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In Koehler, we stated: "To strip the Due Process Clause of all remedies to address that clause's violation is to eliminate the underlying right itself[,]" Koehler, 229 A.3d at 933, and, the "right to a remedy is, itself, a right protected by due process."
Summary of this case from Washington v. The Pa Dep't of Corr.Opinion
No. 768 CAP
04-24-2020
COMMONWEALTH of Pennsylvania, Appellee v. John Joseph KOEHLER, Jr., Appellant
OPINION
On December 7, 2015, John Koehler filed his second petition for collateral relief pursuant to the Post Conviction Relief Act ("PCRA"). Koehler seeks, inter alia, the reinstatement of his appellate rights nunc pro tunc in order to appeal anew to this Court from the denial of his first PCRA petition. The PCRA court dismissed the petition, holding that it was without authority to grant relief. We conclude that the PCRA court erred as a matter of law, as we hold that a PCRA court possesses the authority to grant the form of relief that Koehler seeks in the event that the petitioner establishes the merits of his claim. Accordingly, we reverse the order of the PCRA court, and we remand for further proceedings.
42 Pa.C.S. §§ 9541 -46.
In 1996, a jury found Koehler guilty of two counts of first-degree murder and related offenses arising from the killing of his girlfriend and her nine-year-old son, and sentenced Koehler to death. On direct appeal, this Court affirmed. Commonwealth v. Koehler , 558 Pa. 334, 737 A.2d 225 (1999) (" Koehler I "). Koehler's judgment of sentence became final after the Supreme Court of the United States denied certiorari review. See Koehler v. Pennsylvania , 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 41 (2000).
In 2001, Koehler filed a timely PCRA petition. Therein, Koehler included a claim for relief from his death sentence due to ineffectiveness of counsel during the penalty phase. Koehler alleged that counsel failed to investigate and present mitigation evidence that, as a child, Koehler had been a witness to and a victim of domestic violence. The PCRA court denied relief following a hearing, and Koehler appealed. This Court again affirmed. Commonwealth v. Koehler , 614 Pa. 159, 36 A.3d 121 (2012) (" Koehler II "). Justice Baer authored the opinion, which was joined by former Chief Justice Castille and Justices Eakin, Todd, McCaffery, and Orie Melvin. Justice (now Chief Justice) Saylor filed a concurring opinion. With respect to Koehler's mitigation claim, the Court held that the mitigation evidence Koehler presented at the PCRA hearing "pale[d] in comparison with the aggravating circumstances found by the jury" at trial. Id . at 151. Accordingly, the Court found no prejudice resulting from the claim of counsel ineffectiveness.
On December 7, 2015, Koehler filed a second PCRA petition, this time asserting that his due process rights had been violated during his 2012 appeal in Koehler II . Koehler premised this assertion upon the involvement of Justice Eakin in a well-publicized email scandal that included the exchange of religiously, racially, and sexually offensive emails. See Commonwealth v. Taylor , ––– Pa. ––––, 218 A.3d 1275 (2019) ; Commonwealth v. Blakeney , 648 Pa. 347, 193 A.3d 350 (2018) ; Commonwealth v. Robinson , ––– Pa. ––––, 204 A.3d 326 (2018).
On October 8, 2015, the Philadelphia Inquirer reported that media outlets had come into possession of a number of emails exchanged with Justice Eakin through a private email account within a network of law-enforcement officials, prosecutors, and judges. The Inquirer described several of the emails, including the following:
[A] joke about a woman who complains to her doctor that her husband "beats me to a pulp" when he comes home drunk. The doctor advises her to swish sweet tea in her mouth and not to swallow until her husband is asleep. The punchline from the doctor: "You see how much keeping your mouth shut helps?"
William Bender, A Supreme Court Justice's Indecent Inbox , The Philadelphia Inquirer (Oct. 8, 2015), https://www.inquirer.com/philly/news/20151008_A_Supreme_Court_justice_s_indecent_inbox.html
Viewing this email as suggesting a disregard for victims of domestic violence, Koehler alleged that Justice Eakin's participation in Koehler II raised a risk of actual judicial bias as well as the appearance of bias.
A PCRA petition, including a second or subsequent petition, must be filed within one year of the date that the judgment becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment becomes final "at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review." Id . § 9545(b)(3).
At the time Koehler filed his second PCRA petition, Section 9545(b) provided as follows:
(1) Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;
(ii) 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; or
(iii) the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.
42 Pa.C.S. § 9545(b).
Recognizing that his second PCRA petition was facially untimely, Koehler asserted that he met the timeliness exceptions for governmental interference and newly discovered facts. See 42 Pa.C.S. § 9545(b)(1)(i), (ii). With respect to the governmental interference exception, id . at § 9545(b)(1)(i), Koehler argued that government officials had concealed the email scandal. As to the newly discovered facts exception, id . at § 9545(b)(1)(ii), Koehler argued that he first learned of Justice Eakin's involvement in the email scandal when media outlets began to report it.
Recognizing that information continued to develop with regard to the scope of Justice Eakin's role in the email scandal and the content of the emails, Koehler asserted that, in an abundance of caution, he filed his petition within sixty days of the October 8, 2015 publication of the Philadelphia Inquirer news article summarizing the contents of some of the emails. This article alerted Koehler to the facts that formed the basis of his claims, and Koehler asserted that he could not have discovered these facts any earlier with the exercise of due diligence.
On the merits, Koehler averred that his right to due process was violated by Justice Eakin's involvement in Koehler II , which created an unacceptable risk of actual bias as well as the appearance of impropriety, and compromised the integrity, fairness, and impartiality of this Court's review of his appeal. Reviewing the evidence presented at the hearing on his first PCRA petition, Koehler highlighted descriptions of the physical abuse suffered by Koehler, his mother, and his siblings, at the hands of his abusive and alcoholic father, and the effect that such abuse had upon Koehler's development. Premised upon the domestic violence "joke" included in Justice Eakin's emails, Koehler asserted that his claim about counsel's failure to develop and present mitigation evidence of Koehler's family dysfunction and abuse could not have been reviewed fairly by Justice Eakin.
In Tumey v. Ohio , 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927), the Supreme Court of the United States rejected the argument that the Due Process Clause only protects against actual judicial bias, and held that disqualification is constitutionally mandated whenever the circumstances, viewed objectively, "would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant, or which might lead him not to hold the balance nice, clear, and true between the state and the accused." See also Caperton v. A.T. Massey Coal Co. , Inc., 556 U.S. 868, 884, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (holding that the Tumey test was met because the circumstances of a contribution to a judge's election effort created a "serious risk of actual bias," and, therefore, due process was violated).
As the dissent elucidates, this standard is not a subjective one, asking whether the jurist harbors actual, subjective bias. See Concurring and Dissenting Op. at 953–54, 954–55 n.7 (citing Caperton , 556 U.S. at 872, 129 S.Ct. 2252 ). Rather, the question is an objective one, asking whether the average judge was "likely" to be neutral, "or whether there is an unconstitutional ‘potential’ for bias.: Id . (citing Williams , 136 S.Ct. at 1905 ).
Of course, the substantive standards by which a PCRA petitioner must abide to establish a claim of judicial bias go to the merits of the claim, and are beyond the scope of this appeal.
Koehler also suggested that the sheer volume of communications between sitting Justices of this Court and the Commonwealth's prosecutors created the appearance of impropriety. Koehler believed that both the ex parte nature of the communications with prosecutors and the content of the emails as described in the media "impugn the legitimacy of the judicial process" provided by this Court in Koehler II . PCRA Petition at 19 (citing Commonwealth v. Basemore , 560 Pa. 258, 744 A.2d 717, 733 (2000) ). According to Koehler, this judicial bias amounted to a structural defect in Koehler II that rendered the proceedings fundamentally unfair and unconstitutional. See Johnson v. United States , 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (recognizing that the participation of a partial judge is a structural error).
Koehler contended that he established violations of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as various provisions of the Pennsylvania Constitution. In particular, Koehler relied upon his state constitutional right to life and liberty ( PA. CONST. art. I, § 1 ); his right to trial by jury ( PA. CONST. art. I, § 6 ); his right of access to open courts ( PA. CONST. art. I, § 11 ); his right to due process and to the effective assistance of counsel ( PA. CONST. art. I, § 9 ); his right not to be subject to cruel punishment ( PA. CONST. art. I, § 9 ); and his right to habeas corpus ( PA. CONST. art. I, § 14 ). To remedy this deprivation, Koehler sought discovery, leave to amend the petition as needed, an evidentiary hearing, and a Commonwealth response, and he further requested 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 PCRA court] deems appropriate." PCRA Petition, 12/7/2015, at 21.
In November 2016, Koehler sought discovery, and later sought leave to amend his petition. Believing that Koehler's petition asked the PCRA court to rule either that Justice Eakin engaged in judicial misconduct or that Justice Eakin should have recused from consideration of Koehler II , the PCRA court held that the petition was "beyond the original jurisdiction and authority of this court." PCRA Ct. Order, 6/26/2016. Accordingly, on June 26, 2016, the PCRA court transferred the case to this Court. See 42 Pa.C.S. § 5103(a) (providing for the transfer of erroneously filed matters).
In response to this Court's subsequent request for briefing on the question of the Court's jurisdiction, Koehler asserted that, despite the PCRA court's transfer, this Court lacked jurisdiction and that the Court should remand the matter back to the PCRA court. The Commonwealth acknowledged that it would be prudent for this Court to remand the case back to the PCRA court.
On November 2, 2016, this Court accordingly remanded the case to the PCRA court for disposition of Koehler's PCRA petition, citing to the original jurisdiction of the PCRA courts, 42 Pa.C.S. § 9545(a) ("Original jurisdiction over a proceeding under this subchapter shall be in the court of common pleas."). Commonwealth v. Koehler , 639 Pa. 374, 160 A.3d 782 (2016) (per curiam ).
Upon remand, Koehler again sought discovery and leave to amend the PCRA petition. On February 23, 2017, the PCRA court provided notice of its intent to dismiss the PCRA petition without a hearing pursuant to Pa.R.Crim.P. 909(B). Pointing to the fact that Koehler's sole claim was that his due process and other constitutional rights were violated during this Court's consideration of Koehler II , the PCRA court opined that a PCRA appeal is not part of the "truth determining process" for which PCRA relief is available. See 42 Pa.C.S. § 9543(a)(2)(i).
In response, Koehler again argued that the participation of Justice Eakin in Koehler II resulted in state and federal constitutional violations that demanded the remedy of a new appeal from the denial of his first PCRA petition. Koehler maintained that his claims were cognizable under the PCRA because he sought relief connected to, and derived from, his underlying criminal conviction and death sentence.
In July 2017, the PCRA court entered an order denying Koehler habeas corpus relief and holding that Koehler's "claims under the [PCRA] remain[ed]" under review. PCRA Ct. Order, 7/12/2017. The PCRA court reasoned that, by grounding his due process claim on Justice Eakin's purported disregard for domestic violence victims, Koehler challenged only this Court's post-conviction review of his sentence, not his conviction.
On January 3, 2018, the PCRA court entered another notice of intent to dismiss the PCRA petition without a hearing. This time, the PCRA court recognized that this Court had disagreed with it about its jurisdiction over the petition, but opined that it nevertheless lacked the authority to reinstate Koehler's PCRA appellate rights nunc pro tunc . The PCRA court perceived a distinction between its jurisdiction, which the PCRA court believed was resolved by this Court's prior remand order, and its "power to grant the requested relief," which the PCRA court believed remained unresolved. PCRA Ct. Order, 1/3/2018 at ¶ 6 (citing Alpha Tau Omega Fraternity v. Univ. of Pa. , 318 Pa.Super. 293, 464 A.2d 1349, 1353 (1983) ). Believing that only this Court can "pass judgment on all Pennsylvania courts and the officers of the judicial branch," the PCRA court held that it was "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's] appeal." Id . at ¶7, 8 (citing Reilly by Reilly v. Southeastern Pa. Transp. Auth. , 507 Pa. 204, 489 A.2d 1291 (1985) ). The court noted that Koehler was not without a remedy because, according to the PCRA court, Koehler could seek habeas corpus relief within the original jurisdiction of this Court.
Koehler again responded, asserting that the PCRA court had the power and the duty to grant relief, including reinstatement of his PCRA appellate rights nunc pro tunc . Koehler reiterated that he was not asking the PCRA court to issue a disciplinary decision regarding the conduct of Justice Eakin, nor was he asking the PCRA court to pass on the merits of any prior appellate decision in this case. Koehler also advocated against dismissal as contrary to the prior remand order from this Court, which Koehler viewed as a rejection of the PCRA court's belief that it lacked "jurisdiction and authority" to resolve this case. Rather, according to Koehler, this Court's remand order foreclosed the PCRA court from again holding that it lacked authority to grant relief.
On July 4, 2018, the PCRA court dismissed the petition. In August 2018, after Koehler filed his notice of appeal, the PCRA court directed Koehler to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On September 4, 2018, Koehler complied, raising six issues. In particular, Koehler asserted that the PCRA court erred in the following respects: First, in failing to comply with this Court's prior remand order by concluding that it lacked the authority to grant the requested relief, and dismissing the petition, Rule 1925(b) Statement at 1; second, in dismissing his claim that judicial bias violated his federal and state constitutional rights, id .; third, in concluding "that it lacked authority to grant each form of relief Koehler seeks," id . at 2; fourth, in dismissing the PCRA petition "without ruling on Koehler's requests for discovery, to amend, and for an evidentiary hearing to resolve any disputed facts," id. ; fifth, in denying relief to the extent that Koehler sought habeas corpus relief in the alternative to PCRA relief, id .; and, sixth, in construing Koehler's petition as seeking "only relief that ultimately could result in relief from his death sentence, as opposed to relief that included reopening of his post-conviction proceedings to challenge his convictions and death sentence." Id .
In a Rule 1925(a) opinion filed on November 6, 2018, the PCRA court explained its ruling. Preliminarily, the court conceded that, contrary to its initial assessment of this case, it had original jurisdiction over the petition pursuant to 42 Pa.C.S. § 9545(a). Notwithstanding this error, the PCRA court articulated its continued belief that it "lacked the power to grant the relief sought by" Koehler. PCRA Ct. Op., 11/6/2018, at 1.
Reviewing Koehler's Rule 1925(b) statement of errors complained of on appeal, the PCRA court faulted Koehler for merely asserting that the PCRA court's ruling was in error without identifying why the ruling was erroneous. See, e.g., Commonwealth v. Dowling , 778 A.2d 683, 687 (Pa. Super. 2001) (holding that a Rule 1925(b) statement that is too vague to allow the lower court to identify the issues raised on appeal is "the functional equivalent of no Concise Statement at all."); Baum v. Baum , 395 Pa.Super. 182, 576 A.2d 1104, 1104 n.1 (1990) (holding that a Rule 1925(b) statement that the trial court's decision was "contrary to ... the law" was not sufficiently specific to preserve a claim of error).
The only claim of error that the PCRA court perceived as offering any specificity was Koehler's sixth. Linking Justice Eakin's alleged derision for victims of domestic violence to the ineffective assistance of counsel claim in Koehler II that turned on trial counsel's failure to present mitigation evidence of domestic abuse, the PCRA court surmised that Koehler sought only to attack his death penalty, not his conviction, based upon Justice Eakin's involvement in Koehler II .
On appeal from the dismissal of Koehler's PCRA petition, our review is limited to examining whether the trial court's determination is supported by the evidence of record and free of legal error. Commonwealth v. Ali , 624 Pa. 309, 86 A.3d 173, 177 (2014). When an issue presents a question of law, our review is de novo , and our scope of review is plenary. Commonwealth v. Jette , 611 Pa. 166, 23 A.3d 1032, 1036 (2011).
This Court has jurisdiction pursuant to 42 Pa.C.S. § 9546(d).
Koehler makes several arguments to this Court. First, Koehler argues that the PCRA court failed to comply with this Court's prior remand order when it again held that it lacked the power to grant the relief Koehler requested. Koehler believes that our remand order implicitly rejected the PCRA court's view that it lacked authority to dispose of the PCRA petition, and precluded the PCRA court from later dismissing the petition based upon its perceived lack of "power." PCRA Ct. Op., 11/6/2018, at 1. Second, turning to whether a PCRA court has the authority to reinstate a petitioner's appellate rights nunc pro tunc , Koehler asserts that nunc pro tunc relief is routinely available as a matter of course to remedy constitutional defects in a prior proceeding.
Next, Koehler argues that the PCRA court misconstrued the nature of his claims when it held that Koehler ultimately sought relief only from his sentence, rather than from his conviction. Asserting that his 2001 PCRA petition attacked his underlying conviction and sentence, and that this Court's disposition of that petition in Koehler II was tainted by Justice Eakin's alleged bias, Koehler requests a new appeal from the denial of relief on his first PCRA petition that encompasses review of every issue that he raised on appeal.
Fourth, Koehler disputes the PCRA court's suggestion that his Rule 1925(b) statement of errors complained of on appeal was vague. In his last argument, Koehler faults the PCRA court for declining to address his motions for discovery, for leave to amend the PCRA petition, and for an evidentiary hearing to resolve disputed facts.
In its response, the Commonwealth focuses exclusively upon whether the PCRA court has the authority to order this Court to reconsider our prior disposition of Koehler's first PCRA appeal. To this end, the Commonwealth makes three arguments: the PCRA court is subordinate to this Court, In re Bruno , 627 Pa. 505, 101 A.3d 635, 678-83 (2014) ; Koehler II is binding precedent and law of the case, Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 903 (1996) ; and this Court is the final arbiter of whether a jurist has engaged in misconduct. From these three arguments, the Commonwealth concludes that the PCRA court's determination that it lacked the authority to direct this Court to reconsider Koehler II was logically sound and legally correct.
If, however, this Court believes that the PCRA court was incorrect in its assessment, the Commonwealth requests a remand back to the PCRA court with instructions to proceed in the normal course of PCRA proceedings, including: the filing of the Commonwealth's answer after Koehler amends his petition; the litigation of outstanding discovery issues; an evidentiary hearing if the petition is deemed to raise a genuine issue of material fact; and, ultimately, a determination on the merits. Having considered the parties' arguments, we address each of the issues Koehler presents, reorganized for ease of discussion.
I. Scope of Remand
We resolve first the effect of this Court's November 2, 2016 remand order on this case. When it transferred the case to this Court, the PCRA court opined that the petition was beyond its jurisdiction and authority. This Court disagreed. We first requested briefing from the parties on the question of this Court's jurisdiction, and we later remanded the case back to the PCRA court with a citation to 42 Pa.C.S. § 9545(a), which establishes original jurisdiction over PCRA petitions in the court of common pleas. While confirming jurisdiction in the PCRA court, we made no mention to the parties or to the PCRA court of any view of the extent of the PCRA court's remedial authority in this matter. These circumstances reveal plainly that our prior remand order was premised upon the original jurisdiction of the PCRA court over PCRA petitions. Our remand order did not resolve whether the PCRA court is empowered to afford the requested relief.
Koehler blends the concepts of the jurisdiction to hear a case and the authority to grant a particular type of relief, presuming that our jurisdiction-based remand foreclosed the PCRA court's ability to consider whether it could afford the relief requested. But resolving whether a court has jurisdiction over a certain type of claim does not resolve whether the court has the ability to grant the relief requested. See, e.g., Alpha Tau Omega Fraternity , 464 A.2d at 1353 (recognizing the distinction between the jurisdiction of the court to act and "whether it is able to grant the requested relief once it assumes jurisdiction"). Our remand order signifies only that we do not exercise original jurisdiction over PCRA proceedings, the resolution of which belongs in the PCRA court in the first instance.
II. Sufficiency of the Rule 1925(b) Statement
We also dispense with the PCRA court's conclusion that Koehler was insufficiently specific in his Rule 1925(b) statement of errors complained of on appeal. Rule 1925(b) requires a litigant to set forth each error that the litigant intends to assert with sufficient detail to identify the issue to be raised. Pa.R.A.P. 1925(b)(4)(ii). As the PCRA court observed, its notice of intent to dismiss was premised upon a holding that "was narrow and precise: that a common pleas judge lacks the authority to pass judgment on the conduct of a [J]ustice of the Pennsylvania Supreme Court, or to grant relief grounded on a claim that a Supreme Court [J]ustice erred." PCRA Ct. Op., 11/6/2018, at 4. In his Rule 1925(b) statement, Koehler identified the PCRA court's ruling that it lacked authority to resolve his constitutional claims; the PCRA court's purported failure to abide by this Court's prior remand order; the PCRA court's failure to resolve Koehler's outstanding motions; the PCRA court's belief that it lacked the authority to grant each form of relief Koehler sought; and Koehler's view that the PCRA court misconstrued his claim as pertaining only to his sentence. By identifying the errors within this narrow and precise holding that Koehler intended to challenge on appeal, Koehler complied with his obligations under Rule 1925(b). We perceive no vagueness in Koehler's identification of the challenged rulings now involved in this appeal. See, e.g., Baum , 576 A.2d at 1104 (finding sufficient specificity in the issue of "whether the evidence presented is sufficient to sustain the finding of civil contempt?").
III. PCRA Court's Authority to Provide Relief
Turning to the question at the heart of this case, we now consider whether the PCRA vests PCRA courts with the authority to remedy appellate-level constitutional violations in the form of a new appeal to the appellate court, if warranted by the factual development of the case.
The question is not, as the dissent characterizes it, whether a lower court can "order" a higher court to act. Concurring and Dissenting Op. at 945–46. Rather, 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.
Our legislature has determined that the PCRA provides the sole means of obtaining collateral relief in Pennsylvania, encompassing "all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus and coram nobis ." 42 Pa.C.S. § 9542 ; Commonwealth v. Yarris , 557 Pa. 12, 731 A.2d 581, 586 (1999) ("By its own language, and by judicial decisions interpreting such language, the PCRA provides the sole means for obtaining state collateral relief."). We therefore construe the PCRA and its eligibility requirements broadly, inasmuch as narrowly confining the PCRA to the enumerated areas of review would undermine the legislative intent that the PCRA is the sole means of obtaining collateral relief. Commonwealth v. Hackett , 598 Pa. 350, 956 A.2d 978, 986 (2008) ; Commonwealth v. Judge , 591 Pa. 126, 916 A.2d 511, 520 (2007).
As we observed in our 2016 remand order, the courts of common pleas, serving as PCRA courts, are the repositories for petitions filed pursuant to the PCRA. 42 Pa.C.S. § 9545(a). The PCRA provides the procedural framework for vindicating a convicted criminal defendant's rights in limited circumstances. To be eligible for relief under the PCRA, a petitioner must establish, inter alia , that the conviction or sentence resulted from one of several enumerated bases for relief. 42 Pa.C.S. § 9543(a)(2). One of these requires the petitioner to establish that the 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." Id . § 9543(a)(2)(i).
As this author recently observed in the Opinion in Support of Reversal ("OISR") in Taylor , "[i]f an error of constitutional magnitude occurs during the appellate process, the PCRA is the sole means of collaterally attacking the final judgment on that basis." Taylor , 218 A.3d at 1280 (OISR). Contrary to the PCRA court's belief, there is no suggestion in either the text of the PCRA nor in this Court's precedent "that alleged errors occurring in the appellate process are immune from collateral attack, or that only an appellate court can redress appellate errors." Id .
There is nothing novel in recognizing that constitutional claims relating to the appellate process are cognizable under the PCRA. In Commonwealth v. Lantzy , 558 Pa. 214, 736 A.2d 564, 569-70 (1999), for example, this Court held that post-conviction claims of appellate counsel ineffectiveness related to counsel's failure to perfect a direct appeal were cognizable under the PCRA, and, indeed, "the PCRA provides the exclusive remedy for post-conviction claims seeking restoration of appellate rights due to counsel's failure to perfect a direct appeal." Id . at 569-70. It is axiomatic that, if a claim is cognizable, a PCRA court is empowered to remedy it. In Commonwealth v. Hall , 565 Pa. 92, 771 A.2d 1232, 1235-36 (2001), the question was whether the request for a direct appeal nunc pro tunc, premised upon counsel's alleged ineffectiveness in failing to appeal, is a claim that is cognizable under the PCRA. We concluded that "[t]he answer unquestionably is yes." Id . at 1235.
We have likewise held that claims premised upon the ineffective assistance of PCRA counsel are cognizable under the PCRA. In Commonwealth v. Robinson , 635 Pa. 592, 139 A.3d 178, 181-87 (2016), the post-conviction petitioner filed an untimely PCRA petition alleging that counsel who represented him during the litigation of his first PCRA petition was ineffective, and asserting that the right to post-conviction counsel encompasses the right to effective post-conviction counsel. In resolving this appeal, this Court discussed the means by which a PCRA petitioner may raise a timely claim premised upon the ineffective assistance of prior PCRA counsel, before holding that the petitioner's claim was not timely. Although the petitioner in Robinson was not entitled to relief, we recognized the cognizability of claims challenging the effectiveness of PCRA counsel and the availability of relief through the PCRA to remedy deprivations occurring in prior proceedings. See also Commonwealth v. Liebel, 573 Pa. 375, 825 A.2d 630 (2003) (holding that a claim challenging counsel's effectiveness on direct appeal for failing to file a petition for allowance of appeal is cognizable under the PCRA).
Similarly, in Commonwealth v. Cruz , 578 Pa. 263, 851 A.2d 870, 875 (2004), we held that due process entitled a post-conviction petitioner to relief on the same grounds for which a co-defendant was granted relief. The petitioner's co-defendant obtained relief in this Court from her conviction and sentence premised upon an illegal search. See Commonwealth v. Melendez , 544 Pa. 323, 676 A.2d 226 (1996). The petitioner had filed a petition for allowance of appeal to challenge the same search. Although this Court initially granted review, we later dismissed the appeal as having been improvidently granted. When we later provided relief to the petitioner's co-defendant for the same search that the petitioner had challenged, the petitioner filed a PCRA petition raising a due process claim premised upon the disparate treatment afforded to the petitioner and his co-defendant by this Court. The PCRA court denied relief, and this Court reversed. We agreed with the petitioner that there were "insufficient reasons to support the contrary treatment of [Cruz] and Melendez in the course of this Court's discretionary review and thereafter." Cruz , 851 A.2d at 877. See also id. at 881 (Castille, J., dissenting) (recognizing that "this case involves a candidly and cogently forwarded claim that this Court committed error of constitutional magnitude in its handling of appellant's direct appeal" (emphasis omitted)). Cruz confirmed that the PCRA provides the vehicle to remedy errors of constitutional magnitude occurring in a prior proceeding in this Court.
A claim asserting alleged judicial bias in an appellate court is no different from claims that we already have held fall within the ambit of the PCRA. An issue challenging the impartiality of an appellate judge, like an issue challenging the effectiveness of appellate counsel, constitutionally relates directly to the validity of the decision upholding the underlying conviction and sentence. It is an attack upon the truth-determining process, a process that logically includes collateral attacks on the judgment of sentence. See, e.g., Commonwealth v. Burkett , 5 A.3d 1260, 1275 (Pa. Super. 2010) ("The PCRA process, although not directly related to an adjudication of guilt, is part of the truth-determining process; otherwise, claims of PCRA counsel ineffectiveness would not be cognizable under the PCRA."). "Due process demands the absence of judicial bias." Taylor , 218 A.3d at 1280 (OISR). And a litigant's due process rights are violated if a biased appellate judge decides the fate of the litigant's appeal. Id. ; see also Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 1903, 195 L.Ed.2d 132 (2016). Consequently, a due process challenge to the impartiality of an appellate jurist is cognizable under Section 9543(a)(2)(i) of the PCRA.
Contemplating the award of a nunc pro tunc appeal to remedy a constitutional deprivation occurring in a prior appeal is not, as the dissent characterizes it, meddling in the administrative and supervisory functions of this Court. Concurring and Dissenting Op. at 943, 960–61. It is, rather, a well-established form of relief by which a lower court corrects an error occurring in the prior appeal.
The arguments that a claim for relief premised upon the conduct of a jurist in a prior appeal may subject former or sitting jurists to post-hoc accusations of wrongdoing or unwarranted ridicule, or somehow implicates consideration of the Code of Judicial Conduct, Concurring and Dissenting Op. at 943, are red herrings, straw men erected to distract from the straightforward question in this case: whether the reinstatement of appellate rights nunc pro tunc is an appropriate remedy to correct a constitutional deprivation that occurred in a prior appeal. The collateral consequences of adjudicating this claim are irrelevant.
Nor is it a novel development to seek the reinstatement of one's appellate rights nunc pro tunc . Rather, if the petition is timely, nunc pro tunc relief is a deeply established means of remedying a breakdown in the prior process caused by an error of constitutional magnitude. An award of nunc pro tunc relief is intended to put the petitioner in the same position he or she was in just prior to the alleged constitutional deprivation. See Commonwealth v. Stock , 545 Pa. 13, 679 A.2d 760, 764 (1996) ("the appeal nunc pro tunc is intended to remedy certain extraordinary situations wherein the right of appeal was denied"); BLACK'S LAW DICTIONARY (11th ed. 2019) ("nunc pro tunc " is Latin for "now for then"). For instance, a nunc pro tunc appeal unquestionably is available to remedy the deprivation of the right to effective assistance of appellate counsel. In Commonwealth v. Walter , 632 Pa. 174, 119 A.3d 255 (2015), a PCRA petitioner sought and obtained reinstatement of her right to file a nunc pro tunc direct appeal to this Court. The petitioner appealed, and this Court resolved her appeal. We observed that, if there is a timely PCRA petition vesting the PCRA court with jurisdiction, then the PCRA court may reinstate the petitioner's direct appeal rights. Id . at 260 n.5. See also Commonwealth v. Hall , 565 Pa. 92, 771 A.2d 1232, 1233 (2001) ("The PCRA was available to appellee and it is the exclusive vehicle for claims, such as the nunc pro tunc appeal claim he raised, that are cognizable under the PCRA.").
Reinstatement of appellate rights nunc pro tunc will also remedy the deprivation of effective PCRA counsel. Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264, 1273 (2007) (vacating and remanding for consideration of whether the petitioner was entitled to the reinstatement of his PCRA appeal rights nunc pro tunc in a second PCRA petition when his original PCRA appeal was dismissed because of PCRA counsel's failure to file a brief, and reasoning that "due process requires that the post conviction process be fundamentally fair"); Commonwealth v. Robinson , 575 Pa. 500, 837 A.2d 1157, 1160-61 (2003) ; see also Stock, 679 A.2d at 761 (holding that an appeal nunc pro tunc should be granted to a defendant in a summary criminal case where his privately retained attorney failed to perfect a timely appeal to the court of common pleas).
The dissent draws a distinction between claims of appellate counsel ineffectiveness and claims of appellate-level judicial bias, and asserts that a new appeal is appropriate to remedy the former but not the latter. See Concurring and Dissenting Op. at 963–64, n.12. Whether it is a defendant's right to appeal or the due process protection against an unconstitutional potential for bias that is infringed, both scenarios present errors of constitutional magnitude occurring on appeal. A new appeal will vindicate both types of constitutional deprivation. There is no need to fashion a new remedy out of whole cloth when an established remedy will cure the constitutional defect.
As this author recently opined in the OISR in Taylor :
To avoid rendering the Due Process Clause meaningless in the context of an unconstitutional potential for appellate-level judicial bias, Section 9543(a)(2)(i) of the PCRA vindicates constitutional errors that occur at the appellate level. The PCRA requires in Section 9543(a)(2)(i) that the petitioner prove that the conviction or sentence resulted from a constitutional violation which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." A claim that an appellate jurist harbored an unconstitutional potential for bias during a prior proceeding calls into question the constitutionality of that proceeding and undermines the truth-determining process that resulted in that appellate decision.
The unconstitutional potential for bias of an appellate court judge presents a claim no different in any substantive way from one based upon unconstitutionally deficient representation by appellate counsel. Both are errors of constitutional magnitude that occur at the appellate level. This Court has embraced the PCRA as the sole means of seeking redress for the latter, holding that unconstitutionally deficient representation by appellate counsel may undermine the truth-determining process. See, e.g., Commonwealth v. Liebel , [573 Pa. 375,] 825 A.2d 630, 635-36 ( [Pa.] 2003). If a claim based upon the constitutional right to the effective assistance of counsel on appeal is cognizable under the PCRA, there is no basis to hold that a claim of appellate-level judicial bias pursuant to the Due Process Clause is not. A constitutional violation occurring at the appellate level may undermine the truth-determining process, whatever its source.
Taylor , 218 A.3d at 1281–82 (OISR).
To rule that a claim of appellate level judicial bias is not cognizable under the PCRA would effectively hold that there is no remedy for this potential due process violation. As a constitutional matter, this is a nonstarter. To strip the Due Process Clause of all remedies to address that clause's violation is to eliminate the underlying right itself. Ubi jus, ibi remedium (where there is a right, there is a remedy).
See Herring v. United States , 555 U.S. 135, 157, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (Ginsburg, J., dissenting) (recognizing that a constitutional right ceases to be "something real" when its violation is not remedied) (citing United States v. Calandra , 414 U.S. 338, 361, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) (Brennan, J., dissenting)).
Ubi jus, ibi remedium translates to: "Where there is a right, there is a remedy." Black's Law Dictionary 1520 (11th ed. 2019). The right to a remedy is, itself, a right protected by due process. See, e.g., United States v. Loughrey , 172 U.S. 206, 232, 19 S.Ct. 153, 43 L.Ed. 420 (1898) ("The maxim, ‘Ubi jus, ibi remedium ,’ lies at the very foundation of all systems of law."); Marbury v. Madison , 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803) ("[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded. ... [F]or it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress." (quoting Blackstone's Commentaries)). The right to a remedy is a core component of ordered liberty. Id .
Indeed, the United States Supreme Court has held that a new appeal will remedy the denial of the due process right to an impartial tribunal. Williams , 136 S.Ct. at 1909-10. In Williams , the PCRA petitioner filed a successive petition premised upon newly discovered facts. During discovery, the petitioner learned that then-District Attorney Ronald Castille had signed the sentencing memorandum authorizing the Commonwealth to pursue the death penalty. The PCRA court granted relief. The Commonwealth sought emergency relief in this Court. In the meantime, Ronald Castille had been elected to this Court and was serving as Chief Justice. This Court ultimately vacated the PCRA court's grant of relief and reinstated the death sentence. Upon further appeal, the United States Supreme Court reversed this Court, holding "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." Williams , 136 S.Ct. at 1905. The High Court vacated this Court's decision and remanded for de novo appellate review in an unburdened court. Id . at 1909-10.
The due process right to an impartial tribunal was vindicated in Williams with the award of a new, de novo appeal, If Koehler proves the merits of his due process claim (a matter not before us and one as to which we offer no opinion), such constitutional deprivation would likewise require a remedy. Like Williams, Koehler would then be entitled to an opportunity to present his appeal to a court "unburdened by any ‘possible temptation ... not to hold the balance nice, clear and true between the State and the accused.’ " Williams , 136 S.Ct. at 1910 (citing Tumey v. Ohio , 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ).
To the extent that the dissent believes that the precedential effect of Williams is only that a higher court can direct a lower court to award a new appeal, see Concurring and Dissenting Op. at 959–60, n.10, this reading is not supported by the text of Williams . Williams' claim was premised upon a due process violation resulting from an unconstitutional likelihood of bias. The relief Williams sought and obtained was a new appeal unburdened by that unconstitutional likelihood of bias. Williams , 136 S.Ct. at 1910. As in Williams , the remedy for demonstrating that an appellate tribunal included a jurist with an unconstitutional likelihood of bias would be a new appeal to that tribunal without the participation of the partial jurist.
Other defendants raising due process claims resulting from an unconstitutional likelihood of bias would, if warranted on the merits, also be entitled to this relief. Pursuant to the dissent's characterization of Williams , however, only Williams was entitled to a new appeal. All other defendants who raise the same type of claim and request the same relief afforded to Williams would not, according to the dissent, be entitled to that relief, unless they, like Williams, obtained discretionary review in the Supreme Court and the Supreme Court afforded them a new appeal. This narrow reading of Williams would render Williams precedential only for Williams, who has already obtained relief. There is nothing in the opinion of the High Court suggesting that the rule of law it announced therein, and the remedy the Court afforded, was available only when the High Court granted certiorari and ruled in the case for the defendant. Rather, the nature of precedential opinions is that they create rules of law that extend beyond the case and the parties therein, to afford protections to other similarly situated litigants. See Hohn v. United States, 524 U.S. 236, 252–253, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998) (decisions of the High Court remain binding precedent "until we see fit to reconsider them"); Commonwealth v. Tilghman , 543 Pa. 578, 673 A.2d 898, 903 (1996) (explaining that a majority opinion is binding precedent on the courts of this Commonwealth as to different parties in cases involving substantially similar facts pursuant to the rule of stare decisis ). The dissent's revisionist construction of Williams would amount to this Court telling the High Court that the constitutional right it recognized therein did not reach beyond the parties to that case.
In Williams , the Supreme Court held that "Chief Justice Castille's significant, personal involvement in a critical decision in Williams's case gave rise to an unacceptable risk of actual bias. This risk so endangered the appearance of neutrality that his participation in the case ‘must be forbidden if the guarantee of due process is to be adequately implemented.’ " Williams , 136 S.Ct. at 1908–09 (quoting Withrow v. Larkin , 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ). Any other defendant who can establish an unacceptable risk of actual bias in his or her case would be entitled to the same relief the High Court deemed appropriate in Williams . As the High Court explained, "[a]llowing an appellate panel to reconsider a case without the participation of the interested member will permit judges to probe lines of analysis or engage in discussions they may have felt constrained to avoid in their first deliberations." Williams , 136 S.Ct. at 1910. Nothing in Williams suggests that this relief was limited to Williams, and nothing in the Court's opinion supports the dissent's interpretation of it.
Were this Court to hold to the contrary, affirming the PCRA court's lack of authority to grant relief to remedy a purported due process violation committed by an appellate court, we would be closing the door to PCRA relief for any constitutional error occurring in the appellate process. There is no logical basis to distinguish between claims of appellate counsel ineffectiveness and claims of judicial bias in the appellate courts, or to hold that the former are cognizable under the PCRA because they undermine the truth-determining process, while the latter are not. Make no mistake: a ruling that claims of appellate-level judicial bias are not cognizable under the PCRA eventually would sound the death knell to all claims of constitutional magnitude that occur in the appellate process, including claims of appellate counsel ineffectiveness.
The PCRA court found itself precluded from granting relief to Koehler, believing it was powerless to impose discipline upon a judicial officer or to enforce the Code of Judicial Conduct. The dissent shares this belief. Concurring and Dissenting Op. at 956–61. But these are irrelevancies. Clearly, the PCRA court had no ability to enforce the Code of Judicial Conduct against Justice Eakin. Reilly by Reilly , 489 A.2d at 1298 (acknowledging this Court's exclusive right to supervise the conduct of officers of the judicial branch of government pursuant to Article V, Section 10(c) of the Pennsylvania Constitution ). This Court's supervisory authority over the conduct of judges pursuant to Article V, Section 10(c) of our Constitution is unchallenged and is not implicated in this case. Not only is this settled authority unthreatened by the relief that Koehler sought, but it is also unrelated to any remedy for the alleged constitutional violation of which Koehler complained.
The PCRA court's reasoning and that of the dissent reveal a fundamental misunderstanding of the relief that Koehler sought. Koehler 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. Rather, Koehler asked for the opportunity to prove his due process violation and, if he prevailed on the merits, to obtain reinstatement of his PCRA appellate rights nunc pro tunc . A PCRA petitioner's ability to vindicate the deprivation of constitutional rights does not disappear when the conduct at issue may also implicate the Code of Judicial Conduct. It is of no comfort to a petitioner who has directly suffered the harm of a substantiated constitutional deprivation that this Court has the authority to police the conduct of jurists. To mean anything, the violation of individual rights requires individualized remedies.
If, as the PCRA court held and the dissent would have it, Reilly precludes a petitioner from raising any issue that implicates consideration of a jurist's conduct because of the applicability of the Code of Judicial Conduct, then the same rationale necessarily would preclude a petitioner from challenging the effectiveness of counsel because of the applicability of the Code of Professional Conduct. Such is not the case, as neither the Code of Judicial Conduct nor the Code of Professional Conduct are instruments to enforce individual rights. Courts undeniably possess the authority to grant relief on the grounds of ineffective assistance of counsel, denial of an impartial tribunal, and to remedy due process violations that occur during appellate proceedings, notwithstanding the obligations created in the separately enforced codes of conduct.
The dissent believes that, by awarding relief in this case, the PCRA court would be, essentially, sanctioning a Justice of this Court—an interest that the dissent seems to believe is more important to guard against than is a violation of a person's constitutional rights. See Concurring and Dissenting Op. at 961, n.11. Regardless of the collateral consequences of a judicial decision, the primary role of the PCRA court is to afford relief if a petitioner can plead and prove that the facts and circumstances of a particular case demonstrate that the conviction or sentence resulted from a violation of the Pennsylvania Constitution or the Constitution or laws of the United States that "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place," 42 Pa.C.S. § 9543(a)(2)(i). "The fact that this Court sits atop the judiciary of Pennsylvania does not elevate this Court above the law, nor can it support a conclusion that constitutional deprivations attributable to this Court are insulated from review. The rule of law applies to us as it does to all." Taylor , 218 A.3d at 1282 (OISR).
A court's concern cannot principally focus upon the collateral consequences that flow from the vindication of constitutional rights. The judiciary's paramount duty instead lies with the solemn obligation to protect, safeguard, and uphold those rights. While ruling upon a due process violation resulting from an unconstitutional likelihood of bias, the Supreme Court acknowledged the role of statutes or Rules of Professional Conduct, which may provide more safeguards than due process requires. Williams , 136 S.Ct. at 1908. Because due process "demarks only the outer boundaries of judicial disqualifications," id . (quoting Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 828, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) ), the High Court recognized that "[m]ost questions of recusal are addressed by more stringent and detailed ethical rules." Id . That conduct may prove to be a due process violation simultaneously or is conduct that is regulated by the Code of Judicial Conduct is no reason to ignore constitutional violations. Rather, a court hearing a due process claim is bound to examine the limits of the due process clause. When a defendant's due process rights are violated, the defendant is entitled to relief. We violate our constitutional duty when we look the other way only because the side effect of such a decision might amount to a sanction of the offending jurist in the court of public opinion. Whether the conduct complained of also may implicate rules or statutes is a collateral consideration; it does not immunize the conduct from constitutional scrutiny.
With regard to the PCRA court's discomfort in addressing a purported constitutional violation occurring in the appellate courts, we rely upon the PCRA itself as providing such a means. If a petitioner can meet the statutory obligation to plead and prove that the facts and circumstances of a particular case demonstrate that the conviction or sentence resulted from a violation of the Pennsylvania Constitution or the Constitution or laws of the United States that "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place," 42 Pa.C.S. § 9543(a)(2)(i), then the petitioner is entitled to relief under the PCRA. This Court's position at the apex of the Pennsylvania judiciary does not immunize its members from constitutional scrutiny. And this Court ultimately is available always to review lower courts' rulings in this regard.
The dissent believes that the appropriate relief for the unconstitutional potential for appellate-level judicial bias is the reinstatement of the rule-based right to seek reargument. Concurring and Dissenting Op. at 961–63; Taylor , 218 A.3d at 1292 (OISA) (citing Pa.R.A.P. 2543 ). As this author expressed in Taylor , a request for reargument to the same appellate court that a litigant is accusing of bias and partiality cannot suffice to vindicate the constitutional right at issue. Id . at 1283 (OISR). Given the importance of protecting against even the appearance of partiality, see, e.g., Williams , 136 S.Ct. at 1909-10 ("A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, but of the larger institution of which he or she is a part."), 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. Taylor , 218 A.3d at 1283 (OISR).
More importantly, it is the PCRA that is the General Assembly's chosen framework for collateral judicial review of convictions, and that statute is the sole means for seeking and achieving post-conviction relief. 42 Pa.C.S. § 9542 ; Commonwealth v. Haun , 613 Pa. 97, 32 A.3d 697, 705 (2011). It is the PCRA court that has original jurisdiction over proceedings under the PCRA. 42 Pa.C.S. § 9545(a). The PCRA court not only has statutorily-provided jurisdiction, but is also the appropriate—and, indeed, the only—forum for the evidentiary and factual development that would be needed to substantiate a claim of appellate-level judicial bias.
This Court is not equipped to receive evidence, assess that evidence, or make credibility determinations. A claim of judicial bias may be supported, as it was in this instance, by requests for discovery, leave to amend the petition as the case develops, and requests for an evidentiary hearing to resolve disputed facts. We can expect that claims of judicial bias would require precisely the kind of factual development best suited to the courts of common pleas. And, not coincidentally, the courts of common pleas are also statutorily vested with the exclusive jurisdiction to adjudicate post-conviction claims. 42 Pa.C.S. § 9545(a).
This Court recognized as much when we remanded this case back to the PCRA court to consider the claims in the first instance. We are an appellate court. We require for our appellate review the development of a record as warranted and, where a hearing is appropriate, an assessment of the facts by the trial court hearing the evidence. See, e.g., Commonwealth v. Montalvo , 631 Pa. 516, 114 A.3d 401, 411 (2015) (recognizing that our appellate review depends upon findings of fact, determinations of credibility, and legal conclusions by the PCRA court); Commonwealth v. Peoples , 599 Pa. 254, 961 A.2d 109, 110 (2008) (per curiam ) (remanding to the PCRA court "to resolve areas of material factual controversies and credibility disputes ... and to provide properly framed legal conclusions."); Commonwealth v. Gibson , 597 Pa. 402, 951 A.2d 1110, 1122 (2008) ("[A] developed post-conviction record accompanied by a specific factual finding and legal conclusion is an essential tool necessary to sharpen the issues.").
The proper forum to consider the allegations and evidence of judicial bias is the PCRA court. Once factual and evidentiary development occurs in that forum as needed, and the PCRA court makes its rulings, the appellate court can review those rulings on appeal in due course.
Moreover, the approach suggested by the dissent based upon a litigant's right to request nunc pro tunc reconsideration would insulate claims of constitutional error committed by an appellate court from the same relief afforded to remedy other claims of constitutional magnitude that occur on appeal, creating 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. This suggested bifurcation is inconsistent with the legislature's intent to channel all post-conviction claims into the PCRA's framework as the sole means of obtaining collateral relief from criminal convictions. See Judge , 916 A.2d at 520 (recognizing that the legislature intended for the PCRA to encompass all post-conviction claims); Lantzy , 736 A.2d at 569-70 (rejecting the suggestion that the PCRA would support a bifurcated system of post-conviction review). Nor is it apparent how a post-conviction petitioner would obtain reinstatement of the rule-based right to seek reargument. If the answer is that the petitioner should seek reinstatement from the PCRA court, then the same arguments that the dissent makes against the reinstatement of appellate rights nunc pro tunc could be made against the reinstatement of the right to seek reargument nunc pro tunc . Whether the PCRA court reinstates appellate rights nunc pro tunc or the right to seek reargument nunc pro tunc , the PCRA court would be providing a merits-based remedy in the appellate courts.
Addressing the dissent's and the Commonwealth's belief that Koehler II is binding precedent and law of the case and, therefore, that the PCRA court lacks the authority to grant nunc pro tunc relief, see Concurring and Dissenting Op. at 957–61, we observe that the PCRA court's grant of a nunc pro tunc appeal would not overturn Koehler II . Generally, as with any other grant of relief, if the Commonwealth is dissatisfied with the reinstatement of appellate rights in any given case, it is entitled to appeal the order to the appellate courts, which have the appellate authority to reverse the award of relief if that award is not supported by the record or free from legal error. If the Commonwealth decided not to appeal an award of nunc pro tunc relief in favor of a post-conviction petitioner, then the petitioner would exercise the relief afforded by filing the nunc pro tunc appeal in the appellate court. The appellate court would then consider the appellate issues presented. The extent to which the appellate court decided to deviate from the court's prior decision in the case would be a matter for the court to decide. In this case, an award of a nunc pro tunc appeal by the PCRA court would not vacate or overturn our decision in Koehler II . The Commonwealth may choose to appeal the grant of relief. And, if it does not so choose, 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 . It is not the PCRA court, but this Court, that has the final say on the continuing validity of Koehler II .
Moreover, as this author observed in Taylor , it is interesting to ponder the ramifications of the Commonwealth's approach "in a scenario where the appellate court that purportedly committed the constitutional violation is not this Court, but the Superior Court." Taylor , 218 A.3d at 1282 n.8 (OISR). If the PCRA court lacks the authority to nullify precedent established by a higher court, suppose, then, two similarly situated post-conviction petitioners each making a claim that the Superior Court committed a constitutional error in adjudicating the prior appeal:
By happenstance, the Superior Court's decision in the first petitioner's case was published, but the Superior Court's decision in the second petitioner's case was not. The Superior Court decision for the second petitioner would not, therefore, be precedential. Accordingly, the PCRA court would not be disturbing precedent by awarding the second petitioner a nunc pro tunc appeal, while the PCRA court would be disturbing precedent by awarding the same relief to the first petitioner. While clearly beyond the scope of this appeal, we would suggest that the availability of redress for constitutional errors should not rest on so frail a distinction.
Id .
We also reject the Commonwealth's argument that is premised upon the law of the case doctrine. See Tilghman , 673 A.2d at 903 (explaining that a majority opinion is binding on the parties before us under the doctrine of law of the case). Departure from the law of the case is warranted in circumstances "where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create manifest injustice if followed." Taylor , 218 A.3d at 1282 (OISR) (quoting Commonwealth v. Starr , 541 Pa. 564, 664 A.2d 1326, 1332 (1995) ). Whenever new evidence arises that indicates the potential bias of a sitting jurist, there could be a change in the law and facts that would warrant reconsideration of the prior opinion.
Attempting to erect yet another barrier to the review of Koehler's PCRA petition, the dissent challenges this Court's jurisdiction over the present appeal and raises various justiciability concerns. The dissent believes that the only appropriate disposition of this appeal is not to correct the PCRA court's mistaken belief about the limits of its authority, but to remand back to the PCRA court, yet again, for consideration of the Commonwealth's answer and, if warranted, disposition on the merits. Only if relief is warranted on the merits of a timely claim, but denied because of the PCRA court's understanding of its authority, does the dissent believe this Court can resolve the question presently raised about the limits of that authority.
Of course, the PCRA's timeliness requirements are jurisdictional, and a PCRA court cannot address the merits of an untimely petition. Commonwealth v. Abu-Jamal , 574 Pa. 724, 833 A.2d 719, 723–24 (2003). But the PCRA court in this case has addressed neither jurisdiction nor the merits of the underlying claim. Rather, the issue the PCRA court believed was dispositive, and which was appealed to this Court, concerns the PCRA court's perceived authority to grant relief. Whether the PCRA court had the authority to grant the requested relief is separable from both merits and jurisdiction. Accordingly, the PCRA court did not run afoul of the jurisdictional requirements of the PCRA; rather, it avoided applying the PCRA entirely out of its mistaken belief in the limits of its own authority.
This belief precluded the PCRA court from addressing the PCRA petition, or even affording the Commonwealth the opportunity to file an answer. Indeed, the PCRA court believed that it was entirely powerless to entertain the PCRA petition. See PCRA Ct. Order, 12/28/2017, at 1 ("no purpose would be served by any further proceedings"); ¶ 7 ("This court is powerless to conclude that Justice Eakin demonstrated bias"); ¶ 8 (explaining the PCRA court's belief that only this Court may "pass judgment" on officers of the judicial branch). As a matter of law, the PCRA court's own belief that its authority was limited was incorrect. We correct that error now, in a case and controversy where that error precluded the case from moving forward.
Far from "nonsensical," see Concurring and Dissenting Op. at 948, n.4, our decision simply resolves the dispositive issue that ended the case in the court below. Our opinion addresses whether the PCRA petitioner may proceed to a determination of jurisdiction and/or the merits of this claim.
If the PCRA court had been correct in its determination, it would have ended the case and obviated the need to address jurisdiction or the merits of the underlying claim. Having concluded that the PCRA court's legal determination was incorrect as a matter of law, this Court must say so. If this Court does not rectify the PCRA court's misperception, and reverse the order dismissing the petition, the case would be over. The only reason the PCRA court did not permit the case to develop, which may involve a jurisdictional challenge by the Commonwealth, was its mistaken belief about the limits of its own authority. This was not a decision premised upon the PCRA or cases interpreting it. Our reversal of the order dismissing the petition does nothing more than dispel the legal error under which the PCRA court felt it was constrained, and permit the PCRA petition to proceed in the normal course. This is consistent with our prior remand order directing the PCRA court to dispose of the case.
The PCRA court believed that it was precluded from allowing the case to proceed. It offered a legal analysis to support this disposition. This legal analysis is the basis of the present appeal, involving two parties advancing arguments for and against the PCRA court's authority. It is for this Court to resolve the present legal dispute that ended the case in the lower court.
Had the PCRA court resolved the petition on jurisdictional grounds, jurisdiction would be before us on appeal. Had the PCRA court resolved this case on the merits, an appeal would lie from this merits-based determination. Yet that is not how the PCRA court proceeded. Rather, it decided the case upon a distinct substantive legal ground. The losing party appealed that determination to this Court. We are presented with a dispositive, concrete legal issue, with two opposing arguments and a lower court that dismissed a PCRA petition on the basis of this issue.
The timeliness of the petition will depend upon the PCRA court's analysis of whether "the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence," 42 Pa.C.S. § 9545(b)(1)(ii), and whether the petition was "filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
The dissent would evoke prudential concerns sua sponte to deny review, although the parties themselves do not share its concerns. Here, the concerns raised by the dissent fall within the notion of case or controversy. "Several discrete doctrines—including standing, ripeness, and mootness—have evolved to give body to the general notions of case or controversy and justiciability." Rendell v. Pennsylvania State Ethics Com'n , 603 Pa. 292, 983 A.2d 708, 717 (2009) ; see also Allen v. Wright , 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (identifying standing, ripeness, mootness, and political question, as "doctrines that cluster about [the] Article III" case or controversy requirement (citation omitted)).
The bulk of the dissent's concerns fall under the doctrine of standing. See City of Phila. v. Commonwealth , 575 Pa. 542, 838 A.2d 566, 577 (2003) ("The requirement of standing under Pennsylvania law is prudential in nature, and stems from the principle that judicial intervention is appropriate only where the underlying controversy is real and concrete, rather than abstract."). Under Pennsylvania law, however, the matter of standing cannot be raised by the courts sua sponte . Rendell , 983 A.2d at 717 ; In re Nomination Petition of deYoung , 588 Pa. 194, 903 A.2d 1164, 1168 (2006) ("This Court has consistently held that a court is prohibited from raising the issue of standing sua sponte."); Pittsburgh Palisades Park, LLC, v. Commonwealth , 585 Pa. 196, 888 A.2d 655, 659 (2005) ("The courts in our Commonwealth do not render decisions in the abstract or offer purely advisory opinions; consistent therewith, the requirement of standing arises from the principle that judicial intervention is appropriate only when the underlying controversy is real and concrete [.]" (internal quotation marks and modifications omitted)). Because the parties do not advance the concerns raised by the dissent, they are not available for sua sponte consideration by the Court. See Rendell, 983 A.2d at 717 (rejecting consideration of case-or-controversy concerns when they were not raised by the parties).
Turning to the dissent's assertion that this matter is not ripe for disposition because the PCRA court has not yet assessed jurisdiction and resolved the merits of the case, we have recognized that "ripeness [ ] overlaps substantially with standing." Rendell, 983 A.2d at 718. In Rendell , we noted that it "would be peculiar indeed if we were to maintain that the components of the standing doctrine ... (including advisory-opinion and hypothetical-verses-concrete aspects) are unavailable for sua sponte consideration by the courts, yet nonetheless may be considered sua sponte by simply restyling them as ripeness (or, more generally, case-or-controversy or justiciability) concerns." Id .
The cases cited by the dissent concern claims of ripeness advanced by the parties, not raised sua sponte by the Court. See Philadelphia Entertainment and Development Partners, L.P. v. City of Philadelphia , 594 Pa. 468, 937 A.2d 385, 391 (2007) (resolving an argument that a constitutional challenge to an ordinance was not yet ripe); Pittsburgh Palisades Park, LLC v. Com., 585 Pa. 196, 888 A.2d 655, 659 (2005) (resolving preliminary objections in the nature of a demurrer contending that the matter was not ripe for adjudication); Dept. of Environmental Resources v. Jubelirer , 531 Pa. 472, 614 A.2d 204, 212 (1992) (declining to opine on the constitutionality of legislation when the parties contested whether the legal question was ripe for disposition); Pennsylvania Public Utility Comm'n v. Allegheny County , 415 Pa. 313, 203 A.2d 544, 546 (1964) (resolving the appellees' argument that the matter was moot and declining to issue an advisory opinion); see also Stuckley v. Zoning Hearing Bd. of Newtown Twp. , 621 Pa. 509, 79 A.3d 510, 516 (2013) (resolving the argument that an issue had become moot); Town of McCandless v. McCandless Police Officers Ass'n , 587 Pa. 525, 901 A.2d 991, 1002 (2006) (same); In re Gross , 476 Pa. 203, 382 A.2d 116, 120 (1978) (same).
Moreover, "[t]he basic rationale underlying the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Philadelphia Entertainment and Development Partners, L.P. v. City of Philadelphia , 594 Pa. 468, 937 A.2d 385, 392 (2007). The disagreement in the present case is far from abstract. It centers on the discrete legal ground that resulted in Koehler's petition being thrown out of court.
More specifically, it is difficult to envision a more focused legal inquiry than addressing the legal basis for the disposition of a PCRA petition that is appealed and contested by both parties. We are deciding the discrete legal issue presented to us by the parties on appeal and abiding by the existing limitations on sua sponte judicial review. We have before the Court a narrow legal issue that the lower court believed was dispositive of its ability to assess jurisdiction under the PCRA or resolve the merits of the underlying claim. The PCRA court believed that it was precluded from resolving the petition on any basis by its perceived limitations. Koehler and the Commonwealth have advanced fully developed legal arguments to the contrary and in support thereof. The extra-record concerns raised by the dissent have no impact on the pertinent legal analysis that this Court must engage in to resolve the present dispute. The substantive legal question we resolve in this case is one that has been raised as precluding PCRA review in another case as well. See Taylor , 218 A.3d at 1278 (OISR). Koehler, like Taylor, has yet to have his PCRA petition adjudicated under the terms of the PCRA. Koehler is entitled to review under the PCRA without the PCRA court creating unfounded legal barriers to this review. And the parties, as well as the lower courts, deserve the resolution of this important question and the guidance this Court provides in this opinion.
IV. Motions for Discovery, Amendment, and a Hearing
Next, we consider Koehler's argument that the PCRA court's mistaken understanding of its authority to grant relief in this case prevented the court from disposing of Koehler's motions for discovery, to amend the PCRA petition, and for an evidentiary hearing. We agree with the Commonwealth that the proper disposition of these outstanding motions is to be addressed in the first instance by the PCRA court. The case should proceed in the normal course, with the PCRA court permitting the Commonwealth to file an answer to the PCRA petition raising whatever arguments the Commonwealth chooses to advance. The parties can then litigate any issues involved with discovery and any jurisdiction-based argument the Commonwealth may choose to raise; the PCRA court can consider whether to grant leave to amend the PCRA petition; and the PCRA court can determine whether there are any issues of fact warranting an evidentiary hearing.
Discovery is appropriate in a serial PCRA petition "upon leave of court after a showing of exceptional circumstances." Pa.R.Crim.P. 902(E)(1).
A PCRA court may grant leave to amend a PCRA petition at any time, and the court should freely allow amendment "to achieve substantial justice." Pa.R.Crim.P. 905(A).
The right to an evidentiary hearing is not an absolute one; a court may dismiss a PCRA petition if there are no genuine issues concerning any material fact. Commonwealth v. Morris , 546 Pa. 296, 684 A.2d 1037, 1042 (1996).
V. Entitlement to Relief
Similarly, with respect to the PCRA court's belief that Koehler ultimately sought relief only from his sentence, rather than his conviction, this determination was tied to the PCRA court's erroneous belief that its authority to grant nunc pro tunc relief in this case was circumscribed. Having reversed the PCRA court's legal ruling in this regard, it remains to be seen whether Koehler is entitled to relief at all and, if so, whether that relief includes a nunc pro tunc appeal solely from the denial of the mitigation claim in his first PCRA appeal, or whether Koehler more broadly is entitled to a nunc pro tunc appeal from the dismissal of that petition. This merits-based determination will have to await the potential for further development in due course.
VI. Conclusion
We recognize that Koehler challenges this Court's consideration of his PCRA appeal in Koehler II based upon his allegation of actual bias, the appearance of bias, or the unconstitutional risk that bias affected the adjudication. If Koehler is able to prove this claim on the merits, appropriate relief would include a new appeal free from bias that infected the previous appeal from the denial of post-conviction relief. Under the PCRA itself, the PCRA court has the inherent authority to grant a nunc pro tunc appeal to remedy a due process violation occurring in the prior appeal. We reverse the PCRA court's contrary conclusion, and we remand for further proceedings.
Justice Donohue and Judges King, Kunselman and Nichols join this opinion.
Justice Dougherty files a concurring and dissenting opinion in which Justice Mundy joins.
Judge Nichols files a concurring statement.
JUSTICE DOUGHERTY, concurring and dissenting
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 922–27. 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 , 558 Pa. 334, 737 A.2d 225 (1999) (" Koehler I "), cert. denied , 531 U.S. 829, 121 S.Ct. 79, 148 L.Ed.2d 41 (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 , 614 Pa. 159, 36 A.3d 121, 147 (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 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).
A special complement of the Supreme Court of Pennsylvania has been assembled to address the issues presented in this case pursuant to Pa.R.J.A. 701(C).
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. In his closing 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.
Subsequently, 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 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").
Justice Black was quoting Justice Frankfurter from his opinion in Offutt v. United States , 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954).
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 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 , 639 Pa. 374, 160 A.3d 782 (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. , 318 Pa.Super. 293, 464 A.2d 1349, 1353 (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] appellate process." Commonwealth v. Taylor , ––– Pa. ––––, 218 A.3d 1275, 1285-86 (2019) (Dougherty, J., Opinion in Support of Affirmance ("OISA")). 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.
Appellant's brief actually presents four discrete questions for our review, as the Majority details in its opinion. See Majority Opinion at 927–28. 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 928, and its conclusion that appellant "complied with his obligations under [Pa.R.A.P.] 1925(b)." Id. at 929.
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 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 , 586 Pa. 468, 895 A.2d 520, 522 (2006) (quotation and citation omitted); see Commonwealth v. Cox , 636 Pa. 603, 146 A.3d 221, 227 (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 , 596 Pa. 219, 941 A.2d 1263, 1267-68 (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 , 572 Pa. 468, 817 A.2d 473, 478 (2003). Moreover, "[j]urisdiction of subject matter can never attach nor be acquired by consent or waiver of the parties[.]" McGinley v. Scott , 401 Pa. 310, 164 A.2d 424, 428 (1960). Considering these mandates, our starting point for analysis purposes necessarily must begin with an assessment of jurisdiction over this matter.
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 , 561 Pa. 214, 749 A.2d 911, 914 (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 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 942 ("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. 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 , 575 Pa. 542, 838 A.2d 566, 577 (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. , 594 Pa. 468, 937 A.2d 385, 392 (2007). See, e.g. , Pittsburgh Palisades Park, LLC v. Commonwealth , 585 Pa. 196, 888 A.2d 655, 659 (2005) (courts in this Commonwealth do not render decisions in the abstract or offer purely advisory opinions); Dep't of Envtl. Res. v. Jubelirer , 531 Pa. 472, 614 A.2d 204, 212-13 (1992) ("This Court will not break now with its long tradition of refusing to give advisory opinions."); Pa. Pub. Util. Comm'n. v. Allegheny Cty. , 415 Pa. 313, 203 A.2d 544, 546 (1964) ("[W]e will not render a decision which would be solely advisory in character.").
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 939; see id . at 940 (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 "premised upon the PCRA[,]" id . at 939–40, 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.
Similar concerns arise when issues in a case are unripe or moot. See, e.g. , Stuckley v. Zoning Hearing Bd. of Newtown Twp. , 621 Pa. 509, 79 A.3d 510, 516 (2013) ("Where 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 , 587 Pa. 525, 901 A.2d 991, 1002 (2006) ("Mootness poses a question of justiciability and is related to the concepts of standing and ripeness[.]"); In re Gross , 476 Pa. 203, 382 A.2d 116, 120 (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 929 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 , 521 Pa. 509, 556 A.2d 827, 833 (1989). As such, courts in this Commonwealth are not 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 929–30. 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 , 565 Pa. 92, 771 A.2d 1232, 1235 (2001) (emphasis in original). See also Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 223 (1999) ("the PCRA subsumes the writ of habeas corpus with respect to remedies offered under the PCRA"), citing Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638 (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 , 573 Pa. 375, 825 A.2d 630, 632 (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).
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 929–30], 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 , 558 Pa. 214, 736 A.2d 564, 569 (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 , 613 Pa. 97, 32 A.3d 697, 705 (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 , 565 Pa. 280, 773 A.2d 126, 130 (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 , 557 Pa. 358, 733 A.2d 1242, 1250 (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 , 591 Pa. 126, 916 A.2d 511, 520 (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 Commonwealth v. West , 595 Pa. 483, 938 A.2d 1034, 1044 (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 , 598 Pa. 350, 956 A.2d 978, 985 (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 , 578 Pa. 263, 851 A.2d 870, 875, 878 (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.
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, 47 S.Ct. 437, 71 L.Ed. 749 (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, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986), "most matters relating to judicial disqualification [will] not rise to a constitutional level." FTC v. Cement Institute , 333 U.S. 683, 702, 68 S.Ct. 793, 92 L.Ed. 1010 (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, 47 S.Ct. 437 (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, 106 S.Ct. 1580 (citations omitted); see also Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 877, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (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, 129 S.Ct. 2252, quoting Tumey , 273 U.S. at 523, 47 S.Ct. 437 ; see also Frank, Disqualification of Judges , 56 YALE L.J. 605, 609 (1947) ("The common law of 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, 129 S.Ct. 2252. 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, 47 S.Ct. 437 (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, 93 S.Ct. 80, 34 L.Ed.2d 267 (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, 106 S.Ct. 1580 (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, 129 S.Ct. 2252. See, e.g. , In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (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, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971) (although "not every attack on a judge ... 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, 129 S.Ct. 2252 (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, 129 S.Ct. 2252 (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 is to be adequately implemented." Id . at 883-84, 129 S.Ct. 2252 (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, 129 S.Ct. 2252. 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, 129 S.Ct. 2252. However, the Court reiterated that it is "an extraordinary situation where the Constitution requires recusal[,]" id . at 887, 129 S.Ct. 2252, 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, 129 S.Ct. 2252 ; 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 , ––– U.S. ––––, 136 S.Ct. 1899, 195 L.Ed.2d 132 (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 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 Clause — 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, 129 S.Ct. 2252. 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, 129 S.Ct. 2252. When such a claim is raised collaterally in a 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). Relief may be granted only where a petitioner meets this burden and satisfies the PCRA's other eligibility requirements.
See, e.g., Commonwealth v. Wallace , 626 Pa. 362, 97 A.3d 310, 320 (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).
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 936 (noting the "importance of protecting against even the appearance of partiality"); see also Concurring Opinion at 966 ("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.
The 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 evidentiary hearing to resolve disputed facts." Majority Opinion at 937. 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, 129 S.Ct. 2252. 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 , 571 Pa. 490, 812 A.2d 1164, 1167 (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 , 547 Pa. 385, 690 A.2d 1138, 1143 (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.").
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 , ––– U.S. ––––, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017). In any event, resolution of this issue is not necessary for present purposes.
d. Available Relief for a Proven Due Process Violation
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 , 627 Pa. 505, 101 A.3d 635, 663 (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 .
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 , 507 Pa. 204, 489 A.2d 1291, 1298 (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 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 , 590 Pa. 376, 912 A.2d 827 (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").
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 , 543 Pa. 578, 673 A.2d 898, 903 (1996) (citation omitted). See, e.g. , Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc. , 610 Pa. 371, 20 A.3d 468, 480 (2011) ("intermediate appellate courts are duty-bound to effectuate this Court's decisional law") (citation omitted); Commonwealth v. Provident Trust Co. of Philadelphia , 319 Pa. 385, 180 A. 16, 17 (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 , 562 Pa. 634, 757 A.2d 842, 847 (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 , 3 Pa.Cmwlth. 161, 281 A.2d 176, 178 (1971). See also Malinder v. Jenkins Elevator & Mach. Co. , 371 Pa.Super. 414, 538 A.2d 509, 513 (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 , 540 Pa. 493, 658 A.2d 771, 782 (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").
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 938. 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. See generally Jackson ex rel. Sanders v. Hendrick , 560 Pa. 468, 746 A.2d 574, 579 (2000) (Zappala, J., concurring) (decision to grant reconsideration "has the effect of vacating the original order; until the court enters 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). 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 meddling into the administrative and supervisory authority this Court wields over the entire judiciary.
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).
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, 103 S.Ct. 1343, 75 L.Ed.2d 260 (1983) ("Needless to say, only this Court may overrule one of its precedents."); Hutto v. Davis , 454 U.S. 370, 375, 102 S.Ct. 703, 70 L.Ed.2d 556 (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 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 938. Cf. Hohn v. United States , 524 U.S. 236, 252-53, 118 S.Ct. 1969, 141 L.Ed.2d 242 (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 938. 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 933 ("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.
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 935; see also id . at 935 ("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, 129 S.Ct. 2252 ("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 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.
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 934–35. This is incorrect. The dispositive concern is not 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 935–36. 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.
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).
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 936–37. 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, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975) ; see also Republican Party of Minn. v. White , 536 U.S. 765, 796, 122 S.Ct. 2528, 153 L.Ed.2d 694 (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 , 523 Pa. 188, 565 A.2d 757, 763 (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, 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.").
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 937. 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 929 n.7 and 931 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 , 545 Pa. 13, 679 A.2d 760, 763 (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 932, 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 935–36 (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 935. The concurrence appears to cast similar aspersions. See Concurring Opinion at 966 (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 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.
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 936–37, 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 , 307 Pa. 102, 160 A. 585, 587 (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 , 645 Pa. 341, 179 A.3d 1080, 1085 (2018) (Wecht, J., single-Justice order) (acknowledging our 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 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.
JUDGE CAROLYN NICHOLS, concurring
I join the Majority opinion in all respects and write separately to emphasize that there is a long history of cases that have been remanded to trial level courts in order to determine whether judicial bias existed that violated the due process rights of litigants, and whether relief is merited. The instant case differs in the sense that it seeks to resolve the atypical question of whether a PCRA court has the authority to resolve a post-conviction claim that alleges appellate judicial bias occurred which violated due process.
In order for due process protection to be meaningful, I agree with the Majority that claims of post-conviction appellate judicial bias should not be treated differently than other post-conviction collateral claims. A PCRA court is the appropriate forum to address collateral challenges to appellate-level constitutional errors, including the adjudication of claims of ineffectiveness of appellate counsel, and further, that the court may grant a new appeal nunc pro tunc , if merited, as a well-established form of relief. See Majority Op. at 928–29, 929–31; see also Commonwealth v. Taylor , ––– Pa. ––––, 218 A.3d. 1275 (2019) ; Commonwealth v. Robinson , ––– Pa. ––––, 204 A.3d 326 (2018).
The review of several cases is instructive. The Supreme Court of the United States concluded that a Justice of the Alabama Supreme Court's participation in the multimember tribunal's adjudication of Appellant's case violated Appellant's due process rights, and that the appearance of justice would be best served by vacating the decision and remanding it for further proceedings because the Justice had a direct, personal and pecuniary interest in the outcome of Appellant's case, which enhanced the settlement value of his own litigation. Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 824, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) ; Tumey v. Ohio , 273 U.S. 510, 523, 47 S.Ct. 437, 71 L.Ed. 749 (1927). The High Court further stated that "[t]he Due Process Clause ‘may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, "justice must satisfy the appearance of justice." ’ " Aetna , 475 U.S. at 824, 106 S.Ct. 1580 (quoting In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) ).
The United States Court of Appeals for the Ninth Circuit, in Hurles v. Ryan , 752 F.3d 768 (9th Cir. 2014), summarized a long history of United States Supreme Court decisions as follows:
The Supreme Court held long ago that a "fair trial in a fair tribunal is a basic requirement of due process." In re Murchison , 349 U.S. 133, 136, 75 S. Ct. 623, 99 L. Ed. 942 (1955). "Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness." Id. ; cf. Mistretta v. United States , 488 U.S. 361, 407, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989) ("The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship."). This most basic tenet of our judicial system helps to ensure both the litigants' and the public's confidence that each case has been adjudicated fairly by a neutral and detached arbiter.
"The Due Process Clause of the Fourteenth Amendment establishes a constitutional
floor, not a uniform standard," for a judicial bias claim. Bracy v. Gramley , 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997). While most claims of judicial bias are resolved "by common law, statute, or the professional standards of the bench and bar," the "floor established by the Due Process Clause clearly requires a ‘fair trial in a fair tribunal’ before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Id. at 904-05, 117 S. Ct. 1793 (quoting Withrow v. Larkin , 421 U.S. 35, 46, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975) ). The Constitution requires recusal where "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable." Withrow , 421 U.S. at 47, 95 S. Ct. 1456.
Hurles , 752 F.3d. at 789.
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?’
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).
The Hurles court remanded the case to the federal district court for an evidentiary hearing on the petitioner's claim of judicial bias after the district court denied his habeas corpus petition challenging his conviction for capital murder and the imposition of his death sentence in Arizona state court. Essentially, the petitioner alleged judicial bias based on the trial judge's responsive pleadings to his pre-trial special action petition that the appellate court ruled improper for a judge to file and dismissed for lack of standing. The appellate court ultimately dismissed the petitioner's claim, and the trial judge presided over petitioner's jury trial, including the penalty phase, which resulted in the imposition of his death sentence. Hurles , 752 F.3d at 776-77.
Similarly, in Bracy , the High Court determined that given the facts of the case, "it would be an abuse of discretion not to permit discovery," the scope and extent of which was to be determined by the federal district court, and the case was remanded for further proceedings. Bracy , 520 U.S. at 909, 117 S.Ct. 1793 (emphasis added). In Bracy , the petitioner was tried, convicted, and sentenced to death before a trial judge that was ultimately convicted in federal court of racketeering and related charges for taking bribes and "fixing" cases. Id. at 900-02, 117 S. Ct. 1793. Although the judge was not bribed in the petitioner's case, the High Court determined that the allegations were sufficiently specific to permit discovery. Id. at 903-04, 908-10, 117 S. Ct. 1793 (citing Harris v. Nelson , 394 U.S. 286, 300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969) ).
"Justice must satisfy the appearance of justice," words written by United States Supreme Court Justice Black2 over sixty years ago in In re Murchison , 349 U.S. at 136, 75 S.Ct. 623, that still resonate in today's judicial system. This principle is evident in the above-referenced cases that were remanded to trial level federal courts and state courts in the interest of justice to address judicial bias issues, and this principle applies equally to the instant case, albeit allegations of post-conviction appellate judicial bias.
No one is above the law. As the Majority correctly observes, the proper forum to adjudicate post-conviction collateral challenges alleging appellate judicial bias is the PCRA court which has original jurisdiction over PCRA proceedings pursuant to 42 Pa.C.S. § 9545(a). Further, there is no dispute that a PCRA court has jurisdiction to develop a record of pertinent facts and evidence through discovery, the scope and extent of which it will determine, in addition to evidentiary hearings. Additionally, a PCRA court has the authority to grant relief, including a new appeal if merited, and the court's decisions are subject to appellate review if an appeal is pursued.