inferior tribunals are powerless to disturb its precedents. See, e.g., Thurston Motor Lines,
Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535 (1983) (“Needless to say, only this Court
may overrule one of its precedents.”); Hutto v. Davis, 454 U.S. 370, 375 (1982) (“[U]nless
we wish anarchy to prevail within the federal judicial system, a precedent of this Court
must be followed by the lower federal courts no matter how misguided the judges of those
courts may think it to be.”). However, under the Majority’s view, it would be entirely proper
for a federal district court to determine a former United States Supreme Court Justice
harbored a disqualifying bias in a given case and, as a result, grant a nunc pro tunc appeal
and force the Supreme Court to reconsider the case without the interested justice’s



                             [J-78-2019] [MO: Wecht, J.] - 27
       The constructs of stare decisis, binding authority, and law of the case, which derive

at least in part from the judicial hierarchy established by the Pennsylvania Constitution,

provide ample bases for rejecting the Majority’s position outright. But there is another

reason, also grounded in constitutional principles, that compels the same result: the

retroactive removal of a jurist from an appellate panel constitutes an impermissible




participation. Obviously, the High Court would never entertain such absurdity; yet,
bizarrely, that is precisely what the Majority expects of this Court.
Moreover, I imagine the High Court would find little comfort — and rightfully so — in the
Majority’s explanation that the Court’s previously binding authority will not be officially
“vacated, overturned, or modified” unless the High Court itself affirms the federal court’s
grant of relief and later distances itself from the original opinion in the new appeal.
Majority Opinion at 29. Cf. Hohn v. United States, 524 U.S. 236, 252-53 (1998) (“Our
decisions remain binding precedent until we see fit to reconsider them[.]”) (emphasis
added). Equally discomforting is the Majority’s insistence that we should be unconcerned
with the practical effect of inferior courts unilaterally scrubbing our binding decisions since
the Commonwealth would remain “entitled to appeal the order [granting a nunc pro tunc
appeal] to the appellate courts, which have the appellate authority to reverse the award
of relief[.]” Id. at 29. As I expressed in Taylor, “this assumes the Commonwealth appeals
the grant of relief, which recent experience has taught us is not a certainty. Indeed, under
the [Majority’s] reasoning, this Court would be powerless to review the grants of relief in
[a number of similar Philadelphia cases], since there are no pending Commonwealth
appeals in those cases. . . . [T]he Court should not willingly allow its hands to be tied in
this manner, particularly when our Constitution dictates otherwise.” Taylor, 218 A.3d at
1292 n.7 (Dougherty, J., OISA) (internal brackets and quotations omitted).
Finally, just as the OISR in Taylor did, the Majority here blatantly misrepresents what
occurred in Williams to support its false narrative that the grant of a nunc pro tunc appeal
to remedy appellate-level judicial bias claims is a widely sanctioned remedy. See Majority
Opinion at 21 (“The due process right to an impartial trial was vindicated in Williams with
the award of a new, de novo appeal.”). In point of fact, the procedural posture of Williams
— wherein the Supreme Court of the United States granted direct review of former Chief
Justice Castille’s refusal to recuse — “demonstrates only that a higher tribunal is
empowered to vacate a lower court’s decision when it determines the lower court
committed a constitutional violation — the precise proposition I forward here.” Taylor,
218 A.3d at 1292 n.8 (Dougherty, J., OISA). Thus, to the extent it even speaks to the
discrete issue of the appropriate remedy in the post-conviction context, and whether lower
courts can constitutionally order higher tribunals to rehear an appeal, Williams does not
support the Majority’s position; it directly undermines it.


                              [J-78-2019] [MO: Wecht, J.] - 28
meddling into the administrative and supervisory authority this Court wields over the entire

judiciary.

       It is settled law that “violations of [the Code of Judicial Conduct] are not a proper

subject for consideration of the lower courts to impose punishment for . . . judicial

misconduct.” Reilly, 489 A.2d at 1299. The Majority does not dispute this point, but

claims the PCRA court “fundamental[ly] misunderst[ood]” the relief appellant sought,

since appellant “did not ask the PCRA court to impose discipline against Justice Eakin or

to enforce the Code of Judicial Conduct as if it were a disciplinary board.” Majority

Opinion at 24; see also id. at 23 (“This Court’s supervisory authority over the conduct of

judges pursuant to Article V, [§]10(c) of our Constitution is unchallenged and is not

implicated in this case.”).   In actuality, it is the Majority, not the PCRA court, that

fundamentally misunderstands the import of the relief appellant seeks.

       As the PCRA court wisely explained in its opinion, while “[i]t is true that [a]ppellant

does not ask this court to impose discipline for improper judicial conduct,” the fact remains

that a determination “that a superior judicial officer violated specific canons within the

Code of Judicial Conduct is a sine qua non” of a due process claim based on alleged

judicial bias. PCRA Ct. Op., 11/6/2018 at 4 n.6. Stated differently, a judicial finding that

due process has been violated by a jurist’s failure to recuse necessarily entails a finding

that one or more of the canons of judicial conduct has also been violated. See, e.g.,

Caperton, 556 U.S. at 890 (“codes of judicial conduct provide more protection than due

process requires”) (emphasis added).           We have cautioned, however, that the

enforcement of such rules is beyond the jurisdiction of inferior courts and amounts to an

“unwarranted intrusion[ ] upon this Court’s exclusive right to supervise the conduct of all

courts and officers of the judicial branch.” Reilly, 489 A.2d at 1298. The relevant




                              [J-78-2019] [MO: Wecht, J.] - 29
question, then, is whether the grant of a nunc pro tunc appeal premised on a finding of

judicial bias, violates these principles. It unquestionably does.

       The grant of a nunc pro tunc appeal not only undoes the prior decision, as

previously discussed, but it also “clear[s] a path for the appellate tribunal to issue a new

decision without the interested jurist’s participation.”      Taylor, 218 A.3d at 1291

(Dougherty, J., OISA). Therefore, the practical effect of a PCRA court’s grant of a nunc

pro tunc appeal based on judicial bias is that it retroactively removes a jurist from the

case, and precludes the jurist from participation in the new appeal. This action simply

cannot be characterized as anything other than imposition of punishment for a perceived

violation of the Code of Judicial Conduct. See Reilly, 489 A.2d at 1299.

       Our decisions in Reilly and Whitmore directly support this conclusion. In those

cases, we unambiguously declared the Superior Court had exceeded the bounds of its

authority when it directed the removal of a trial judge. See id. (“we have not abdicated or

delegated any of our supervisory authority in enforcing these standards of conduct to

Superior Court”); Whitmore, 912 A.2d at 832 (removal of a judge “falls within the scope

of supervisory and administrative powers over all of the courts”). It necessarily follows

that since the Superior Court lacks constitutional authority to remove a trial judge from a

case — even though the intermediate appellate court is the superior tribunal — then a

trial court’s retroactive removal of a Justice of the highest court in this Commonwealth

from a case, raises even greater constitutional concerns. Thus, for this independent

reason as well, a PCRA court’s grant of a nunc pro tunc appeal to remedy a judicial bias-

based due process violation plainly violates the Pennsylvania Constitution. 11

11 The Majority suggests that, if a PCRA court is precluded from granting a nunc pro tunc
appeal based on a finding of judicial misconduct, then it must be equally true that a PCRA
court cannot order the nunc pro tunc reinstatement of appellate rights based on a finding
of ineffective assistance of counsel, since both involve the consideration of standards of
conduct. See Majority Opinion at 22-23. This is incorrect. The dispositive concern is not



                             [J-78-2019] [MO: Wecht, J.] - 30
       Fortunately, however, a petitioner who can substantiate a judicial bias-based due

process claim is not without recourse. As I explained in Taylor,
       there is in my view a constitutionally-permissible remedy for the exceptional
       case where a petitioner successfully pleads and proves in a timely PCRA
       petition that a constitutional violation occurred during the appellate process:
       a PCRA court can lawfully reinstate the petitioner’s nunc pro tunc right to
       seek reargument of the original appellate decision pursuant to Pa.R.A.P.
       2543. Although reargument is not a matter of right, but of sound judicial
       discretion, an appellate court may grant it “when there are compelling
       reasons therefor.” Pa.R.A.P. 2543. From my perspective, a legitimate
       claim of constitutional error committed during the appellate process which
       is supported by credible evidence would ordinarily present a compelling
       reason warranting reargument. And crucially, an order reinstating a
       petitioner’s right to seek reargument would not offend the judicial hierarchy
       set forth in the Pennsylvania Constitution, as it would merely present the
       appellate tribunal with the opportunity to reconsider its prior decision. In
       the same way that the nunc pro tunc reinstatement of the right to file a
       petition for allowance of appeal in this Court does not encroach on this
       Court’s powers, neither would the nunc pro tunc reinstatement of the right
       to seek reargument. This remedy is, in my considered opinion, the only
       lawful one available to PCRA courts faced with a viable claim of appellate
       court error.
Taylor, 218 A.3d at 1292 (Dougherty, J., OISA) (emphasis in original).




an inferior court’s consideration of a jurist’s or attorney’s conduct when deciding upon
an issue of constitutional error; it is the inferior court’s imposition of punishment for said
conduct that is prohibited. See Reilly, 489 A.2d at 1298 (“The rules do not give standing
to [inferior courts] to seek compliance or enforcement of the Code[.]”). When a jurist is
retroactively removed from a case and a new appellate panel is required to decide the
case anew absent the allegedly biased jurist’s participation, the inferior court has
undoubtedly sanctioned the jurist, even if that was not the primary purpose of the action
taken. In stark contrast, when a defendant secures nunc pro tunc appellate rights as a
result of prior counsel’s ineffectiveness, the prior attorney has suffered no tangible harm
or sanction whatsoever. Tellingly, the Majority does not even attempt to refute this point
or to reconcile its position with our unambiguous holdings in Reilly and Whitmore, except
to say in passing that PCRA courts are entitled to remedy constitutional violations
“[r]egardless of the collateral consequences” that doing so may have. Majority Opinion
at 25. However, Reilly and Whitmore instruct — in fact, they demand, as a matter of
Pennsylvania constitutional law — that this Court must concern itself with collateral
consequences that infringe on our exclusive supervisory and administrative powers over
the courts and their personnel.


                             [J-78-2019] [MO: Wecht, J.] - 31
       The Majority dismisses the notion that nunc pro tunc reinstatement of the right to

seek reargument of a supposedly tainted appellate decision is a viable remedy for a due

process violation premised on judicial bias. It summarily argues, “exercising the rule-

based right to seek reargument from the allegedly tainted court would be insufficient to

remedy the potential bias in the initial decision and to preserve the appearance and reality

of impartial justice.” Majority Opinion at 26-27. Yet, the Majority fails to explain why this

remedy would be in any way “insufficient.”

       To the extent the Majority believes this Court would not be able to fairly consider

a motion for reargument because it is “the same appellate court that [the] litigant is

accusing of bias and partiality[,]” id., this sentiment ignores that there is a “presumption

of honesty and integrity in those serving as adjudicators[.]” Withrow v. Larkin, 421 U.S.

35, 47 (1975); see also Republican Party of Minn. v. White, 536 U.S. 765, 796 (2002)

(Kennedy, J., concurring) (“We should not, even by inadvertence, ‘impute to judges a lack

of firmness, wisdom, or honor.’”) (citation omitted); Goodheart v. Casey, 565 A.2d 757,

763 (Pa. 1989) (“[U]nder our tradition it has been a cardinal rule that ‘the law will not

suppose a possibility of bias or favor in a judge, who is already sworn to administer

impartial justice, and whose authority greatly depends upon that presumption and idea.”)

(citation omitted). The Majority also neglects the fact that a litigant would be free to seek

the recusal of the allegedly biased appellate jurist from consideration of the litigant’s

motion for reargument — assuming, of course, that the jurist is still a member of the

appellate body (which is not the case here) and has not preemptively recused with respect

to the reargument motion. As well, the Majority disregards entirely the availability of

further review of this Court’s decision on the motion for reargument before the ultimate

arbiter of issues of federal constitutional law, the Supreme Court of the United States.

See Taylor, 218 A.3d at 1292 n.8 (Dougherty, J., OISA) (“[I]n in every practical sense,




                             [J-78-2019] [MO: Wecht, J.] - 32
restoring a PCRA petitioner’s right to seek reargument would place the petitioner on the

same footing as [the defendant in Williams]: it would allow this Court an opportunity to

determine whether a due process violation occurred and, if the Court declines to grant

reargument, the petitioner could seek review of that decision before the United States

Supreme Court, just as Williams did.”). 12


12 Oddly, the Majority suggests my approach “creat[es] a bifurcated system of post-
conviction review, where all post-conviction claims are cognizable under the PCRA,
except for post-conviction claims premised upon alleged judicial bias.” Majority Opinion
at 28. But my position is quite the opposite. To reiterate, it is my position that a judicial
bias-based due process claim is cognizable under the PCRA and, if proven, warrants
relief in the form of a nunc pro tunc right to seek reargument before the appellate tribunal.
The fact that this is not the “same relief afforded to remedy other claims of constitutional
magnitude that occur on appeal,” id., reflects only the reality that there are distinct
constitutional concerns implicated by a PCRA court’s grant of a nunc pro tunc appeal to
remedy a claim of appellate-level judicial bias. On this front, it is important to reiterate
that, despite the Majority’s repeated characterization of a nunc pro tunc appeal as a “well-
established form of relief[,]” Majority Opinion at 14 n.7 and 17 n.8, in truth, we have
previously only authorized its use to remedy situations “where counsel’s conduct has
adversely affected the right to appeal[.]” Commonwealth v. Stock, 679 A.2d 760, 763
(Pa. 1996); id. at 764 (“’[T]he remedy of a nunc pro tunc appeal is intended to vindicate
the [defendant]’s right to appeal in certain extraordinary situations where that right to
appeal has been lost.”) (emphasis in original). Here, of course, appellant’s constitutional
claim sounds in due process, not the denial of his right to appeal. There is nothing
surprising or inequitable about fashioning different remedies for different constitutional
errors. And although it is true “[a] new appeal will vindicate both types of constitutional
deprivation[,]” Majority Opinion at 19, this does not change the fact that application of the
remedy reserved for the deprivation of the right to appeal to the present circumstances
would itself amount to a constitutional violation. Shockingly, the Majority all but admits
this, see Majority Opinion at 25-26 (acknowledging the retroactive removal of a jurist may
“amount to a sanction of the offending jurist” but deeming it a “collateral consequence”
beyond the concern of PCRA courts), but it attempts to distract from this concession by
suggesting I am more interested in protecting fellow jurists from being sanctioned than I
am in guarding against “a violation of a person’s constitutional rights.” Id. at 24-25. The
concurrence appears to cast similar aspersions. See Concurring Opinion at 4 (stating
“[n]o one is above the law”). Inflammatory and baseless accusations aside, the reality is
that the Majority has gone to great lengths to create a false dichotomy, making it appear
as though we must choose between vindicating an individual’s constitutional right to due
process or prohibiting inferior courts from sanctioning other jurists in violation of the
Pennsylvania Constitution. That is not the case. My perspective allows for the vindication
of an individual’s constitutional rights while also respecting the constitutional system and



                             [J-78-2019] [MO: Wecht, J.] - 33
       As a final corollary, and with respect to the Majority’s emphasis on vindicating

appellant’s constitutional right to an impartial tribunal, see Majority Opinion at 26-27, it is

important to recognize there are other significant interests that are inseparably intertwined

with whatever relief we sanction to remedy collateral claims of judicial bias. In Reilly, we

remarked that “[q]uestions concerning the fairness, impartiality, or bias of the trial court

always affect the administration of justice and can cloak the whole system of judicature

with suspicion and distrust. Because recusal requests call into question our ability to

mediate fairly, they raise important issues in which the public is concerned.” 489 A.2d at

1301. However, we were careful to note that, when a jurist’s participation in a case is

challenged collaterally, “different considerations come into play.” Id. We stated:
       Charges of prejudice or unfairness made after trial expose [jurists] to ridicule
       and litigants to the uncertain collateral attack of adjudications upon which
       they have placed their reliance. One of the strengths of our system of justice
       is that once decisions are made by our tribunals, they are left undisturbed.
       Litigants are given their opportunity to present their cause and once that
       opportunity has passed, we are loathe to reopen the controversy for another
       airing, save for the greatest of need. This must be so for the security of the
       bench and the successful administration of justice.
Id.; see also In re Crawford’s Estate, 160 A. 585, 587 (Pa. 1931) (“It is of great importance

to the administration of justice” “that causes may not be unfairly prejudiced, unduly

delayed, or discontent created through unfounded charges of prejudice of unfairness

made against [a] judge[.] . . . This must be so for the security of the bench and the

successful administrative of justice.”); League of Women Voters of Pa. v. Commonwealth,

179 A.3d 1080, 1085 (Pa. 2018) (Wecht, J., single-Justice order) (acknowledging our



the balance of judicial power established by our own charter. The Majority’s willingness
in this case to condone a remedy that so blatantly violates the Pennsylvania Constitution
while simultaneously divesting us of our own powers is, quite frankly, an egregious
mistake by the very Court that “long ago warned against any judicial inclination to narrow
[our] authority, lest the members of the Court abandon their duty to exercise the power
they hold in trust for the people.” In re Bruno, 101 A.3d at 679.


                              [J-78-2019] [MO: Wecht, J.] - 34
precedents indicate “courts are particularly wary of attempts to seek disqualification of a

judge after judgment has been entered”) (citations omitted).

       From my perspective, affording a petitioner the right to seek reargument of an

allegedly tainted appellate court decision strikes the appropriate balance between the

various competing constitutional interests involved. It reserves exclusively for this Court

the ultimate right to decide whether one of its prior decisions should be reconsidered, as

the Pennsylvania Constitution demands. This, in turn, promotes public confidence in the

judicial system and guards and protects the dignity and authority of this Court. It also

allows this Court to meet its responsibility to safeguard the integrity of the Unified Judicial

System against judicial impropriety, when warranted. On the other side of the scale, the

relief I propose creates a path for a petitioner to present his due process claim — when

first deemed viable by a PCRA court — directly to the tribunal that allegedly committed

the constitutional error. It also affords the petitioner the right to seek further review of that

decision in the Supreme Court of the United States. Through these means, the petitioner

is more than able to vindicate his constitutional rights, assuming, of course, that there has

been a violation in the first place.

       To put it succinctly, the nunc pro tunc reinstatement of the right to seek reargument

is the only lawful remedy for a judicial bias-based due process claim raised on collateral

review.

                                       III. Conclusion

       The PCRA court erred by dismissing appellant’s petition without first addressing:

(1) whether it was timely filed, and (2) whether appellant met his burden of establishing

his eligibility for relief. Accordingly, I would reverse and remand with instructions that the

PCRA court make those threshold findings in the first instance. Because we presently

lack jurisdiction to consider any broader substantive issue concerning the appropriate




                              [J-78-2019] [MO: Wecht, J.] - 35
relief that may be afforded if the PCRA court ultimately determines appellant’s petition

was timely filed and is meritorious, I dissent from the balance of the Majority’s non-binding

advisory opinion.

       Justice Mundy joins this concurring and dissenting opinion.




                             [J-78-2019] [MO: Wecht, J.] - 36
