This is one of several similarly situated capital appeals pending in this Court involving former Chief Justice Ronald D. Castille's role as the elected District Attorney of Philadelphia. On June 22, 2017, the Honorable Leon W. Tucker, Supervising Judge of the Criminal Division, Philadelphia Court of Common Pleas ("PCRA court"), granted appellant Anthony Reid relief under the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546, in the form of nunc pro tunc reinstatement of his right to appeal the order denying his first timely PCRA petition. This Court previously affirmed the order denying appellant's first PCRA petition; however, the PCRA court concluded we must reconsider appellant's PCRA appeal anew — this time without the participation of Chief Justice Castille — pursuant to Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016) (holding Chief Justice Castille's failure to recuse where he earlier had significant, personal involvement as District Attorney in a critical decision regarding the defendant's case gave rise to an unacceptable risk of actual bias under the Due Process Clause and constituted structural error). While we agree Chief Justice Castille's participation in appellant's prior PCRA appeal implicates the same due process concerns at issue in Williams , we conclude the lower court lacked jurisdiction under the PCRA to reinstate appellant's nunc pro tunc right to appeal. Consequently, we also lack jurisdiction, and must quash this serial appeal as untimely.

I. Background

The facts underlying appellant's murder conviction and resulting death sentence, which we fully discussed in our May 24, 1994 opinion affirming appellant's judgment of sentence on direct appeal, are not relevant to our disposition. See Commonwealth v. Reid , 537 Pa. 167, 642 A.2d 453, 456-57 (1994) (" Reid I "), cert. denied, 513 U.S. 904, 115 S.Ct. 268, 130 L.Ed.2d 186 (1994). Furthermore, we set forth the pertinent history concerning appellant's first PCRA petition in Commonwealth v. Reid , 627 Pa. 78, 99 A.3d 427, 434-35 (2014) (" Reid II "), wherein we affirmed the November 19, 2007 order denying PCRA relief. Significantly, Chief Justice Castille participated in and joined the majority opinion in Reid II , which was decided on August 20, 2014.

In Reid II , the Court mistakenly referred to the date appellant's first PCRA petition was dismissed as November 16, 2008. Reid II , 99 A.3d at 435 n.9. Similarly, in their briefs in this Court the parties misstate the date as November 16, 2007. However, the order included in the certified record is dated November 19, 2007. We will refer to this proper date.

a. The Williams Decision

Nearly two years later, on June 9, 2016, the United States Supreme Court issued its opinion in Williams . The petitioner in that case, Terrance Williams , was convicted of the 1985 murder of Amos Norwood and sentenced to death. Williams , 136 S.Ct. at 1903. Prior to trial, then-District Attorney Castille approved the trial prosecutor's request to seek the death penalty against Williams. Id . Over the next 26 years, Williams's conviction and sentence were upheld on direct appeal, post-conviction review, and federal habeas review. Id . at 1904.

In 2012, Williams filed his fourth PCRA petition, claiming the trial prosecutor had obtained false testimony from his co-defendant and suppressed material, exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Id . In the course of litigating that petition, the PCRA court ordered the Commonwealth to produce previously undisclosed files of the prosecution and police. Included within those files was the trial prosecutor's memorandum requesting approval to seek the death penalty, which was approved by District Attorney Castille. Id . Following an evidentiary hearing, the PCRA court granted Williams's PCRA petition, stayed his execution, and granted him a new penalty phase trial. Id .

The Commonwealth filed an emergency petition in this Court seeking to vacate the stay of execution. Id . Williams responded to the Commonwealth's petition; he also filed a motion asking Chief Justice Castille to recuse himself based on the discovery of his prior involvement in approving the trial prosecutor's request to seek the death penalty. Id . Chief Justice Castille denied the motion for recusal without explanation, and also declined Williams's request to refer the motion to the full court for decision. Id . Thereafter, the Court, including Chief Justice Castille, considered the Commonwealth's appeal upon full briefing, vacated the PCRA court's order, dismissed the PCRA petition, and reinstated Williams's sentence of death. See Commonwealth v. Williams , 629 Pa. 533, 105 A.3d 1234 (2014). Two weeks later, Chief Justice Castille retired from the bench.

The United States Supreme Court subsequently granted Williams's petition for a writ of certiorari to consider whether Chief Justice Castille's failure to recuse violated the Due Process Clause of the Fourteenth Amendment and, if so, whether that due process violation was harmless. Williams , 136 S.Ct. at 1903, 1909. At the outset, the Court recognized its precedents did not set forth a specific test governing recusal in situations where a judge had prior involvement in a case as a prosecutor. Id . at 1905. Nevertheless, 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 .

The Court continued to consider whether District Attorney Castille's authorization to seek the death penalty against Williams constituted "significant, personal involvement in a critical trial decision." Id . at 1907. Recognizing the decision to pursue the death penalty is a critical choice in the adversarial process, the Court focused its examination on whether District Attorney Castille had a significant role in making that decision with respect to Williams. Id . The Court concluded he did, observing the decision to seek the death penalty "and the profound consequences it carries make it evident that a responsible prosecutor would deem it to be a most significant exercise of his or her official discretion and professional judgment." Id . In so concluding, the Court rejected the Commonwealth's portrayal of District Attorney Castille's approval of his subordinates’ requests to seek the death penalty as "brief administrative act[s] limited to the time it takes to read a one-and-a-half-page memo." Id . (internal quotation and citation omitted). The Court remarked the Commonwealth's characterization "cannot be credited" and stated it would not assume District Attorney Castille "treated so major a decision as a perfunctory task requiring little time, judgment, or reflection on his part." Id . In support, the Court noted that then-candidate Castille's "own comments while running for judicial office refute the Commonwealth's claim that he played a mere ministerial role in capital sentencing decisions[,]" because he repeatedly stated during his campaign that he sent 45 people to death row as District Attorney. Id . at 1907-08 (citation omitted).

Having determined the decision to seek the death penalty amounts to significant, personal involvement in a critical decision and thereby gives rise to an unacceptable risk of actual bias, the Court proceeded to resolve whether Williams was entitled to relief. Id . at 1909. The Court explained it had not previously considered 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. Id . However, the Court had "little trouble concluding that 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." Id . (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"). Accordingly, the Court held Chief Justice Castille's participation in the appeal from the order granting Williams PCRA relief "was an error that affected [this Court's] whole adjudicatory framework[,]" and it vacated this Court's decision and remanded so that Williams could present his claims to the Court without Chief Justice Castille's involvement. Id . at 1910.

On remand to this Court, the PCRA court's order granting a stay of execution and a new penalty phase trial was affirmed by an equally divided Court. See Commonwealth v. Williams , 641 Pa. 283, 168 A.3d 97 (2017).

b. Appellant's Second PCRA Petition

Exactly sixty days after the Williams decision issued, appellant, now represented by the Federal Community Defender Office ("FCDO"), filed a second PCRA petition in which he sought a new appeal from the denial of his first PCRA petition. See PCRA Petition, 8/8/2016, at 2 (contending he was "entitled to relief in the form of a new PCRA appeal to an unbiased tribunal"). Appellant argued Chief Justice Castille's participation in Reid II violated due process since, as in Williams , he had previously "authorized the use of the death penalty against [appellant]." Id . at 14.

Recognizing his judgment of sentence became final in 1994 and his successive petition was patently untimely, appellant alleged he met "all three exceptions" to the PCRA's timebar. Id . at 4. Specifically, he argued he satisfied 42 Pa.C.S. § 9545(b)(1)(i) (governmental interference exception) and 42 Pa.C.S. § 9545(b)(1)(ii) (newly discovered fact exception) because Williams "illuminate[d] the factual basis" that the Commonwealth and Chief Justice Castille "for years made misleading statements minimizing and misrepresenting his role in capital prosecutions" and "fail[ed] to disclose documents and information reflecting his actual role[.]" Id . at 5. With respect to Section 9545(b)(1)(ii) ’s due diligence requirement, appellant deemed this condition met as "the Supreme Court only recently ruled that [characterizations of District Attorney Castille's role in capital prosecutions as ministerial] are not credible[.]" Id . And finally, appellant claimed " Williams is retroactive on its face" and, therefore, his petition also satisfied 42 Pa.C.S. § 9545(b)(1)(iii) (new constitutional right exception). Id .

Appellant filed a motion for discovery contemporaneously with his petition, seeking "disclosure of any authorization documents or other records in the possession or control of the [Commonwealth] reflecting former District Attorney Castille's personal involvement in this case." Motion for Discovery, 8/8/2016, at 2.

The PCRA court ordered the Commonwealth to respond to appellant's petition, and the Commonwealth complied by filing a motion to dismiss on March 20, 2017. In its response, the Commonwealth first argued appellant's claim was waived. See Motion to Dismiss, 3/20/2017, at 5-7. In the Commonwealth's view, "[p]lainly, [appellant] could have raised his recusal claim — i.e. , asked Chief Justice Castille to recuse — when his case was before the Supreme Court on appeal of his first PCRA petition." Id . at 6. As support for its position, the Commonwealth pointed to other cases in which defendants filed similar recusal motions, even without the benefit of the Williams decision or possession of a death penalty authorization memorandum similar to the one discussed in Williams . See id . (collecting cases). As well, the Commonwealth highlighted "the very notable fact" that Williams himself had preserved the recusal claim that the United States Supreme Court reviewed in Williams . Id . at 7. The Commonwealth argued these recusal requests by other defendants, including Williams, proved appellant could have sought Chief Justice Castille's recusal in Reid II , and his failure to do so waived his claim such that he is not eligible for PCRA relief. Id ., citing 42 Pa.C.S. § 9543(a)(3).

Beyond waiver, the Commonwealth disputed all of appellant's purported bases for establishing an exception to the PCRA's timebar. First, the Commonwealth challenged appellant's argument it "suppressed" evidence of District Attorney Castille's involvement in appellant's capital prosecution as "utterly specious." Id . at 12. Contrary to appellant's claim he did not know — and could not have known earlier by the exercise of due diligence — that District Attorney Castille had significant, personal involvement in his case, the Commonwealth averred appellant knew or should have known this information "as far back as 1993" based on "the very newspaper articles" he cited in his petition, which stressed then-candidate Castille's death penalty record as District Attorney. Id . at 13, citing PCRA Petition, 8/8/2016, at 12-13 n.1. The Commonwealth submitted appellant must have been aware of this information for years since his counsel, the FCDO, were the ones who "brought those newspaper articles to the attention of the United States Supreme Court in the Williams case (and not the other way around)." Id . at 15, citing Williams , 136 S.Ct. at 1907-08 (referring to Chief Justice Castille's comments while running for judicial office and to articles written about his 1993 election campaign).

The Commonwealth cited as additional support a January 1994 newspaper article regarding a recusal motion filed by the Defender Association of Philadelphia. See Motion to Dismiss, 3/20/2017, at 14 n.9, citing Emilie Lounsberry & Henry Goldman, Castille Says He Won't Step Aside , Philadelphia Inquirer (Jan. 24, 1994). That article, according to the Commonwealth, "contained a quote from a lawyer who had been chief of the homicide unit under Castille stating that, as the District Attorney, Castille was involved in ‘approving to seek the death penalty.’ " Id . at 14.

The Commonwealth further argued "[l]ongstanding public awareness of Castille's role in the death penalty approval process while he was District Attorney is likewise reflected in the recusal motions filed by other capital defendants[,]" which began as early as 1998. Id . at 13 (citations omitted). In fact, the Commonwealth noted, one of those recusal requests resulted in a published, single-justice opinion from Chief Justice Castille in which he "explicitly describ[ed] his role in authorizing pursuit of the death penalty while he was District Attorney." Id ., citing Commonwealth v. Rainey , 590 Pa. 256, 912 A.2d 755, 757-58 (2006) (Castile, J.) (adopting the Commonwealth's description of his role in approving requests to seek the death penalty). "Obviously," the Commonwealth contended, it could "not ‘suppress’ information about the District Attorney's role in authorizing pursuit of the death penalty that was expressly set forth in a publicly available opinion" a decade before appellant filed the instant petition. Id . at 14.

To the extent appellant claimed the Williams decision itself constituted a new fact pursuant to Section 9545(b)(1)(ii), the Commonwealth argued that claim failed under settled precedent. See id . at 15, citing Commonwealth v. Watts , 611 Pa. 80, 23 A.3d 980, 987 (2011) ("subsequent decisional law does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA"). Even if the Williams decision could be considered a new fact, the Commonwealth continued, appellant's petition would still be untimely, as 42 Pa.C.S. § 9545(b)(2) requires a petition invoking a timebar exception to be filed within 60 days of the date the claim could have been presented; the Commonwealth believed the "date when [appellant] first could have discovered (or did in fact discover) information about Justice Castille's role in capital prosecutions" triggered Section 9545(b)(2) ’s application, not the date the Williams decision issued. Id .

The Commonwealth also contested appellant's claim that his petition was timely on the basis Williams supposedly recognized a new constitutional right that has been held to apply retroactively. See id . at 15-18. As an initial matter, the Commonwealth emphasized that neither the United States Supreme Court nor this Court has held that Williams applies retroactively, which it argued was dispositive. See id . at 16, citing Commonwealth v. Abdul-Salaam , 571 Pa. 219, 812 A.2d 497, 501 (2002) ("The language ‘has been held’ [in Section 9545(b)(1)(iii) ] ... mean[s] that the action has already occurred, i.e. , ‘that court’ has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed."). Moreover, the Commonwealth rejected any notion that Williams itself implicitly ruled its holding applies retroactively to cases on collateral review. See id ., citing PCRA Petition, 8/8/2016, at 5 (arguing Williams is "retroactive on its face" because the Supreme Court "applied both of its holdings retroactively to a successive PCRA proceeding"). The Commonwealth explained the decision in Williams applied to the proceeding that had just occurred in this Court — i.e. , Chief Justice Castille's refusal to recuse and his ensuing participation in the decision reversing the order granting a stay of execution — not to Williams's collateral attack on his conviction, which he explicitly disavowed in seeking certiorari . See id . at 17. As the Commonwealth put it, "[t]here was nothing ‘collateral’ about the proceedings in the [United States] Supreme Court at all; they were direct review of the process — not the substantive ruling — in [this Court]. That is why the [United States] Supreme Court never said a word about applying its ruling ‘retroactively.’ " Id . (emphasis in original).

In sum, the Commonwealth concluded appellant's recusal-based due process claim was waived and, in any event, his petition was facially untimely and failed to meet any exception to the PCRA's timebar. As such, the Commonwealth alleged the PCRA court was without jurisdiction to consider the merits of appellant's petition and requested that it be dismissed without a hearing. See id . at 18.

On April 3, 2017, appellant filed a reply to the Commonwealth's motion to dismiss. In response to the Commonwealth's waiver argument, appellant countered that he "was not obligated to move for recusal at an earlier time ... because the facts upon which [his] claim is based were being suppressed and misrepresented by government officials[.]" Reply to Motion to Dismiss, 4/3/2017, at 4. Appellant reiterated his position that District Attorney Castille's personal involvement in capital prosecutions was misrepresented for years, and argued those misrepresentations "retained the force of law until the United States Supreme Court ruled in Williams that they ‘cannot be credited.’ " Id . at 5, quoting Williams , 136 S.Ct. at 1907. Additionally, appellant contended a finding of waiver would be inappropriate because the constitutional rule upon which his claim is premised was not announced until Williams . See id . at 4. As appellant saw it, he "could not waive a claim whose legal basis, like its factual basis, was not available at the time of his prior appeals." Id . at 6.

Although appellant suggested his due process claim did not exist until the Williams decision was handed down, he also argued Chief Justice Castille had an affirmative duty to disclose his actual role in capital prosecutions and to recuse sua sponte pursuant to the Pennsylvania Code of Judicial Conduct. See Reply to Motion to Dismiss, 4/3/2017, at 5 (citations omitted).

Appellant next disputed the Commonwealth's timeliness arguments. He deemed "unpersuasive" the Commonwealth's insistence that it did not suppress information about District Attorney Castille's true role in capital prosecutions. For example, he noted that in the Rainey decision relied on by the Commonwealth, Chief Justice Castille characterized his approval of requests to seek the death penalty " ‘an administrative formality[.]’ " Id . at 5 n.4, quoting Rainey , 912 A.2d at 757. Appellant also cited a 1995 letter in another capital case in which the Commonwealth informed this Court, in response to a recusal request, that "Justice Castille did not personally participate in the investigation or prosecution of [that capital defendant]." Id . at 6-7 (citation omitted). This statement was untruthful, appellant argued, because the Williams decision revealed that District Attorney Castille did personally participate in such cases, by reviewing and signing off on death penalty authorization memoranda. See id . at 7.

Appellant also sought to clarify his view regarding what he believed to be the new "fact" that rendered his petition timely. To that end, he explained the Williams decision "provided a factual trigger under [ Section] 9545(b)(1)(i) and (ii)" because "the Supreme Court ruled that the Commonwealth's longstanding factual defense to such claims — i.e. , that Castille's only role in capital prosecutions ‘amounted to a brief administrative act’ — ‘cannot be credited.’ " Id . at 8, quoting Williams , 136 S.Ct. at 1907. Appellant submitted this Court's decision in Watts supported his argument, as it "recognizes the distinction between legal and factual triggers." Id ., citing Watts , 23 A.3d at 987 ("A ‘fact,’ as distinguished from the ‘law,’ is that which is to be presumed or proved to be or not to be for the purpose of applying or refusing to apply a rule of law.") (citation and alterations omitted).

Finally, appellant stood by his claim that Williams "is retroactive on its face." Id . at 9. According to appellant, "federal law recognizes that, where the High Court applies a rule to a case on collateral review, the rule applies retroactively to all such cases." Id . at 9-10, citing Teague v. Lane , 489 U.S. 288, 300, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality) ("[O]nce a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated.").

Following argument on April 24, 2017, the PCRA court granted appellant's motion for discovery and directed the Commonwealth to produce "any and all documents or records in the possession or control of the [Commonwealth] showing former District Attorney [ ] Castille's personal involvement in" appellant's case. Order, 5/19/2017, at 1. In response, the Commonwealth submitted a letter brief in which it alerted the PCRA court it was "unable to locate a memorandum authorizing pursuit of the death penalty in [its] files." Letter Brief, 6/1/2017, at 1. Notwithstanding its inability to locate the memorandum, however, the Commonwealth conceded "there was a memorandum in this case" and indicated the parties had "reached a stipulation" to that effect. Id . at 1-2. Appellant then filed an amended petition in which he declared the Commonwealth's concession "strongly supports [his] assertions that these factual bases were suppressed ... for nearly three decades, and that these facts were unknown to and not ascertainable by [him] during that time[.]" Amended PCRA Petition, 6/15/2017, at 3.

Previously, in its motion to dismiss, the Commonwealth indicated it did "not have the Death Penalty Request Memorandum in this case." Motion to Dismiss, 3/20/2017, at 3 n.1. However, it appears the Commonwealth located similar memoranda in two other cases against appellant, and the Commonwealth therefore assumed one must have existed in this case as well, even though it could not locate it. See Letter Brief, 6/1/2017, at 1; Reply to Motion to Dismiss, 4/3/2017, at 2 n.1. We note that, as in this case, the PCRA court reinstated appellant's nunc pro tunc right to appeal in his other cases, one of which is also pending before this Court. See Commonwealth v. Reid , 748 CAP. Appellant's third case, which did not result in a capital sentence, was recently addressed by the Superior Court in an unpublished memorandum decision. See Commonwealth v. Reid , 1925 & 1928 EDA 2017, 2019 WL 476717 (Pa. Super., Feb. 7, 2019) (reargument denied Apr. 11, 2019). In that case, as discussed infra , the Superior Court sua sponte concluded the PCRA court lacked jurisdiction over appellant's petition, reversed the order reinstating his nunc pro tunc appellate rights, and quashed his appeal. Appellant has filed a petition for allowance of appeal in that case, which this Court held pending a decision in this matter. See Commonwealth v. Reid , 236 & 237 EAL 2019.

On June 22, 2017, the PCRA court granted appellant PCRA relief, in the form of nunc pro tunc reinstatement of his right to appeal the order denying his first PCRA petition, "as mandated by due process as set forth in Williams [ ] and the applicable Pennsylvania Code of Judicial Conduct[.]" Order, 6/22/2017, at 1. As for its jurisdiction to entertain the petition, the PCRA court reasoned that appellant "ha[d] proven by a preponderance of the evidence that ‘the facts upon which the claim is predicated were unknown to [him] and could not have been ascertained by the exercise of due diligence.’ " Id . at 1 n.1, quoting 42 Pa.C.S. § 9545(b)(1)(ii).

The Commonwealth filed a notice of appeal from the PCRA court's order on July 11, 2017, and filed an unsolicited statement of matters complained of on appeal on the same date. In its Pa.R.A.P. 1925(b) statement, the Commonwealth raised the following issues: "(a) whether the PCRA court was without jurisdiction where the petition was untimely and no timeliness exception applied; (b) whether [appellant]’s claim was waived under the PCRA; and (c) whether Williams v. Pennsylvania applies retroactively on collateral review." Pa.R.A.P. 1925(b) Statement, 7/11/2017, at 1. On July 20, 2017, appellant filed his own notice of appeal "from each and every aspect of the order denying discovery, expert funds, an evidentiary hearing, and post-conviction relief entered by [the PCRA court] on November 1[9], 2007." Notice of Appeal, 7/20/2017, at 1. Appellant stated his appeal was "taken pursuant to [the PCRA court's] order dated June 22, 2017, reinstating [his] PCRA appeal rights nunc pro tunc ." Id .

c. The PCRA Court's Opinion

The PCRA court issued an opinion on November 6, 2017, limited to "the alleged errors claimed by the Commonwealth in its 1925(b) Statement." Trial Ct. Op., 11/6/2017, at 6. After analyzing the Williams decision, the PCRA court specified — consistent with its order granting relief — that it had exercised jurisdiction over appellant's facially untimely petition because it "fell under the newly-discovered fact exception[.]" Id . at 7. The court described the relevant new "fact" as follows: "To be clear, the newly discovered fact is not that District Attorney Castille's signature was required for the trial prosecutor to seek the death penalty; instead, the newly-discovered fact is that District Attorney Castille played a meaningful role in all capital prosecution cases in which he acquiesced [to] a death penalty memorandum." Id . at 12. From the PCRA court's perspective, "[t]his newly discovered fact came to light upon the publication of the Williams decision on June 9, 2016" and, thus, appellant's August 8, 2016 petition was timely filed within 60 days of the date the claim first could have been presented. Id . at 10; see also id . at 12 ("the clock began to run after publication of the Williams decision, as the decision was the factual predicate for the constitutional claims raised in [appellant]’s PCRA petition").

In reaching its conclusion, the PCRA court expressed its awareness of our settled law holding judicial decisions cannot satisfy the newly discovered fact exception to the timebar. See id . at 10, citing Watts , 23 A.3d at 987. But the court also posited that "there may be instances when [an] appellate court goes beyond merely reporting undisputed core facts and instead makes factual findings" and, in those circumstances, the "judicial determination can serve as a factual predicate for a claim." Id . As support for this theory, the court invoked Justice Baer's concurring opinion in Watts , wherein he suggested there may be situations "where the issuance of a judicial opinion in one's own case triggers the [newly discovered fact] exception." Watts , 23 A.3d at 988 (Baer, J., concurring). The PCRA court also cited a divided Superior Court opinion in which the majority distinguished our decision in Watts and held the petitioner in that case could rely on the issuance of a judicial decision to satisfy the PCRA's timebar because the decision "provided a new theory or method for obtaining collateral relief." Trial Ct. Op., 11/6/2017, at 11, citing Commonwealth v. Smith , 35 A.3d 766 (Pa. Super. 2011), allocatur denied , 617 Pa. 630, 53 A.3d 757 (2012). The PCRA court implied our decision to deny allowance of appeal in Smith signaled our approval of the rule crafted by the Superior Court majority in that case. See id . at 12.

Between Justice Baer's concurrence in Watts and the majority opinion in Smith , the PCRA court appears to have divined two exceptions to the principle that "subsequent decisional law does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA." Watts , 23 A.3d at 987. Those exceptions, as expressed by the PCRA court, "include when a defendant only becomes aware of a fact because of a judicial determination or when a judicial determination affords a defendant the first opportunity to present his claim." Trial Ct. Op., 11/6/2017, at 10. The court concluded appellant's reliance on the Williams decision satisfied both of these novel legal concepts.

First, the PCRA court found appellant only became aware of a fact — the fact supposedly being that District Attorney Castille's authorization to seek the death penalty amounted to more than a mere ministerial act — that "was not revealed or available until the United States Supreme Court's decision in Williams ." Id . at 12. In this regard, the PCRA court was ostensibly of the opinion that the Williams Court engaged in fact-finding. See id . at 4 ("In addition to its conclusions of law, the United States Supreme Court took the extraordinary step of also making factual findings as to Justice Castille's involvement in the prosecution of Williams’[s] case."). The PCRA court plainly stated those purported factual findings were "paramount to [its] grant of relief to [appellant]." Id .

Second, the court held Williams "provided a new theory or method of obtaining collateral relief." Id . at 12. Although not entirely clear from its opinion, the court seemed to suggest Williams provided a new theory because it "elucidated the significance of District Attorney Castille's signature on the death penalty request memorandum." Id .; see also id . at 13 ("[T]his court found the issuance of the Williams opinion triggered the newly discovered fact exception because [appellant] was unaware that Justice Castille was significantly and personally involved in a critical trial decision in [his] case until the Supreme Court of the United States declared it to be so[.]").

With respect to Section 9545(b)(1)(ii) ’s due diligence requirement, the PCRA court held appellant "exercised a level of due diligence reasonably expected from someone in [his] circumstances" since he raised his claim within 60 days of the Williams decision. Id . at 14. The court also found it compelling that the Commonwealth previously maintained that District Attorney Castille only performed ministerial functions and was not personally involved in prosecuting death penalty cases, and concluded due diligence did "not require [appellant] to make the unreasonable assumption that Justice Castille's involvement was mischaracterized and would later be discredited by the Supreme Court of the United States." Id .

Concerning waiver, the PCRA court offered that "[w]hen a change in the law occurs after a petitioner's right to a direct appeal has lapsed, issues related to the change will not be waived if the petitioner raises them upon the first opportunity to do so." Id . at 15. Unable to provide any authority from this Court holding to that effect, the court instead cited as persuasive the Superior Court's decision in Commonwealth v. Stark , 698 A.2d 1327, 1329 (Pa. Super. 1997) (declining to find waiver where the defendant was denied parole based on changes in parole release rules that occurred after defendant's right to appeal had expired). Relying upon yet another Superior Court decision, the PCRA court alternatively averred that "[w]hen a PCRA petition raises ethical concerns such as the violation of the Pennsylvania Code of Judicial Conduct, Pennsylvania courts may review such claims in the interest of justice." Id . at 16, citing Commonwealth v. Townsend , 850 A.2d 741, 742-43 (Pa. Super. 2004) (addressing conflict of interest claim in the first instance where the defendant alleged prosecutor who handled the PCRA proceedings directly below had previously represented him as counsel in that same case).

Finally, even though the PCRA court had not indicated in its order granting relief that appellant's petition was timely under the new constitutional right exception, the court employed the seminal Teague v. Lane framework for determining the retroactivity of a new constitutional law and held Williams "recognized a new watershed rule of criminal procedure, which applies retroactively on collateral review." Id . at 18. The PCRA court explained Williams announced a new rule that "[i]f a judge served as a prosecutor and then the judge ... there is a finding of automatic bias and a due process violation." Id . at 19. In the PCRA court's view, this putative new rule is "[j]ust as monumental as the right for an indigent defendant to have counsel in criminal proceedings," and it "alters the understanding of bedrock procedural elements because it completely explains the recusal of judges’ analysis." Id. As the court believed the right to an unbiased tribunal touches upon the fundamental fairness and accuracy of criminal proceedings, it concluded the Williams decision announced a watershed rule of criminal procedure, thereby satisfying one of Teague ’s two exceptions to the general rule against retroactive application of new constitutional law to defendants on collateral review. Id . II. Analysis

Before we address, again, the various claims raised in this purported appeal from the order denying appellant's first PCRA petition, we first consider how jurisdiction factors into our analysis. See, e.g. , Commonwealth v. Albrecht , 606 Pa. 64, 994 A.2d 1091, 1093 (2010) ("[I]f 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.") (citations omitted).

As discussed, in the lower court the Commonwealth consistently and forcefully disputed that appellant's petition satisfied any of the PCRA's timeliness exceptions. After the PCRA court held otherwise and granted appellant relief, the Commonwealth appealed to this Court, specifically challenging the PCRA court's exercise of jurisdiction over appellant's claims. See Commonwealth v. Reid , 751 CAP. The Commonwealth also appealed in several other capital cases where the PCRA court granted similar nunc pro tunc relief to those petitioners, and indicated it intended to raise the identical jurisdictional challenges. See Commonwealth v. Reid , 747 CAP; Commonwealth v. Daniels , 740 CAP; Commonwealth v. Murphy , 742 CAP. The petitioners in those cases separately filed their own notices of appeal with this Court, seeking to effectuate the grants of nunc pro tunc relief ordered by the PCRA court. See Commonwealth v. Reid , 748 CAP; Commonwealth v. Daniels , 739 CAP; Commonwealth v. Murphy , 741 CAP.

On January 4, 2018, we granted the petitioners’ unopposed request to consolidate the Commonwealth's appeals, as those appeals raised identical issues. See Pa.R.A.P. 513 (consolidation is appropriate when "the same question is involved in two or more appeals in different cases"). We further granted the petitioners’ unopposed request to stay their own appeals pending resolution of the Commonwealth's consolidated appeals, on the basis that the jurisdictional challenges raised in the Commonwealth's appeals, if successful, would effectively moot the defense appeals. Curiously, however, without any explanation, the Commonwealth filed a praecipe to discontinue its appeals only two months later, leaving only the nunc pro tunc defense appeals — including appellant's instant appeal — remaining.

Presently, in their principal briefs, the parties do not discuss jurisdiction at all, except to note the PCRA court reinstated appellant's right to appeal nunc pro tunc . See Appellant's Brief at 5-6; Commonwealth's Brief at 10. However, in his reply brief, appellant, no doubt aware of the Superior Court's recent sua sponte jurisdictional analysis in his non-capital nunc pro tunc appeal, stresses "the Commonwealth has raised no issue regarding the timeliness of [his] petition, and the Commonwealth discontinued its own appeal[.]" Reply Brief at 1 n.1. Appellant argues that under these circumstances the PCRA court's timeliness finding "is res judicata." Id ., citing Connellsville Twp. Supervisors v. City of Connellsville , 14 Pa.Cmwlth. 532, 322 A.2d 741, 742 (1974) (a court's "unappealed final determination of its subject matter jurisdiction — albeit erroneous — is Res judicata"). We begin our analysis by considering this argument and, more broadly, whether the Commonwealth's decision to withdraw its appeal from the PCRA court's order in this case renders jurisdiction irrelevant for present purposes. a. Effect of the Commonwealth's Withdrawn Appeal

In his reply brief, appellant requests we order supplemental briefing in the event we have "any concern about the reviewability or correctness" of the PCRA court's timeliness finding. Reply Brief at 1 n.1. We decline this request. For one thing, appellant extensively set forth his arguments regarding timeliness in his multiple pleadings in the PCRA court, as previously discussed. For another, 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) (citation omitted). Appellant was thus aware jurisdiction would be at issue, but simply declined to discuss it given the Commonwealth's sudden silence on the matter. As appellant had ample opportunity to discuss the issue in his briefs but chose not to — and because he has not filed a formal request for supplemental briefing — we see no reason to further delay the disposition of this case.

"A post-conviction court's award of nunc pro tunc relief in a form that gives rise to jurisdiction in another court — which jurisdiction simply would not exist in the absence of the relief — is obviously a unique and multi-faceted subject." Commonwealth v. Walter , 632 Pa. 174, 119 A.3d 255, 295 n.3 (2015) (Saylor, C.J., dissenting). Indeed, as far as we are aware, we have not squarely addressed a case presenting these exact circumstances. But that does not mean our precedents fail to provide any guidance.

In Walter , upon the parties’ consent, the PCRA court reinstated Walter's nunc pro tunc right to file a direct appeal from her judgment of sentence of death. Id . at 260 n.5. The Commonwealth did not appeal the order, and this Court subsequently considered Walter's serial direct appeal. Id . Chief Justice Saylor dissented from the Court's decision to do so, on the basis the PCRA court had not made the requisite judicial finding — specifically, that Walter suffered a deprivation of her right to appellate counsel so severe as to be tantamount to a complete denial of counsel — that would support the grant of nunc pro tunc relief. Id . at 294. Instead, the PCRA court only granted relief upon the agreement of the parties. Id . Chief Justice Saylor voiced his opinion "that jurisdiction in this Court which does not otherwise exist simply cannot be created by agreement and without a proper, supported substantive basis." Id . at 295 n.3. (emphasis omitted).

The majority saw things somewhat differently. While it recognized a lack of appellate jurisdiction is nonwaivable by the parties and may be considered sua sponte , the majority took the position that Chief Justice Saylor had conflated the "rationale for the PCRA court's order with its jurisdiction to grant relief[.]" Id . at 260 n.5 (emphasis omitted). Importantly, the majority observed Walter had "filed a timely PCRA petition, vesting the PCRA court with the jurisdiction to grant PCRA relief." Id . (emphasis added), citing Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638, 641 (1998) (noting that, where a petitioner filed an untimely PCRA petition, the PCRA court lacked jurisdiction to grant PCRA relief); Commonwealth v. Bennett , 842 A.2d 953, 959 (Pa. Super. 2004) (en banc ) (holding that, where a petitioner filed an untimely PCRA petition, the PCRA court lacked jurisdiction to reinstate appellate rights nunc pro tunc , and quashing the appeal) (emphasis in original). As it was beyond dispute the PCRA court had jurisdiction over Walter's timely petition, the majority was unconvinced by Chief Justice Saylor's implicit proposition that the PCRA court's failure to support its grant of relief with appropriate judicial findings rendered the order granting reinstatement of appellate rights nunc pro tunc "extrajurisdictional." Id .

The majority's discussion in Walter is consistent with other cases in which we have considered the timeliness of nunc pro tunc appeals even where the Commonwealth failed to separately appeal the reinstatement of those rights. For example, in Commonwealth v. Robinson , 575 Pa. 500, 837 A.2d 1157 (2003), the PCRA court granted relief from the petitioner's untimely third petition, in the form of reinstating his nunc pro tunc right to appeal the denial of a previous PCRA petition. Id . at 1159. The Commonwealth did not appeal the order granting relief, but nevertheless raised jurisdiction as an issue in the Superior Court. Id . The Superior Court rejected the Commonwealth's argument based on the theory that the untimely serial PCRA petition upon which relief was granted was an extension of a timely previously-dismissed petition. Id . This Court granted allowance of appeal and explicitly rejected the Superior Court's extension theory, reiterating that "the PCRA confers no authority upon this Court to fashion ad hoc equitable exceptions to the PCRA time-bar in addition to those exceptions expressly delineated in the Act." Id . at 1161 (internal quotation and citation omitted); see also id . ("neither the language of the statute nor this Court's decisional law authorizes suspension of the time-bar in instances where the petitioner is seeking nunc pro tunc appellate relief").

The result in Commonwealth v. Bennett , 593 Pa. 382, 930 A.2d 1264 (2007), is similar. In that case, the PCRA court granted Bennett's second untimely PCRA petition in which he sought reinstatement of his right to appeal the order dismissing his first timely petition. Id . at 1266-67. The Superior Court en banc quashed the appeal, concluding Bennett's second PCRA petition, from which his appellate rights were reinstated nunc pro tunc , was untimely and the PCRA court therefore had no jurisdiction to grant relief. Id . at 1267 (citation omitted). This Court granted allowance of appeal to consider whether the Superior Court erred in quashing the appeal, and ultimately held it did — but not because the Commonwealth had failed to appeal the PCRA court's order reinstating Bennett's nunc pro tunc right to appeal. Id . Instead, the Court was sharply divided over whether Bennett's petition invoked a proper exception to the timebar, with the majority holding that when a petitioner claims he was abandoned on appeal by former counsel, under certain circumstances he may invoke the newly discovered fact exception to the timebar. Id . at 1273.

It is apparent this Court's concerns regarding jurisdiction underlay the analysis in each case discussed above. In Walter , the Court relied upon the timeliness of Walter's petition to dispel the notion the Court was without jurisdiction to consider his nunc pro tunc serial direct appeal. Conversely, in Robinson , the Court reversed the PCRA court's order reinstating Robinson's nunc pro tunc appellate rights after concluding no recognized exception to the timebar applied. And in Bennett , the Court remanded the PCRA court's order reinstating Bennett's nunc pro tunc appellate rights, but only to determine if he could prove his petition satisfied the newly discovered facts exception. Significantly, in none of these cases did the Commonwealth appeal the order reinstating the petitioners’ nunc pro tunc appellate rights. The principle that derives from these decisions is a familiar one: "[I]f 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). For that reason, to confirm proper jurisdiction, it is appropriate for an appellate court to consider sua sponte the timeliness of a PCRA petition from which nunc pro tunc appellate rights have been reinstated, even where the Commonwealth has not separately appealed (or appeals but then withdraws its appeal) from the order granting relief. See generally Whitney , 817 A.2d at 478 ("even where the PCRA court does not address the applicability of the PCRA timing mandate, this Court will consider the issue sua sponte , as it is a threshold question implicating our subject matter jurisdiction and ability to grant the requested relief") (citation omitted); Commonwealth v. Yarris , 557 Pa. 12, 731 A.2d 581, 587 (1999) ("Because the timeliness implicates our jurisdiction, we may consider the matter sua sponte .") (citation omitted).

As additional support, we observe the Superior Court routinely considers the timeliness of PCRA petitions sua sponte where those petitions lead to the reinstatement of nunc pro tunc appellate rights. See, e.g. , Commonwealth v. Ballance , 203 A.3d 1027, 1030-31 (Pa. Super. 2019) ; Commonwealth v. Huddleston , 55 A.3d 1217, 1220 (Pa. Super. 2012) ; Commonwealth v. Geer , 936 A.2d 1075, 1077 (Pa. Super. 2007) ; Bennett , 842 A.2d at 959 ; Commonwealth v. Fairiror , 809 A.2d 396, 397 (Pa. Super. 2002).

Based on this principle, we reject outright appellant's claim that the Commonwealth's failure to appeal the PCRA court's order constitutes res judicata . See Reply Brief at 1 n.1. As explained, the one year time limitation imposed for filing a PCRA petition is a bar to the court's exercise of jurisdiction. See, e.g. , Whitney , 817 A.2d at 478 (PCRA timebar implicates subject matter jurisdiction). In this sense, the jurisdictional time limit goes to the PCRA court's "right or competency to adjudicate a controversy." Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 222 (1999). Res judicata operates only where there is a "final, valid judgment on the merits by a court of competent jurisdiction[.]" Balent v. City of Wilkes-Barre , 542 Pa. 555, 669 A.2d 309, 313 (1995). If a PCRA court lacks jurisdiction to grant relief because a petition is untimely, any order by the court granting relief is simply not a valid judgment on the merits by a court of competent jurisdiction. Indeed, this Court has clearly explained that "[w]here a court is without jurisdiction it is without power to act and thus, any order that it issues is null and void." Commonwealth v. Morris , 565 Pa. 1, 771 A.2d 721, 735 (2001) (citations omitted); see also In re Simpson's Estate , 253 Pa. 217, 98 A. 35, 38 (1916) ("When the jurisdiction does not exist ... then all the acts of the tribunal are void and of none effect, and may be so treated in any collateral proceeding. Where there is no jurisdiction there is no authority to pronounce judgment, and consequently a judgment so entered is so but in form and similitude, and has no substance, force, or authority.") (citations and internal quotations omitted). Thus, res judicata is inapplicable in these circumstances.
Even if the law were otherwise (it is not), the doctrine of res judicata surely would not prevent this Court, at least, from passing upon the lower court's order reinstating appellant's nunc pro tunc appellate rights, because "[t]his Court has the power to strike down any illegal act of a lower [c]ourt regardless of antecedents." Smith v. Gallagher , 408 Pa. 551, 185 A.2d 135, 146 (1962), overruled on other grounds by In re Biester , 487 Pa. 438, 409 A.2d 848, 850 (1979). On this front, we have recognized "[a]n order which is illegal in its inception does not gain legality or validity because it is not appealed from." Id . That is to say, we are not bound to blindly accept the erroneous assumption of jurisdiction by a lower court, or any orders that issue pursuant to that unlawful assumption of authority, merely because the Commonwealth does not appeal — for whatever reason — the lower court's finding of jurisdiction. In much the same way that "[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), neither can the Commonwealth thrust jurisdiction upon this Court by sheer virtue of its failure to, or strategic decision not to, lodge an appeal from an order reinstating a defendant's nunc pro tunc appellate rights.

b. Timeliness of Appellant's Petition

We now proceed to consider whether appellant's petition was timely. To be eligible for post-conviction relief, a petitioner must prove by a preponderance of the evidence that his conviction or sentence resulted from one of several enumerated circumstances, see 42 Pa.C.S. § 9543(a)(2), and that the claims have not been previously litigated or waived, see 42 Pa.C.S. § 9543(a)(3). "The PCRA requires that a petition seeking relief thereunder must be filed within one year of the date the petitioner's judgement of sentence becomes final." Commonwealth v. Cox , 636 Pa. 603, 146 A.3d 221, 227 (2016). "[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." 42 Pa.C.S. § 9545(b)(3).

There is no dispute appellant's judgment of sentence became final on October 3, 1994, when the United States Supreme Court denied his petition for a writ of certiorari . Appellant's petition is therefore untimely on its face. However, in his petition, appellant alleged he met all three exceptions to the PCRA's timebar. These exceptions are:

As part of the 1995 amendments to the PCRA, a grace period permitted defendants, like appellant, whose convictions became final before the amendments’ effective date to file their first PCRA petition by January 16, 1997. See Commonwealth v. Williams , 573 Pa. 613, 828 A.2d 981, 987 n.9 (2003). The instant petition is not appellant's first, nor was it filed within the applicable grace period.

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). "The PCRA petitioner bears the burden of proving the applicability of one of the exceptions." Commonwealth v. Spotz , 642 Pa. 717, 171 A.3d 675, 678 (2017) (citation omitted). Additionally, a petition invoking an exception "shall be filed within 60 days of the date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).

As of December 24, 2018, Section 9545(b)(2) now permits a PCRA petition invoking a timeliness exception to be filed within one year of the date the claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No. 146, § 2, effective in 60 days [Dec. 24, 2018]. This amendment does not apply to appellant, who filed his petition in 2016.

i. Governmental Interference & Newly Discovered Fact Exceptions

We begin by addressing the governmental interference and newly discovered fact exceptions. To determine whether appellant's 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, see 42 Pa.C.S. § 9545(b)(1)(i), we first must identify the precise contours of his claim. Similarly, to determine whether the facts upon which that claim is predicated were unknown to appellant and could not have been ascertained by the exercise of due diligence, see 42 Pa.C.S. § 9545(b)(1)(ii), we must pinpoint the new fact he invokes. The answer to the former inquiry is rather straightforward; resolving the latter inquiry is a more difficult task.

With respect to the nature of appellant's claim, he plainly pleaded in his petition a recusal-based due process claim. See, e.g. , PCRA Petition, 8/8/2016, at 11 ("Due Process under both the Pennsylvania and United States Constitution required that former Pennsylvania Supreme Court Justice Ronald Castille recuse himself from [appellant]’s PCRA appeals."). This claim implicates 42 Pa.C.S. § 9543(a)(2)(i) (relief is available if the conviction or sentence resulted from a constitutional violation that "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place"), and is simple enough to understand.

On May 12, 2020, appellant filed an application for leave to file post-submission communication regarding our recent decision in Commonwealth v. Koehler , ––– Pa. ––––, 229 A.3d 915 (2020). There, as is relevant here, all participating jurists agreed that "a due process challenge to the impartiality of an appellate jurist is cognizable under Section 9543(a)(2)(i) of the PCRA." Id . at 931. As we have taken into account Koehler ’s import on this limited point, we grant appellant's application and accept the notice of supplemental authority.

The new fact that allegedly supports this claim, however, is far more elusive. The PCRA court and appellant provided differing — and, at times, inconsistent — views as to exactly what "fact" is newly discovered. The PCRA court, on the one hand, unequivocally explained its position: the new fact "is not that District Attorney Castille's signature was required for the trial prosecutor to seek the death penalty[,]" but it "is that District Attorney Castille played a meaningful role in all capital prosecution cases in which he acquiesced [to] a death penalty memorandum." Trial Ct. Op., 11/6/2017, at 12 (emphasis added). The PCRA court averred the United States Supreme Court made this "factual determination" in Williams , "a judicial decision which provided a new theory or method of obtaining collateral relief." Id .

Appellant, on the other hand, suggested the new fact is not the Williams decision itself, but it is the Williams Court's "rul[ing] that the Commonwealth's longstanding factual defense to such claims — i.e. , that Castille's only role in capital prosecutions ‘amounted to a brief administrative act’ — ‘cannot be credited.’ " Reply to Motion to Dismiss, 4/3/2017, at 8, quoting Williams , 136 S.Ct. at 1907. Appellant also claimed the Commonwealth's June 1, 2017 concession that District Attorney Castille approved a request to seek the death penalty against him was itself a newly discovered fact. See id . ("the Commonwealth's recent disclosure of Castille's actual role in this case provides a factual trigger that moots the parties’ other timeliness arguments").

From these various assertions we distill the following purported new "facts": (1) the Williams Court's holding that District Attorney Castille's approval of the decision to seek the death penalty amounted to significant, personal involvement in a critical trial decision; (2) the Williams Court's remark that characterizations of District Attorney Castille's participation in death penalty cases as ministerial "cannot be credited"; (3) the Williams decision itself, which provided a new theory or method of obtaining collateral relief; and (4) the Commonwealth's concession that District Attorney Castille approved a request to seek the death penalty against appellant. We address each in turn.

The first purported new "fact" is easy to reject as a basis to support jurisdiction, as it is not a fact at all. Rather, it is a judicial determination about a fact's legal significance — that fact being District Attorney Castille's authorization to seek the death penalty against Williams. See Williams , 136 S.Ct. at 1907 (addressing the "question whether Chief Justice Castille's authorization to seek the death penalty against Williams amounts to significant, personal involvement in a critical trial decision"). As we have held, judicial determinations do not satisfy the newly discovered fact exception because "an in-court ruling or published judicial opinion is law, for it is simply the embodiment of abstract principles applied to actual events. The events that prompted the analysis, which must be established by presumption or evidence, are regarded as fact." Watts , 23 A.3d at 987 ; id . at 986-87 (" ‘Law is a principle; fact is an event. Law is conceived; fact is actual. Law is a rule of duty; fact is that which has been according to or in contravention of the rule."), quoting BLACK'S LAW DICTIONARY 592 (6th ed. 1991). The Williams Court's holding that District Attorney Castille had significant, personal involvement in a critical decision in Williams's case unquestionably fits the definition of law, as it embodies due process principles applied to the factual situation where a judge had prior involvement in a case as a prosecutor. In short, this holding in Williams is a legal conclusion, not a factual finding, and it cannot trigger the newly discovered fact exception. See Watts , 23 A.3d at 987.

We need only briefly entertain the PCRA court's reliance on Justice Baer's concurring opinion in Watts for the proposition that "there are instances when a judicial determination can serve as a factual predicate for a claim[,]" such as "when a defendant only becomes aware of a fact because of a judicial determination[.]" Trial Ct. Op., 11/6/2017, at 10. As the PCRA court conceded, see id . at 13, even Justice Baer's proposed exception — which was not adopted by a majority of the Court — was limited to judicial opinions issued in a petitioner's own case, a requirement Justice Baer deemed "critical." Watts , 23 A.3d at 988 (Baer, J., concurring). More importantly, Justice Baer's hypothetical exception presumed an actual new fact would be revealed in the judicial opinion, not just a court's determination of the legal significance of an undisputed fact. Id . Indeed, Justice Baer expressly agreed with the Watts majority that it is improper for a PCRA petitioner to use another defendant's legal victory as a trigger for the newly discovered fact exception, particularly where the petitioner could have "become" that other defendant had he advanced the issue himself. See id . ("Section 9545(b)(1)(ii) is not designed to reward this type of piggyback litigation; instead, it is designed to provide a limited timeliness exception for [newly]-discovered facts in one's own case.").

For similar reasons, appellant and the PCRA court are incorrect that the Williams Court's rejection of characterizations of District Attorney Castille's involvement in death penalty cases as ministerial is a new "fact" for purposes of Section 9545(b)(1)(ii). Again, the relevant fact in Williams , which was not in dispute, was District Attorney Castille's authorization to seek the death penalty against Williams. What was in dispute was the legal consequence of that fact: whereas Williams argued District Attorney Castille's involvement in approving the request to seek the death penalty was sufficient to constitute significant involvement in a critical trial decision, the Commonwealth argued that fact was insufficient because District Attorney Castille oversaw a large prosecutor's office and approved many death penalty requests as a matter of course. See Williams , 136 S.Ct. at 1907. The Court considered these competing arguments about the legal significance of District Attorney Castille's approval to seek the death penalty and ultimately sided with Williams, remarking the Commonwealth's position "cannot be credited." Id . This remark, however, is not a "factual finding." Cf. Trial Ct. Op., 11/6/2017, at 4 (asserting the Supreme Court "took the extraordinary step of also making factual findings as to [District Attorney] Castille's involvement in the prosecution of Williams’[s] case"). It is merely a rejection of the Commonwealth's legal argument that District Attorney Castille's approval to seek the death penalty did not amount to "significant" involvement in a critical trial decision — the very legal question the Court explained it was deciding immediately preceding its remark. See Williams , 136 S.Ct. at 1907. Simply stated, just as a court's adoption of a winning party's legal argument in a judicial opinion cannot constitute a new fact under Section 9545(b)(1)(ii), see Watts , 23 A.3d at 987, neither can a court's rejection of a losing party's competing argument be construed as a new fact.

We now turn to the third purported new "fact" — the Williams decision itself. As we have related quite a few times, "subsequent decisional law does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA." Watts , 23 A.3d at 987. Recognizing this principle, appellant expressly disavowed any notion that the Williams decision itself — as opposed to the "factual findings" allegedly rendered in that decision, which we have already debunked — could satisfy the newly discovered fact exception to the timebar. See Reply to Motion to Dismiss, 4/3/2017, at 8. But the PCRA court took a different approach, concluding Williams could serve as a new fact because it is "a judicial decision which provided a new theory or method of obtaining collateral relief." Trial Ct. Op., 11/6/2017, at 12. The court reasoned this exception to the general principle announced in Watts was sanctioned by a split panel of the Superior Court in Smith . We briefly review that decision.

Smith followed on the heels of our decisions in Bennett and Watts and, like those cases, dealt with the issue of abandonment of counsel on appeal. Specifically, Smith's first timely PCRA appeal was dismissed in 2001 after his counsel failed to file a brief. Smith , 35 A.3d at 767. Less than two months later, Smith filed a second PCRA petition seeking reinstatement of his nunc pro tunc right to appeal the denial of his first petition, which the PCRA court granted. Id . The Superior Court quashed the nunc pro tunc appeal after determining it was untimely, and this Court denied allowance of appeal. Id . at 768. Then, in 2007, we issued our decision in Bennett , holding attorney abandonment may constitute a factual basis for the newly discovered fact exception where the petitioner acts with due diligence in ascertaining the fact of abandonment. 930 A.2d at 1273. Within 60 days of our decision, Smith filed a third PCRA petition claiming it was timely because Bennett afforded him a new method for obtaining collateral review. Smith , 35 A.3d at 769. The PCRA court dismissed the petition as untimely, but a divided Superior Court panel reversed, concluding Smith, unlike Watts, had previously attempted to "become Bennett" by seeking allowance of appeal in this Court but was unsuccessful. Id . at 771-72. The Superior Court majority recognized the factual predicate of Smith's claims was the dismissal of his first PCRA petition in 2001 due to counsel's abandonment, but determined the change in law that occurred in 2007 with the Bennett decision afforded Smith his first opportunity to present his claim. Id . at 772. Under those combined circumstances, the Superior Court majority held Smith's petition, which was filed within 60 days of the Bennett decision, satisfied the newly discovered fact exception. Id .

As noted, the PCRA court in this case concluded Smith stands for the broad proposition that a petition is timely under the newly discovered fact exception if it is filed within 60 days of a judicial decision recognizing a new theory or method of obtaining relief on collateral review. See Trial Ct. Op., 11/6/2017, at 12. This conclusion is faulty on multiple levels. First of all, Smith dealt with the discrete issue of counsel abandonment, and on its face has no applicability here. More foundationally, the Smith majority appears to have seized the "new theory or method of obtaining relief on collateral review" language from our decision in Watts . There, we used the identical phrasing to describe the Commonwealth's argument that "while a judicial opinion may establish a new theory or method of obtaining relief on collateral review, it does not fall within the purview of [S]ection 9545(b)(1)(ii) because it does not form an independent basis for a new claim; the legal principles derived from the opinion must be applied to a set of pre-existing facts." Watts , 23 A.3d at 983. Importantly, we ultimately agreed with the Commonwealth on this point, holding "judicial determinations are not facts." Id . at 986.

The PCRA court's decision to extend the Smith majority's "new theory or method of obtaining collateral relief" rationale to appellant's case is unmistakably at odds with our holding in Watts . As the Commonwealth aptly observed in Watts , "under appropriate circumstances, a judicial opinion can provide an independent basis for a new PCRA claim pursuant to 42 Pa.C.S. § 9545(b)(1)(iii), which creates a limited exception" for new constitutional rights that have been held to apply retroactively. Id . at 983 n.3. But a judicial opinion — even one which may establish a new theory or method of obtaining relief — "does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA." Id . at 987. The Williams decision itself, therefore, cannot serve as the factual predicate for appellant's claimed exception to the timebar.

We recognize Smith applied to a discrete factual scenario — i.e. , where a petitioner's first PCRA appeal was dismissed for failure to file a brief; a nunc pro tunc appeal from a second PCRA petition was quashed as untimely and this Court denied allowance of appeal; and a third petition was filed within 60 days of the decision in Bennett . Obviously, these factual circumstances cannot recur. Nevertheless, we expressly disapprove of the analysis employed by the Smith majority to the extent it contradicts our holding in Watts . See Watts , 23 A.3d at 986 ("We did not authorize courts to grant post-conviction relief in every instance where a petitioner has been abandoned by appellate counsel, and we neither stated nor implied that petitioners could circumvent the statutory filing deadline by citing Bennett as an independent basis for a new claim of ineffectiveness.").

Having determined neither the Williams decision itself nor the legal conclusions contained therein constitute a new fact for purposes of Section 9545(b)(1)(ii), we are left with appellant's claim that District Attorney Castille's authorization to seek the death penalty in his case, as now conceded by the Commonwealth, is a new fact. We consider this argument in conjunction with appellant's governmental interference claim, which hinges on the premise that the Commonwealth withheld or mischaracterized the evidence of District Attorney Castille's involvement in the decision to seek the death penalty in his case.

Of all the theories raised by appellant and the PCRA court regarding what new "fact" implicates Section 9545(b)(1)(ii), it would appear the discovery of District Attorney Castille's actual role in authorizing the death penalty in his case might be most compelling. This is because, in the context of due process, "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. Thus, where a petitioner learns of a fact upon which such a claim is predicated — in other words, a petitioner learns of a judge's significant, personal involvement as a prosecutor in a critical decision in his own case — Section 9545(b)(1)(ii) is implicated. Relatedly, where governmental officials interfere with a petitioner's ability to bring a recusal-based due process claim by, for example, suppressing evidence of a judge's prior significant, personal involvement as a prosecutor in a critical decision in the petitioner's case, Section 9545(b)(1)(i) is implicated.

Surprisingly, however, the PCRA court expressly denied that District Attorney Castille's role in approving the death penalty was the new fact. See Trial Ct. Op., 11/6/2017, at 12 ("To be clear, the newly discovered fact is not that District Attorney Castille's signature was required for the trial prosecutor to seek the death penalty[.]"). Similarly, appellant's extensive reliance on the alleged "factual findings" contained within the Williams decision demonstrated his reluctance to rely on District Attorney Castille's role in approving the death penalty against him as the primary factual trigger, at least until the Commonwealth conceded there was a death penalty memorandum in his case. See Reply to Motion to Dismiss, 4/3/2017, at 8-9 ("In any event, ... the Commonwealth's recent disclosure of Castille's actual role in this case provides a factual trigger that moots the parties’ other timeliness arguments. ... We now know that he was presented with a memorandum seeking authorization to request a sentence of death against [appellant.]"). We presume, and will demonstrate below, that the PCRA court and appellant took a tepid approach in identifying District Attorney Castille's authorization to seek the death penalty as the factual predicate to appellant's due process claim because this argument cannot surmount the PCRA's due diligence requirements.

To satisfy the newly discovered fact exception, appellant was required to establish "that the fact upon which he bases his claim was unknown to him and that he could not have discovered it through due diligence." Cox , 146 A.3d at 230. Moreover, with respect to both the governmental interference and newly discovered fact exceptions, appellant was required to prove he filed his petition within 60 days of the date the claim could have been presented. 42 Pa.C.S. § 9545(b)(2). "We have established that this 60-day rule requires a petitioner to plead and prove that the information on which his claims are based could not have been obtained earlier despite the exercise of due diligence." Commonwealth v. Edmiston , 619 Pa. 549, 65 A.3d 339, 346 (2013).

Put in proper perspective, the factual predicate for appellant's recusal-based due process claim is uncomplicated: District Attorney Castille's authorization of a request to seek the death penalty against him. That factual event did not occur when the United States Supreme Court issued its decision in Williams , but has existed since District Attorney Castille actually authorized a trial prosecutor's request to seek the death penalty against appellant approximately 30 years ago. The salient question, therefore, is whether appellant established that he could not have ascertained this fact through the exercise of due diligence. We conclude appellant failed to meet this burden because the fact upon which his claim is predicated was publicly available for more than two decades before he filed his petition.

Evidence of District Attorney Castille's role in capital cases began to emerge as early as 1993, while he was running for judicial office. As the United States Supreme Court observed in Williams , then-candidate Castille routinely made comments during his campaign that emphasized his "willingness to take responsibility for the death sentences obtained during his tenure as district attorney[.]" Williams , 136 S.Ct. at 1907-08. In fact, in his petition, appellant cited nearly a dozen articles from the 1993 campaign indicating Castille personally accepted responsibility for sending 45 people to death row. See PCRA Petition, 8/8/2016, at 12-13 n.1, citing, e.g. , Katharine Seelye, Castille Emphasizes Law-and-Order Image , PHILADELPHIA INQUIRER (Oct. 21, 1993) ("When he is asked why he wants to serve on the Supreme Court, what qualifies him, why voters should support him, he starts with his experience in Vietnam, works up to his record as Philadelphia [D]istrict [A]ttorney and caps his pitch by declaring that he put 45 murderers on death row."; "Castille's TV spots conclude: ‘If you are looking for a law-and-order guy — Ron Castille. He put 45 murderers on death row[.]’ "); Frank Reeves, Castille Preaches Law-and-Order Message to Voters , PITTSBURGH POST-GAZETTE (Oct. 18, 1993) (" ‘When I start talking about court reform, people's eyes glaze over,’ [Castille] said. ‘When I tell them about [my] sending criminals to death row or how I fought the Mafia in Philadelphia, then they're interested.’ "); Tim Reeves, High Court Hopefuls Pressing for Change , PITTSBURGH POST-GAZETTE (Oct. 17, 1993) ("Castille and his prosecutors sent 45 people to death row during their tenure. ... Castille wears the statistic as a badge."). This information — which appellant surely was aware of well before he filed his petition in 2016, since his counsel brought these same articles to the attention of the United States Supreme Court in Williams — should have alerted him Castille was personally involved in the decision to pursue the death penalty against him.

Even assuming for argument's sake that these articles were insufficiently specific to put appellant on notice that District Attorney Castille personally approved requests to seek the death penalty, other media coverage following Castille's ascendance to this Court is even less ambiguous. In January 1994, The Philadelphia Inquirer reported on a recusal motion filed by the Defender Association of Philadelphia, including a quote from a lawyer who had been chief of the homicide unit under District Attorney Castille. See Emilie Lounsberry & Henry Goldman, Castille Says He Won't Step Aside , PHILADELPHIA INQUIRER , Jan. 24, 1994, at B1. "In capital cases," said the former homicide chief, "[District Attorney Castille] had a limited role, approving to seek the death penalty . There is involvement in these death penalty cases, but I don't know whether it would be enough to force his recusal." Id . (emphasis added). In our view, this publicly-reported statement left no room for doubt about District Attorney Castille's role in capital cases.

We note the FCDO, which represented Terrance Williams and represents appellant in this case, "operates as a distinct sub-unit of the Defender Association of Philadelphia." In re Commonwealth's Motion to Appoint Counsel Against or Directed to Def. Ass'n of Phila. , 790 F.3d 457, 462 (3d Cir. 2015), as amended (June 16, 2016), cert. denied sub nom . Pennsylvania v. Def. Ass'n of Phila. , ––– U.S. ––––, 136 S.Ct. 980, ––– L.Ed.2d –––– (2016), and cert. denied sub nom. Pennsylvania v. Fed. Cmty. Def. Org. of Philadelphia , ––– U.S. ––––, 136 S.Ct. 994, 194 L.Ed.2d 3 (2016).

Certainly, these various articles proved more than enough to prompt other capital defendants to file recusal requests beginning in the 1990s. See, e.g. , Motion for Recusal of Justice Castille, Commonwealth v. Rollins , 192 CAP (filed Oct. 13, 1998) (attached to Motion to Dismiss, 3/20/2017, at Appendix A) (alleging District Attorney Castille "was personally involved ... in specifically authorizing the Commonwealth to seek the death penalty against [Rollins]"). And perhaps most importantly, one of those requests resulted in a published opinion by then-Justice Castille in which he acknowledged his actual role in all capital cases. See Rainey , 912 A.2d at 756. In that case, Rainey, also through his counsel the FCDO, filed a motion for recusal alleging, inter alia , District Attorney Castille "decided to seek the death penalty" against him. Id . The Commonwealth responded by describing its office policy with respect to the role of the elected District Attorney in the decision to seek the death penalty as follows:

[T]he decision to seek the death penalty is initially approved by the Chief of the Homicide Unit, after reviewing a memorandum prepared by the trial prosecutor. The recommendation to seek the death penalty is then referred to the Deputy District Attorney for the Trial Division and subsequently to the First Assistant District Attorney. If both the Trial Deputy and First Assistant concur in the recommendation, it is submitted to the District Attorney for final authorization. The District Attorney's authorization constitutes a concurrence in the judgments of the First Assistant, Trial Deputy and the Chief of the Homicide Unit that the trial prosecutor has demonstrated a statutory basis for seeking the death penalty.

Id . at 757. In declining to recuse, Chief Justice Castille quoted this description and attested that the "Commonwealth's account of office policy respecting such preliminary decisions to seek the death penalty is an accurate description of the manner in which such decisions were made during my tenure." Id . at 758.

Appellant attempted to minimize the relevance of this published judicial opinion in the PCRA court by pointing to other assertions in Rainey that he argued mischaracterized the significance of District Attorney Castille's role in the death penalty process. See Reply to Motion to Dismiss, 4/3/2017, at 4 ("Chief Justice Castille adopted his former office's misleading and inaccurate description of his role in capital cases as being ‘nothing more’ than a concurrence in [his subordinates’] judgment that the death penalty statute applied.’ "), quoting Rainey , 912 A.2d at 758 ; see also id . at 5 n.4 ("Castille called his involvement ‘an administrative formality[.]’ "), quoting Rainey , 912 A.2d at 757. But these attempts to trivialize Rainey fail for the same reason we rejected appellant's claim that the Williams Court allegedly engaged in fact-finding: it confuses "fact" with an "argument about a fact." The relevant "fact" announced in Rainey was that all memoranda seeking approval to pursue the death penalty were "submitted to the District Attorney for final authorization." Rainey , 912 A.2d at 757. While the Commonwealth and Chief Justice Castille may have considered that fact to be an administrative formality or ministerial act, those beliefs about the legal significance of the fact did not negate the fact itself. Thus, even if we were to ignore the other articles discussed above, appellant still could not prove due diligence because he failed to pursue his recusal-based due process claim after the factual predicate for that claim was directly and publicly revealed by Chief Justice Castille himself in Rainey . See, e.g. , Chester , 895 A.2d at 523-24 (rejecting applicability of governmental interference and newly discovered fact exceptions "when the information was a matter of public record").

In concluding appellant did not exercise due diligence in ascertaining the fact upon which his claim is predicated, we find our decision in Commonwealth v. Hackett , 598 Pa. 350, 956 A.2d 978 (2008), particularly instructive. In that case, Hackett and three codefendants were tried together for a double homicide. Id . at 980. During jury selection, one of the codefendants, Marvin Spence, raised an objection that the prosecutor, Jack McMahon, inappropriately struck African American jurors in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Id . Hackett, who is Caucasian, did not make a Batson objection. Id . All four defendants were convicted of first-degree murder, Hackett and Spence were sentenced to death, and this Court affirmed Hackett's judgment of sentence on direct appeal. Id .

Hackett filed a timely PCRA petition in 1997 raising multiple claims of ineffective assistance of trial counsel, including one premised on counsel's failure to raise a Batson objection. Id . at 981. The PCRA court rejected that claim due to an insufficient evidentiary record, and we again affirmed. Id . Hackett thereafter filed a second PCRA petition in 2002, and filed a supplement to that petition in 2004. Id . In his supplemental petition, Hackett argued he was entitled to a new trial because he learned Spence had secured a new trial based on evidence that McMahon employed discriminatory tactics during jury selection — that claim having been premised on a videotaped lecture released by the Commonwealth in April 1997 that showed McMahon advocating racial and gender-based discrimination in the selection of jurors. Id . at 981-82. The PCRA court granted Hackett a new trial pursuant to Batson , concluding his petition was timely under the newly discovered fact exception because it was filed within 60 days of the date Spence received a new trial. Id . at 982.

The Commonwealth appealed, contesting the PCRA court's timeliness conclusion. Id . at 983. In the Commonwealth's view, the factual predicate of Hackett's Batson claim was the discovery of the McMahon videotape, not the ruling awarding Spence a new trial; and because the videotape was publicly released in 1997, the Commonwealth argued Hackett failed to exercise due diligence in ascertaining the facts upon which his claim was predicated. Id . We credited this argument on appeal:

[W]e agree with the Commonwealth that Appellee has failed to plead and prove the applicability of Section 9545(b)(1)(ii) and therefore the PCRA court had no jurisdiction to grant relief. Simply put, the facts upon which the Batson claim were predicated were ascertainable by Appellee upon the exercise of due diligence when the McMahon tape was released in April of 1997. There was nothing preventing Appellee from raising his Batson claim within sixty days thereafter. Appellee's attempt to circumvent the statutory language by asserting that the factual predicate of his claim is actually the PCRA court's ruling in Spence is specious. A PCRA petitioner cannot avoid the one-year time bar by tailoring the factual predicate of the claim pled in his PCRA petition in a way that unmistakably misrepresents the actual nature of the claim raised. Here, Appellee's Batson claim is not dependent upon what occurred in the PCRA matter of his codefendant and could have independently been raised by Appellee in a timely manner. Appellee, however, chose not to raise such claim until years after the McMahon tape was released to the public. As the Batson claim was untimely, the PCRA court lacked jurisdiction to grant relief.

Id . at 984 (internal citations omitted).

Similar to Hackett, appellant has gone to great lengths to obscure the factual predicate of his recusal-based due process claim and to tailor it to the issuance of the Williams decision. The Williams decision, however, much like the order granting Spence a new trial, is not the factual predicate to appellant's claim. Rather, as we have explained, the fact upon which appellant's due process claim is predicated is District Attorney Castille's authorization to seek the death penalty against him. That fact was ascertainable by appellant upon the exercise of due diligence beginning as early as 1993 when articles divulging that information were publicly reported in the press and in then-candidate Castille's campaign materials, and also in 2006, when then-Justice Castille authored a published single-justice opinion explaining his actual role in approving capital cases. At the very latest, appellant had reason to inquire into District Attorney Castille's role in approving the death penalty in his own case after his counsel in 2012 discovered a death penalty authorization memorandum in Williams's case.

But of course, appellant did not need the death penalty authorization memorandum in Williams's case, or even his own case — both of which only confirmed a fact that had been publicly available for decades — in order to raise his claim. To the contrary, as proven by other capital defendants who have been raising recusal claims since long before the death penalty authorization memorandum in Williams was discovered and the decision in that case was handed down, those materials were wholly unnecessary to support a recusal claim, as they only validated a previously known fact. See, e.g. , Commonwealth v. Marshall , 596 Pa. 587, 947 A.2d 714, 720 (2008) (the focus of the newly discovered fact exception is on "newly discovered facts , not on a newly discovered or newly willing source for previously known facts") (internal quotation and citation omitted) (emphasis in original). Nothing prevented appellant from raising a similar recusal claim, and had he exercised even a minimum level of diligence, surely he would have found in the public sphere the only fact necessary to raise such a claim. Consequently, we conclude appellant failed to prove he satisfied the governmental interference or newly-discovered fact exceptions to the PCRA's timebar.

The Superior Court sua sponte reached this exact conclusion in its recent decision quashing appellant's non-capital case. See Reid , 2019 WL 476717 at *4 ("Without averments of fact to even suggest that Reid made any efforts in the twenty-plus years prior to the filing of his petition to ascertain Justice Castille's potential conflict of interest due to his involvement in his case, let alone allegations that such attempts were thwarted by governmental interference, the PCRA court's determination that Reid satisfied a PCRA timeliness exception is unsupported by the record. As such, the PCRA court lacked jurisdiction to grant Reid relief in the form of partial reinstatement of his direct-appeal rights.") (emphasis in original). And in fact, the Superior Court itself has, on numerous occasions, reached almost every single conclusion we draw in this opinion with respect to Williams and its impact on the PCRA, although none of those decisions has yet been published. See, e.g. , Commonwealth v. Williams , 2020 WL 3415696 (Pa. Super., filed June 22, 2020) (sua sponte quashing nunc pro tunc appeal after concluding Williams fails to satisfy any exception to the PCRA's timebar); Commonwealth v. Lee , 2019 WL 4131429 (Pa. Super., filed Aug. 30, 2019) (same).

ii. New Constitutional Right Exception

In its order granting relief, the PCRA court explained it exercised jurisdiction over appellant's claims solely because it concluded his petition satisfied the newly discovered fact exception by a preponderance of the evidence. See Order, 6/22/2017, at 1 n.1. The court indicated the same jurisdictional basis in its opinion. See Trial Ct. Op., 11/6/2017, at 7. But the PCRA court in its opinion also decided — presumably because the Commonwealth had raised the issue in its Rule 1925(b) statement — that Williams applies retroactively on collateral appeal. Id . at 18-19. This conclusion, if correct, could render appellant's petition timely pursuant to the new constitutional right exception under Section 9545(b)(1)(iii). We therefore proceed to address it. We examined the terms of the new constitutional right exception in Abdul-Salaam :

Subsection (iii) of Section 9545 has two requirements. First, it provides that the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or this court after the time provided in this section. Second, it provides that the right "has been held" by "that court" to apply retroactively. Thus, a petitioner must prove that there is a "new" constitutional right and that the right "has been held" by that court to apply retroactively. The language "has been held" is in the past tense. These words mean that the action has already occurred, i.e. , "that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.

812 A.2d at 501. Thus, for present purposes, we need only consider whether the Williams Court announced a new constitutional right and, if so, whether that right has been held to apply retroactively.

It is true that this Court "generally has looked to the Teague doctrine in determining retroactivity of new federal constitutional rulings." Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1, 8 (2013). But the PCRA court erred insofar as it believed it was within its purview to conduct a retroactivity analysis of Williams in the first instance and then hold, based on that analysis, that appellant's already-filed PCRA petition satisfied the new constitutional right exception. See Abdul-Salaam , 812 A.2d at 501 ("By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed."). In that vein, since we are here concerned only with the jurisdictional timeliness of appellant's petition, we focus only on whether Williams "has been held" retroactive by the United States Supreme Court. We do, however, address the position — forwarded sua sponte in Justice Donohue's dissent — that Williams qualifies as a substantive rule under Teague , and that Abdul-Salaam ’s interpretation of the "has been held" language is no longer viable, infra at Section III.

We have little hesitation in concluding Williams embodies a new constitutional rule. See Teague , 489 U.S. at 301, 109 S.Ct. 1060 ("In general ... a case announces a new rule when it breaks new ground" or "was not dictated by precedent existing at the time the defendant's conviction became final") (emphasis in original); see also Graham v. Collins , 506 U.S. 461, 467, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (a rule is new "unless reasonable jurists hearing [a] petitioner's claim at the time his conviction became final ‘would have felt compelled by existing precedent’ to rule in his favor"), quoting Saffle v. Parks , 494 U.S. 484, 488, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). In fact, the Williams Court openly acknowledged its "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor." Williams , 136 S.Ct. at 1905. The Court nevertheless derived "the rule that must control" from "the principles on which [its] precedents rest[,]" 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 . This holding articulates a new rule of constitutional law. The only question that remains is whether the new right announced in Williams "has been held by that court to apply retroactively." 42 Pa.C.S. § 9545(b)(1)(iii). Appellant argued below that, because the new rule supposedly was applied "retroactively in a successive PCRA proceeding" in Williams , it "applies retroactively to all such cases." Reply to Motion to Dismiss, 4/3/2017, at 9-10, citing, e.g. , Tyler v. Cain , 533 U.S. 656, 668-69, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (O'Connor, J., concurring) ("[I]f we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review."). The Commonwealth, in contrast, strongly disputed that the Williams Court applied its new rule retroactively to Williams:

At one point, the PCRA court described the rule announced in Williams in this way: "If a judge served as a prosecutor and then the judge, there is no separate analysis or determination required by the court, there is a finding of automatic bias and a due process violation." Trial Ct. Op., 11/6/2017, at 19. This interpretation of the holding in Williams is imprecise and would potentially have far-reaching consequences. For clarity's sake, we reiterate once more that the rule announced in William s is 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.

[Appellant] contends that, because the United States Supreme Court granted review of a ruling by the Pennsylvania Supreme Court, and that Pennsylvania Supreme Court ruling happened to be a PCRA appeal, the [United States] Supreme Court's ruling was therefore also a PCRA appeal — in other words, a form of collateral review. So, contends [appellant], Williams was secretly applying its ruling ‘retroactively — even though it never remotely suggested any such thing.

That is a specious syllogism. When Williams was in the Pennsylvania Supreme Court, he was collaterally attacking his conviction — that is, the original judgment of sentence for murder. When he went on to the [United States] Supreme Court, Williams could have continued his collateral attack — that is, he could have asked the federal court to rule that his conviction and sentence were invalid, just as he had asked the state court to rule.

Williams, however, did no such thing in the [United States] Supreme Court; indeed, he explicitly disavowed any such claim. Instead, he explicitly asked that court to rule only on the process by which the immediately preceding ruling — the ruling of the Pennsylvania Supreme Court — had been made. He framed the claim as one of procedural due process. He did not seek to collaterally disturb his conviction or sentence; he sought only more process — another round of appeal in the Pennsylvania Supreme Court.

Of course, the [United States] Supreme Court applied its ruling to Williams — not to his collateral attack on his conviction (which was effectively on hold), however, but to the proceeding that had just occurred in the Pennsylvania Supreme Court. There was nothing ‘collateral’ about the proceedings in the [United States] Supreme Court at all; they were direct review of the process — not the substantive ruling — in the state court. That is why the [United States] Supreme Court never said a word about applying its ruling ‘retroactively.’ Its decision was neither ‘collateral’ nor ‘retroactive.’

Motion to Dismiss, 3/20/2017, at 16-17 (emphasis in original).

We agree with the Commonwealth's position. Nothing in the Williams decision remotely suggests the Court intended for its holding to apply retroactively to cases on collateral appeal, and the mere fact that the due process violation at issue in Williams happened to arise in the context of a PCRA appeal did not somehow render the decision affording Williams relief "collateral" or "retroactive." At this point in time, there is absolutely no basis for concluding Williams announced a new constitutional right that has been held by the United States Supreme Court to apply retroactively to cases on collateral appeal. Accordingly, appellant's petition could not successfully invoke the new constitutional right exception to the PCRA's timebar.

c. Waiver

As the above analysis demonstrates, appellant's petition was untimely, and the PCRA court was consequently without jurisdiction to address the claims raised therein, because appellant failed to establish an exception to the timebar. Moreover, we find additional error on an independent basis: appellant's claim is waived.

To be eligible for relief under the PCRA, a petitioner must plead and prove by a preponderance of the evidence, among other enumerated requirements, that "[t]he allegation of error has not been previously litigated or waived." 42 Pa.C.S. § 9543(a)(3). See Commonwealth v. Tedford , 598 Pa. 639, 960 A.2d 1, 12 (2008) ("A claim that has been waived is not cognizable under the PCRA."). "[A]n issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b).

Without belaboring the point, we conclude appellant could have raised his due process claim by simply asking Chief Justice Castille to recuse himself in Reid II . While we do not deny appellant's assertion that the Commonwealth for years espoused "the party line" that District Attorney Castille only performed ministerial functions in capital cases, see Reply to Motion to Dismiss, 4/3/2017, at 4, the Commonwealth's position regarding the legal significance of Castille's involvement in death penalty cases did not absolve appellant of his duty to raise the recusal issue at the earliest possible opportunity. As the Commonwealth observes, other capital defendants during the last two decades were undeterred from asking Chief Justice Castille to recuse based on his prior involvement in their cases as District Attorney. See Motion to Dismiss, 3/20/2017, at 6-7, citing, e.g. , Rainey , 912 A.2d 755 (Castille, J., denying recusal); Commonwealth v. (Roy) Williams , 557 Pa. 207, 732 A.2d 1167 (1999) (full court, per Saylor, J., addressing and rejecting claim by petitioner's counsel that prior counsel was ineffective for not seeking Justice Castille's recusal on direct appeal); Commonwealth v. Abu-Jamal , 553 Pa. 569, 720 A.2d 121 (1998) (Castille, J., denying recusal); Commonwealth v. Jones , 541 Pa. 351, 663 A.2d 142 (1995) (Castille, J., denying recusal). In the same way these other capital defendants seized upon the public information revealing District Attorney Castille's role in death penalty cases and filed recusal requests, so too could have appellant.

We also reject the suggestion that appellant's claim is not waived because Williams announced a new constitutional rule. See Reply to Motion to Dismiss, 4/3/2017, at 6 (arguing he "could not waive a claim whose legal basis ... was not available at the time of his prior appeals"); Trial Ct. Op., 11/6/2017, at 16 ("As this was the first opportunity for [appellant] to raise a claim following the change in recusal and due process jurisprudence, this court found [appellant] has not waived his constitutional claims."). Contrary to these assertions, the legal basis for appellant's recusal-based due process claim clearly existed before the Williams decision. See, e.g. , Caperton v. A.T. Massey Coal Co., Inc. , 556 U.S. 868, 881, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) (setting forth objective standards that require judicial recusal, which ask whether "the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias’ "); In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (due process guarantees "an absence of actual bias" on the part of a judge, and an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case). While it is true the Williams Court devised a "specific test governing recusal when ... a judge had prior involvement in a case as a prosecutor[,]" the Court explained its new rule was based on "the principles on which these precedents rest[.]" Williams , 136 S.Ct. at 1905 ; see id . at 1906 ("[T]he constitutional principles explained in Murchison are fully applicable where a judge had a direct, personal role in the defendant's prosecution."). It cannot be said, then, that there was no legal basis for raising a recusal claim until Williams was announced; there certainly was, but appellant opted not to advance it.

For this reason, we find the PCRA court's reliance on the Superior Court's decision in Stark , misplaced. Stark , which of course is not binding on this Court, dealt with an entirely different scenario in which a number of changes were made to the Board of Probation and Parole release rules after Stark pleaded guilty and was already sentenced. 698 A.2d at 1328. Since those changes — which resulted in the denial of parole to Stark — occurred after his right to file a direct appeal had expired, and he raised his claim as soon as he learned of it in a first PCRA petition, the Superior Court found the issue was not waived under Section 9543(a)(3). Id . at 1329. The situation in Stark is not at all comparable to the instant case.
We also disapprove of the PCRA court's creation of a non-statutory exception to Section 9544(b) ’s definition of waiver for issues that "raise[ ] ethical concerns such as the violation of the Pennsylvania Code of Judicial Conduct[.]" Trial Ct. Op., 11/6/2017, at 16. In the case upon which the PCRA court cited for that proposition, the Superior Court excused the waiver of a conflict of interest claim under Pa.R.A.P. 302(a) where the defendant alleged for the first time on appeal that the prosecutor who handled the PCRA proceeding from which the defendant's appeal was taken was previously his trial counsel in that case. Townsend , 850 A.2d at 742-43. Thus, Townsend , like Williams , involved an issue with the process that had just occurred in the proceeding directly below; it did not, however, create a broad waiver exception for any issue that raises an ethical concern, or even mention Sections 9543(a)(2) or 9544(b) of the PCRA. The PCRA court's attempt to avoid a finding of waiver by crafting its own exception to these statutes "in the interests of justice" cannot be condoned.

As the Commonwealth does, we find it significant that Williams himself preserved the recusal claim at issue in Williams by asking Chief Justice Castille to recuse from his PCRA appeal. This reality is perhaps the strongest proof that the legal basis for a recusal claim pre-dated the Williams decision. Indeed, had appellant asked Chief Justice Castille to recuse in Reid II and been rebuffed, he could have petitioned the United States Supreme Court to take his preserved claim and, quite possibly, could have "become" Williams by raising the same argument Williams did. But because he chose not to do so, appellant's recusal-based due process claim raised for the first time in 2016 in his untimely, successive petition is waived under Section 9543(a)(3).

III. Response to the Dissents

a. Justice Donohue's Dissent

Despite acknowledging our duty to confirm proper jurisdiction over this serial appeal, Justice Donohue nevertheless criticizes our jurisdictional analysis as "flawed[.]" Dissenting Op. (Donohue, J.) at 1170–71. From there, Justice Donohue embarks on a tortured journey in search of some basis for concluding the PCRA court — and by extension, this Court — had jurisdiction over appellant's facially untimely petition. To what surely will come as a shock to the parties and the PCRA court alike, Justice Donohue finds what she believes is the solution to appellant's jurisdictional problem in a place where neither appellant himself nor the PCRA court dared venture: under Teague ’s exception for new "substantive" rules. Even though neither appellant nor the PCRA court have ever argued as much, Justice Donohue concludes that " Williams announced a substantive rule that must apply retroactively in this case as a matter of constitutional law." Id . at 1177. Along the way to reaching that remarkable conclusion, Justice Donohue would have us overrule this Court's decision in Abdul-Salaam ; ignore the plain text of Section 9545(b)(1) ; and resurrect the long-since-abandoned doctrine of relaxed waiver, by declaring the PCRA's waiver requirements do not apply to this particular capital case. As shown below, this novel theory of jurisdiction proves even less persuasive, and far more radical, than those we have already rejected.

To begin, we question the propriety of Justice Donohue's attempt to inject her own theory of jurisdiction into this case, under the right for any reason doctrine, where appellant himself never raised the theory in the PCRA court. Cf. PCRA Petition, 8/8/2016, at 5 (arguing only that Williams is "retroactive on its face" because the Supreme Court supposedly "applied both of its holdings retroactively to a successive PCRA"). The PCRA instructs that a petition must be filed within one year of the date the judgment of sentence becomes final "unless the petition alleges and the petitioner proves that" one of the timebar exceptions applies. 42 Pa.C.S. § 9545(b)(1) (emphasis added). We have consistently maintained this clear statutory language means "it is the petitioner's burden to allege and prove that one of the timeliness exceptions applies." Commonwealth v. Robinson , 635 Pa. 592, 139 A.3d 178, 186 (2016) (emphasis added); see, e.g ., Edmiston , 65 A.3d at 346 ("We have repeatedly stated it is the appellant's burden to allege and prove that one of the timeliness exceptions applies."); Marshall , 947 A.2d at 719 ("We emphasize that is it the petitioner who bears the burden to allege and prove that one of the timeliness exception applies."); Commonwealth v. Abu-Jamal , 596 Pa. 219, 941 A.2d 1263, 1268 (2008) ("It is the petitioner's burden to allege and prove that one of the timeliness exceptions applies."); Fahy , 737 A.2d at 218 ("As stated in the amendments, it is for the petitioner to allege in his petition and to prove that he falls within one of the exceptions found in [ Section] 9545(b)(1)(i)-(iii)."). These dual statutory requirements that "the petition alleges" and the "petitioner proves" a particular timeliness exception could arguably suggest an appellate court may not affirm a finding of jurisdiction on a theory neither raised nor proven by the petitioner himself.

In this regard, we observe that in the past we have "had to consider the continuing viability of [other] judicial rules that find themselves in separation of powers tension with the governing terms of the PCRA." Commonwealth v. Jones , 572 Pa. 343, 815 A.2d 598, 610 (2002) (citation omitted). By way of example, in Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693 (1998), we held relaxed waiver is no longer viable on PCRA appeals because "application of the doctrine of relaxed waiver in a PCRA proceeding runs afoul of the very terms of the [PCRA], which excludes waived issues from the class of cognizable PCRA claims." Id . at 700. For similar reasons, it could be argued that an application of the "right for any reason" doctrine to the present context might undermine Section 9545(b)(1), which places the burden solely on the petitioner — not on members of an appellate tribunal — to allege and prove within the petition itself any applicable timeliness exception.

Relatedly, we also note that as judicial officers, we have an indispensable duty to function as neutral and impartial arbiters. See, e.g. , Commonwealth v. Bell , ––– Pa. ––––, 211 A.3d 761, 773 n.12 (2019), cert. denied sub nom. , ––– U.S. ––––, 140 S.Ct. 934, 205 L.Ed.2d 522 (2020) (citing the "longstanding principle that courts should not act as advocates"); Commonwealth v. Le , ––– Pa. ––––, 208 A.3d 960, 976 n.17 (2019) ("It is not this Court's function to act as an advocate for the parties."); Hrivnak v. Perrone , 472 Pa. 348, 372 A.2d 730, 733 (1977) (a court should "not assume the advocate's function of introducing theories not raised by the parties"). When an appellate court conjures up additional jurisdictional theories never raised or argued by the petitioner, it could risk upending the bedrock of our adversarial system. See Greenlaw v. United States , 554 U.S. 237, 244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ("[A]s a general rule, our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.") (citation and internal quotations and brackets omitted). Indeed, Justice Donohue's view appears to suggest a petitioner need only check off a box for each timeliness exception in his petition, without any further elaboration, and hope that an appellate court will later do the legal leg work by "proving" jurisdiction for him on appeal.

In any event, while these concerns give us pause, we decline to definitively decide this issue in this appeal. As demonstrated below, even assuming arguendo that the right for any reason doctrine is applicable in this context, Justice Donohue's sua sponte theory of jurisdiction is no more viable than the theories appellant and the PCRA court actually raised. We therefore proceed to address the theory and the legal arguments raised in support of it.

Preliminarily, we set the record straight as to two assertions in Justice Donohue's dissent that are clearly incorrect. First, at several points she alleges appellant and Terrance Williams "are in identical postures[.]" Dissenting Op. (Donohue, J.) at 1171 n.4; see also id . at 1170 ("Reid is in an identical posture to Williams[.]"). They most definitely are not. While District Attorney Castille may have authorized subordinates to seek the death penalty against both appellant and Williams and later participated in panels that decided their appeals, that is where the similarities end. Most pertinent here, appellant, unlike Williams, never asked Chief Justice Castille to recuse from his appeal. And, because appellant failed to make such a request, it naturally follows that he never petitioned the United States Supreme Court to review Chief Justice Castille's refusal to recuse and, therefore, that Court never vacated this Court's decision in Reid II , as it did in Williams .

This leads to the second point: contrary to Justice Donohue's assertion, appellant's 2014 PCRA appeal is not "a nullity." Dissenting Op. (Donohue, J.) at 1183. It is elementary that 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). Thus, although Chief Justice Castille improperly participated in the decision in Reid II , it is not a nullity and, in fact, remains binding precedent unless and until this Court or the United States Supreme Court holds otherwise. It is imprudent to suggest our decision in Reid II (and, by implication, multiple other decisions issued under similar circumstances) is a "nullity," as this does nothing more than create needless uncertainty for our trial and appellate courts.

Worse yet is the unwarranted shadow of doubt Justice Donohue casts over other settled law from this Court which does not in any way concern Williams . Specifically, in order for her theory of retroactivity to succeed, Justice Donohue recognizes it must also overcome this Court's holding in Abdul-Salaam that the phrase "has been held" as used in Section 9545(b)(1)(iii), "mean[s] that the action has already occurred, i.e. , ‘that court’ has already held the new constitutional right to be retroactive to cases on collateral review." 812 A.2d at 501. After all, it would accomplish little to hold only that Williams announced a substantive new rule of constitutional law that applies retroactively, since Abdul-Salaam would still preclude a finding of jurisdiction. But Justice Donohue has a plan to remove this precedential roadblock as well: she would declare that Abdul-Salaam ’s analysis is no longer correct following the United States Supreme Court's decision in Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). This position is untenable. While Montgomery is important insofar as it enshrined Teague as a constitutional command that extends to state post-conviction proceedings, it in no way alters the Abdul-Salaam Court's statutory interpretation of Section 9545(b)(1)(iii).

In Montgomery , the central issue before the Supreme Court was whether its prior decision in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (prohibiting mandatory life sentences without parole for juvenile offenders), announced a new substantive constitutional rule that was retroactive on state collateral review. Before reaching that question, however, the Court first had to consider if it had jurisdiction to decide whether the Supreme Court of Louisiana properly refused to give retroactive effect to Miller , as federal precedent up to that point had "le[ft] open the question whether Teague ’s two exceptions [to the bar on retroactive application of new rules] are binding on the States as a matter of constitutional law." Montgomery , 136 S.Ct. at 729 (citation omitted). The Court answered that threshold question in the affirmative. It explained that "when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule." Id . Importantly, though, the Court noted its holding is "limited to Teague ’s first exception for substantive rules[,]" id ., and applies only when "a state collateral proceeding is open to a claim controlled by federal law" and "the claim is properly presented in the case." Id . at 731-32.

Justice Donohue seizes upon this holding in Montgomery and argues that "[s]ince Pennsylvania's collateral review courts are open to retroactive application of new rights through the [S]ection 9545(b)(1)(iii) exception and a prisoner is permitted to allege due process violations once jurisdiction is established, it follows ... that Pennsylvania is constitutionally obligated to give retroactive effect to Williams if it qualifies as a substantive rule." Dissenting Op. (Donohue, J.) at 1179. Setting aside for a moment the fact that Williams does not qualify as a new substantive rule, the other obvious hole in Justice Donohue's argument is that it ignores the plain language of Section 9545(b)(1)(iii). The plain language makes clear that, when dealing with an otherwise untimely PCRA petition, our collateral review courts are only "open" to a claim that a new constitutional right applies when the right "has been held by that court to apply retroactively." 42 Pa.C.S. § 9545(b)(1)(iii). In other words, because the "has been held" language "means that the ruling on retroactivity of the new constitutional law must have been made prior to the filing of the petition for collateral review[,]" Abdul-Salaam , 812 A.2d at 501, our state collateral courts are, in fact, not "open" to a claim that a new constitutional right applies, unless the right has already been held to apply retroactively.

In support of her resolve to overrule Abdul-Salaam and judicially stamp out the "has been held" language from the statute once and for all, Justice Donohue points to the Abdul-Salaam Court's supposed "qualifi[cation]" of its statutory analysis, i.e. , the Court's remark that "the question arises whether the salient restriction on serial, state post-conviction review is a reasonable one[.]" Dissenting Op. (Donohue, J.) at 1178, quoting Abdul-Salaam , 812 A.2d at 501. Ostensibly, Justice Donohue would hold the relevant restriction imposed by the legislature is no longer reasonable, on the basis that prisoners previously "had no constitutional basis to insist on retroactivity in the first place." Id . at 1180. The problem with this argument is that the Abdul-Salaam Court's conclusion that the relevant limitation on serial state collateral review is "a reasonable one," 812 A.2d at 501, had nothing to do with whether Teague imposed a constitutional command on the states; indeed, strikingly absent from the analysis in Abdul-Salaam is any mention of Teague or its progeny. Rather, the Court explained its interpretation of the restriction imposed by the "has been held" language was reasonable where the claims "depend[ed] upon an evolving line of United States Supreme Court precedent involving an interpretation of the United States Constitution, and review within the federal judicial system over which that Court presides has not been shown to be foreclosed." Id . As the same is unquestionably true here, Justice Donohue's position that we should overrule Abdul-Salaam (which no one has asked us to do) and ignore the plain text of Section 9545(b)(1)(iii) (which we cannot do), is indefensible.

We also observe that, at times, Justice Donohue places great emphasis on the fact that this is a death penalty case. See, e.g. , Dissenting Op. (Donohue, J.) at 1181–82 n.26 (asserting any interest in finality in this case is minimal because "the death penalty is at issue"). This strategy is not new; the defendant in Abdul-Salaam invoked similar sentiments in urging us not to interpret Section 9545(b)(1)(iii) in the manner we ultimately did. But we flatly rejected his position, explaining that "in interpreting the exception in subsection (iii) to the jurisdictional time requirement, we are not at liberty to disregard the plain language of the statute." Abdul-Salaam , 812 A.2d at 502. Once more, our conclusion in Abdul-Salaam holds equally true here, and for that reason the concerns espoused by Justice Donohue that this is a death penalty case, and that Williams only applies to an "extremely small number of cases[,]" see Dissenting Op. (Donohue, J.) at 1171, are misplaced.

Of course, as even Justice Donohue concedes, the patently incorrect conclusions drawn in her dissent are wholly irrelevant if Williams does not qualify as a substantive rule in the first place. See Dissenting Op. (Donohue, J.) at 1180–81 (stating Williams applies retroactively only "if it qualifies as a substantive rule"); accord Montgomery , 136 S.Ct. at 729 (explaining that its holding that state collateral review courts must give retroactive effect to new rules of constitutional law is "limited to Teague ’s first exception for substantive rules"). And since it is undeniable that Williams did not announce a substantive rule of constitutional law, the entire house of cards upon which Justice Donohue's sua sponte theory of jurisdiction rests must fall. The United States Supreme Court has explained that substantive rules "set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the State's power to impose." Montgomery , 136 S.Ct. at 729. "Substantive rules include rules forbidding criminal punishment of certain primary conduct, as well as rules prohibiting a certain category of punishment for a class of defendants because of their status or offense." Id . at 728 (citations and internal quotations omitted). By contrast, procedural rules "are designed to enhance the accuracy of a conviction or sentence by regulating ‘the manner of determining the defendant's culpability.’ " Id . at 730, quoting Schriro v. Summerlin , 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (emphasis in original). "They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Schriro , 542 U.S. at 352, 124 S.Ct. 2519. So whereas a conviction or sentence may still be accurate and, by extension, a defendant's continued confinement may still be lawful, even if a procedural error has infected a trial, "[t]he same possibility of a valid result does not exist where a substantive rule has eliminated a State's power to proscribe the defendant's conduct or impose a given punishment." Montgomery , 136 S.Ct. at 730.

Under this framework, Williams quite plainly does not embody a substantive rule. The Williams Court announced its new rule in this way: "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. More precisely, here, as in Williams , the applicable rule is that where a prosecutor authorized pursuit of the death penalty against a defendant, he may not later serve as an appellate jurist in that particular defendant's case; he must recuse. Obviously, and as Justice Donohue agrees, this rule does not preclude the government from prohibiting particular conduct or deem any conduct constitutionally protected. See Dissenting Op. (Donohue, J.) at 1182 ("There is no doubt that Reid was convicted for conduct that the States may validly punish."). Nor, for that matter, does Williams ’s recusal rule place any class of persons or punishments off limits. The only constraint Williams imposes is on the manner in which recusal decisions must be made and appellate review is to be conducted. It is, therefore, a quintessentially procedural rule, not a substantive one.

In arriving at the opposite conclusion, Justice Donohue attempts to rewrite the Supreme Court's entire body of case law pertaining to Teague and retroactivity. Her dissent contends the definition of substantive rules encompasses not only rules that categorically place certain conduct and punishments altogether beyond the State's power to impose, but also "extends to new rules that touch on whether the prisoner may remain in jail in light of case law issued after the judgment of sentence became final, even though the underlying conduct was doubtlessly criminal." Dissenting Op. (Donohue, J.) at 1182 (emphasis in original). Unsurprisingly, Justice Donohue includes no case support for this bold proposition of law, save for a statement that "the rationale employed by the High Court in Montgomery " supports it. Id . Yet an honest reading of Montgomery proves the exact opposite.

The Montgomery Court expressed, in no uncertain terms, that "[b]ecause Miller determined that sentencing a child to life without parole is excessive for all but the rare juvenile offender whose crime reflects irreparable corruption, it rendered life without parole an unconstitutional penalty for a class of defendants because of their status — that is, juvenile offenders whose crimes reflect the transient immaturity of youth." 136 S.Ct. at 734 (internal citations and quotations omitted). The Court explained further, "[l]ike other substantive rules, Miller is retroactive because it necessarily carries a significant risk that a defendant — here, the vast majority of juvenile offenders — faces a punishment that the law cannot impose upon him." Id . (internal citations, quotations, and brackets omitted). Accordingly, the rationale employed by the Montgomery Court is squarely in line with that Court's longstanding articulation of retroactivity principles, and it did not expand the definition of substantive rules, as Justice Donohue imagines.

Justice Donohue attempts to turn the rationale in Montgomery on its head by asserting "Miller explicitly recognized that there is no blanket prohibition against confining a juvenile convicted of homicide for life with no hope of release." Dissenting Op. (Donohue, J.) at 1182, citing Miller , 567 U.S. at 483, 132 S.Ct. 2455 ("Our decision does not categorically bar a penalty for a class of offenders or type of crime[.] ... Instead, it mandates only that a sentencer follow a certain process — considering an offender's youth and attendant characteristics — before imposing a particular penalty."). To be sure, the selected quote from Miller seems at odds with Montgomery ’s ultimate holding that Miller is retroactive precisely because it categorically barred a penalty for a class of offenders, a point which did not escape the Montgomery dissenters’ notice. See Montgomery , 136 S.Ct. at 743 (Scalia, J., dissenting) ("it is impossible to get past Miller ’s unambiguous statement that ‘[o]ur decision does not categorically bar a penalty for a class of offenders’ ") (citation omitted). Indeed, Justice Scalia went so far as to assert the majority was "not applying Miller , but rewriting it." Id . Perhaps this seeming inconsistency explains at least in part why the Supreme Court recently granted certiorari in Jones v. Mississippi , 285 So.3d 626 (Miss. Ct. App. 2017), cert. granted , ––– U.S. ––––, 140 S.Ct. 1293, 206 L.Ed.2d 374 (2020), wherein the Court seems poised to remove all doubt regarding its holdings in Miller and Montgomery . But in any event, the critical point for our purposes is that Montgomery expressly announced Miller was retroactive because it announced a rule that bars a penalty "for a class of defendants because of their status[,]" 136 S.Ct. at 734 (internal citation and quotation omitted), a classic example of a substantive rule. It is therefore Justice Donohue that actually "ignore[s] Montgomery ’s analysis[.]" Dissenting Op. (Donohue, J.) at 1184 n.30, and her attempt to recast our position in this regard as being "based on the dissenting opinion in Montgomery ," id ., is unsustainable.

Justice Donohue's reliance on Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), as "further support" for its interpretation, Dissenting Op. (Donohue, J.) at 1183–84, suffers the same flaws. In that case, the United States Supreme Court held the rule announced in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (striking down the residual clause of the federal Armed Career Criminal Act as void for vagueness), was substantive. The Court reasoned, "[b]y striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering ‘the range of conduct or the class of persons that the [Act] punishes.’ " Welch , 136 S.Ct. at 1265, quoting Schriro , 542 U.S. at 353, 124 S.Ct. 2519. See also id . (" Johnson affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied. Johnson is thus a substantive decision and so has retroactive effect under Teague in cases on collateral review."). The retroactivity determination in Welch , then, like the determination in Montgomery , hinged on a finding that the respective rule altered either "the range of conduct or the class of persons that the law punishes." Schriro , 542 U.S. at 353, 124 S.Ct. 2519.

In stark contrast, the new rule announced in Williams does not touch upon the range of conduct or the class of persons that the law punishes; it instead prescribes only the manner in which a jurist must decide his own participation in a case where he earlier had significant, personal involvement as a prosecutor in a critical decision regarding that case. Williams , 136 S.Ct. at 1905. Every court in the nation that has considered whether Williams is retroactive has reached this exact conclusion. See Silversky v. Fletcher , 770 F.App'x 859 (9th Cir. 2019) ("any rule announced in Williams ... regulates only the manner of determining the defendant's culpability and thus is not substantive") (internal citation, quotations, and brackets omitted; emphasis in original); Houston v. Kallis , No. 17-cv-1065, 2018 WL 2449191, *3 (C.D. Ill. May 31, 2018) (citing prior decisions holding Williams "did not announce a substantive rule applied retroactively" and "Williams is not retroactive"); McCuthcen v. Wenerowicz , No. 15-cv-2706, 2017 WL 9401169, *3 (E.D. Pa. Sept. 15, 2017) ("Williams did not announce a substantive rule ... because it did not alter the range of conduct or class of persons that the law punishes.") (citation omitted). This unanimous persuasive authority serves as strong support for our conclusion that Williams did not announce a substantive rule, and cuts directly against Justice Donohue's contrary outlier position.

Justice Donohue considers that her nationally groundbreaking conclusion that Williams announced a substantive rule of law "is narrow[,]" and she stresses the fact that we have only seen five such cases over a four-year period. Dissenting Op. (Donohue, J.) at 1183–84 n.29. Respectfully, we fail to see how this changes anything or is relevant at all. If it is meant to imply it is more acceptable to ignore the PCRA's clear statutory requirements where it only results in relief to a small number of individuals, we reject that unstated premise, for reasons along the lines of those we have expressed at length throughout this opinion. Further, while it is true that this Court has seen just five such cases over the past few years, Justice Donohue neglects the fact that the Superior Court has also dealt with its fair share of cases that fall directly under Williams but did not come directly to this Court because the defendants in those cases are no longer serving sentences of death. See supra at 1153 n.17. More concerning still are the untold ripple effects that would inevitably follow from Justice Donohue's approach to reaching her desired result, which ignores the "has been held" language of Section 9545(b)(1)(iii), by sua sponte overruling Abdul-Salaam , and ignores Section 9544(b) ’s waiver requirement, by improperly resurrecting the doctrine of relaxed waiver. It is therefore apparent that while the substantive rule Justice Donohue would adopt is purportedly "narrow," her means for reaching that conclusion would have seismic consequences in the larger context of PCRA jurisprudence throughout this Commonwealth.

As demonstrated, the theory of jurisdiction championed by Justice Donohue collapses at every level with minimal scrutiny. Again, this outcome is not surprising considering appellant never saw fit to raise the theory himself. See Greenlaw , 554 U.S. at 244, 128 S.Ct. 2559 ("the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief") (internal quotations and citation omitted). But in the end, Justice Donohue's sua sponte theory of jurisdiction fares no better than the other failed theories that appellant actually raised.

We see no pressing need to quarrel with the additional position embraced in Justice Donohue's dissent regarding the PCRA's waiver requirements as those arguments, by her own terms, rest on the assumption that "a substantive rule is at issue." Dissenting Op. (Donohue, J.) at 1186–87. None is at issue here, as we have established. Still, we find it prudent to briefly rebut two points. First, Justice Donohue's claim that under our view "no one can ever secure relief" pursuant to Section 9545(b)(1)(iii) because the claim would either be waived or previously litigated, id . at 1185–86 n.32 (emphasis in original), rests on a false premise. Our reason for declining to discuss the "previously litigated" aspect of Section 9543(a)(3) is because we do not believe, as Justice Donohue apparently does, that, if appellant had filed a recusal motion, his new Williams -based due process claim would be previously litigated. The explanation for this conclusion is simple: a jurist's personal decision whether to grant a motion to recuse clearly does not qualify as a "rul[ing] on the merits of the issue" by "the highest appellate court in which the petitioner could have had review as a matter of right[.]" 42 Pa.C.S. § 9544(a)(2). Second, as it pertains to Justice Donohue's discussion of waiver principles as applied in capital cases — and, in particular, her reliance on relaxed waiver as articulated in Commonwealth v. McKenna , 476 Pa. 428, 383 A.2d 174 (1978), see Dissenting Op. (Donohue, J.) at 1186–86 n.32 —she ignores that this Court has long since applied strict waiver principles even to capital cases, especially in the post-conviction context. See, e.g. , Albrecht , 720 A.2d at 700 ("application of the doctrine of relaxed waiver in a PCRA proceeding runs afoul of the very terms of the [PCRA], which excludes waived issues from the class of cognizable PCRA claims").

b. Judge McCaffery's Dissent

Many of the erroneous assumptions and conclusions drawn by Justice Donohue similarly permeate Judge McCaffery's dissenting opinion. For example, he makes the same critical mistake of presuming appellant and Terrance Williams are in the same posture. See Dissenting Op. (McCaffery, J.) at 1218 ("we must find a way to allow those capital defendant[s]/appellants who are situated as Williams was to receive an appeal free of structural error"). But, to reiterate the point once more, the notion that appellant is "situated as Williams was" is undeniably incorrect, because appellant never asked Chief Justice Castille to recuse, as Williams did. Thus, the answer to the so-called "Goldilocks" problem posed by Judge McCaffery — i.e. , "When was the time ‘just right’ for [appellant] to ask for fair, constitutional appellate review of his first, timely-filed petition?" id . at 1221 — is plain and simple: during that first appeal. After all, that is precisely what Williams did, and his advancement of the issue before this Court and, later, the United States Supreme Court, is what actually led to relief in his own case. It cannot be stressed enough that nothing precluded appellant from proceeding in the exact manner that Williams did; he simply chose not to, and this failure is what differentiates him from Williams.

Another global problem with Judge McCaffery's position is that it sounds almost entirely in principles of equity and is unduly influenced — much like Justice Donohue's dissent — by the mere fact that the "body of cases impacted by Williams is small and unique[.]" Id . at 1222; see id . ("It is hard to imagine that there would be many other scenarios like this one[.]"). But true as it may be that Williams affects only "a handful of capital cases in one county out of 67 across the Commonwealth[,]" id . at 1220, as explained supra at 1164 n.23, this is completely beside the point. We are here confronted with a routine jurisdictional analysis pursuant to the statutory terms of the PCRA, and there is no shortage of case law from this Court explaining that such an analysis is not subject to equitable considerations. See, e.g., Robinson , 837 A.2d at 1157 (collecting a multitude of cases in which this Court has rejected "various theories devised to avoid the effects of the one-year time limitation"). As demonstrated below, Judge McCaffery's "suggest[ed] solution" to the jurisdictional problem in this case, Dissenting Op. (McCaffery, J.) at 1217, amounts to nothing more than another equitable theory created out of whole cloth and aimed at avoiding the plain terms of the PCRA, in an apparent effort to ameliorate his personal objection to the fact we lack jurisdiction to afford relief.

Although it is somewhat difficult to discern, Judge McCaffery's jurisdictional theory seems to proceed as follows: the Commonwealth now concedes District Attorney Castille approved a trial prosecutor's request to seek the death penalty against appellant; this concession amounts to a fact; PCRA courts are factfinders; appellate courts must apply a deferential approach to the factfinding of lower courts; as such, we should "give the benefit of the doubt to the PCRA court's factual determination[ ] ... that the Commonwealth's concession ... is a new fact[.]" Id . at 1222. In other words, although he never plainly states as much, Judge McCaffery seems to be of the view that appellant has satisfied the newly discovered fact exception to the PCRA's timebar set forth at 42 Pa.C.S. § 9545(b)(1)(ii), and that we are bound to accept this conclusion simply because the PCRA court reached it. Oddly, though, even though this conclusion, if correct, would secure our jurisdiction and permit us to proceed to the merits, Judge McCaffery does not stop there. Instead, he inexplicably "urge[s] that this Court" should overrule (or, in his words, "fine-tun[e]") our decision in Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638 (1998), wherein we held that the PCRA's timebar is jurisdictional in nature. Dissenting Op. (McCaffery, J.) at 1222. We proceed to unpack and disprove these theories.

First, regarding Judge McCaffery's position concerning the newly discovered fact exception, his opinion's analysis is gravely flawed from inception. Without providing any support, it baldly asserts that when a "PCRA court finds a jurisdictional basis in facts rather than in an offbeat or novel interpretation of the law, appellate courts must apply a deferential standard, in recognition of the trial court's fundamental role as factfinder." Id . at 1219. In point of fact, our case law instructs that the question of whether a PCRA petition is timely raises a question of law . See, e.g. , Commonwealth v. Fahy , 598 Pa. 584, 959 A.2d 312, 316 (2008) ("Questions regarding the scope of the statutory exceptions to the PCRA's jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo .") (citation omitted). Moreover, we have explained that, as a general matter, the level of deference we afford to a lower court varies "depending upon whether the decision involved matters of credibility or matters of applying the governing law to the facts as so determined." Commonwealth v. Reaves , 592 Pa. 134, 923 A.2d 1119, 1124 (2007) (citations omitted). Here, of course, we are not concerned with any matters of credibility, but rather the PCRA court's purely legal conclusion that appellant satisfied the newly discovered fact exception to the timebar. Thus, contrary to Judge McCaffery's erroneous view, no deference at all is owed to the PCRA court's timeliness finding in this matter; instead, as we have expressed in countless prior decisions, "this Court applies a de novo standard of review to [a] PCRA court's legal conclusions." Commonwealth v. Paddy , 609 Pa. 272, 15 A.3d 431, 442 (2001). Having established that the framework under which Judge McCaffery's position emanates is faulty from the start, we now address the substance of his theory. However, it turns out there is not much that needs to be said because, in many ways, Judge McCaffery's argument is entirely self-defeating. Recall that to successfully invoke the newly discovered fact exception, appellant was required to prove that "the facts upon which the claim is predicated were unknown to [him] and could not have been ascertained by the exercise of due diligence[.]" 42 Pa.C.S. § 9545(b)(1)(ii). As we explained at length above, see supra at 1148–53, appellant failed to meet this burden because District Attorney Castille's role in authorizing the death penalty in appellant's case was ascertainable by him upon the exercise of due diligence beginning as early as 1993. Judge McCaffery agrees. See Dissenting Op. (McCaffery, J.) at 1220 ("The Majority is not wrong to conclude that many aspects of what the PCRA court found to be factually ‘new’ is actually old news."); see id . ("of course it was well-known that [Castille] ... pursued the death penalty with vigor in many cases as District Attorney") (emphasis in original). To agree on this point yet simultaneously argue that appellant somehow satisfied the newly discovered fact exception, is simply irreconcilable. If appellant could have learned of District Attorney Castille's involvement in his case decades ago — as Judge McCaffery concedes — then he unquestionably failed to prove the newly discovered fact exception to the timebar. For this reason, even setting aside Judge McCaffery's misguided take on the issue of deference, his substantive argument fails.

In fairness, his dissenting opinion does cite to In re Vencil , 638 Pa. 1, 152 A.3d 235 (2017), but that case neither arose in the post-conviction context nor did it even mention the PCRA. As such, it actually offers no support for his position.

Even if we were remotely inclined to disregard our settled precedent and afford some level of deference to a PCRA court's legal determinations, what Judge McCaffery truly advocates for is an appellate court's complete deference to a PCRA court any time the court concludes the newly discovered fact exception applies, at least where the parties are in agreement on that point. See Dissenting Op. (McCaffery, J.) at 1219 ("Where the parties agree that jurisdiction lies ... and the PCRA finds a jurisdictional basis in facts ..., appellate courts must apply a deferential standard, in recognition of the trial court's fundamental role as factfinder.") (emphasis added); see id . at 1221 ("where the parties agree to establishment of the ‘new facts’ exception it cannot be an abuse to accept that agreement"). This a dangerous proposition and, if accepted, inevitably would lead to situations where jurisdiction is forced upon appellate courts even when the law is clear that jurisdiction is lacking. We therefore reject Judge McCaffery's suggested alteration of our longstanding standard of review over a PCRA court's legal conclusions.

We now dispatch Judge McCaffery's rather curious discussion of Peterkin . By way of background, Peterkin was the first case in which we interpreted Section 9545(b)(1) of the PCRA to be jurisdictional in nature. We concluded "the PCRA's time limitation upon the filing of PCRA petitions does not unreasonably or unconstitutionally limit Peterkin's constitutional right to habeas corpus relief." Peterkin , 722 A.2d at 643. In making this ruling, we noted that "the General Assembly amended the PCRA to require that, as a matter of jurisdiction , a PCRA petition must be filed within one year of final judgment[,]" citing Section 9545(b)(1). Id . at 641 (emphasis added). Thereafter, in Commonwealth v. Fahy , we elaborated "that the period for filing a PCRA petition [in Section 9545(b)(1) ] is not subject to the doctrine of equitable tolling." 737 A.2d at 222. In so ruling, we opined that "[t]his [C]ourt has made clear that the time limitations pursuant to the amendments to the PCRA are jurisdictional." Id . For over two decades now, this Court has steadfastly held to this view. See, e.g. , Commonwealth v. Blakeney , 648 Pa. 347, 193 A.3d 350, 366-67 (2018) ("The PCRA time-bar at issue is jurisdictional in nature, and this Court has previously stated ‘jurisdictional time limits go to a court's right or competency to adjudicate a controversy.’ ") (citations omitted); Spotz , 171 A.3d at 678 ("This time constraint is jurisdictional in nature, and is not subject to tolling or other equitable considerations.") (citations omitted); Bennett , 593 Pa. 382, 930 A.2d at 1267 (2007) ("This limitation is jurisdictional in nature.") (citation omitted); Commonwealth v. Morris , 573 Pa. 157, 822 A.2d 684, 694 (2003) ("This time requirement is jurisdictional; when the petition is untimely, a court cannot reach the substantive issues presented in the petition.") (citations omitted); Morris , 771 A.2d at 734-35 ("[I]n Peterkin, this court explained that the time bar is a jurisdictional requirement. More recently, we explained that ‘[j]urisdictional time limits go to a court's right or competency to adjudicate a controversy.’ ") (citations omitted); Commonwealth v. Gamboa-Taylor , 562 Pa. 70, 753 A.2d 780, 783 (2000) ("It is also important to note that the time limitations of the 1995 amendments are jurisdictional.") (citations omitted).

Notwithstanding our decades-long adherence to Peterkin ’s interpretation, Judge McCaffery now posits that Section 9545(b)(1) actually does "not place a temporal limit on jurisdiction[,]" and he argues Peterkin ’s interpretation "is, to a significant degree, one of judicial crafting." Dissenting Op. (McCaffery, J.) at 1221; see id . (contending Peterkin ’s holding "is an example of judicial restraint"); id . at 1222 (suggesting this Court's "jurisdictional approach to [S]ection 9545 is judicially crafted and therefore amenable to judicial fine-tuning"). We roundly reject Judge McCaffery's call for any "fine-tuning" of Peterkin ’s analysis for purposes of this case. Judge McCaffery's primary position is that appellant satisfied the newly discovered fact exception to the timebar, thereby establishing jurisdiction over his petition. Why, then, could it possibly be necessary to also overrule an exceedingly extensive line of this Court's precedents holding that the PCRA's timebar is jurisdictional in nature? The simple answer is that it's not — not even a little bit.

Judge McCaffery expresses his fear that our inability to afford appellant relief based on our lack of jurisdiction means "the PCRA itself fails to afford sufficient due process and is therefore constitutionally infirm." Dissenting Op. (McCaffery, J.) at 1218; see also id. at 1218 (questioning whether it is reasonable to interpret the PCRA in a manner that "would put ... all those similarly situated [to Williams] out of court"). The allegation of constitutional infirmity is completely unfounded; appellant has been "put out of court" only because he himself failed to preserve his claim or advance it at the opportune moment. Moreover, notwithstanding Judge McCaffery's discomfort with the fact that appellant is not entitled to relief under the PCRA, nothing precludes him from seeking relief in the federal courts. As well, should the United States Supreme Court in the future hold Williams applies retroactively on collateral review, appellant would presumably be able to invoke the new constitutional right exception to the PCRA and obtain relief that way.

Even if there were some pressing need to reconsider Peterkin ’s viability for purposes of this case (though there most certainly is not), Judge McCaffery also fails to account for the principle of stare decisis . Adherence to precedent is "a foundation stone of the rule of law[.]" Michigan v. Bay Mills Indian Cmty. , 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014). This Court has repeatedly declared that it honors the stare decisis doctrine to ensure "evenhanded, predictable, and consistent development of legal principles, foster[ ] reliance on judicial decisions, and contribute[ ] to the actual and perceived integrity of the judicial process." Stilp v. Commonwealth , 588 Pa. 539, 905 A.2d 918, 954 n.31 (2006) (internal quotations and citation omitted); accord Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). And we have recognized that changing course demands a special justification — over and above the belief that the precedent was wrongly decided — in matters involving statutory, as opposed to constitutional, construction. See, e.g. , Commonwealth v. Doughty , 633 Pa. 539, 126 A.3d 951, 955 (2015) ("In cases resolved upon statutory interpretation, stare decisis does implicate greater sanctity because the legislature can prospectively amend the statute if it disagrees with a court's interpretation."), citing Shambach v. Bickhart , 577 Pa. 384, 845 A.2d 793, 807 (2004) (Saylor, J., concurring) ("[S ]tare decisis has ‘special force’ in matters of statutory ... construction [ ] because ... the legislat[ure] is free to correct any errant interpretation of its intentions[.]"); In re Burtt's Estate , 353 Pa. 217, 44 A.2d 670, 677 (1945) ("A statutory construction, once made and followed, should never be altered upon the changed views of new personnel of the court."); see also Burnet v. Coronado Oil & Gas Co. , 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (the principle that "in most matters it is more important that the applicable rule of law be settled than that it be settled right" is "commonly true even where the error is a matter of serious concern, provided correction can be had by legislation") (Brandeis, J., dissenting).

Relatedly, Judge McCaffery neglects to note that when the Legislature recently amended Section 9545(b)(1) in 2018, it did not see any need to alter our longstanding interpretation of the statute as establishing a jurisdictional bar. See, e.g., Fonner v. Shandon, Inc. , 555 Pa. 370, 724 A.2d 903, 906 (1999) ("The failure of the General Assembly to change the law which has been interpreted by the courts creates a presumption that the interpretation was in accordance with the legislative intent; otherwise the General Assembly would have changed the law in a subsequent amendment.") (citation omitted); see also 1 Pa.C.S. § 1922(4) ("[W]hen a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.").

In short, we respectfully decline Judge McCaffery's invitation to "refine" Peterkin , the result of which would be a drastic and massive shift in PCRA jurisprudence throughout this Commonwealth. Not only is there no present need for any such refinement, but principles of stare decisis and statutory construction weigh heavily against this course — especially in this particular case, where there is a total absence of any advocacy for such a radical change in the law.

IV. Conclusion

We appreciate the PCRA court's concern that "[t]he appearance of impropriety may overshadow even the most proper intentions." Trial Ct. Op., 11/6/2017, at 2. We can also understand the dissenters’ fervent desire, if not their approaches, for creating some path by which appellant can avail himself of a remedy for the same due process violation that occurred in Williams . But we cannot just pretend appellant is on equal footing with Williams by ignoring the fact that he, unlike Williams, waived any issue concerning recusal. And even if we could overlook his waiver of the issue, we still could not override the strict jurisdictional mandates of the PCRA just because he presents a patently viable claim for relief which implicates structural error. See, e.g. , Commonwealth v. Baroni , 573 Pa. 589, 827 A.2d 419, 421 (2003) ("The precept that structural errors can never be deemed harmless does not serve to create state court jurisdiction that otherwise is absent."); accord Commonwealth v. Breakiron , 566 Pa. 323, 781 A.2d 94, 100-01 (2001) (explaining that "the bedrock nature of the [alleged] constitutional error," in and of itself, "has no bearing on the applicability of the PCRA's timeliness requirements"). See also Bennett , 930 A.2d at 1279 (Saylor, J., dissenting) ("Candidly, any formulation of a time limitation curtailing collateral judicial review must accept that some legitimate claims may possibly escape review.").

In this case, where appellant's petition failed to satisfy an exception to the PCRA's timebar, the PCRA court was without jurisdiction to consider appellant's untimely and waived due process claims. The court therefore lacked authority to reinstate appellant's nunc pro tunc right to appeal the denial of his first PCRA petition. In the absence of a valid reinstatement of those appellate rights, the instant appeal from the November 19, 2007 order denying post-conviction relief is untimely. See Pa.R.A.P. 903(a) (providing that a notice of appeal "shall be filed within 30 days after the entry of the order from which the appeal is taken"). As such, we have no choice but to quash this serial appeal. See, e.g. , Commonwealth v. Bey , 437 Pa. 134, 262 A.2d 144, 145 (1970) ("The timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of our Court and its competency to act. We are without the power to enlarge or extend the time provided by statute for taking an appeal or to grant leave to file an appeal [n ]unc pro tunc .") (citations omitted).

Appeal quashed.

Justice Mundy and Judges Murray and Dubow join the opinion.

Justice Donohue files a dissenting opinion in which Justice Wecht joins.

Judge McCaffery joins Section Three of Justice Donohue's Dissenting Opinion affirming the PCRA court's denial of relief in most respects but remanding for an evidentiary hearing regarding certain penalty phase claims.

Judge McCaffery files a dissenting opinion.

JUSTICE DONOHUE, dissenting

Anthony Reid ("Reid") secured reinstatement of his collateral appeal rights nunc pro tunc through the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546 ("PCRA") , as a result of the United States Supreme Court's decision in Williams v. Pennsylvania , ––– U.S. ––––, 136 S. Ct. 1899, 195 L.Ed.2d 132 (2016). Williams expressed, in no uncertain terms, the structural collapse caused by the participation of former Chief Justice Ronald Castille ("Castille") on the panel adjudicating Terrance Williams’ collateral appeal. Williams announced that this Court committed a Due Process Clause violation that "affected the ... whole adjudicatory framework below." Id . at 1910. The matter was remanded so that Williams could "present his claims to a court unburdened by any ‘possible temptation ... not to hold the balance nice, clear, and true between the state and the accused.’ " Id . at 1910 (quoting Tumey v. Ohio , 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927) ). Reid is in an identical posture to Williams: Castille, as the District Attorney of Philadelphia County, authorized pursuit of the death penalty in his case and Castille later participated in the panel adjudicating his collateral appeal. As such, Reid is constitutionally entitled to the same relief as Williams: an appeal to an unburdened court. The Majority decides otherwise based upon a flawed sua sponte analysis of the jurisdiction of this Court. I respectfully dissent as I believe we are required to provide Reid with the appeal of the PCRA order that was effectively denied by Castille's participation in this Court's failed adjudication. After analysis based on current United States Supreme Court jurisprudence, I conclude that Williams recognized a substantive rule that requires retroactive application to Reid and the extremely limited number of individuals to whom its holding would apply. I find that Reid has satisfied the exception to the time bar of the PCRA codified at 42 Pa.C.S. § 9545(b)(1)(iii). A review of the merits of the pending appeal results in affirmance of the guilt phase determinations of the 2011 PCRA court. Reid is entitled to limited penalty phase relief by way of a remand for a hearing on the mitigation evidence proffered by Reid's lay witnesses.

A special complement of the Supreme Court of Pennsylvania has been assembled to address the issues presented in this case pursuant to I.O.P. § 13.

U.S. Const. amend. XIV, § 1.

"Chief Justice Castille's participation violated due process ...." Williams , 136 S.Ct. at 1909. See Majority Op. at 1131 ("[W]e agree Chief Justice Castille's participation in appellant's prior PCRA appeal implicates the same due process concerns at issue in Williams ..."); Dissenting Op. (Donohue, J.) at 1170 ("Reid is in an identical posture to Williams").

To allay fears that our analysis "create[s] needless uncertainty for our trial and appellate courts," Majority Op. at 1160, we note that, as discussed at length later in this opinion, the substantive rule that we recognize applies only to those capital case defendants where Castille, as District Attorney, authorized pursuit of the death penalty and later participated in an appeal from imposition of a death sentence.

42 Pa.C.S. § 9542.

I. History of the Case

The Majority fails to take into serious account the fact that this matter implicates the integrity of this institution. Williams undermined the legitimacy of our Court as the court of final resort in death penalty appeals. "Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges." Matter of Glancey , 515 Pa. 201, 527 A.2d 997, 999 (1987) (emphasis omitted) (quoting Commentary to Canons of Judicial Ethics). The outcome advanced by the Majority further erodes it by not affirming that Williams applies to the extremely small number of cases that fall within its direct holding.

Reid and Williams are in identical postures: both were sentenced to die only upon Castille's initial authorization to seek the death penalty, and both had their appeal decided by a court tainted by Castille. As explained infra, the new substantive rule announced in Williams requires reinstatement of appellate rights to Reid and the limited number of death row inmates similarly situated.

The Commonwealth's position until recently, that former District Attorney Castille's participation in Reid's case was minimal at worst or merely ministerial, was one that could not be rebutted by any act of diligence without access (in this case, by court order in the PCRA proceedings below) to materials in the Commonwealth's sole possession and control. This is why the Commonwealth's concession that as District Attorney, Chief Justice Castille personally reviewed Reid's case and approved pursuit of the death penalty, profoundly alters the jurisdictional analysis. Nothing in this analysis constitutes a holding as to any case not involving this very specific sequence: a holding from a high court that a certain act constitutes "significant, personal involvement in a critical decision" in the case, Williams , 136 S.Ct. at 1908, coupled with a factual finding that such involvement occurred but was not discoverable by exercise of reasonable diligence at an earlier point, as the PCRA requires. See 42 Pa.C.S. § 9545(b)(ii).

This case arises out of the shooting death of Mark Lisby ("Mark Lisby" or "victim") on July 11, 1988. Reid and Lawrence Boston ("Boston") were both members of the Junior Black Mafia ("JBM"), a Philadelphia gang that sold drugs in the late 1980s. Boston was a JBM drug distributor who engaged the victim's nephew, Terrance Lisby, to sell drugs. On July 9, 1998, the victim stole approximately five hundred dollars’ worth of cocaine capsules from his nephew. In the early morning hours of July 11, 1988, Boston and Reid appeared at 2444 North Stanley Street, where the victim was staying, to inquire about the missing drugs. The victim was staying there with Lisa Dargan ("Dargan"), the mother of his child, who observed portions of the encounter. She saw the victim, Boston and Reid having a brief conversation in the doorway, following which Boston and Reid asked the victim to go for a walk with them. The three walked down the street and around a corner, outside of Dargan's view. Morris Dozier ("Dozier"), a neighbor, observed the incident from nearby and saw Reid shoot the victim three times. Dargan heard three shots but did not see the shooting. Reid and Boston fled.

In December of 1988, Reid was tried for various charges in connection with the death of Mark Lisby. At trial, the Commonwealth presented evidence of the above facts. The main witnesses were Dargan, Dozier, and Boston. The jury found Reid guilty of criminal conspiracy, 18 Pa.C.S. § 903, but hung on the remaining charges. A mistrial was declared and a second trial commenced on December 27, 1990. Dargan, Dozier, and Boston were again the main witnesses. However, at the second trial, Boston invoked his Fifth Amendment right against self-incrimination and refused to testify. The trial court deemed him unavailable, and allowed his testimony from Reid's first trial to be read into the record.

The Commonwealth also presented various other witnesses who incriminated Reid. The victim's brother, Randall Lisby, testified that Reid admitted to shooting the victim. Kevin Brown ("Brown") testified that he saw Reid running away from the scene with Boston. Brown also testified that Reid was a member of the JBM and witnessed Reid on multiple occasions waving his gun and threatening people. Terrance Lisby also testified regarding Reid's affiliation with the JBM. As discussed in detail below, many of these witnesses were initially reluctant to identify Reid and to testify against him. Some, such as Dozier, testified that they received threats as a result of their testimony at previous proceedings.

Reid's trial counsel conceded that Reid was present at the time Mark Lisby was shot, but argued that Boston was the shooter and that Reid was not involved in any way. Counsel argued that Boston, unlike Reid, had a clear motive to kill the victim. Counsel impeached the three key witnesses with prior inconsistent statements and failures to identify Reid on prior occasions.

Reid was convicted of murder of the first degree, carrying a firearm without a license, and possessing an instrument of crime. Following a penalty hearing at which the jury found one applicable aggravating circumstance and no mitigating circumstances, Reid was sentenced to death. On the remaining counts, Reid was sentenced to ten to twenty years of imprisonment.

18 Pa.C.S. §§ 2502(a), 6106, 907.

See, e.g., In re Vencil , 638 Pa. 1, 152 A.3d 235, 242-43 (2017) (outlining traditional deference to factfinder in a number of different settings, when evaluating sufficiency of the evidence).

42 Pa.C.S. § 9711(d)(9) (significant history of felony convictions involving the use or threat of violence to the person).

See Act 2018, Oct. 24, P.L. 894, No. 146 (Oct. 24, 2018, effective Dec. 24, 2018).

42 Pa.C.S. § 9711(g).

See, e.g., Commonwealth v. Porter , 613 Pa. 510, 35 A.3d 4 (2012) (Castille, C.J.) (denying recusal, affirming the PCRA court and directing further proceedings, including appointing new counsel "[i]f the conduct of the [Federal Community Defender's Office] unduly delays matters"); Commonwealth v. Spotz , 610 Pa. 17, 18 A.3d 244, 329 (2011) (Castille, C.J., concurring) (criticizing the Federal Community Defender's Office for its strategy in state death penalty PCRA litigation).

Reid appealed. In a unanimous opinion, this Court affirmed his judgment of sentence. Commonwealth v. Reid , 537 Pa. 167, 642 A.2d 453 (1994). Former District Attorney Castille, who had only recently been elected to the Pennsylvania Supreme Court, did not participate in this case on direct appeal. Thereafter, on December 12, 1996, Reid filed his first pro se PCRA petition. The case was assigned to the Honorable James Lineberger with Daniel Silverman, Esquire appointed to represent Reid. On January 27, 1999, Reid filed his first counseled PCRA petition, First Amended PCRA Petition, 1/27/1999, followed by multiple amended petitions. Supplemental Amended PCRA Petition, 4/15/1999; Second Supplemental Amended PCRA Petition, 7/11/2000; Third Supplemental PCRA Petition, 2/13/2001. On November 21, 2001, the Commonwealth filed a motion to dismiss pursuant to Pa.R.Crim.P. 907, arguing that Reid's PCRA petition lacked merit. Commonwealth Motion to Dismiss, 11/21/2001. Reid filed a response. Reid's Consolidated Response, 7/12/2002. The case was reassigned to the Honorable William J. Mazzola in 2005.

No further action occurred until August 8, 2007, when the Commonwealth filed another motion to dismiss. Reid filed a brief in opposition, and Judge Mazzola issued a notice of intent to dismiss on October 18, 2007. The petition was formally dismissed on November 19, 2007. See Majority Op. at 1131 n.2.

Reid appealed, and timely filed a concise statement of matters complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), followed by two supplemental statements. Pa.R.A.P. 1925(b) Statements, 8/28/2009; 09/10/2009; 10/1/2009. On March 8, 2011, the PCRA court filed a lengthy Rule 1925(a) opinion, addressing Reid's claims. PCRA Court Opinion, 2/14/2011. This Court, with Castille participating, issued an opinion affirming the PCRA court with now Chief Justice Saylor dissenting. See Commonwealth v. Reid , 627 Pa. 78, 99 A.3d 427 (2014). Sixty days after Williams was issued, Reid successfully sought relief through the PCRA. He now seeks to have his PCRA appeal heard by an unbiased panel.

The PCRA Court Opinion, though filed March 8, 2011, is dated February 14, 2011, and therefore will be cited as "PCRA Court Opinion, 2/14/2011." The opinion addressed the claims in this case as well as Reid's PCRA claims in another case arising out of the murder of Michael Waters.

This is true with one exception: 42 Pa.C.S. § 9543.1(f)(1) refers to "section 9545(b)(2) (relating to jurisdiction and proceedings)" – section 9545 is entitled "Jurisdiction and proceedings".

II. Jurisdictional Review

The Honorable Leon Tucker determined that Reid's PCRA petition satisfied a time bar exception and, on June 22, 2017, entered an order reinstating Reid's appellate rights nunc pro tunc. The Commonwealth filed a notice of appeal from that order and Reid filed a timely notice of appeal nunc pro tunc pursuant to the PCRA court's order.

The Commonwealth's appeal was docketed at 751 CAP, which was administratively discontinued when the Commonwealth filed a praecipe of discontinuance. Reid, meanwhile, separately filed a notice of appeal, docketed at the above-captioned 752 CAP number. Reid's appeal at the present docket challenges the Honorable William J. Mazzola's order of November 19, 2007, which dismissed Reid's (first, serially amended) PCRA petition. The PCRA court's dismissal of that PCRA petition was affirmed, with former Chief Justice Castille participating. Commonwealth v. Reid , 627 Pa. 78, 99 A.3d 427 (2014) ("2014 PCRA Appeal").

Raising, sua sponte, the jurisdictional issue abandoned by the Commonwealth, the Majority concludes that this Court lacks jurisdiction to decide this appeal under the PCRA without engaging in a proper analysis of retroactivity principles. An examination of Williams establishes that it qualifies as a substantive rule within the meaning of Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality), and thus this Court is required to give it retroactive effect. While the Majority contends that the Williams decision does not apply retroactively because the United States Supreme Court did not expressly declare it to be retroactive, its analysis overlooks the Court's holding in Montgomery v. Louisiana , ––– U.S. ––––, 136 S. Ct. 718, 193 L.Ed.2d 599 (2016), which announced that state collateral courts are constitutionally obligated to give retroactive effect to new rules that fall within the Teague definition of substantive rules. Because Williams qualifies, we must give it retroactive effect.

The Majority finds that quashal is warranted due to Reid's failure to establish jurisdiction under the PCRA. If the Majority is correct in its analysis, the proper course would be to reverse the order granting reinstatement of appellate rights. See Commonwealth v. Robinson , 575 Pa. 500, 837 A.2d 1157 (2003) (vacating the Superior Court's judgment that a PCRA petition was timely and directing that the underlying PCRA petition be dismissed as time-barred). However, as the critical issue is whether Reid satisfied an exception to the time bar, further elaboration on this point is unnecessary.

By comparison, the federal courts apply the time bar for habeas corpus proceedings as a statute of limitations. See Day v. McDonough , 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) (deciding whether a district court may dismiss a habeas petition as untimely despite the state's failure to raise the time bar or its erroneous concession of timeliness; "A statute of limitations defense, the State acknowledges, is not ‘jurisdictional,’ hence courts are under no obligation to raise the time bar sua sponte .").

Reid's PCRA petition asserts that his filing satisfied each of the three statutory exceptions to the time bar, 42 Pa.C.S. § 9545(b)(1)(i-iii). The PCRA court's opinion focused on the first two exceptions, regarding newly-discovered facts, (b)(1)(i), and governmental interference, (b)(1)(ii). The (b)(1)(iii) exception was addressed in the PCRA court's opinion after the Commonwealth raised the issue in its concise statement. "Questions regarding the scope of the statutory exceptions to the PCRA's jurisdictional time-bar raise questions of law; accordingly, our standard of review is de novo." Commonwealth v. Fahy , 598 Pa. 584, 959 A.2d 312, 316 (2008) (citation omitted).

These exceptions are:

(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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

I do not join Justice Donohue's learned Dissenting Opinion as to its analysis of jurisdiction simply due to the principle that when a controversy raises both constitutional and non-constitutional issues, our courts prefer first to examine whether it may be decided on non-constitutional grounds. See Ballou v. State Ethics Comm'n , 496 Pa. 127, 436 A.2d 186, 187 (1981) ; Mt. Lebanon v. County Board of Elections , 470 Pa. 317, 368 A.2d 648, 650 (1977). Accord, e.g., Lattanzio v. Unemployment Compensation Board of Review , 461 Pa. 392, 336 A.2d 595 (1975). This "fundamental rule of judicial restraint" is one we share with the federal courts. Jean v. Nelson , 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). I find in the deferential standard of review for factfinders a narrower structural root for the exercise of jurisdiction, and thus would not seek root in the constitutional firmament. However, the Dissenting Opinion's consistently thorough analysis, as applied to the merits of the appeal, enjoys my full assent.

Reid's PCRA petition fits squarely within the exception contained in section 9545(b)(1)(iii), as it governs cases such as his where a new constitutional rule applies retroactively. The Majority "question[s] the propriety of" our decision to address whether Teague applies. Majority Op. at 1157–58. The Majority argues that the statutory requirement of pleading and proving that a PCRA exception applies suggests that in PCRA matters an appellate court is limited to examining only the arguments raised below and may go no further. That argument is, however, in direct tension with the well-settled ability of an appellate court to affirm on any basis. Commonwealth v. Diaz , ––– Pa. ––––, 226 A.3d 995, 1011 (2020) ("[W]e may affirm on any ground ‘where the correct basis for the ruling ... is clear upon the record’ and the pertinent facts have been resolved by the court of original jurisdiction.") (quoting In re A.J.R.-H. , 647 Pa. 256, 188 A.3d 1157, 1176 (2018) ); Commonwealth v. Tighe , ––– Pa. ––––, 224 A.3d 1268, 1279–80 (2020) ("Nevertheless, this Court can affirm if the lower tribunal's decision was correct for any other reason supported by the record.") (citation omitted). We have explained that "[t]his jurisprudential doctrine stems from the focus of review as on the judgment or order before the appellate court, rather than any particular reasoning or rationale employed by the lower tribunal." Ario v. Ingram Micro, Inc. , 600 Pa. 305, 965 A.2d 1194, 1200 (2009) (citation omitted).

As a result of this conclusion, it is unnecessary to address the other exceptions to the PCRA time bar.

Whether viewed as affirming the PCRA court's jurisdictional ruling on an alternative basis or more broadly as an application of the "right for any reason" doctrine, at the end of the day we may affirm on any supported basis. To be clear, Reid pled the (b)(1)(iii) exception to establish PCRA jurisdiction, PCRA Petition, 8/8/2016, at 5, and argued that Williams must apply retroactively, Reply to Motion to Dismiss, 4/3/2017, at 9-10. Moreover, the PCRA court held that Reid met the (b)(1)(iii) timeliness exception because, in its view, Williams qualified as a watershed procedural rule under Teague . Trial Court Opinion, 11/6/2017, at 18. The fact that we find that the (b)(1)(iii) exception was met for a different jurisprudential reason affirms that judgment. This is a straight-forward application of the "right for any reason" doctrine, and the Majority's suggestion that in affirming, this Court is limited to applying the exact legal arguments as the lower court, is a corruption of the long-standing doctrine.

The Majority continuously conflates the pleading and proof requirement to trigger the exception to the PCRA time bar with the application of the "right for any reason" doctrine. We do not suggest, as the Majority states, that a PCRA petition need only "check off the box" for the newly recognized constitutional rights exception and "hope that an appellate court will do the legal leg work by ‘proving’ jurisdiction for him on appeal." Majority Op. at 1159. Reid pled the exception, invoked Williams , and the facts supporting its application are undisputed: Castille authorized pursuit of the death penalty and then participated in his appeal challenging the imposition of the sentence. There is no pleading or proof gap. The PCRA court agreed that Reid met the exception. It is that judgment that is under review and it may be affirmed based on a legal rationale different from the PCRA court's rationale. Reid requested the opportunity to brief the issue and if granted he would have had an avenue for arguing alternative bases for affirmance of the PCRA court's finding of jurisdiction.

The governmental interference and newly-discovered fact exceptions involve proving actual facts, as opposed to theories of law as presented in this appeal. The "right for any reason" doctrine treats the two differently. In re A.J.R.-H ., 188 A.3d at 1176 ("The doctrine ... may not be used to affirm a decision when the appellate court must weigh evidence and engage in fact finding or make credibility determinations to reach a legal conclusion.")

The Majority opines that the doctrine does not apply based on its reading of Section 9545(b)(1), which mandates that any PCRA petition shall be filed within one year of the date that the judgment becomes final "unless the petition alleges and the petitioner proves" one of the enumerated exceptions. To support the notion that Reid must prove the legal argument supporting his claim that Williams recognized a constitutional right that applies retroactively, the Majority cites four cases involving the two fact-driven exceptions to the timeliness bar, the governmental interference and newly-discovered fact exceptions, contained in subsections (b)(1)(i) and (b)(1)(ii), and a fifth case in which the petitioner failed to plead any exception to the time bar. Nothing in these cases supports the proposition that Reid, who pled the (b)(1)(iii) exception to the time bar based on Williams ’ retroactive effect and alleged the key (undisputed) facts regarding Castille's participation that makes Williams apply to him, had an obligation to "prove" the precise legal argument supporting application of the exception. Forcing the notion of "proving" the law into the context of the (b)(1)(iii) timeliness exception is as impossible as forcing a square peg into a round hole.

Commonwealth v. Edmiston , 619 Pa. 549, 65 A.3d 339, 345 (2013) ("Appellant relies on the exceptions for governmental interference and previously unknown facts."); Commonwealth v. Marshall , 596 Pa. 587, 947 A.2d 714, 720 (2008) ("Appellant invoked timeliness exceptions (b)(1)(i) and (b)(1)(ii), neither of which the PCRA court found applicable."); Commonwealth v. Abu-Jamal , 596 Pa. 219, 941 A.2d 1263, 1266 (2008) ("Appellant argued his third PCRA petition fell within 42 Pa.C.S. § 9545(b)(1)(ii)'s timeliness exception .... Appellant also argued his petition fell within § 9545(b)(1)(i)'s exception[.]"); Commonwealth v. Fahy , 558 Pa. 313, 737 A.2d 214, 218 (1999) ("Appellant attempts to invoke only the exception found in 42 Pa.C.S.A. § 9545(b)(1)(i) by offering that his failure to raise his claims previously was the result of interference by government officials.").

Commonwealth v. Robinson , 635 Pa. 592, 139 A.3d 178, 182 (2016) ("Petitioner failed to assert any exception to the timeliness requirement, and, thus, the trial court lacked jurisdiction to address the merits of the petition.").

"A ‘fact,’ as distinguished from the ‘law,’ is that which is to be presumed or proved to be or not to be for the purpose of applying or refusing to apply a rule of law." Commonwealth v. Watts , 611 Pa. 80, 23 A.3d 980, 987 (2011) (citation, ellipsis, and bracketing omitted). Moreover, the idea that a legal argument must be "proven" is belied by PCRA jurisdictional precedent that requires a petitioner to meet his burden of proof by a preponderance of the evidence depending on the nature of the time bar claim. See Commonwealth v. Ali , 624 Pa. 309, 86 A.3d 173, 178 (2014) ("[T]o qualify for the newly-discovered evidence exception, therefore, Appellant bears the burden of proving by a preponderance of the evidence that he was mentally incompetent during the period in which to raise and preserve claims in his first PCRA petition."). How does one prove the law within an evidentiary weight standard?

The Majority suggests that application of the "right for any reason" doctrine in the review of a finding of jurisdiction by a PCRA court threatens the separation of powers between the judicial and legislative branches. According to the Majority, the application of the "right for any reason" doctrine "might undermine section 9545(b)(1) [.]" Majority Op. at 1158–59. If the Majority is of the view that the General Assembly has re-written this Court's function of reviewing judgments of the lower courts and not the rationale supporting those judgments which is a foundational principle of appellate review, then the Majority creates a true separation of powers problem. The Majority's citation to Commonwealth v. Albrecht , 554 Pa. 31, 720 A.2d 693, 700 (1998), to support the proposition that we would countenance such an infringement on our fundamental function misses the mark. In Albrecht , we recognized that our equitable rule of relaxing the application of waiver of issues on direct appeal in PCRA capital cases could not co-exist with the PCRA's proscription that waived claims are not cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(3). The relaxed waiver rule was a judicial gift to capital defendants. The right for any reason doctrine is imbedded in our appellate role as reviewers of judgments, not rationales.
In Albrecht , we recognized: "Relaxed waiver, as an operating principle, was created to prevent this court from being instrumental in an unconstitutional execution." Id . at 700 (citation omitted). Albrecht eliminated that doctrine in the PCRA context as incompatible with its statutory language, "which excludes waived issues from the class of cognizable PCRA claims." Id . Of course, this did not mean that those claims were forever foreclosed from review, as the defaulted issues could be raised in collateral proceedings "upon a demonstration of ineffectiveness of counsel in waiving the issue." Id . Similarly, when we abolished "relaxed waiver" prospectively for capital direct appeals in Commonwealth v. Freeman , 573 Pa. 532, 827 A.2d 385, 403 (2003), we noted that "the PCRA exists for them, as for other criminal defendants, as a vehicle for a full and fair, counseled proceeding through which they may challenge the stewardship of trial counsel and pursue other appropriate collateral claims." Id . Reid, however, cannot pursue his claim in our courts unless the time bar exception applies.

In actuality, the Majority is advancing the proposition that Reid waived the argument that Williams applies retroactively based on the recognition that it announced a substantive rule of law that applies retroactively on collateral review. Thus, according to the Majority, on direct review, this Court cannot apply the "right for any reason" doctrine to the PCRA's judgment that jurisdiction was established under the newly recognized constitutional right exception because neither Reid nor the PCRA court relied on this rationale. The Majority's proposition is in direct contravention of our prerogative to affirm on any basis supported by the record:

... This general tenet flows from a recognition that it is the judgment or order itself that is the subject of appellate review, rather than any particular reason or argument advanced by the court or prevailing party. The precept may be applied even though the reason for sustaining the judgment was not raised in the trial court, relied on by that court in reaching its decision, or brought to the attention of the appellate court[s].

Thomas G. Saylor, Right for Any Reason: An Unsettled Doctrine at the Supreme Court Level and An Anecdotal Experience with Former Chief Justice Cappy , 47 Duq. L. Rev. 489, 490 (2009) (footnotes omitted). Where, as here, the matter is before us on direct appeal, and Reid prevailed on the jurisdictional issue before the PCRA court, Reid had no obligation to preserve the issue that Williams created a new substantive rule. See id . at 492. We therefore turn to whether Williams qualifies under the Section 9543(b)(1)(iii) exception.

The "unsettled" nature of the doctrine in the title refers to "application of the doctrine by a discretionary review court ... namely whether the doctrine permits the affirmance of a trial court's decision for any reason or, conversely, that of the intermediate appellate court." Commonwealth v. Fant , 637 Pa. 135, 146 A.3d 1254, 1265 (2016) (citing Thomas G. Saylor, Right for Any Reason ). There is nothing unsettled in the application of the doctrine in this capital PCRA appeal before us on direct review.

The Majority suggests that we somehow violate the duty to act as neutral arbiters and upend our adversarial system, Majority Op. at 1158–59, because we rely on the right for any reason doctrine. While the Majority significantly embellishes and expands the arguments previously advanced by the Commonwealth before the PCRA court, we would never countenance a suggestion that the Majority is advocating for the position abandoned by the current Philadelphia District Attorney. Like our learned colleagues in the Majority, it is our duty to apply the law within the bounds of precedent and we have done so.
To be clear, our analysis of the (b)(1)(iii) exception based on recent United States Supreme Court jurisprudence and its impact on the appropriate categorization of Williams is an effort to reconcile the PCRA statutory framework with the teachings of the High Court. This is the role of judges.

The Supreme Court in Williams acknowledged that its "due process precedents do not set forth a specific test governing recusal when, as here, a judge had prior involvement in a case as a prosecutor." Williams , 136 S. Ct. at 1905. The Supreme Court then announced 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 .

The Supreme Court had little difficulty concluding that the decision to seek the death penalty was a critical one and that Castille's participation was significant and personal. The Court then rejected the argument that because Castille did not cast the deciding vote, any error caused by his participation was harmless. Since appellate panel deliberations are confidential as a general rule, "it is neither possible nor productive to inquire whether the jurist in question might have influenced the views of his or her colleagues during the decisionmaking process." Id . at 1909. The error was structural, as it tainted the entire result by "affect[ing] the ... whole adjudicatory framework below." Id . at 1909-10.

For the reasons discussed infra, Williams announced a substantive rule that must apply retroactively in this case as a matter of constitutional law. The Majority fails to recognize that constitutional dimension by erroneously relying upon the plain language of subsection 9545(b)(1)(iii), as interpreted in Commonwealth v. Abdul-Salaam , 571 Pa. 219, 812 A.2d 497 (2002). In Abdul-Salaam this Court indicated that "[b]y employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed." Id . at 501. The Majority reasons that Williams does not satisfy the statutory exception because the case has not to date been held to apply retroactively.

That conclusion ignores critical, recently developed constitutional considerations. Abdul-Salaam qualified its statutory analysis as follows:

The inquiry does not necessarily end with the plain language of a single section of the PCRA statute, since certain postconviction claims are to be channeled through the statutory post-conviction procedure although they might not otherwise plainly fall within the parameters of the PCRA. See, e.g., Commonwealth v. Lantzy, 558 Pa. 214, 223, 736 A.2d 564, 570 (1999) (stating that "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, since such claims also were cognizable on traditional habeas corpus review"). Rather, the question arises whether the salient restriction on serial, state post-conviction review is a reasonable one, since this Court has acknowledged that the General Assembly is authorized, consistent with the Pennsylvania Constitution, to impose reasonable restrictions on the various forms of post-conviction review. See Commonwealth v. Peterkin, 554 Pa. 547, 556–57, 722 A.2d 638, 642 (1998).

Here, we view the relevant limitation on serial state collateral review as a reasonable one, particularly as applied to the circumstances of the present case, in which the claims asserted depend upon an evolving line of United States Supreme Court precedent involving an interpretation of the United States Constitution, and review within the federal judicial system over which that Court presides has not been shown to be foreclosed. Therefore, accepting the plain language of the statute, as exemplifying a reasonable restriction on serial state collateral review, we hold that the language "has been held" means that the ruling on retroactivity of the new constitutional law must have been made prior to the filing of the petition for collateral review.

Id .

Abdul-Salaam ’s analysis of the constitutional reasonableness of its statutory interpretation was fully in accord with the prevailing view of retroactivity before Montgomery . Montgomery held that Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (Eighth Amendment forbids mandatory sentence of life without parole for juvenile homicide offenders), must be given retroactive effect in state collateral proceedings. The holding in Montgomery drastically altered the legal landscape for determining the retroactive application of new constitutional rules. "This conscription into federal service of state post-conviction courts is nothing short of astonishing." Id . at 737 (Scalia, J., dissenting). Indeed, this conscription undercuts the reliance on Abdul-Salaam by the Majority.

Retroactivity is constitutionally required

Montgomery held that states must give retroactive effect to Miller. It did so by constitutionalizing Teague , 489 U.S. 288, 109 S.Ct. 1060, which established the modern retroactivity framework. Before Montgomery , retroactive application of new cases via Teague was typically applied in the context of federal habeas courts reviewing the validity of state judgments. Teague itself was such a case, arriving at the High Court following denial of Teague's petition for a writ of habeas corpus from his state court conviction. Teague urged that "the Sixth Amendment's fair cross section requirement should now be extended to the petit jury." Id . at 292, 109 S.Ct. 1060. The Court declined to address whether that rule should be adopted because it would not apply to Teague in any event. The Supreme Court in Teague reached that conclusion by holding that non-retroactivity is the default rule when a federal habeas court examines a state court judgment. Thus, Teague would not receive the benefit of the new rule even if the Court were inclined to create it.

The United States Supreme Court has not explicitly decided whether federal habeas relief is available when the new rule is announced after the last state court adjudication on the merits, Greene v. Fisher , 565 U.S. 34, 39, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011), nor has it decided whether Teague applies when a federal habeas court reviews a federal conviction. See Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) ("The parties here assume that the Teague framework applies in a federal collateral challenge to a federal conviction as it does in a federal collateral challenge to a state conviction, and we proceed on that assumption.").

Teague held that two kinds of rules would qualify as exceptions to this general principle. The first exception, concerning new substantive rules, was "not relevant here," and Teague did not elaborate further on its scope. The Supreme Court has since summarized that category as rules that "place[ ] a class of private conduct beyond the power of the State to proscribe, or address[ ] a ‘substantive categorical guarantee accorded by the Constitution,’ such as a rule ‘prohibiting a certain category of punishment for a class of defendants because of their status or offense.’ " Saffle v. Parks , 494 U.S. 484, 494, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990) (citation omitted) (quoting Penry v. Lynaugh , 492 U.S. 302, 329-30, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) ). The second exception was for "watershed rules of criminal procedure," defined as "those new procedures without which the likelihood of an accurate conviction is seriously diminished." Teague , 489 U.S. at 313, 109 S.Ct. 1060.

"The non-retroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final." Caspari v. Bohlen , 510 U.S. 383, 389, 114 S.Ct. 948, 127 L.Ed.2d 236 (1994). The Teague exceptions are therefore more accurately characterized as rules not subject to the retroactivity bar.

Until Montgomery , nothing required states to give retroactive effect to any new constitutional rulings if convictions were already final when the new rule was issued, even if the new rule fell within a Teague exception. "Since Teague is based on statutory authority that extends only to federal courts applying a federal statute, it cannot be read as imposing a binding obligation on state courts." Danforth v. Minnesota , 552 U.S. 264, 278–79, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008). States were only required to apply new rules to cases pending on direct review when the new rule was announced. Griffith v. Kentucky , 479 U.S. 314, 322, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (holding that the "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication").

Montgomery altered that framework by holding that state collateral courts must give retroactive effect to new substantive rules when the collateral proceedings are open to a claim that would be governed by the new rule.

If a state collateral proceeding is open to a claim controlled by federal law, the state court has a duty to grant the relief that federal law requires. Where state collateral review proceedings permit prisoners to challenge the lawfulness of their confinement, States cannot refuse to give retroactive effect to a substantive constitutional right that determines the outcome of that challenge.

Montgomery , 136 S. Ct. at 731–32 (quotation marks and citation omitted). Since Pennsylvania's collateral review courts are open to retroactive application of new rights through the section 9545(b)(1)(iii) exception and a prisoner is permitted to allege due process violations once jurisdiction is established, it follows from Montgomery that Pennsylvania is constitutionally obligated to give retroactive effect to Williams if it qualifies as a substantive rule.

Montgomery did not decide whether states are obligated to give retroactive effect to watershed rules of criminal procedure.

A narrow focus on the language of subsection 9545(b)(1)(iii) results in a mistaken retroactivity analysis based on pre- Montgomery law. This Court's Abdul-Salaam decision does not support the "no jurisdiction" disposition since that case decided the statutory question with the understanding that states could flatly refuse to apply new rules retroactively in collateral proceedings. Forcing a prisoner to wait until another case decided the retroactivity issue was reasonable because a prisoner had no constitutional basis to insist on retroactivity in the first place. As a result of Montgomery , that principle is no longer true. A litigant may not be denied the opportunity to argue that a given rule qualifies as a substantive rule under Teague . Cf. Commonwealth v. Delgros , 646 Pa. 27, 183 A.3d 352, 363 (2018) (Saylor, C.J., concurring) (opining that where defendant is statutorily ineligible for PCRA review as a result of a sentence that imposed only a fine, due process requires that an exception be made to the general rule barring review of collateral claims on direct review).

That view was aptly summarized by Justice Scalia in dissent in Montgomery :

Neither Teague nor its exceptions are constitutionally compelled. Unlike today's majority, the Teague era Court understood that cases on collateral review are fundamentally different from those pending on direct review because of "considerations of finality in the judicial process." Shea v. Louisiana, 470 U.S. 51, 59–60, 105 S. Ct. 1065, 84 L.Ed.2d 38 (1985). That line of finality demarcating the constitutionally required rule in Griffith from the habeas rule in Teague supplies the answer to the not-so-difficult question whether a state post-conviction court must remedy the violation of a new substantive rule: No. A state court need only apply the law as it existed at the time a defendant's conviction and sentence became final. See Griffith, supra, at 322, 107 S. Ct. 708. And once final, "a new rule cannot reopen a door already closed." James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 541, 111 S. Ct. 2439, 115 L.Ed.2d 481 (1991) (opinion of Souter, J.). Any relief a prisoner might receive in a state court after finality is a matter of grace, not constitutional prescription.

Montgomery , 136 S. Ct. at 739 (Scalia, J., dissenting).

The Majority vehemently disagrees with any suggestion of a narrowing of the holding of Abdul-Salaam even in light of Montgomery by asserting that the latter case cannot alter Abdul-Salaam ’s statutory analysis. Majority Op. at 1161–62. Their opinion correctly notes that Abdul-Salaam did not discuss Teague . However, Abdul-Salaam did not discuss Teague because Teague simply did not matter at that time. Prior to Montgomery when Abdul-Salaam was penned, a prisoner had no right whatsoever to insist on any retroactive application of new law on collateral review.
Moreover, the Majority claims that the petitioner's claim in Abdul-Salaam "depend[ed] upon an evolving line of United States Supreme Court precedent involving an interpretation of the United States Constitution, and review within the federal judicial system over which that Court presides has not been shown to be foreclosed," 812 A.2d at 501, and states that the same is true here. Majority Op. at 1161. The petitioner in Abdul-Salaam argued that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), apply retroactively. Id . at 500, 120 S.Ct. 2348. In this context the Abdul-Salaam Court referenced the possibility that the United States Supreme Court itself would decide whether those cases would apply retroactively, thereby obviating the need to determine the question. Indeed, approximately eighteen months later, the High Court definitively addressed whether Ring applied retroactively. See Schriro v. Summerlin , 542 U.S. 348, 364, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004). Again, requiring a prisoner to await developments as a condition of seeking collateral relief was in all cases acceptable preMontgomery . That is no longer true.

Williams qualifies as a substantive rule under Teague

Having established that we are required to give retroactive effect to Williams if it qualifies as a substantive rule within the meaning of Teague , the question is whether the right announced in Williams meets that standard. As a preliminary matter, this requires a precise identification of the substantive right announced by Williams . "It is axiomatic, and self-evident, that the asserted newly-created right actually must enure to the benefit of the petitioner." Commonwealth v. Spotz , 642 Pa. 717, 171 A.3d 675, 681 (2017). It is similarly self-evident that determining whether the new right is applicable to Reid requires precisely defining what the newly created right is.

Williams broadly 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." Williams , 136 S. Ct. at 1905. Yet that formulation is imprecise for purposes of our Teague analysis because it does not give weight to the extraordinary circumstances created by Castille's participation that caused the structural collapse of the 2014 PCRA appeal.

This precept is codified in the Pennsylvania Code of Judicial Conduct. See Pa. Code Judicial Conduct 2.11(A)(6)(b) (requiring disqualification if the jurist "served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding").

That said, the critical formulation we must address here is the only Due Process Clause rule that clearly emerged from Williams : the Due Process Clause is violated where a sentence of death is imposed on a defendant, and the prosecutor who authorized the pursuit of that defendant's sentence subsequently sits on a court of last resort to hear his death penalty appeal. The new substantive rule that we are called upon to apply is thus narrow in scope. That narrowness is a function of the fact that the Due Process Clause "demarks only the outer boundaries of judicial disqualifications." Williams , 136 S. Ct. at 1908 (quoting Aetna Life Ins. Co. v. Lavoie , 475 U.S. 813, 828, 106 S.Ct. 1580, 89 L.Ed.2d 823 (1986) ).

The remaining question is whether the precise due process rule established in Williams qualifies as a substantive rule within the meaning of Teague . The clearest example of a substantive rule is one holding that certain conduct cannot be criminalized. See, e.g. , Muth v. Frank , 412 F.3d 808, 817 (7th Cir. 2005) (recognizing that the decision in Lawrence v . Texas , 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), barring criminalization of sodomy would apply retroactively under Teague ). There is no doubt that Reid was convicted for conduct that the States may validly punish.

As an alternative to reliance on a Teague analysis, Reid argued in his PCRA petition that Williams should apply under a broader retroactively model. "Assuming, arguendo , that Williams does not apply retroactively as a matter of federal law, the Pennsylvania courts should nonetheless apply it retroactively pursuant to their ‘authority to grant relief for violations of new rules of constitutional law when reviewing [their] own State's convictions.’ " PCRA Petition, 8/8/2016, at 6 (quoting Danforth v. Minnesota , 552 U.S. 264, 280-81, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) ). Speaking to that point, this Court has observed:

Thus, litigants who may advocate broader retrospective extension of a new federal constitutional rule would do best to try to persuade this Court both that the new rule is resonate with Pennsylvanian norms and that there are good grounds to consider the adoption of [a] broader retroactivity doctrine which would permit the rule's application at the collateral review stage. In the latter regard, the Court would benefit from recognition and treatment of the strong interest in finality inherent in an orderly criminal justice system, as well as the social policy and concomitant limitations on the courts' jurisdiction and authority reflected in the Post Conviction Relief Act. Because the appellant in this matter has not set an appropriate stage for either pillar of such review, the Teague line of analysis remains the appropriate default litmus governing the present appeal.

Commonwealth v. Cunningham , 622 Pa. 543, 81 A.3d 1, 9 (2013) (footnote omitted), abrogated by Montgomery , supra .
Reid's request to provide briefing on the PCRA jurisdictional issue having been denied by this Court after raising the jurisdictional issue sua sponte, this argument was not developed for our consideration. Nevertheless, Williams is doubtlessly the type of case justifying a broader retroactivity application since this Court's integrity is at stake. Furthermore, any interest in finality is minimal given that (1) the death penalty is at issue; and (2) the Commonwealth has discontinued its appeal.
Notably, the primary justification for refusing to give retroactive effect to new cases is the cost associated with reopening cases that became final long ago. The Commonwealth's discontinuance implicitly waives any reliance on those traditional resource-based concerns by voluntarily assuming the risk of having to expend resources resulting from any remedies granted by this Court, up to and including a whole new trial. Additionally, the extremely small number of cases impacted by Williams is likewise relevant in assessing an impact on resources. See Schriro v. Summerlin , 542 U.S. 348, 364, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (Breyer, J., dissenting) ("Retroactivity here, for example, would not require inordinate expenditure of state resources. [It] would affect approximately 110 individuals on death row. ... Consequently, the impact on resources is likely to be much less than if a rule affecting the ordinary criminal process were made retroactive.").

However, the application of substantive rules is not limited to the pure question of whether the person may be punished at all. It extends to new rules that touch on whether the prisoner may remain in jail in light of case law issued after the judgment of sentence became final, even though the underlying conduct was doubtlessly criminal. This is demonstrated by the rationale employed by the High Court in Montgomery in holding that the rule announced in Miller qualified as a substantive rule.

Miller explicitly recognized that there is no blanket prohibition against confining a juvenile convicted of homicide for life with no hope of release. "Our decision does not categorically bar a penalty for a class of offenders or type of crime. ... Instead, it mandates only that a sentencer follow a certain process—considering an offender's youth and attendant characteristics—before imposing a particular penalty." Miller , 567 U.S. at 483, 132 S.Ct. 2455. Nevertheless, it was not dispositive of the Teague question that a proper sentencing hearing could have justified that penalty, a classic example of a procedural rule that would not apply retroactively because it would only "enhance the accuracy of a conviction or sentence by regulating the manner of determining the defendant's culpability." Montgomery , 136 S. Ct. at 730 (quotation marks, citation, and emphasis omitted). The Montgomery Court stated that

[t]here are instances in which a substantive change in the law must be attended by a procedure that enables a prisoner to show that he falls within the category of persons whom the law may no longer punish. For example, when an element of a criminal offense is deemed unconstitutional, a prisoner convicted under that offense receives a new trial where the government must prove the prisoner's conduct still fits within the modified definition of the crime. In a similar vein, when the Constitution prohibits a particular form of punishment for a class of persons, an affected prisoner receives a procedure through which he can show that he belongs to the protected class. See , e.g., Atkins v. Virginia, 536 U.S. 304, 317, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (requiring a procedure to determine whether a particular individual with an intellectual disability "fall[s] within the range of [intellectually disabled] offenders about whom there is a national consensus" that execution is impermissible).

Montgomery , 136 S. Ct. at 735.

The comparable substantive aspect of Williams is that its new specific due process holding deprived this Court of the power to render judgment in any case that falls within the Williams ruling, as "an unconstitutional failure to recuse constitutes structural error even if the judge in question did not cast a deciding vote." Williams , 136 S. Ct. at 1909. Williams removed the power of this Court to render judgment in the capital cases tainted by Castille's dual participation. As a result, Reid is entitled to a procedure, i.e. reinstatement of his appellate rights nunc pro tunc, to give him an opportunity to present his arguments to an unbiased panel.

The Majority agrees that if Williams qualifies as a retroactive right under 42 Pa.C.S. § 9545(b)(1)(iii), Reid's petition may meet the jurisdictional requirement. Majority Op. at 1153–54.

This conclusion follows from the connection between our invalidated appeal and the validity of Reid's punishment. Unlike the United States Constitution, which provides no right of an appeal, Evitts v. Lucey , 469 U.S. 387, 393, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (citing McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894) ), the Pennsylvania Constitution guarantees that right in its Article V, Section 9. As stated in Commonwealth v. Morris , 565 Pa. 1, 771 A.2d 721, 732 n.10 (2001), that right extends to PCRA cases even though there is no underlying constitutional right to collateral review:

Although [Morris] does not have a constitutional right to collateral review, he does have a constitutional right to appeal from a court of record to an appellate court. Pa. Const. Article V, § 9. Similarly, the legislature has provided a right to appeal in cases on collateral review. 42 Pa.C.S. § 9546(d). Thus, where these rights have been conferred, it would be insincere for us to conclude that the right to appeal can be limited on the basis that there is no constitutional right to collateral review in the first instance.

Id . at 732.

Appellate review can be "an integral part of the ... system for finally adjudicating the guilt or innocence of a defendant." Griffin v. Illinois , 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956). The enshrinement of a right to appeal in the Pennsylvania Constitution demonstrates that our appellate courts are an integral part of the system for a final adjudication of guilt or innocence. As a result, a valid appeal is an indispensable part of determining whether Reid's continued confinement on death row is actually valid.

While the prior appeal at issue here was from a collateral order and the PCRA is civil in nature, the purpose of PCRA review is to give the prisoner an opportunity to establish that he is being held in violation of the law. "The purpose of [the PCRA] is not to provide convicted criminals with the means to escape well-deserved sanctions, but to provide a reasonable opportunity for those who have been wrongly convicted to demonstrate the injustice of their conviction." Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638, 643 (1998). The Commonwealth cannot insist that Reid remain on death row without a valid appeal as of right from the PCRA court's denial of his petition claiming error in his conviction. In this respect, it is critical to note that the sole avenue of appeal in death penalty cases is to this Court. Reid's attempted appeal to this Court, immutably tainted by Castille, was a nullity. His remedy is a de novo appeal to a Court unburdened by the taint. As further support, the High Court recently held in Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016), that its decision in Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which struck down the residual clause of a sentencing law as void for vagueness, was substantive under Teague . The Welch Court explained that its decision striking down the residual clause was substantive because

See 42 Pa.C.S. § 9546(d) ("A final court order under [the PCRA] in a case in which the death penalty has been imposed shall be directly appealable only to the Supreme Court pursuant to its rules."); 42 Pa.C.S. § 722(4) (vesting exclusive jurisdiction of appeals from, inter alia, subsection 9546(d)).

The substantive rule we recognize is narrow. We decide only that the Williams substantive rule applies to the cases where Castille authorized the death penalty and later participated in an appeal from a death sentence. To date, four years after Williams , we have five such cases (two of which involve Reid) on our docket where the defendants claim that the Williams rule pattern applies. For this reason, the Majority's reliance on cases involving different fact patterns is inapposite.

[b]efore Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence. Johnson establishes, in other words, that "even the use of impeccable factfinding procedures could not legitimate" a sentence based on that clause. United States v. United States Coin & Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). It follows that Johnson is a substantive decision.

Id . at 1265.

Comparably, no matter how impeccable the legal reasoning set forth in our 2014 appeal disposing of Reid's PCRA appeal may have been, the bottom line is our decision cannot be used to give legitimate effect to Reid's continued confinement on death row in the post-Williams world. The refusal by the Majority to allow a de novo appeal under these circumstances is based on a fundamental misunderstanding of Williams and results in the denial of Reid's right to an appeal of the 2011 denial of his PCRA petition. Therefore, just as in Miller , a new procedure, i.e. a de novo appeal of the 2011 PCRA decision, is necessary to address the lawfulness of his punishment and continued confinement.

As to the analysis of whether Williams qualifies as a substantive rule based on Miller ’s analysis of Teague , the Majority claims that Miller "did not expand the definition of substantive rules." Majority Op. at 1163. It is telling that the Court resorts to a dissenting opinion to support that characterization, acknowledging that "Miller seems at odds with Montgomery ’s ultimate holding .. a point which did not escape the Montgomery dissenters’ notice." Id . at n.23. Justice Scalia's dissent accused the Montgomery majority of "not applying Miller , but rewriting it." Id . (quoting Scalia, J., dissenting). But even if Justice Scalia is correct that Montgomery rewrote Miller , we are bound to apply the "new" interpretation. We cannot ignore Montgomery ’s analysis simply because Justice Scalia believed that it was mistaken.
Moreover, the Majority notes that the High Court granted certiorari in Jones v. Mississippi , 285 So.3d 626 (Miss. Ct. App. 2017), cert. granted , ––– U.S. ––––, 140 S. Ct. 1293, 206 L.Ed.2d 374 (2020), and discerns that the Court "seems poised to remove all doubt regarding its holdings in Miller and Montgomery ." Id . That is difficult to square with its assertion that "the rationale employed by the Montgomery Court is squarely in line with that Court's longstanding articulation of retroactivity principles[.]" Majority Op. at 1163. What is clear is that the Majority's view, which is based on the dissenting opinion in Montgomery , is not a reflection of the current state of the law.

This claim is not subject to waiver

The PCRA's eligibility for relief provisions state that the petitioner must prove "[t]hat the allegation of error has not been previously litigated or waived." 42 Pa.C.S. § 9543(a)(3). The Majority finds that any PCRA claim would be waived even if Williams announced a new rule because Reid failed to file a recusal motion when the matter was before Castille.

That conclusion is not supported by our jurisprudence. At best, it can be said that the issue of waiver when new constitutional rights are at issue is an unsettled matter in this Commonwealth. This is presumably due to the fact that very few decisions have been held to apply retroactively under subsection 9545(b)(1)(iii). To our knowledge, only Miller and Atkins v. Virginia , 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that the intellectually disabled cannot be executed), have qualified. As to Miller , it has never been suggested that its retroactive application through the PCRA is available only if the juvenile preserved an Eighth Amendment challenge to his sentence at the relevant time. Once the subsection 9545(b)(1)(iii) exception creates jurisdiction under the PCRA, any issue respecting the legality of the life without parole sentence becomes non-waivable due to Miller ’s substantive character.

Likewise, issues concerning whether a particular defendant is intellectually disabled under Atkins are not subject to waiver; i.e. we do not ask whether the defendant raised an issue regarding his mental capacity at the time of the actual trial. Instead, this Court established standards to be met after a defendant has raised an Atkins claim. See Commonwealth v. (Joseph) Miller , 585 Pa. 144, 888 A.2d 624, 629 n.5 (2005) (finding Atkins qualified as a right that applies retroactively without reference to waiver). Additionally, in Commonwealth v. Brown , 582 Pa. 461, 872 A.2d 1139, 1154 (2005), we held that competency is not subject to the PCRA's waiver provision, concluding that the waiver provision applies "to those claims that are required to be preserved." Id. (emphasis omitted). We further remarked, "If the nature of the claim involves a right so fundamental to a fair trial that renders it non-waivable, then the claim is not required to be preserved and is not subject to the waiver provision of the PCRA." Id . As explained at length supra, Castille's participation resulted in a structural error that was fundamental to a fair appellate decision. Reid was thus not required to preserve this challenge to Castille's participation and the challenge was not subject to waiver. Finally, the constitutionalization of Teague severely undermines the viability of a procedural bar, like waiver, as a justification for refusing to give retroactive effect to a new substantive rule. Traditionally, the finality of a judgment of sentence when the new rule was announced was the primary justification for denying retroactive effect. Whether a defendant's judgment of sentence became final one day before the new rule of law was announced or decades before was of no moment. Since finality no longer serves as a valid justification under Montgomery when a substantive rule is at issue, the question becomes whether the failure to file a futile recusal motion, in the hopes that one day the law would change, is a valid justification for denying retroactive effect. Montgomery said this about finality as an interest:

This is not a case where there is a distinct issue to be raised, as that term refers to a "discrete legal ground." Commonwealth v. Collins , 585 Pa. 45, 888 A.2d 564, 570 (2005). In all cases where Castille participated in death penalty case appeals despite authorizing the death penalty, the discrete legal ground is the same: due process required that he remove himself from consideration of the appeal. Cf . Commonwealth v. Chmiel , 643 Pa. 216, 173 A.3d 617, 627 (2017) (concluding that prior claim of counsel ineffectiveness for failure to challenge admissibility of microscopic hair analysis testimony was distinct from claim that FBI considered that kind of analysis to be scientifically unreliable).

The Majority insists that Reid was required to file a recusal motion to preserve the challenge to Castille's participation. It inexplicably cites Castille's recusal opinion in Commonwealth v. Rainey , 590 Pa. 256, 912 A.2d 755 (2006) (Recusal Opinion of Castile, J.), which adopted the Commonwealth's description of his role in death penalty cases, as placing Reid on notice of a possible basis to request recusal. "And perhaps most importantly, one of those [recusal] requests resulted in a published opinion by then-Justice Castille in which he acknowledged his actual role in all capital cases." Majority Op. at 1150–51.
If the Rainey opinion demonstrates the availability of a motion to recuse, it more so establishes the outcome of such a motion and the futility in filing it. Castille's published refusal to recuse in cases where he served as the District Attorney in Philadelphia County and authorized the death penalty made the need to file a recusal motion an act of futility. This Court has not foreclosed the adoption of a futility doctrine as a reason to overlook waiver when new constitutional rules are at issue. See Commonwealth v. Hays , ––– Pa. ––––, 218 A.3d 1260, 1268 (2019) ("In an appropriate case, I would be receptive to considering a moderate adjustment to our approach to futility, in cases involving the retroactive application of a new constitutional rule[.]") (Saylor, C.J., concurring). Furthermore, while "the doctrine of waiver is, in our adversary system of litigation, indispensable to the orderly functioning of the judicial process," Commonwealth v. McKenna , 476 Pa. 428, 383 A.2d 174, 180 (1978), we have recognized "occasional rare situations where an appellate court must consider the interests of society as a whole in seeing to it that justice is done, regardless of what might otherwise be the normal procedure. One such situation is surely the imposition of capital punishment." Id . (footnote omitted). Contrary to the Majority's charge that I have "ignore[d] that this Court has long since applied strict waiver principles even to capital cases, especially in the postconviction context," Majority Op. at 1164–65 n.24, as discussed supra at 1176 n.17 this Court eliminated "relaxed waiver" in part because alternative channels existed to pursue defaulted claims. Our decision in Freeman decided "to return the relaxed waiver doctrine to its roots in McKenna ," 827 A.2d at 402, "a case where this Court stepped in to prevent what would have been an unconstitutional execution." Id . at 397. I find that even if the Majority is correct in believing that this issue is technically waived, the limited McKenna formulation recognized in Freeman applies. The intersection of futility, capital punishment, and the fact that the United States Supreme Court has called into question the integrity of this institution warrants overlooking any actual waiver, lest we be a part of an unconstitutional execution.
Moreover, the reliance by the Majority on the statutory text of subsection 9543(a)(3) ("To be eligible for relief ... the allegation of error has not been previously litigated or waived"), ignores the previously litigated aspect. Thus, even if Reid had filed a recusal motion, the PCRA claim would fail because it would have been previously litigated.
Therefore, under the Majority's view of how the subsection 9545(b)(1)(iii) constitutional right exception interacts with the subsection 9543(a)(3) waiver provision, no one can ever secure relief. If that is the case, (b)(1)(iii) would appear to be effective only with respect to new rules implicating legality of sentencing, such as Miller .
In response, the Majority argues that this recusal claim would not be subject to the previous litigation bar because a jurist's personal decision whether to grant a motion to recuse does not qualify as a ruling on the merits to which a litigant could have had review as a matter of right. See 42 Pa.C.S. § 9544(a)(2). Apparently, the Majority finds that the bar would not apply because recusal is a matter for the individual jurist and therefore does not represent the judgment of the court as an institution. See Commonwealth v. Jones , 541 Pa. 351, 663 A.2d 142, 143 (1995) (Opinion of Castille, J. in support of denying recusal) ("Under the existing practice of this Court, recusal has been a matter of individual discretion or conscience and only the jurist being asked to recuse himself or herself may properly respond to such a request.") (citation omitted). The only mechanism available to enforce recusal—putting aside the fact that Castille should have recused on his own accord in this case—is to request it. Denying that motion is therefore a decision on the merits.
The Majority also ignores that the previous litigation bar applies to issues that have been "raised and decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. § 9544(a)(3). Thus, if Reid had indeed filed a motion to recuse in the PCRA appeal at issue, Castille's inevitable denial would have precluded application of Williams even if the case were held to satisfy the (b)(1)(iii) exception.

As a final point, it must be noted that the retroactive application of substantive rules does not implicate a State's weighty interests in ensuring the finality of convictions and sentences. Teague warned against the intrusiveness of "continually forc[ing] the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards." 489 U.S. at 310, 109 S. Ct. 1060. This concern has no application in the realm of substantive rules, for no resources marshaled by a State could preserve a conviction or sentence that the Constitution deprives the State of power to impose.

Montgomery , 136 S. Ct. at 732.

For these reasons, Reid's failure to file a motion for the recusal of Castille does not justify denying relief when a substantive rule is at issue. Moreover, in light of Castille's intractable refusal to recuse in Rainey , nothing in our precedents mandates that this claim would be waived.

Having concluded that the PCRA court correctly decided that it had jurisdiction under the PCRA, a review of the merits of the nunc pro tunc appeal follows.

III. Merits Review

In order to succeed on a claim for collateral relief under the PCRA, Reid must demonstrate that his conviction or sentence resulted from one of the circumstances listed in the eligibility provision, 42 Pa.C.S. § 9543(a)(2). Here, Reid claims that his conviction and sentence resulted from "[i]neffective assistance of counsel 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)(ii). He must also demonstrate that the issues raised have not been previously litigated or waived. 42 Pa.C.S. § 9544. This Court will deem an issue previously litigated if "the highest court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or ... [the issue] has been raised and decided in a proceeding collaterally attacking the conviction or sentence." 42 Pa.C.S. § 9544(a)(2) and (3). An issue is waived "if the petitioner could have raised it but failed to do so before trial, at trial ... on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. § 9544(b).

In order to prevail on an ineffective assistance of counsel claim, the petitioner must plead and prove, by a preponderance of the evidence, that (1) the underlying claim is of arguable merit; (2) counsel had no basis for his or her action or inaction; and (3) petitioner suffered prejudice as a result of counsel's action or inaction. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Commonwealth v. Pierce , 567 Pa. 186, 786 A.2d 203, 213 (2001). We presume that counsel rendered effective assistance. Commonwealth v. Tharp , 627 Pa. 673, 101 A.3d 736, 747 (2014). To demonstrate prejudice, the petitioner must establish that, but for counsel's ineffectiveness, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Chmiel , 612 Pa. 333, 30 A.3d 1111, 1127-28 (2011). Because a petitioner is required to satisfy each of the three elements of ineffectiveness, failure to satisfy any one element is dispositive. A court analyzing an ineffectiveness claim need not address the elements in any particular order and may elect to address whichever element a petitioner fails to meet first.

In reviewing the PCRA court's denial of relief, we examine whether the PCRA court's determination is "supported by the record and free of legal error." Tharp , 101 A.3d at 746 (citing Commonwealth v. Sepulveda , 618 Pa. 262, 55 A.3d 1108, 1117 (2012) (internal citations omitted)); see Commonwealth v. Colavita , 606 Pa. 1, 993 A.2d 874, 887 (2010) ("To the extent review of the PCRA court's determinations is implicated, an appellate court reviews the PCRA court's findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to determine whether they are free from legal error."). This Court thus applies a de novo standard of review in determining whether counsel's performance fell below constitutional mandates, and we will not will not disturb a lower court's factual and credibility findings on appeal so long as they are supported by the record. Commonwealth v. Simpson , 631 Pa. 423, 112 A.3d 1194, 1198 (2015).

Under the prevailing law at the time, Reid was required to raise claims of ineffectiveness "at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant." Commonwealth v. Hubbard , 472 Pa. 259, 372 A.2d 687, 695 n.6 (1977), abrogated by Commonwealth v. Grant , 572 Pa. 48, 813 A.2d 726 (2002). Reid was represented by Samuel Stretton, Esquire, at trial and on direct appeal. After filing a pro se PCRA petition, Reid was appointed private counsel, Daniel Silverman, Esquire, and thereafter, the Federal Public Defenders took over the appeal. Accordingly, Reid was not required to raise counsel's ineffectiveness until collateral review, when he was first represented by new counsel, and his claims of ineffectiveness were not waived on direct appeal. See Sepulveda , 55 A.3d at 1117 n.7 ("[E]ven under the pre- Grant rule, appellant was not required to raise ineffectiveness claims until he obtained new counsel[.] ... Because the same counsel represented appellant at trial and on direct appeal, collateral review is appellant's first opportunity to raise claims sounding in trial counsel's ineffectiveness."). As a result, Reid was not required to "layer" his ineffectiveness claims. See Commonwealth v. McGill , 574 Pa. 574, 832 A.2d 1014, 1022 (2003) (defining mechanics involved in presenting layered ineffectiveness claim).

Guilt Phase

I. Batson Claim

Reid argues that the prosecutor improperly exercised peremptory strikes based on race and gender in violation of Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama , 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), and that trial counsel was ineffective for failing to raise this claim during voir dire and for failing to make these arguments to the trial court and on appeal. He also argues that he was entitled to discovery related to his claim, although in his brief he does not identify the discovery sought or the basis for his request.

Reid first raised this claim in his first amended PCRA petition. First Amended PCRA Petition, 1/27/1999, at 9-26 (¶¶ 17-52).

Reid focuses his arguments almost entirely upon his claim regarding racial rather than gender discrimination. In asserting a gender discrimination claim, he fails to provide any evidence of a pattern of discrimination and merely states that the prosecutor exercised eight strikes against black women. Reid's Brief at 21. He fails to offer any facts which if believed would establish a meritorious claim of gender discrimination. Commonwealth v. Roney , 622 Pa. 1, 79 A.3d 595, 623 n. 27 (2013) (failure to present reasoned and developed argument supporting allegation of gender discrimination results in waiver of claim).

In Batson , the United States Supreme Court held that the Equal Protection Clause forbids prosecutors from challenging a potential juror solely based upon the juror's race. Batson , 476 U.S. at 89, 106 S.Ct. 1712. When a Batson issue arises during jury selection, it is the defendant's burden to prove purposeful discrimination on the part of the state. Id . at 93, 106 S.Ct. 1712. The defendant "may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Id . The defendant is "entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits those to discriminate who are of a mind to discriminate." Id . at 96, 106 S.Ct. 1712. The Supreme Court also stated that a defendant could make a prima facie showing by showing that a prosecutor exercised a "pattern of strikes against black jurors." Id . Once a defendant makes out a prima facie case, the burden shifts to the state to demonstrate a neutral explanation for challenging the juror at issue. Id . at 97, 106 S.Ct. 1712. Then, the trial court has the duty to determine whether the defendant has established actual purposeful discrimination. Id . at 98, 106 S.Ct. 1712.

When a post-conviction petitioner raises a Batson claim for the first time on collateral review, he is not entitled to rely on Batson ’s burden-shifting formulation. Instead, according to Commonwealth v. Uderra , 580 Pa. 492, 862 A.2d 74, 86-87 (2004), the petitioner "bears the burden in the first instance, and throughout of establishing actual, purposeful discrimination by a preponderance of the evidence." This principle has been cited and applied in various cases, most recently in Commonwealth v. Rivera , 650 Pa. 169, 199 A.3d 365 (2018) ; see also Commonwealth v. William Johnson , 635 Pa. 665, 139 A.3d 1257, 1282-83 (2016) ; Commonwealth v. Blakeney , 631 Pa. 1, 108 A.3d 739, 768 (2014).

Reid urges this Court to break from Uderra ’s requirement that PCRA petitioners prove "actual, purposeful discrimination by a preponderance of the evidence" in order to prevail on a Batson claim raised post voir dire. Reid's Brief at 27. He argues that the Uderra standard is higher than that required by Batson and is "fundamentally inadequate to vindicate the substantive rights provided" by equal protections. Id . at 27-28. In response, the Commonwealth argues that Uderra is consistent with federal jurisprudence, McCrory v. Henderson , 82 F.3d 1243, 1251 (2d Cir. 1996), and that the burden imposed by Uderra is justified because of the complexity involved in ineffective assistance of counsel cases, as well as the difficulties associated with a belated Batson claim. Commonwealth's Brief at 17.

As stated above, Uderra is well-settled law in Pennsylvania, and Reid offers no compelling reason to break with it. As the Uderra Court explained, and the Commonwealth reminds us, the standard is logical in collateral appeals. Although the Batson burden-shifting formula generally applies when a defendant raises a Batson objection during trial, greater difficulties arise in cases where no objection is raised to trigger a contemporaneous inquiry. Id . at 86. In such circumstances, the Court observed, "it is exponentially more difficult to perform a reasoned assessment concerning the presence or absence of purposeful discrimination." Id .

Reid argues in the alternative that he could have satisfied the Uderra requirement at an evidentiary hearing. The standard for reviewing a Batson claim for which no evidentiary hearing was held is whether the petitioner's proffer, if believed, raises actual, purposeful discrimination. See similarly Uderra , 862 A.2d at 87. The case law does not set a threshold of how many strikes against minority jurors could establish actual purposeful discrimination, although there are examples of courts finding a prima facie case of discrimination based upon the number of strikes used against minority jurors. See Commonwealth v. Dinwiddie , 373 Pa.Super. 596, 542 A.2d 102, 105 (1988) (where the prosecutor used 83% of strikes against black venire persons, the defendant established a prima facie case of racial discrimination); Jones v. Ryan , 987 F.2d 960, 971 (3d Cir. 1993) (defendant established a prima facie case of racial discrimination by showing that the prosecutor used 75% of peremptory strikes against black venire persons when they only made up 20% of the jury pool).

Reid's proffer falls short of establishing actual, purposeful discrimination. He claims that the prosecutor's exercise of strikes of black jurors was "grossly disproportionate" to his exercise of strikes of white jurors, because the prosecutor exercised nine of twelve strikes against black venire persons. Reid's Brief at 12-15. Reid admits that there were eight jurors whose race he cannot identify because his counsel did not keep records of venire persons’ races at trial, six of whom were struck. Reid's Brief at 12-15.

As the Commonwealth points out, even under Reid's count, it is possible that the prosecutor struck a proportionate number of white and black jurors. Commonwealth's Brief at 16-17. Due to the number of venire persons of unidentified race in this case, the record of strikes does not establish a prima facie case, let alone a case of actual purposeful discrimination.

Reid also argues that this Court should consider the "culture of discrimination" in the Philadelphia District Attorney's Office at the time of his trial, combined with the incomplete statistics he has compiled. He cites to a jury selection training videotape featuring a former prosecutor ("the McMahon tape"), which he characterizes as "urg[ing] prosecutors to engage in racially discriminatory and other improper jury selection practices." Reid's Brief at 16. He also relies upon a lecture given by a member of the Philadelphia District Attorney's office ("the Sagel lecture"), as reflected in the notes of an attendee ("the Lentz notes"), which he claims also evidences a practice of prosecutors discriminating against African Americans and utilizing pretextual assertions to avoid Batson . Id . at 16-17.

Reid's reliance on the "culture of discrimination" based upon those materials is unavailing. This Court has repeatedly "condemn[ed] in the strongest terms the practices described in the transcript [of the McMahon tapes], which flout constitutional principles in a highly flagrant manner." Commonwealth v. Basemore , 560 Pa. 258, 744 A.2d 717, 731 n.12 (2000). Likewise the Lentz notes are suggestive of a disregard for constitutional principles. Nonetheless, the existence of the McMahon tape and Lentz notes do not prove racial discrimination in this case where there is no evidence connecting this prosecutor to the McMahon tapes or Lentz notes, nor any other evidence suggesting that the prosecutor exercised strikes in a manner consistent with the discriminatory methods described therein. Accord Commonwealth v. Roney , 622 Pa. 1, 79 A.3d 595, 622 (2013) ("[T]he mere existence of the McMahon videotape does not establish a general policy of racial discrimination in jury selection in the District Attorney's Office, and does not prove racial discrimination in a particular case[.]"); Commonwealth v. Hanible , 612 Pa. 183, 30 A.3d 426, 479 (2011) (rejecting reliance on notes absent any link connecting the lecture and the case at hand); Commonwealth v. Hutchinson , 611 Pa. 280, 25 A.3d 277, 288-89 (2011) (stating that the McMahon tapes and Sagel lecture notes "establish[ ] neither a general policy in the District Attorney's Office of racial discrimination in jury selection, nor the presence of racial discrimination in jury selection in an individual case when a prosecutor other than McMahon or Sagel represents the Commonwealth").

Finally, as to Reid's assertion that he is entitled to further discovery regarding this claim, the PCRA court did not err in denying his motion for discovery. Under the Pennsylvania Rules of Criminal Procedure, "no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause." Pa.R.Crim.P. 902(E)(2). This Court reviews the PCRA court's denial of a discovery motion for abuse of discretion. Commonwealth v. Natividad , 650 Pa. 328, 200 A.3d 11, 40-41 (2019). As explained above, this Court has determined that information related to the Lentz notes was insufficient to establish purposeful discrimination. Reid does not explain how the additional discovery he seeks would be relevant to establishing his claim and therefore does not show good cause.

II. Failure to investigate and present exculpatory witnesses

Reid argues that trial counsel was ineffective for failing to locate and present the following witnesses: Kevin Bowman, Darryl Gray, and Willie Brown. Reid's Brief at 32-38. According to Reid, these witnesses could have (1) proven that Reid was not the shooter and (2) could have called into question Dozier's eyewitness account by showing that Dozier did not actually witness the shooting. Id . at 38. He submits that his proffers raise genuine issues of material fact and therefore, the PCRA court erred in denying him an evidentiary hearing on this claim. Id . at 31. The PCRA court properly denied Reid's request for an evidentiary hearing with respect to Reid's claim that trial counsel's failure to locate and present each of these witnesses at trial.

Reid first raised this claim in his first counseled PCRA petition, where he alleged that he had located multiple independent witnesses who provided exculpatory information, including Kevin Bowman and Darryl Gray. First Amended PCRA Petition, 1/27/1999, at 58-60 (¶¶ 115-122).
Before the PCRA court, Reid set forth claims relating to various other witnesses as well. In briefing this issue to this Court, however, Reid only develops his arguments with regard to Kevin Bowman, Darryl Gray, and Willie Brown. He states, in a footnote, that "[i]n addition to Gray, Willie Brown and Bowman, other available witnesses likewise would have contradicted key elements of the Commonwealth's case[,]" and he cites to affidavits of Robert Durand and Damien Williams. Reid's Brief at 35-36 n.12. However, he does not develop any argument relating to the testimony of those witnesses. Therefore, those claims are waived. See Commonwealth v. Kareem Johnson , 604 Pa. 176, 985 A.2d 915, 924 (2009) ("where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.").

A PCRA court may dismiss a PCRA petition without an evidentiary hearing only when it is satisfied that "there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings." Pa.R.Crim.P. 909(B)(2). This Court has restated the rule as providing that a petitioner, in order "to entitle himself to an evidentiary hearing ... must raise an issue of fact, which, if resolved in his favor, would justify relief." Commonwealth v. Simpson , 620 Pa. 60, 66 A.3d 253, 260 (2013). Thus, the principal question before this Court is whether Reid has presented a genuine issue of material fact with regard to his claim for collateral relief, and whether further proceedings would serve a legitimate purpose. We review the PCRA court's denial of an evidentiary hearing for an abuse of discretion. Id . at 261. Moreover, when considering claims that trial counsel was ineffective for failing to investigate and call certain witnesses at trial, this Court considers five factors. According to Commonwealth v. Pursell , 555 Pa. 233, 724 A.2d 293, 306 (1999), the petitioner must show (1) that the witness existed; (2) that the witness was available; (3) that counsel knew or should have known of the witness; (4) that the witness was prepared to cooperate and would have testified on petitioner's behalf; and (5) that the absence of the testimony prejudiced the petitioner. See also William Johnson , 139 A.3d at 1284. Addressing this issue requires a closer look at the proposed testimony of each of the witnesses.

Kevin Bowman

With his first Amended PCRA petition, Reid filed a declaration of Kevin Bowman, R. 124 (Affidavit/Certification of Kevin Bowman pursuant to 28 U.S.C. § 1746 and 18 Pa.C.S. § 4904, (hereinafter "Bowman certification") 1/4/1999). Bowman stated that Boston came to him and said he had a problem with the victim. Id . ¶ 2. According to Bowman's certification, Bowman asked Reid to accompany Boston to talk to the victim on the night of the murder. Id . Then, later that night, after the murder, Bowman spoke with Boston and Reid. During that conversation, Boston and Reid told Bowman the following: when they went to speak with the victim, unbeknownst to Reid, Boston had brought a gun, and Boston (not Reid) shot the victim, though he did so in self-defense. Id . ¶¶ 3-6. Bowman also stated that Dozier, the key eyewitness to the shooting, told Bowman that he did not actually witness the shooting. Id . ¶ 9.

With regard to Kevin Bowman's proposed testimony, the PCRA court stated that, "on top of being total hearsay, there's no indication that this information could have been available at trial or that defense counsel could have discovered it[;] it would have only been used for impeachment, and would only have been corroborative or cumulative of Boston's prior inconsistent statements." PCRA Court Opinion, 2/14/211, at 185. The Commonwealth takes a different approach and argues that trial counsel's determination not to present Bowman, "a convicted murderer, JBM member, and drug dealer would have been reasonable." Commonwealth's Brief at 25.

The PCRA court correctly determined that Bowman's statements as to what Reid, Boston and Dozier told him are hearsay. Bowman's statements as to what Reid, Boston and Dozier told him all constitute hearsay because they were made by Reid, Boston or Dozier (the declarants) outside of court, and the party (Reid) seeks to introduce them to prove the truth of the matter asserted. Moreover, none of the exceptions to the rule against hearsay would apply to allow admission of the key portions of Bowman's statement. The most significant portion of Bowman's statement is undoubtedly his assertion that Boston confessed that he (rather than Reid) shot the victim, yet Reid has not demonstrated how that testimony would have been admissible at trial. See Commonwealth v. Puksar , 597 Pa. 240, 951 A.2d 267, 278 (2008) (in asserting ineffectiveness related to failure to present witness testimony, petitioner failed to demonstrate how proposed testimony of witness which was hearsay would be admissible, and therefore, petitioner's claim lacked arguable merit). As such, the PCRA court did not err in concluding that Bowman's statements regarding Boston's confession were inadmissible hearsay and in determining that Reid's claim therefore lacked arguable merit. Id . at 278.

The only plausible basis to admit this hearsay evidence would be the hearsay exception for statements against penal interest, Pa.R.E. 803(4), but it is inapplicable here, because that Rule applies only where there are "corroborating circumstances" which indicate the statement's trustworthiness. Id . at 804(b)(3)(B). Boston's alleged admission to Bowman is not supported by corroborating circumstances indicative of trustworthiness. Although the statement was against his penal interest insofar as he admitted to shooting the victim, he clearly sought to shift blame by claiming that he only brought a gun because he was afraid of the victim, and that he shot the victim in self-defense. His statement was not detailed nor did it include critical details of the shooting. His statement was not made to a person of authority such as a police officer, or a person who claimed to be a close friend and confidant of the declarant.

As to Bowman's proposed testimony regarding Dozier and disputing his eyewitness account of the shooting, this testimony was cumulative of the other impeachment of Dozier at trial. Hence, no prejudice arose by virtue of its absence. At trial, Dozier's eyewitness account was thoroughly cross-examined. He testified at trial that Reid shot the victim. However, as trial counsel brought out, Dozier had not immediately identified Reid to the police, and Dozier had told the defense investigator that Reid did not shoot the victim. Trial counsel questioned Dozier about drinking and using drugs on the night of the shooting. Additionally, Dozier admitted he had previously stated that he only identified Reid because the police threatened to lock him up. Although the proposed testimony of Bowman could have offered another avenue of cross-examination of Dozier, it was merely cumulative of other impeachment. In these circumstances, the PCRA court reasonably concluded that failure to introduce more impeachment could not rise to the level of prejudice. See William Johnson , 139 A.3d at 1284 (where most of testimony of proposed witnesses would have been cumulative of testimony already on the record, failure to present these witnesses was not prejudicial).

Darryl Gray

Reid also included the declaration of Darryl Gray who claimed that he was an eyewitness to the murder of Mark Lisby. Affidavit/Certification of Darryl Gray pursuant to 28 U.S.C. § 1746 and 18 Pa.C.S. § 4904, (hereinafter "Gray certification"), (1/6/1999) ¶ 2. According to his certification, Gray, who went by "Bub" or "Bubby" in the neighborhood, was walking home on the night of the shooting when he saw Reid, Lisby, and "a smaller guy [he] didn't know who was dressed in all black or very dark clothing." Id . ¶¶ 1-2. According to Gray, he saw the small guy arguing with Lisby, then saw him "all of a sudden pull a pistol out of his waist and sho[o]t [Lisby]." Id . ¶ 3. Gray began running away from the area, then saw Dozier come out of his nearby residence. Gray stated that there was "no way" that Dozier could have seen the shooting from his vantage point. Id . ¶ 5. Gray's certification also indicates that "[n]o police officers, lawyers or investigators ever asked [him] about [the victim]’s death until December of 1998." Id . ¶ 7. Gray, like the other proffered witnesses, makes no representation that he was available and willing to testify at the time of trial.

As to Gray's proposed testimony, the PCRA court rejected the claim on multiple bases including that, "[h]is statement ... fails to indicate that he was available and willing to offer such testimony during trial[.]" PCRA Court Opinion, 2/14/2011, at 185-86. The Commonwealth makes similar arguments, stating that there is no evidence that Reid ever told trial counsel about Gray and that "Gray himself does not explain why he waited more than ten years to come forward and did not state that he would have been willing to cooperate and testify on [Reid]’s behalf." Commonwealth's Brief at 23-24. Reid fails to show that Gray was available and willing to testify at trial pursuant to the third Pursell factor. Neither Reid's PCRA Petition nor Gray's certification makes a representation as to Gray's availability to testify. Reid never established the witness's availability to testify, only addressing it after the Commonwealth filed a motion to dismiss asserting that Reid failed to prove that Gray and the other witnesses were available to testify at trial. In response to the Commonwealth's motion to dismiss, Reid averred, in a footnote, "that these witnesses would, in fact, have been available to testify had counsel properly investigated." Reid's Consolidated Response to the Commonwealth's Motion to Dismiss, 7/12/2002, at 33 n.19. Making this general averment in an unsworn responsive pleading is clearly insufficient for Reid to meet his burden of showing that Gray was willing and available to testify.

The Commonwealth relies on Commonwealth v. Bryant , 579 Pa. 119, 855 A.2d 726, 748 (2008), where this Court, in rejecting an ineffectiveness claim premised on failure to call witness, drew attention to the fact that Bryant "made no proffer as to whether these witnesses were willing and able to testify[.]" Commonwealth's Brief at 22 (citing Bryant , 855 A.2d at 748 ). Although that was not the only factor supporting this Court's denial of PCRA relief in that case, the Court acknowledged the importance of demonstrating that a witness was willing and available to testify in order to succeed on such a claim. As illustrated by Bryant, the Pursell factors require the petitioner to show that the witness would have been willing and able to testify. Pursell , 724 A.2d at 306. Likewise, in evaluating a failure to call a witness claim in William Johnson , 139 A.3d at 1286, this factor was met when the witness certifications themselves made clear that the witnesses were available and willing to testify had they been called as trial witnesses by defense counsel. Reid's bare assertion made in a responsive pleading that "these witnesses" were available and willing to testify falls short of what was shown in William Johnson and was insufficient to meet the fourth Pursell factor.

To be clear, in Bryant , this Court did not find that factor dispositive; instead, it placed emphasis on the facts that Bryant made no proffer that the witnesses would maintain consistent stories and that Bryant failed to prove prejudice. Id .

Willie Brown

Lastly, Willie Brown's certification states that he grew up in the same neighborhood as Reid and Boston and that he was "standing in an alley near the scene where Mark Lisby was shot and saw the shooting take place." He claims to have seen the gun and the shooter and that "Reid was definitely not the shooter." "Affidavit/Certification of Willie Brown pursuant to 28 U.S.C. § 1746 and 18 Pa.C.S. § 4904", 1/4/2000, ¶ 3. Brown's certification states that Dozier was "not there or anywhere in sight when Mark Lisby was shot." Id . ¶ 4. The Commonwealth disputes Reid's ability to meet any of the Pursell factors with regard to Brown, in that Reid failed to provide any identifying information, failed to explain why Brown failed to come forward sooner, failed to proffer that Brown would have been willing and able to testify and failed to explain how counsel knew or should have known of the witness. Commonwealth's Brief at 25.

Reid's certification and arguments regarding Willie Brown were inadequate to require an evidentiary hearing. As the Commonwealth points out, Reid fails to offer any identifying information to show that Brown actually existed, was available and would have testified on Reid's behalf. Unlike Bowman and Gray whose identities were known to the Commonwealth, Brown's identity and whereabouts were a mystery. Reid's failure to make more specific allegations regarding Brown, i.e., his failure to identify Brown's date of birth, precise location, and how counsel actually knew or should have known of Brown's existence, is fatal to his claim.

In addition to failing to meet the Pursell factors, this claim fails because of waiver. According to the rules of appellate procedure, it must be clear from the record or petitioner's brief where he raised and preserved a claim. See Pa.R.A.P. 2117(c) (where an issue is not reviewable unless it is raised or preserved below, appellant brief must indicate, inter alia, where in the first instance, the questions sought to be reviewed were raised, and the method in which they were raised). As explained above, supra footnote 19, Reid first raised this claim in his first counseled PCRA petition, where he alleged that he had located multiple independent witnesses who provided exculpatory information, including Kevin Bowman and Darryl Gray. First Amended PCRA Petition, 1/27/1999, at 58-60 (¶¶ 115-122). Despite Reid's representation in his brief to this Court that he raised and preserved this claim in his first amended petition, Reid's Brief at 31, Reid's first amended PCRA petition of January 27, 1999, did not mention Willie Brown (whose certification is dated January 4, 2000). Notably, the record does not contain a PCRA petition presenting his claim with regard to Willie Brown or attaching Willie Brown's January 4, 2000 certification. Instead, the first time Willie Brown's certification appears in the record is as an attachment to a letter from PCRA counsel to the PCRA court, in 2010, in response to a request from the PCRA court asking counsel to provide an additional copy of Willie Brown's certification. It is unclear how the PCRA court knew about this witness as the record is silent as to when Reid first raised and briefed his claim with regard to Willie Brown. Before this Court, Reid does not identify where he raised and briefed the claim. Therefore, he has waived his claim with regard to Willie Brown.

III. Kloiber instruction

In his third issue, Reid argues that trial counsel was ineffective for failing to request that the jury be instructed regarding the reliability of eyewitness identification testimony in accordance with Commonwealth v. Kloiber , 378 Pa. 412, 106 A.2d 820 (1954). Reid's Brief at 39-47; First Amended PCRA Petition, 1/27/1999, at 35-37 (¶¶ 68-73). He also asserts that direct appeal counsel had no reasonable basis for failing to raise trial counsel's ineffectiveness in this regard. Reid's Brief at 42-45.

According to Kloiber ,

where the [eye]witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the [c]ourt should warn the jury that the testimony as to identity must be received with caution.

Kloiber , 106 A.2d at 826-27. A Kloiber instruction advises the jury that witnesses sometimes make mistakes in identification, and that, if certain factors are present, the accuracy of identification testimony is so doubtful that a jury must receive it with caution. Id . A defendant is entitled to a Kloiber instruction where the eyewitness "(1) was not in a position to clearly observe the defendant, or is not positive as to identity; (2) equivocated on the identification; or (3) failed to identify the defendant on prior occasions." William Johnson , 139 A.3d at 1281 ; See also Commonwealth v. Brown , 649 Pa. 293, 196 A.3d 130, 163-64 (2018) ; Commonwealth v. Ali , 608 Pa. 71, 10 A.3d 282, 303 (2010). In Commonwealth v. Paolello , 542 Pa. 47, 665 A.2d 439, 454-55 (1995), we emphasized that a Kloiber instruction addresses "the actual physical ability of the witnesses to observe from their respective positions in relation to the events" and that it is not about the credibility of the eyewitnesses.

Reid argues that he was entitled to a Kloiber instruction with regard to the testimony of Dozier and Boston because they previously indicated that Reid was not the shooter, as well as their testimony regarding the circumstances of the shooting. Reid emphasized that Dozier had given a statement to police indicating that the shooter was wearing dark clothing, whereas Reid was wearing a white shirt that night, Dozier's testimony that he drank and was high at the time of the incident, and that Dozier made these observations from twenty-seven feet away at two in the morning. Reid's Brief at 39-47. In response, the Commonwealth disputes Reid's claim that Dozier was unable to view the shooting. It draws attention to testimony that the shooting occurred in a well-lit area, Dozier had ample time to view the shooter, and that Dozier and Boston were personally familiar with Reid. The crux of the Commonwealth's argument is that the witnesses’ failure to identify Reid on prior occasions arose out of fear and cannot be equated with the type of failure to make a prior identification that warrants a Kloiber instruction. Commonwealth's Brief at 26-29 (citing, inter alia, Commonwealth v. Lee , 401 Pa.Super. 591, 585 A.2d 1084, 1087 (1991) ).

The PCRA court determined that a Kloiber instruction was not applicable because Dozier and Boston's identifications "could not be characterized as coming from one who lacked ‘a position to observe’ or not being positive, or ‘weakened by qualifications[.]’ " PCRA Court Opinion, 2/14/2011, at 35-36. It explained that both Dozier and Boston's prior failures to identify Reid were "clearly motivated by fear of reprisal[,]" not an inability to observe the shooting, and as such, were not subject to a Kloiber instruction. Id . at 36.

The Commonwealth correctly points out that the facts do not support a Kloiber instruction in this case. Both Dozier and Boston were in a position to observe the shooter. Kloiber , 106 A.2d at 826-27. Dozier was within twenty-seven feet of the shooter, observed him for approximately five minutes, and the area was well lit. Boston was standing next to the shooter and could view him. Both men personally knew Reid and had the opportunity to view and identify him as the shooter.

The PCRA court and the Commonwealth are also correct that Kloiber instructions focus on the circumstances of the incident and the witness's actual ability to see and identify the assailant. See Paolello , 665 A.2d at 454-55 (focusing on "the actual physical ability of the witnesses to observe from their respective positions in relation to the events"). Kloiber does not generally apply in circumstances where a prior failure to identify an assailant is wholly attributable to fear or intimidation, and where there are no factual circumstances undercutting the witness's actual ability to make the identification. See Lee , 585 A.2d at 1087 (where witness's initial failure to identify shooter was due to fear of reprisal, Kloiber charge was not warranted). Therefore, the PCRA court properly concluded that Reid's claim was without merit.

IV. Dozier plea deals

Reid complains that trial counsel was ineffective for failing to impeach Dozier, the key eyewitness against him, with evidence that Dozier had six criminal cases that had been pending, but that the Commonwealth dismissed after Dozier began cooperating against Reid prior to this trial. Reid's Brief at 48-53; First Amended PCRA Petition, 1/27/1999, at 43-45 (¶¶ 83-84). With regard to prejudice, Reid argues for this Court to consider trial counsel's ineffective cross-examination of Dozier along with the prejudice arising from the admission of Boston's testimony (issue nine). The Commonwealth argues that Reid failed to demonstrate a claim of arguable merit, because the six criminal cases Reid refers to "were all dismissed, and counsel could not have been ineffective for not presenting this evidence of alleged bias." Commonwealth's Brief at 29-30 (citing Commonwealth v. Hill , 523 Pa. 270, 566 A.2d 252, 253 (1989) (jury must be advised of possible bias only when there are outstanding criminal charges or a non-final disposition against the witness)). The Commonwealth also asserts that Reid was not prejudiced by the lack of cross-examination regarding these dismissed cases since trial counsel impeached Dozier with his criminal record including crimen falsi, and with his drug addiction and drinking on the night of the shooting. Id . at 30; see similarly PCRA Court Opinion, 2/13/2011, at 162-164. Thus, the Commonwealth argues that the evidence would be "cumulative and corroborative" and that Reid cannot establish prejudice.

As will be discussed in detail below, Reid fails to establish a meritorious challenge to Boston's testimony. Therefore, there is no cumulative prejudice to be considered.

Reid correctly points out that by virtue of the dismissed cases, Dozier's possible favorable treatment could have been raised to support his theory that Dozier was beholden to the Commonwealth and therefore, was relevant impeachment testimony. See United States v. Abel , 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984) ("Proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony[.]"); Davis v. Alaska , 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (stating that the partiality of a witness is always relevant to discredit the witness). Moreover, the Sixth Amendment Confrontation Clause entitles a defendant to cross-examine a prosecution witness whose unrelated criminal charges were dismissed prior to trial. See Commonwealth v. Evans , 511 Pa. 214, 512 A.2d 626, 632 n.4 (1986) (recognizing rule from Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (prohibition into inquiry regarding possibility that state's witness would be biased as a result of the state's dismissal of a pending unrelated charge in exchange for his willingness to talk to police violated Sixth Amendment Confrontation Clause)).

Even though Reid correctly points out that Dozier's possible favorable treatment could have been raised to support his theory that Dozier was beholden to the Commonwealth, he fails to demonstrate how impeaching Dozier as to these specific charges could have made a difference in a juror's evaluation of Dozier. Dozier had been examined and cross-examined as to, inter alia, various aspects of his criminal record, See N.T., 1/2/1991, at 2.19-20 (acknowledging convictions for burglary, unauthorized use of an automobile, and house arrest); id . at 2.99 (acknowledging that he was on house arrest), and as to the fact that police told him they would lock him up and hold him if he did not identify the shooter, id . at 2.51-52, 2.103. Trial counsel thoroughly demonstrated that Dozier was "beholden to the Commonwealth" for various reasons. Reid's Brief at 50. As such, Reid does not prove that "there is a reasonable probability that," had trial counsel cross-examined Dozier regarding these already dismissed criminal charges, "the outcome of the proceeding would have been different." Pierce , 786 A.2d at 213.

V. Terrance Lisby plea deal

In his next issue, Reid complains that the trial court erred in precluding trial counsel from cross-examining Terrance Lisby regarding the extent of the benefits of a plea deal he received for testifying in this and another case. First Amended PCRA Petition, 1/27/1999, at 45-47 (¶¶ 85-90). During trial, trial counsel cross-examined Terrance Lisby regarding his plea deal that led to his testimony. Terrance Lisby testified that he was charged with first-degree murder for the homicide of Bernard Skinner, who he had shot and killed with a gun. N.T., 1/2/1991, at 2.201. He received a plea deal for that homicide, pursuant to which he pled to murder of the third degree, admitted that he committed the shooting, and agreed to testify against Reid. N.T., 1/2/1991, 2.191-201. During cross-examination, when trial counsel questioned Terrance Lisby regarding his understanding that the plea removed the possibility of "first degree life imprisonment[,]" Terrance Lisby stated, "That's how you put it, sir." Id . at 2.202. Trial counsel continued that line of questioning, leading to the following exchange:

Q. And you knew if you went to trial, if you were convicted of murder in the first degree, you would get life without parole; correct?

A. Maybe.

MR. KING: Objection. That is a misstatement. There is no such thing in this Commonwealth.

THE COURT: Let's just say life imprisonment.

BY MR. STRETTON:

Q. You knew there was no parole for life imprisonment, the Governor could only pardon; am I right?

MR. KING: Objection, with the strength of our last government I wouldn't make any bets.

THE COURT: Commutation, let's not get into that.

Id . at 2.202. The record thus makes clear that trial counsel sought to question the witness regarding the fact that he faced the possibility of a sentence to life without parole, but that the trial court instructed counsel to "just say life imprisonment." Id .

Reid specifically complains that the trial court erred in precluding cross-examination specifically regarding the fact that Terrance Lisby avoided a sentence of life without the possibility of parole. Reid's Brief at 55 (citing Simmons v. South Carolina , 512 U.S. 154, 169 & n.9, 114 S.Ct. 2187, 129 L.Ed.2d 133 (2004) (explaining, based upon "commonsense understanding[,]" "public opinion and juror surveys[,]" "that there is a reasonable likelihood of juror confusion about the meaning of the ‘life imprisonment’ ")). He asserts that trial counsel properly objected when the trial court limited his cross-examination of Terrance Lisby, but that trial counsel should have also preserved the issue through post-verdict motions and that appellate counsel should have raised this issue on appeal. Id . at 56-57. In asserting prejudice, Reid states that discrediting Terrance Lisby's testimony was critical to his defense, and that Terrance Lisby was the only witness who connected Reid to the JBM and thus, that his testimony was of singular importance in establishing motive, i.e., that Reid shot the victim in order to protect the JBM. Id . at 53. The Commonwealth argues that trial counsel fully informed the jury of the benefits of Terrance Lisby's "sweetheart" plea deal. Commonwealth's Brief at 31-33 (citing N.T., 1/2/1991, 2.222). The Commonwealth also argues that Reid failed to demonstrate that trial counsel lacked a reasonable basis for pursuing this issue further, as counsel "thoroughly and effectively" addressed Terrance Lisby's favorable plea deal and motive to testify against Reid. Id . at 32-33. Finally, the Commonwealth asserts that Reid failed to demonstrate prejudice because "[m]ention of the unlikelihood of parole for a life prisoner would not have made a difference[,]" and because Terrance Lisby's testimony was cumulative of other incriminating evidence. Id . at 33-34.

Contrary to Reid's assertion, Terrence Lisby was not the only witness who testified regarding Reid's motive for killing the victim. Brown's testimony also brought to light Reid's affiliation with the JBM and served as a basis for the Commonwealth's arguments that Reid was motivated to kill the victim to protect the JBM. N.T., 1/8/1991, at 6.53-54 (Brown testifying that Reid used expression "get down or lay down" as a warning to cooperate with the JBM or die).

The PCRA court focused on substantially similar reasons for rejecting this issue. Like the Commonwealth, it did not view the trial court's instruction as preventing the jury from hearing the benefits of Terrance Lisby's plea deal. PCRA Court Opinion, 2/14/2011, at 165 (citing N.T., 1/2/1991, 2.201-23).

Reid has not demonstrated that the trial court abused its discretion in constraining counsel to refer to the foregone sentence as "life imprisonment[,]" as that limitation was consistent with the law at the time. At the time of trial, juries were not entitled to learn that there was no chance of parole for a life sentence in Pennsylvania. See Commonwealth v. Szuchon , 548 Pa. 37, 693 A.2d 959, 962 (1997) (acknowledging that, prior to new rule established in Simmons in 1994, juries were not entitled to learn that life means life without parole).

Viewed from the perspective of the law as it currently stands, the Commonwealth was incorrect in stating that "there is no such thing [as life without parole] in this Commonwealth," and in fact, in certain circumstances, a jury is even entitled to an instruction that "life" means life without parole. See Commonwealth v. Brown , 649 Pa. 293, 196 A.3d 130, 185 (2018) (where Commonwealth puts future dangerousness at issue and defense counsel requests instruction, defendant entitled to instruction that life means life without parole); Commonwealth v. Dougherty , 580 Pa. 183, 860 A.2d 31, 37 (2004) (same).

Moreover, Reid cannot demonstrate that trial counsel's inability to question Terrance Lisby regarding the fact that he avoided a sentence of life without the chance of parole resulted in prejudice. In determining whether counsel's omission resulted in prejudice, we consider whether there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326, 332-33 (1999). As this Court recently explained, "a speculative or attenuated possibility of a different outcome is insufficient to undermine confidence in the outcome." Commonwealth v. Jones , ––– Pa. ––––, 210 A.3d 1014, 1019 (2019).

Trial counsel thoroughly cross-examined Terrance Lisby regarding his motive to testify against Reid. Trial counsel specifically emphasized the significant benefits of the plea deal. Accord N.T., 1/2/1991, 2.201-03; 2.217-22 (trial counsel cross-examining Terrance Lisby that, "all this stuff that you said [for the first time] on direct about JBM is only after your recollection suddenly got refreshed by this sweetheart of a deal you got from the D.A.’s office?"); 2.233-36 (impeaching Terrance Lisby as to prior testimony and asking, "Because that's what you want the Jury to believe now so Mr. King can say nice things about you when you go back for sentencing?"); 2.246 ("I understand the pressure that you face when you know that he is going to be talking to the Judge about your sentence."). In closing argument, trial counsel further emphasized the benefits of the plea deal and argued that this sweetheart deal motivated Terrance Lisby to testify against Reid untruthfully. N.T., 1/8/1991, 6.119. In sum, trial counsel brought to light Terrance Lisby's motivation to testify against Reid and how he sought to reap the benefits of a very beneficial plea deal. Reid's suggestion that Terrance Lisby's motivation to testify untruthfully hinged on the fact that Lisby would avoid life without parole (rather than on the fact that his sentence was five years instead of life, regardless of the possibility of parole) is dubious.

In that vein, understanding this distinction could not have reasonably led the jury to reach a different assessment with regard to Terrance Lisby's credibility and bias. Reid does not demonstrate that this distinction alone could have swayed a juror to discredit Terrance Lisby's testimony. Reid failed to prove that the cross-examination of Terrance Lisby was inadequate, let alone that there is a reasonable probability that, with more extensive cross-examination, the outcome of the proceeding would have been different. See Kimball , 724 A.2d at 332 ; Jones , 210 A.3d at 1019.

Finally, Reid also asserts that trial counsel was ineffective for failing to cross-examine Terrance Lisby regarding the factual circumstances underlying his plea deal, which Reid claims would have demonstrated to the jury that the facts would have supported a first-degree murder conviction. Reid fails to develop this argument and cites to no authority providing that trial counsel should have cross-examined Terrance Lisby regarding the factual circumstances underlying the guilty plea to demonstrate that, absent a plea, they would have supported a conviction for first-degree murder. Reid's Brief at 56. Because he fails to develop that argument and does not cite to any support for his position, Reid cannot prevail on his claim. See Kareem Johnson , 985 A.2d at 924 ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.").

VI. Bolstering Terrance Lisby's testimony

Again with regard to Terrance Lisby's plea deal, Reid argues that trial counsel was ineffective for failing to object to references to the deal's requirement of "truthful" testimony, because such testimony improperly bolstered the testimony of Terrance Lisby. Reid's Brief at 59; First Amended PCRA Petition, 1/27/1999, at 47-49 (¶¶ 91-95). In United States v. Young , 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the United States Supreme Court held that it was improper for a prosecutor to vouch for the credibility of witnesses because such vouching gives the impression that the prosecutor knows of additional evidence not of the record that supports the charges and "the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence." This Court has likewise observed that "[i]t is improper for the prosecutor to offer his or her personal opinion as to ... the credibility of any testimony." Commonwealth v. Hutchinson , 611 Pa. 280, 25 A.3d 277, 302 (2011).

Reid explains that the Commonwealth called a witness, Assistant District Attorney Joseph LaBar, to testify regarding the terms of Terrance Lisby's plea deal. Reid complains that LaBar testified that Terrance Lisby's plea deal required him to "testify truthfully[,]" or else the deal would be revoked. Id. at 59 (citing N.T., 1/2/1991, 2.191 (on direct examination, Terrance Lisby was asked, "Did you as a result of that plea agree to testify truthfully in any and all matters that you were involved?" and he responded affirmatively); see N.T., 1/3/1991, 3.14-23 (LaBar testifying specifically regarding the terms of the plea deal and stating, "The only agreement [as to sentence] was that if he testified fully and truthfully, we would make that fact known to" the sentencing judge)). Reid claims that this testimony unfairly bolstered Terrance Lisby's credibility by suggesting that the Commonwealth viewed Terrance Lisby's testimony as truthful and that there could be no reasonable basis not to object to this testimony. Id . He asserts that this error should be considered cumulatively along with trial counsel's other errors.

The Commonwealth asserts that the prosecutor here "offered no personal assurances as to [Terrance] Lisby's veracity, nor did he insinuate that Lisby was truthful for reasons outside the record." Commonwealth's Brief at 34-35. Instead, he merely presented the terms of the plea deal. Id . The Commonwealth cites to Commonwealth v. Miller , 572 Pa. 623, 819 A.2d 504, 515-16 (2002), where, in almost identical circumstances, this Court reasoned that the "use of the word ‘truthful’ ... [wa]s merely an articulation of the parameters of the plea agreement, that Blakeney would provide ‘truthful’ testimony and a guilty plea, in exchange for life imprisonment (as opposed to death)." Likewise, in Commonwealth v. James T. Williams , 586 Pa. 553, 896 A.2d 523, 541-42 (2006), this Court made a similar observation when it stated that, "[t]he mere reiteration that the federal plea bargains required truthful testimony did not improperly put the imprimatur of the government on each witness's testimony." Because the prosecutor's reiteration of the terms of Terrance Lisby's plea deal was proper, this claim is not of arguable merit, and counsel had no reason to object. Id . at 35.

VII. Limiting instruction regarding prior bad act evidence

Reid argues that trial counsel ineffectively failed to request a limiting instruction after the trial court permitted "prior bad act" evidence admitted at trial and the penalty phase. Reid's Brief at 63-70; First Amended PCRA Petition, 1/27/1999, at 31-34 (¶¶ 59-67). Where evidence of a prior bad act is introduced, the party is entitled to a limiting instruction. Commonwealth v. Billa , 521 Pa. 168, 555 A.2d 835, 842 (1989) ; Commonwealth v. Claypool , 508 Pa. 198, 495 A.2d 176, 179 (1985).

Consideration of this issue requires an understanding of the introduction of the complained of evidence. During trial, the prosecutor introduced evidence that Reid was a member of the JBM gang, that the JBM sold drugs and engaged in violence and intimidation, that Reid was central to the elimination of rival drug dealers on behalf of the JBM, and that both Dozier and Terrance Lisby believed their lives were in danger as a result of their testimony against Reid and the JBM. Reid's Brief at 65.

The Commonwealth initially draws attention to the reasoning underlying this Court's opinion, on Reid's direct appeal, in which we stated that the evidence was properly admitted over counsel's objections. Commonwealth's Brief at 36-38 (citing Reid , 642 A.2d at 461 ). The Commonwealth asserts that because the evidence "was relevant for more than the limited purposes asserted by [Reid]," id . at 37, i.e., to show that this was not a spontaneous murder but that Reid "was a JBM enforcer who killed the victim because he had stolen illegal JBM drugs[,]" id . at 37-38 (citing Reid , 642 A.2d at 461 ), and that Reid was "a JBM enforcer with a ‘job to do’ " — then a limiting instruction was not warranted. Id . at 38. Alternatively, even if the trial court gave a limiting instruction — telling the jury to consider the evidence only as proof of motive and conspiracy — the outcome of the proceedings would not have been different. Id . In denying this claim, the PCRA court observed that Reid failed to "propose what form or content such a charge should contain." PCRA Court Opinion, 2/14/2011, at 51. As to Reid's claim that such an instruction was warranted during the penalty phase, the PCRA court stated that there is no legal requirement for doing so. See id . at 52-54 ("None of the cases say ... that a court must specifically instruct a jury to disregard any evidence presented in the guilt phase when considering the sentence; the only instruction the court is required to give is to only set forth what matters are proper to consider, and that is what the court did here."). The PCRA court further explained that, "[m]erely incorporating facts into a record does not mean that the jury was told to consider those facts in sentencing[.]" Id . at 53. The PCRA court recounted that the trial court instructed the jury to only consider one aggravator, that Reid "has a significant history of felony convictions involving the use or threat of violence to the person[,]" N.T., 1/10/1991, at 8.88, and thus the jury was not permitted to consider the JBM evidence which did not relate to any convictions. Id .

Preliminarily, we quote the relevant observations from our direct appeal decision regarding the introduction of this evidence.

At trial, [Reid] sought to impeach the testimony of the Commonwealth's eyewitness, Morris Dozier, who testified that he had seen [Reid] shoot Mark Lisby. [Reid] inquired about a prior inconsistent statement, which indicated that Dozier, who had known [Reid] for years, could not identify the shooter. In so doing, defense counsel "opened the door" for the Commonwealth to show that the prior statement was the result of threats that Dozier had received from the JBM. Thus, the Assistant District Attorney was simply pursuing a line of questioning that [Reid] had begun, and Dozier's apprehension, fueled by fear of the JBM, was effective rebuttal of [Reid]’s attempt to impeach him. Furthermore, evidence of [Reid]’s connection with the JBM was admissible to prove motive and conspiracy. Commonwealth v. Gwaltney , 497 Pa. 505, 442 A.2d 236 (1982). The inference from such evidence was that [Reid] was a JBM enforcer who killed the victim because he had stolen illegal JBM drugs. Thus such evidence was entirely relevant and admissible.

Although [Reid] complains at length that such evidence was admitted, he offers no legally valid reason for concluding that its admission was error. The probative value of establishing [Reid]’s association with the JBM outweighed any implication of prior criminal activity, and counsel cannot be ineffective for failing to object to the admission of this evidence.

Reid , 642 A.2d at 461.

Our analysis therefore discussed two different types of evidence. The first concerned evidence that members of the JBM threatened Dozier and other witnesses, which was properly admitted in response to trial counsel's questioning. That evidence was relevant to the jury's assessment of Dozier's credibility. The second involved unspecified direct evidence of Reid's connection with the JBM, offered to prove motive and conspiracy.

Reid's argument treats all of this evidence together as "prior bad act evidence." We disagree. Evidence that Reid was a member of JBM is not evidence of a particular crime, wrong or act. That a particular fact carries negative associations does not mean it constitutes a bad act. See Commonwealth v. Johnson , 639 Pa. 196, 160 A.3d 127, 145–46 (2017) (statement that defendant said he was willing to "shoot someone" to make money did not fall under Rule 404(b); the statements related to "his desire to make money (or, more generally, to attain success) and his willingness to do anything (even to kill) to accomplish this end"). Additionally, evidence regarding threats issued to Dozier were not used to prove anything regarding Reid or his character. It was used to explain the effect such acts had on Dozier.

Reid argues that trial counsel should have sought a jury instruction indicating that the jury should only consider this evidence for the limited purpose for which it was introduced and that the jury must not rely on such evidence to infer guilt on the basis of Reid's propensity to commit a crime. Reid's Brief at 64-66. He asserts that the fairness of the proceedings was undermined because the jury was free to use the evidence beyond its permissible purpose, and he further asserts that this unfairness infected the penalty phase of trial. Id . at 66-67. He argues, based upon Billa , that the prior bad act testimony was extensive, inflammatory, and failure to request a limiting instruction was ineffective assistance of counsel. Id . at 68. With regard to the penalty phase, Reid further argues that trial counsel should have sought a cautionary limiting instruction with regard to this evidence since the Commonwealth incorporated all of its evidence at the penalty phase, "even though none of these crimes met the criteria for any statutory aggravating circumstance." Id . at 66.

Reid relies in large part on our disposition in Billa , which awarded a new trial for trial counsel's failure to request a limiting instruction after the Commonwealth introduced evidence of Billa's prior sexual assault. The Commonwealth called the victim, who "vivid[ly] recount[ed]" the incident at Billa's murder trial. 555 A.2d at 839. This Court agreed that the evidence was relevant under the particular circumstances of the case "to establish motive/intent and to negate appellant's claim of accident[.]" Id . While relevant, the evidence was highly inflammatory, and

created the substantial danger that the jury could be swayed in its deliberations on the degree of guilt by this evidence showing appellant's criminal character and his propensity to sexually assault young Hispanic females. Such evidence was relevant and admissible as the trial court ruled, but the court erred in failing to give an immediate and complete cautionary or limiting instruction to the jury explicitly instructing the jury as to the limited purposes for which the evidence was deemed admissible. Such an instruction neither preceded nor followed the introduction of said evidence, nor was a limiting instruction given in its final charge to the jury. Without such instruction, the jury was left without guidance as to the use it could legitimately make of the inflammatory evidence and may have been more inclined, therefore, to convict the appellant of first degree murder because he had assaulted and intended to kill his prior victim.

Id . at 841–42 (footnote omitted).

We noted that trial counsel objected to the admission of the testimony but did not request an instruction. Applying ineffectiveness principles, we found that the claim was clearly of arguable merit since Billa "was entitled to a limiting instruction on the use that the jury could make of the challenged evidence which was admissible only for a limited purpose. The court's failure to give such an instruction, upon request, would have been reversible error." Id . at 842 (emphasis in original). Regarding prejudice, we similarly observed, "Given the highly inflammatory and extensive nature of the evidence of the prior sexual assault, we cannot say with any reasonable certainty that the jury would have returned the same verdict of murder of the first degree had it been properly instructed." Id . at 843.

Reid relies on Billa ’s ineffectiveness analysis as justifying a new trial here without identifying the 404(b) evidence which was purportedly subject to a limiting instruction, or the language of the limiting instruction, or how he was prejudiced as a result of his counsel's failure to request a specific instruction.

Reid's claim suffers from the same failings as applied to introduction of such evidence at the penalty phase. Moreover, the prosecutor incorporated the evidence by reference, but never relied upon it to establish an aggravating circumstance. Finally, the PCRA court is correct in pointing out that the trial court's instructions specifically limited the jury's consideration to evidence of Reid's history of felony convictions, and this evidence does not fall in that category. Therefore, Reid has not demonstrated that he was prejudiced by any failure to request a limiting instruction, and he is not entitled to relief on this claim.

VIII. Instruction on witness bias

Reid complains that trial counsel was ineffective for failing to object to the trial court's erroneous jury instruction that restricted the jury's consideration of the effect of plea agreements on certain witnesses’ motives for testifying. Reid's Brief at 70; First Amended PCRA Petition, 1/27/1999, 39-43 (¶¶ 81-82). Reid complains specifically of the trial court's instructions with regard to Kevin Brown, Terrance Lisby, Morris Dozier, and Lawrence Boston because each of these witnesses had pending charges for which Reid believes they sought to curry favor with the prosecution through their testimony. With regard to Brown, the trial court instructed the jury that he had an outstanding robbery charge, and that "I had allowed this evidence in for the sole purpose of informing you if any agreement exists between him and the Commonwealth for his testimony in this case. It is my recollection that Kevin Brown has denied any deal of any kind." Id . at 72 (citing N.T., 1/8/1991, 6.156). Reid argues that this charge was inaccurate: the evidence was admissible not just to show that an agreement existed, but more importantly, to establish "Brown's potential bias arising from his expectation of leniency." Id . With regard to Terrance Lisby, the trial court likewise instructed the jury that the "sole purpose" of introducing evidence of a plea deal was to inform the jury "if any agreement exists between him and the Commonwealth." Id . (citing N.T., 1/8/1991, at 6.155). Again, Reid contends that the evidence was admissible not just to show that an agreement existed, but also to establish that Terrance Lisby testified in hopes of receiving leniency and favorable treatment before the sentencing judge.

Reid's trial counsel did in fact request an instruction regarding "a witness who has self-interest or ... benefit received" (N.T., 1/8/1991, 6.180-81), and therefore, Reid does not complain that trial counsel was ineffective for failing to request an instruction.

Reid thus argues that these instructions improperly restricted the jury to consider only the existence of an agreement, rather than to consider that the witness benefitting from such an agreement had a motive to fabricate testimony. Reid emphasizes that trial counsel's main approach was to attack the credibility of these witnesses. Thus, it was essential for the jury to understand the significance of these pending charges as a possible motive to give biased testimony. Id . at 74. Given the proper instructions, he submits, the jury "likely would have entertained doubts about the testimony of one or more of these witnesses, and consequently would have harbored reasonable doubt as to [Reid]’s guilt." Id .

The Commonwealth and PCRA court correctly explain that the instructions given in this case, when viewed as a whole, were proper. Commonwealth's Brief at 38; PCRA Court Opinion, 2/14/2011, at 159 ("[T]he court's instructions cannot be judged solely in isolated parts; it must be considered as a whole. Viewing the charges in that light, the court fully covered all aspects of the requirements for the admission and consideration of witnesses’ other crimes."). In this case, the trial court instructed the jury that "it is part of the function of the jury to decide the credibility of witnesses." N.T., 1/8/1991, at 6.147. It instructed the jury to consider, inter alia, "all of the surrounding circumstances" in determining credibility. Id . at 6.148. It also instructed the jury to keep in mind that some witnesses "have an interest or motive which may have colored their recollection and testimony" and that "all such personal equations must enter into [its] determination" regarding credibility. Id. at 6.149. Finally, it instructed the jury that, in deciding which testimony to believe, it is up to the jury to determine whether conflicts in testimony are "brought about by an innocent mistake or by an intentional falsehood[.]" Id .

In Commonwealth v. Harris , 578 Pa. 377, 852 A.2d 1168, 1176-77 (2004), we considered circumstances similar to those here, where a defendant claimed he was entitled to a jury instruction to explain that a Commonwealth witness’ testimony might have been motivated by his interest in receiving favorable treatment with regard to pending charges. We acknowledged that in Commonwealth v. Thompson , 559 Pa. 229, 739 A.2d 1023, 1030-31 (1999), this Court found arguable merit in a claim that trial counsel should have sought an instruction informing the jury that it could find that a witness with pending charges against him "had a potential bias in aiding the Commonwealth in establishing their case against [Thompson.]" However, in both Harris and Thompson , this Court also determined that the absence of a specific instruction regarding the testimony of the witness being potentially motivated by an attempt to curry favor with the Commonwealth was not prejudicial. No prejudice ensued in Harris because the jury was made aware of the possibility that the witness had agreed to testify in order to receive favorable treatment through cross-examination and the jury was instructed to consider the possibility of bias in evaluating the credibility of each witness. Harris , 852 A.2d at 1177-78.

Likewise, here, through cross-examination, trial counsel brought to light the possibility that each of these witnesses agreed to testify in order to receive favorable treatment. Moreover, the trial court's instructions to the jury adequately informed the jury that it could consider whether a witness had an agreement for testifying, whether "some have an interest or motive which may have colored the recollection and testimony," as well as "all of the surrounding circumstances [to] determine which witnesses you will believe and what weight you will give their testimony." N.T., 1/8/1991, 6.148-49. Even if counsel should have sought an instruction informing the jury that it could consider these witnesses’ pending criminal charges as evidence of bias, Reid cannot demonstrate prejudice. Because Reid fails to show how he was prejudiced by the lack of a specific instruction exploring the significance of the witness’ plea deals, he is not entitled to relief on this claim.

IX. Boston's testimony

In his next claim, Reid complains that he was deprived of his rights to due process, a fair trial, and the effective assistance of counsel by the admission of Boston's testimony at trial. Reid's Brief at 85-88. The facts underlying this claim are as follows. At the first trial, Boston testified against Reid, stating that Reid shot the victim, but then at the second, Boston invoked his Fifth Amendment right against self-incrimination. The invocation was made outside of the presence of the jury and over the objection of trial counsel. The trial court declared Boston unavailable and thus, allowed Boston's testimony to be read into the record. N.T., 1/4/1991, 4.5-13, 4.40-43.

Reid raised this claim in his pro se PCRA petition. Pro Se PCRA Petition 12/12/1996, at 3a (¶ 6).

It is well established that prior testimony from an unavailable witness is admissible at trial, provided that the defendant had a full and fair opportunity to cross-examine the witness at the prior proceeding. Commonwealth v. Rodgers , 472 Pa. 435, 372 A.2d 771, 779 (1977). A witness who invokes the privilege against self-incrimination is "unavailable" for purposes of that rule. Id . Moreover, "the general rule is that waiver of the privilege against self-incrimination in one proceeding does not affect the right to invoke it in another." Commonwealth v. Hall , 523 Pa. 75, 565 A.2d 144, 155 (1989).

Boston's assertion of his privilege against self-incrimination was proper because he risked self-incrimination by testifying. The Commonwealth and PCRA court presented a compelling demonstration of the type of incrimination Boston faced: his testimony would incriminate him with regard to sales of controlled substances and with regard to his complicity in the murder of the victim. Commonwealth's Brief at 43-44; PCRA Court Opinion, 2/14/2011, at 132. Boston had reason to believe he faced a danger of prosecution, and so his exercise of his Fifth Amendment privilege was appropriate. ( Commonwealth v. Long , 533 Pa. 388, 625 A.2d 630, 636-37 (1993) ). Accordingly, the trial court properly accepted Boston's invocation of his right against self-incrimination, determined Boston was unavailable and permitted his testimony from the first trial to be read into the record.

Reid's main contention is that, "once a witness makes a knowing and intelligent waiver of the privilege against self-incrimination in one proceeding, it is waived for further proceedings in the same case as long as his compelled testimony would not require disclosure of new information." Reid's Brief at 85. He thus argues for an exception to that well-established rule providing that waiver of the privilege against self-incrimination in one proceeding does not affect the right to invoke it in another. According to Reid's logic, Boston waived the privilege at the first trial and should not have been permitted to invoke his privilege against self-incrimination. However, Reid does not cite to any Pennsylvania cases adopting that exception nor does he present a developed argument in support of its adoption. His only citation is to a footnote in Hall , where this Court acknowledged that there is "some authority" to support such a position, but where it refused to adopt or apply such a rule in this Commonwealth. Hall , 565 A.2d at 155 n.19. However, as noted above, Pennsylvania law recognizes that waiver of the privilege against self-incrimination in one proceeding does not affect a person's right to invoke it in another. Id . at 155. Because Boston's prior testimony was properly admitted, Reid's claim is without merit.

X. Prosecutorial Misconduct in Closing

Reid argues that the prosecutor's closing argument was improper because it "repeatedly invoked community values and the problems facing the City of Philadelphia to implore the jury to convict [Reid]." Reid's Brief at 77. Essentially, he complains that the prosecutor appealed to the jury's fear of crime generally and encouraged the jury to convict merely to ameliorate profound societal ills in a broken community, rather than focusing on the specific guilt of the defendant. He argues that counsel was ineffective for failing to object to the closing remarks, and that he is therefore entitled to a new trial. Id .

The PCRA court rejected this claim on the basis that this Court on direct appeal specifically addressed and rejected Reid's claims related to the prosecutor's closing arguments. PCRA Court Opinion, 2/14/2011 at 67. The Commonwealth likewise responds that, when Reid raised a similar issue before this Court on direct review, the Court reviewed the prosecutor's closing argument and determined there was no prosecutorial misconduct. Commonwealth's Brief at 40-41 (citing Reid , 642 A.2d at 460 ). Therefore, the Commonwealth argues that Reid's claim has been finally litigated and is therefore unreviewable. Id . at 42 n.14 (citing 42 Pa.C.S. § 9543(a)(3) (listing amongst eligibility factors for PCRA relief "[t]hat allegation of error has not been previously litigated or waived")). Further, the Commonwealth argues that this issue is without merit because the prosecutor's arguments were not improper. Id . at 41-42.

The Commonwealth correctly states that this claim was litigated and decided on direct review. During the direct appeal, this Court considered Reid's argument that the prosecutor engaged in misconduct during his arguments to the jury. Therein, Reid complained that the prosecutor "committed misconduct during his penalty phase argument by referring to his own modest upbringing" and "ma[de] further allegations of misconduct based upon numerous references to statements by the [prosecutor] during his arguments to the jury[.]" Reid , 642 A.2d at 460. The Court stated that it had "reviewed the entire argument" by the Prosecutor in both trials and "conclude[d] that he did not deliberately seek to destroy the objectivity of the fact finder, and that his argument did not have the ‘unavoidable effect’ of prejudicing the jury, forming in their mind a fixed bias and hostility towards [Reid] so that they could not weigh the evidence objectively and render a true verdict." Id . at 460-61. The Court thus held that the prosecutor did not engage in misconduct in his arguments to the jury. "[G]iven our finding that the prosecutor did not exceed the bounds of reasonable advocacy during either trial, trial counsel cannot be deemed ineffective for failing to further object on the basis for prosecutorial misconduct." Id . at 461. As this Court on direct appeal addressed the entire closing argument of the prosecutor and determined that there was no misconduct, and also determined that trial counsel was not ineffective for failing to object to the closing arguments, this claim has been finally litigated. See 42 Pa.C.S. § 9543(a)(3) (listing amongst eligibility factors for PCRA relief "[t]hat allegation of error has not been previously litigated or waived.")

Penalty Phase

I. Mitigation evidence

Reid asserts that trial counsel abdicated his responsibility to advocate for Reid at capital sentencing in that he "presented only minimal mitigating evidence[,]" and that "the evidence failed to inform the jury of either [Reid]’s life history or his mental health and cognitive impairments." Reid's Brief at 88-89. To prevail in asserting a claim of ineffective assistance of counsel in conducting an inadequate investigation regarding mitigation evidence, Reid must demonstrate (1) that the claim is of arguable merit, (2) that counsel's actions lacked an objective reasonable basis, and (3) that he was prejudiced by counsel's actions or inactions. Commonwealth v. Crispell , 648 Pa. 464, 193 A.3d 919, 941 (2018). "It is well-established that capital counsel has an obligation under the Sixth Amendment to conduct a reasonably thorough investigation for mitigating evidence or to make reasonable decisions that make further investigation unnecessary." Commonwealth v. Tharp , 627 Pa. 673, 101 A.3d 736, 764 (2014). This duty encompasses the pursuit of all relevant statutory mitigators, absent some reasonable ground not to pursue one. Id . In evaluating the claim, we consider "the reasonableness of counsel's investigation, the mitigation evidence that was actually presented, and the additional or different mitigation that could have been presented." Commonwealth v. Lesko , 609 Pa. 128, 15 A.3d 345, 380 (2011). "Trial counsel is obliged to obtain as much information as possible to prepare an accurate history of the client." Crispell , 193 A.3d at 941 (citing Commonwealth v. Martin , 607 Pa. 165, 5 A.3d 177, 206 (2010) ). Similarly, according to the United States Supreme Court, counsel has an "obligation to conduct a thorough investigation of the defendant's background." Williams v. Taylor , 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

In Porter v. McCollum , 558 U.S. 30, 40, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009), the United States Supreme Court found that counsel's failure to uncover and present any evidence of Porter's mental health, his family background or his military service "did not reflect a reasonable professional judgment[,]" even if the defendant was uncooperative in assisting counsel in gathering the mitigation evidence. Id . The ineffectiveness in failing to conduct reasonable mitigation resulted in prejudice in Porter in that "[t]he judge and jury" at "sentencing heard almost nothing that would humanize Porter or allow them to accurately gauge his moral culpability." Id . at 41, 130 S.Ct. 447. Had Porter's trial counsel been effective, "the judge and jury would have learned of the ‘kind of troubled history we have declared relevant to assessing a defendant's moral culpability’ " such as his military service, his struggle to return to normalcy after the war, "his childhood history of physical abuse, and [ ] his brain abnormality, difficulty reading and writing, and limited schooling." Id . (internal citations omitted). The Court thus determined that there "exist[ed] too much mitigating evidence that was not presented to now be ignored." Id . at 44, 130 S.Ct. 447 (internal citations omitted). See similarly Wiggins v. Smith , 539 U.S. 510, 526, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (finding that Wiggins suffered prejudice as a result of counsel's failure to uncover mitigating evidence that Wiggins suffered abuse, homelessness, and diminished mental capacities, and thus "has the kind of troubled history we have declared relevant to assessing defendant's moral culpability.").

Here, Reid argues that he "pled a claim of ineffective assistance of counsel that required an evidentiary hearing." Reid's Brief at 101, 104. The Commonwealth does not oppose remand for an evidentiary hearing on this claim, observing that "neither the Commonwealth nor this Court must accept all of the information contained in PCRA counsel's amended petition at face value[,]" but instead must consider, inter alia, whether the PCRA court should have conducted an evidentiary hearing before denying relief. Commonwealth's Brief at 44, 47. The Commonwealth agrees that Reid has established the existence of a genuine issue of material fact and that, accordingly, the PCRA court erred in rejecting his claims without an evidentiary hearing. Id . at 48. Reid presents two types of ineffectiveness claims with regard to the lack of mitigation evidence. First, he contends that trial counsel failed to present an expert witness to testify regarding his mental health and cognitive impairments. Second, he argues that trial counsel presented little information regarding his life history and did not conduct a reasonable investigation so that a full picture could have been provided to the jury.

Mental health mitigation

Reid argues that counsel should have, through a mental health professional, presented his mental health difficulties to the jury, and that such presentation would have impacted the result of the proceeding. Reid's Brief at 100 (citing Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). He draws attention to the fact that in 1989, he underwent a court-ordered mental health evaluation in another case, resulting in a report that showed " ‘much concreteness of thinking’ (an indicator of possible organic brain damage) ‘ego impairment’; and a diagnosis of Mixed Character Disorder with Schizoid elements." Reid's Brief at 93. He argues that that evaluation should have led counsel to present mental health mitigation evidence to influence the jury's deliberations. In further support, he cites to a report and declaration submitted by psychiatrist Dr. Julie Kessel. After interviewing Reid and reviewing his records, she submitted a declaration indicating that children in foster care for an extended period and in multiple placements, such as Reid, often develop serious mental and emotional disorders, that they "fear abandonment and have difficulty developing trust or forming stable relationships." Id . at 98 (citing Kessel Decl., ¶ 11). She also indicated that Reid "had a substantially impaired capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law, primarily as a result of cognitive dysfunction." Id . (citing Kessel Decl., ¶ 20). Reid also submits that a reasonable investigation by trial counsel would have revealed that Reid suffered from a history of head injuries, and that, as a result, a neuropsychological evaluation could have lead an expert to determine that Reid suffered from various cognitive disorders (e.g., organic brain damage), personality disorders (e.g., fear of abandonment, inability to regulate feelings and make choices in his best interests), and polysubstance abuse. Id . at 98-99 (Kessel Decl., ¶¶ 16-18).

Reid's arguments overlook the procedural history of this case, and in particular, the fact that trial counsel's request for funding to obtain a private psychologist was denied by the trial court. See N.T., 1/10/1991, at 8.4-11. At the time of trial and prior to the penalty phase hearing, trial counsel requested that funding be provided to employ a psychologist, Dr. Gerald Cook, to interview Reid. Id . at 8.4. The trial court denied the request, stating that Reid "ha[d] been examined by psychiatrists on numerous occasions" for the purpose of determining competency and that those examinations sufficed. Id . at 8.5, 8.11. In denying the request, however, the trial court offered counsel an alternative approach, advising that Reid could be examined for the purpose of providing expert mental health testimony by a psychiatrist employed by the City of Philadelphia on contract from Temple University Hospital and paid for by the court. Id . at 8.8. Reid's counsel refused the offer. On direct appeal, this Court found no error in the trial court's decision, stating that we "perceive no constitutional violation, error of law, or abuse of discretion" because the trial court did not preclude Reid from being examined by a psychologist for the purpose of mitigation. Reid , 642 A.2d at 457. Instead, we indicated that the trial court's decision "merely precluded the excessive use of public funds for [Reid] to hire his own particular psychologist." Id . In his supplemental amended PCRA petition, Reid argues that while trial counsel properly requested the funds for a mental health expert, he was ineffective "in laying out the reasons why a mental health expert was necessary." Supplemental Amended PCRA Petition, 4/15/1999, 2, 20. This claim lacks merit. As noted, this Court has already ruled that the trial court's decision to deny funds for an independent expert was not error. Moreover, trial counsel could not have been ineffective in failing to convince the trial court that a mental health expert was necessary, as the trial court never ruled that an expert witness was unnecessary. Instead, the trial court ruled that Reid was not entitled to the funds necessary to retain an independent expert and would have to utilize the services of a mental health expert on contract from Temple University Hospital. N.T., 1/10/1991, at 8.8.

Given our ruling on direct appeal, Reid's only available ineffectiveness claim at this stage of the proceedings would be that trial counsel failed to utilize the services of one of the Temple University Hospital mental health experts who would have testified to the cognitive and/or developmental deficiencies upon which he now relies. It may well be that the experts available to trial counsel were unwilling to opine in a manner beneficial to Reid, in which case, counsel would not be ineffective. Reid's claim is devoid of this essential element and thus, no relief is available.

Life History mitigation

At the penalty phase of Reid's trial, his trial counsel called four witnesses, each of whom offered only very brief testimony. As Reid points out, trial counsel's entire penalty phase presentation, including argument as to whether one of the witnesses could testify, lasted little more than ten minutes and was set forth in approximately fifteen transcript pages. Reid's Brief at 89. The first witness called was Kim Caldwell, who testified that Reid had recently embraced a "moral philosophy." Three of Reid's foster sisters then provided testimony, all indicating that their foster family life was difficult and impoverished, that they loved Reid, but also, that they had been more successful than Reid. Id . at 90 (citing N.T., 1/10/1991, 8.44-61). Each of Reid's foster sisters – Lydia Banks, Lillian Elaine White, and Linda Curry – testified that they grew up together under the care of their foster mother, Georgia Hawkins, in a poor neighborhood in North Philadelphia. N.T., 1/10/1991, at 8.47-49 (Banks); 8.55 (White); 8.59 (Curry). According to their scant testimony, they grew up in poverty amongst seven or eight other foster children in a very small house. Id . at 8.49. Banks testified that Reid was taken from his biological parents when he was six or seven months old, and she did not know if Reid ever knew or saw his biological parents, as he spent his entire childhood in foster care. Id . at 8.47-49. She stated that he is a "smart and kind person" and that she had never seen "any wrong" in Reid. Id . at 8.50. White said that he is "a loyal and kind brother who loves his family dearly" and "there is nothing he wouldn't do for his family." Id . at 8.55-56. Curry described Reid as a "sweet and intelligent and nice person." Id . at 8.59-60. Essentially, Banks, White and Curry opined only that Reid was a "good person." On cross-examination, the prosecutor drew attention to the discrepancy between Reid's criminality and his foster sisters’ success. They had graduated from high school and held steady employment, while Reid dropped out of high school in ninth grade. N.T., 1/10/1991, at 8.57. White graduated high school and had been working for General Electric for one year and a half. Id . at 8.57. Curry worked as a food service supervisor, id . at 8.60-61, and Banks worked full-time as a special education teacher. Id . at 8.52. The prosecutor also used their testimony to illustrate that they had all been taught right from wrong. Id. at 8.50, 8.59-60. On redirect examination, trial counsel asked Banks why she "made it and Mr. Reid didn't," to which she replied that their foster parents (the Hawkins) were old by the time Reid was a child and that they "might not have been able to give [Reid] what he needed[.]" Id . at 8.53. Taken as a whole, the testimony of Reid's foster sisters resulted in more harm than good for him, as the prosecutor was able to discount the notion that Reid's difficult childhood explained his violent nature — as others living in the same conditions succeeded in lives without any similar violence.

Caldwell stated that Reid had embraced a "philosophy that deals with morality" that requires "change and reform" and also, that he was an active participant in that philosophy. N.T., 1/10/1991, at 8.46-47. As is discussed further in the subsequent claim, counsel was prohibited from bringing to light that Reid had become a participant in a "major religion;" that the religion was Islam; and that he had adopted a moral philosophy that believes in a God. N.T., 1/10/1991, at 8.44-47.

Contrary to the scant evidence actually presented, Reid claims that there was a wealth of available mitigation evidence that could have, and should have, been submitted to the jury. According to Reid, trial counsel conducted no meaningful pre-trial mitigation investigation and failed to develop anything more than a skeletal life history for the jury's consideration. Reid's Brief at 88. As the affidavits of Reid's foster sisters attest, trial counsel did not interview them prior to their testimony, having just met them briefly outside of the courtroom immediately before their testimony began. Id. at 90. Trial counsel likewise did not meet with or interview other available witnesses, including Reid's other foster sister, his foster mother, and his birth mother. Id. No records relating to his childhood were ever obtained, including from the public schools, the Women's Christian Alliance (which supervised his foster care), the Pennhurst State School and Hospital (relating to his mother's intellectual disability), and the Salvation Army. Finally, Reid argues that trial counsel presented the jury with no evidence to explain how he was drawn into the "family-like" structure of a gang so that the jury might understand his gang membership "as a symptom of and result of his troubled life, rather than as a sign that he was inherently violent and should die." Supplemental Amended PCRA Petition, 4/15/1999, at 3.

Reid first raised the lack of mitigation evidence claim in his supplemental amended PCRA petition of April 15, 1999. Our procedural rules permit a judge to "grant leave to amend ... a petition for post-conviction collateral relief at any time" and indicate that "[a]mendment shall be freely allowed to achieve substantial justice." Pa.R.Crim.P. 905(A). Reid requested to file an amended petition, gave a reason for needing additional time to file it, and indicated the claims he intended to raise. See Commonwealth v. Porter , 613 Pa. 510, 35 A.3d 4, 12 (2012) (finding issue raised in supplemental pleading waived because, "there [wa]s no indication that [Porter] ever requested, or that the PCRA court ever granted, leave to amend the [first] petition at all, much less to amend it to include a new and unrelated claim"). Moreover, the Commonwealth did not then and does not now object to his filing. The PCRA court did not rule on his request, but instead, years later, stated that it would address the issues in the supplemental amended petition (and did so).

Reid points out that, in their affidavits filed in connection with his supplemental amended PCRA petition, Banks, White and Curry all provided detailed accounts of their experiences and observations regarding Reid's difficult childhood. For example, White testified in her affidavit that the two of them were removed from the Hawkins foster home when he was seven and she was eight and placed in a different foster home (owned by foster parents named Yelverton). Lillian Elaine White Decl., ¶ 6. She described life in the Yelverton's home as "horrible." The two of them were locked in the house while the Yelvertons took their own children out. Id. Mrs. Yelverton frequently beat Reid with an extension cord. Id. ¶ 8. Although White was returned to the Hawkins foster home within a year, Reid remained at the Yelverton home for several more years. Id. ¶ 8. White recalled that Reid suffered at least two serious head injuries, one after being hit by a baseball bat and another after running into a bannister. Id. She indicated that Reid suffered depression as a result of his abandonment by his mother, who often said she was going to visit him but sometimes did not show up as promised. Id. ¶ 10-11. As he grew older, White said that he began to hang out on the street with boys who frequently got in trouble, and soon thereafter he dropped out of school. Id. ¶ 12. The Hawkins were too old and sick to intervene effectively to get him on the right track. Id. White ended her affidavit by indicating that she testified on Reid's behalf "only to ask for mercy. No one asking me about [Reid] and what his life was like. If anyone had asked I would have given them the same information as I have given in this statement and would have told it in Court, under oath." Id. ¶ 13.

As to the second prong of the ineffectiveness test, Reid argues that counsel could have no reasonable basis for failing to conduct the above-described investigation. Absent such investigation, "counsel could not make reasonable, informed decisions about what to present to the jury." Reid's Brief at 97.

As to the third prong, Reid asserts that trial counsel's deficient performance resulted in prejudice, in that it is reasonably likely that at least one juror would have voted for a life sentence based upon the alternative mitigation case that he submits on PCRA. Id . at 97 (citing Wiggins v. Smith , 539 U.S. 510, 537, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) ) (prejudice is a question of whether "one juror would have struck a different balance"). He argues that trial counsel could have presented persuasive mitigation evidence, "including evidence about [ ] Reid's childhood, which was marred by severe poverty, abuse, neglect and abandonment[.]" Id . at 100. Specifically, trial counsel could have painted the following picture:

Anthony Reid is the child of Jessie Davis and Georgia Reid. He has never had any contact with his natural father. When Mr. Reid was conceived, his mother was AWOL from the notorious Pennhurst State School, where she had been committed for mental retardation [i.e., intellectual disability] as a teenager after she was found wandering in the streets. Georgia Reid Decl., A300-01; Pennhurst State School Records, A403-08.

Shortly after his birth, Mr. Reid was placed in foster care, first in a temporary Department of Public Welfare foster home, and then in more permanent foster homes. Georgia could not decide whether to put him up for adoption. She visited him occasionally after he was placed in the foster homes. Once he was older, she frequently wrote to him, promising that she would come to get him, but she never did, leaving him devastated. Georgia Reid Decl., A300-01; [Lydia] Banks Decl., A184-47; Stanell Yelverton Decl., A195-97.

Mr. Reid was developmentally slow during the first year of his life. This was attributed to the foster parents’ failure to provide sufficient stimulation for him. Foster Care Records, A102-37. Mr. Reid's physical needs were taken care of

by his foster parents, James and Georgia Hawkins, but he also experienced significant neglect and abuse in the Hawkins home. [Linda] Curry Decl., A188-90; Sandra Leonard Decl., A191-92; [Lydia] Banks Decl., A.184-87. At age nine, however, he was removed along with a younger foster sister from the Hawkins home and placed in another foster home, that of the Yelvertons. Both of them were abused and neglected by the Yelvertons. [Lillian Elaine] White Decl., A181-83; [Lydia] Banks Decl., 184-87. A year later, Elaine was allowed to return to the Hawkins home, but, to his distress, [Reid] had to stay with the Yelvertons. Stanell Yelverton Decl., A195-97; Marcia Yelverton [Decl.], A198-99.

Reid's Brief at 96-97. Records regarding Reid's early life could have shown the jury that Reid was "not yet ready to read" at seven years old, was held back a year, needed "constant direction;" was wetting his bed in sixth grade; was sucking his thumb at sixteen years old; and was not considered for adoption because he was "functioning in the dull normal range." Id . at 91-92.

Reid also stresses that trial counsel should have presented evidence in the penalty phase to contradict the Commonwealth's focus on Reid's gang membership in the JBM. Supplemental Amended PCRA Petition, 4/15/1999, at 29-32. Reid contends that if trial counsel had obtained his school records, he could easily have identified Reverend John Teagle, who would have offered testimony regarding his observations of Reid beginning when he was around sixteen or seventeen years old. Id. at 30. Reverend Teagle would have testified that Reid was not as "streetwise" as other boys in the neighborhood, who were able to talk Reid into helping them with their schemes, including the selling of drugs, by promising him a portion of the money received (and would then often cheat him out of it). Id. Reverend Teagle indicated that Reid considered the JBM to be his surrogate family, as he had never felt he was a part of the Hawkins’ family. Id. Reverend Teagle also concluded his affidavit by indicating that he was never contacted by any lawyer who represented Reid, but if he had been he would have freely shared what he know about Reid's background. Id.

The Commonwealth takes the position that Reid establishes genuine issues of material fact and therefore is entitled to remand for an evidentiary hearing. Commonwealth's Brief at 48. It agrees that counsel was obligated to secure the necessary records related to Reid's foster care placement. Id . at 46. It also agrees that trial counsel was ineffective for failing to investigate and present available mitigation regarding his foster care situation, his school records, his mother's medical history, his abusive and deprived childhood, and the expert medical opinions regarding organic brain damage. Id . The Commonwealth submits that this Court should also consider "the impact of the prosecutor's closing remarks[,]" which "took advantage of the brevity and superficiality of the mitigation presentation[,]" contained references to God and quotations to the Bible, "which might today require reversal." Id . at 48. The Commonwealth states that it "cannot be confident that the jury's verdict was not the constitutionally unacceptable product of passion." Id . at 48 (citing 42 Pa.C.S. § 9711(h)(3) (providing that this Court "shall affirm the sentence of death unless it determines that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor")).

By drawing a sufficiently strong contrast between the evidence actually presented at the penalty phase of trial and what could have been presented if trial counsel had conducted a more thorough investigation of available mitigation evidence, Reid has demonstrated that the PCRA court erred in denying him an evidentiary hearing on this claim. See Commonwealth v. Ligons , 601 Pa. 103, 971 A.2d at 1125, 1149 (2009) ("Generally, the question of whether the PCRA court erred in its determination that trial counsel was ineffective for failing to investigate and present sufficient mitigating evidence depends upon a myriad of factors, including the reasonableness of counsel's investigation, the mitigation evidence that was actually presented, and the mitigation evidence that could have been presented."). "The reasonableness of a particular investigation depends upon evidence known to counsel, as well as evidence that would cause a reasonable attorney to conduct a further investigation." Commonwealth v. Rainey , 593 Pa. 67, 928 A.2d 215, 239 (2007) (citing Commonwealth v. Hughes , 581 Pa. 274, 865 A.2d 761, 813-14 (2004) ). The Commonwealth does not contest either that trial counsel did not know, inter alia, of Reid's history of foster care, or that further investigation (including meeting with any of his actual witnesses or available family members) would have revealed useful mitigating evidence.

To reverse a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised "a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Commonwealth v. Hanible , 612 Pa. 183, 30 A.3d 426, 452 (2011). For the reasons stated hereinabove, I would conclude that Reid has met this standard and that the case should be remanded to the PCRA court for an evidentiary hearing on this issue.

II. Evidence of conversion to Islam

During the penalty phase, Reid called Kim Caldwell as a witness to testify regarding Reid's conversion to Islam, how he was an "active and devout Muslim who renounced violence, had adopted and followed a strict set of religiously-based guidelines for conducting one's affair, and now adhered to the righteous path of the God-loving." Reid's Brief at 107. He submits that witnesses were prepared to testify to those facts, as well as the sincerity of his conversion, id .; however, when counsel asked Caldwell "what faith" Reid converted to, the trial court interrupted and called counsel to sidebar. N.T., 1/10/1991, 8.45. The trial court instructed counsel not to "bring religion into this Courtroom" since "[i]t is against the law[.]" Id . Trial counsel objected, but conformed his questioning to the trial court's instructions by inquiring as to whether Reid had "embraced any philosophy that deals with morality[ ]" and refraining from comment on religion. Id . at 8.46. Reid complains of the trial court's restriction on presenting evidence that he had converted to Islam while in prison. He alleges that appellate counsel was ineffective for failing to properly preserve and brief this issue. Reid's Brief at 107.

Reid argues that appellate counsel should have argued to this Court on direct appeal that the trial court's prohibition against admission of this evidence violated both United States Supreme Court precedent and the PCRA. Reid's Brief at 108. He complains that appellate counsel should have cited authority to support this position. Id. (citing 42 Pa.C.S. § 9711(e)(8) (providing that "[m]itigating circumstances shall include" inter alia, "any aspect of a defendant's character and record") and Lockett v. Ohio , 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (holding that the Eighth and Fourteenth Amendment require that the jury in a death penalty case, not be precluded from considering "any aspect of a defendant's character or record")). He argues that his conversion to Islam during the thirty months while awaiting re-trial was relevant and admissible mitigation. Id . In particular, "[h]is acceptance of strict religious moral teachings, the sincerity with which he made this conversion, and his religiously based renunciation of violence are all factors the jury could use to assess his ‘probable future behavior’ and constitute ‘evidence that the defendant would not pose a danger if spared.’ " Id . at 108-109 (citing Skipper v. South Carolina , 476 U.S. 1, 5, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) ).

The Commonwealth agrees that the trial court erred in precluding Reid from presenting evidence regarding his conversion to Islam. Commonwealth's Brief at 50-51. It argues that the characterization of Reid's reformation as adherence to "a philosophy that deals with morality" (N.T., 1/10/1991, 8.46) was an inadequate substitute because embracing a philosophy is not equivalent with a sincere religious conversion. Id . With regard to prejudice, the Commonwealth stated that it "is unwilling to conclude ... that no juror would have voted for life based upon the precluded mitigation evidence." Id . at 51.

Reid and the Commonwealth are correct that any relevant mitigation evidence is admissible and that the trial court had no lawful basis for confining counsel to general references to morality rather than Islam. The PCRA court and trial court offered no legal basis to exclude such references from the defendant's mitigation case. Precluding counsel from exploring this area of questioning in terms of Islam meant that counsel was unable to present testimony as to the sincerity of Reid's conversion. As Lockett provides, the Eighth and Fourteenth Amendment require that the penalty phase jury "not be precluded from considering, as a mitigating factor , any aspect of defendant's character[.]" Lockett , 438 U.S. at 604-05, 98 S.Ct. 2954 (emphasis in original).

This issue, like the previous issue, implicates the fullness with which counsel explored mitigation and humanized Reid. As such, and because I would remand for an evidentiary hearing regarding mitigation, I would remand with instructions for the PCRA court to consider whether it should cumulate this error with the failure to investigate and prepare the mitigation case when determining whether Reid suffered prejudice. As this Court has recognized, "if multiple instances of deficient performance are found, the assessment of prejudice properly may be premised upon cumulation." Commonwealth v. Raymond Johnson , 600 Pa. 329, 966 A.2d 523, 532 (2009) (providing that multiple assertions of trial counsel's ineffectiveness, when intertwined, "may fairly be considered together"); Commonwealth v. Perry , 537 Pa. 385, 644 A.2d 705, 709 (1994) (considering multiple instances of ineffectiveness "in combination" to establish prejudice).

One could argue, that the prohibition on naming Reid's religion and stating that he now believed in God did not result in prejudice sufficient to require a new penalty phase. I tend to agree that this error standing alone may not have resulted in prejudice. It is for that reason that I recommend further consideration and cumulation of prejudice by the PCRA court on remand.

III. Simmons instruction

In his third penalty phase issue, Reid argues that the trial court erred in failing to inform the jury, upon counsel's request, that life means life without parole. Reid's Brief at 112 (citing Simmons v. South Carolina , 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) ). He explains that trial counsel requested such an instruction at trial, N.T., 1/10/1991, at 8.21 and that the jury in fact requested the court to "define life imprisonment," id . at 8.100, but the trial court refused to do so. Id . at 8.101-02. Reid's counsel requested the trial court define life, but did not object when the instruction was not given. Id . at 8.102. Appellate counsel did not pursue the issue on appeal. Reid therefore complains that appellate counsel was ineffective for failing to advance this issue on appeal.

The Commonwealth asserts that trial counsel cannot be ineffective for failing to request a Simmons instruction because " Simmons was decided after defendant's trial, and does not apply retroactively on collateral review." Commonwealth's Brief at 49. The Commonwealth draws attention to O'Dell v. Netherland , 521 U.S. 151, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997), where the United States Supreme Court held that Simmons announced a new procedural rule that was not watershed and therefore, does not apply retroactively under Teague . Id .

According to the well-established law, a capital defendant is entitled to such an instruction when the prosecutor puts future dangerousness at issue. Simmons , 512 U.S. at 156, 114 S.Ct. 2187. Here, Reid and the Commonwealth agree that the prosecutor put Reid's future dangerousness at issue by arguing to the jury that Reid is "[a] menace to all living things" and by asking the jury "How many more? Only you can answer that question... I implore you, stop Anthony Reid." N.T., 1/10/1991, at 8.68-72. Through these arguments, the prosecutor explicitly asked the juror to conclude that Reid would be a significant future danger, and it implicitly asked the jury to prevent this future danger by sentencing Reid to death.

However, the Commonwealth and Reid disagree about whether Simmons applies to this PCRA appeal. Initially, there is no question that Simmons was announced while Reid was on direct appeal, and that, if it had been properly raised, he would have been entitled to its benefit. This Court issued its opinion on direct appeal on May 24, 1994, and Simmons was decided on June 17, 1994, within Reid's window for filing a petition for a writ of certiorari to the United States Supreme Court. See Shea v. Louisiana , 470 U.S. 51, 55 n.3, 105 S.Ct. 1065, 84 L.Ed.2d 38 (1985) (observing that, had this case been pending on certiorari when the new rule was announced, "it surely would have been remanded, as were other such cases, for reconsideration in light of the new rule announced"); U.S. Sup.Ct. Rule 13 (providing that a petition for a writ of certiorari is timely when it is filed within ninety days of the entry of judgment). Because he fell within that window, Reid's judgment was not yet final, and he would have been entitled to the benefit of Simmons , subject to rules of procedural default. See id . at 59, 105 S. Ct. 1065 n.4 (citing with approval to Justice Harlan's view that "cases on collateral review ordinarily should be considered in light of the law as it stood when the conviction became final").

Nonetheless, as this Court recognized in Commonwealth v. Tilley , 566 Pa. 312, 780 A.2d 649, 652-53 (2001), and Commonwealth v. Sneed , 587 Pa. 318, 899 A.2d 1067, 1076-77 (2006), trial counsel and appellate counsel will not be deemed ineffective for failing to perfect an appeal with regard to an issue that is not supported in the law at the time it could have been raised. See Sneed , 899 A.2d at 1076 ("Counsel clearly cannot be faulted for failing to raise a Batson objection at trial because Batson did not yet exist.") At the time they could have raised and preserved this Simmons issue, trial and appellate counsel had no duty to do so, since Simmons had not been announced. See Commonwealth v. Christopher Williams , 594 Pa. 366, 936 A.2d 12, 28 (2007) (stating that "[t]rial counsel, of course, cannot be deemed ineffective for failing to predict a change or development in the law"); Commonwealth v. Gribble , 580 Pa. 647, 863 A.2d 455, 464 (2004) (providing that "appellant must demonstrate that counsel was incompetent under the law in existence at the time of trial. Counsel cannot be deemed ineffective for failing to predict developments or changes in the law."). As such, neither trial counsel nor appellate counsel was ineffective for failing to preserve the issue of trial court's failure to instruct the jury regarding the meaning of life imprisonment.

Notably, Reid does not set forth an argument or develop a claim that appellate counsel could have raised the Simmons issue once Simmons was decided, i.e., through a petition for certiorari to the United States Supreme Court, and that he would have therefore been entitled to relief on that basis.

Conclusion

I dissent from the Majority's determination that this Court does not have jurisdiction to consider the merits of this appeal. Furthermore, having concluded that Reid is entitled to an evidentiary hearing regarding his penalty phase claim of trial counsel's ineffectiveness for failing to conduct an adequate mitigation investigation and presentation, I would remand to the PCRA court with instructions to conduct an evidentiary hearing. In considering the prejudice occasioned by trial counsel's ineffectiveness in the penalty phase, I would also instruct the PCRA court to consider the impact of the trial court's restriction of Reid's evidence regarding his conversion to Islam. In all other respects, I would affirm the PCRA denial of relief.

Justice Wecht joins this dissenting opinion.

JUDGE MCCAFFERY, dissenting

On June 22, 2017, the Honorable Leon W. Tucker, Court of Common Pleas of Philadelphia County, granted relief on Reid's second PCRA petition. This ensuing nunc pro tunc appeal is from the 2011 decision of the Honorable William J. Mazzola, who decided Reid's (first, serially amended) PCRA petition. The 2011 PCRA court decision was appealed to this Court, with former Chief Justice Castille participating. The PCRA court's dismissal of the PCRA petition was affirmed. Commonwealth v. Reid , 627 Pa. 78, 99 A.3d 427 (2014) ("2014 PCRA Appeal").

Superior Court Judge sitting by special designation per I.O.P. § 13; see Order of June 23, 2020; Order of June 25, 2020.

I write separately to suggest a solution to the problems explored so thoroughly and ably in the Majority Opinion and Justice Donohue's Dissenting Opinion in this matter. As I read Williams v. Pennsylvania , ––– U.S. ––––, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016), it does not create a new right, but instead highlights the importance of an old one, perhaps the oldest of them all: the right to a fair tribunal, without which pursuit of any other right in the justice system would be a dim prospect. Williams simply reiterated well-founded principles of constitutional due process law in finding that former Chief Justice Ronald Castille should never have sat on an appeal after having participated in and supervised the underlying prosecutorial decision to seek the death penalty. It created a risk of imperceptible bias and the appearance of impropriety. Reid has a right to appellate review untainted with the stain of Chief Justice Castille's involvement.

All agree that Chief Justice Castille's participation in Reid's prior PCRA appeal implicates the same structural failure to provide due process at issue in Williams .² Thus, the question is whether the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 - 9546, fashioned as "the sole means of obtaining collateral relief ... encompass[ing] all other common law and statutory remedies for the same purpose ... including habeas corpus and coram nobis,"³ may reach this due process violation, or whether an error of constitutional dimension lies outside of the power of the courts entirely.

The reasoning of the Majority is thorough, and its sources well-cited. My fear is that it leads too inexorably to the conclusion that the PCRA itself fails to afford sufficient due process and is therefore constitutionally infirm. This concern, as well as Justice Donohue's valid concern for the legitimacy of the courts, leads me to conclude that the canon of constitutional avoidance should be applied and the statute interpreted so as to avoid seeming to nullify a decision of the Supreme Court of the United States finding structural error in our highest state court. If anything, we must err on the side of deference to the Supreme Court and to the due process guarantees of our state and federal constitutions. Even if the Majority's statutory analysis is correctly grounded in the decisional law of this Court, if the constitutional precepts are to retain their supremacy then we must find a way to allow those capital defendant/appellants who are situated as Williams was to receive an appeal free of structural constitutional error. "[W]hile there may be legislative limitations or judicial limitations on constitutional rights, such limitations must be reasonable." Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638, 642 (1998) (citation omitted). Where the Supreme Court has granted certiorari and reversed an order of this Court, instructing us and the nation that a prior panel of this Court introduced a structural error of severe enough proportion to demand reversal, is it reasonable that the limitation on due process, as we attempt to apply the PCRA and Williams , would put Williams and all those similarly situated out of court?

"Under the canon of constitutional avoidance, if a statute is susceptible of two reasonable constructions, one of which would raise constitutional difficulties and the other of which would not, we adopt the latter construction." Commonwealth v. Herman , 639 Pa. 466, 161 A.3d 194, 212 (2017). We must presume that the legislature "does not intend to violate the Constitution of the United States or of this Commonwealth." 1 Pa.C.S. § 1922(3). In Williams , the Supreme Court made clear that the Constitution of the United States was offended by Chief Justice Castille's participation in Williams’ (and thus in Reid's) direct appeal.

Two things are true here: first, until quite recently the Commonwealth significantly downplayed former Chief Justice Castille's involvement in death penalty cases brought while he was District Attorney of Philadelphia, a position that our state courts did not discredit. This was not simply a legal position or an example of zealous advocacy in the form of argument; this was the Commonwealth in the position of prosecutor making a factual claim about how it prosecuted the case at hand.⁴ Second, after the High Court's decision in Williams , that position was revealed for what it is: an untenable take on both the facts and the law. Where the parties agree that jurisdiction lies (as they seem now to do) and the PCRA court finds a jurisdictional basis in facts rather than in an offbeat or novel interpretation of the law, appellate courts must apply a deferential standard, in recognition of the trial court's fundamental role as factfinder.⁵ For these reasons, I conclude that the PCRA court correctly found grounds for jurisdiction in the Williams decision, and the concession made by the Commonwealth that Chief Justice Castille's prior involvement in Reid's case is akin to his prior involvement in Williams’ case.

Williams is not only a clarification of the requirements of judicial conduct. In reversing this Court, the Supreme Court wrote that the Commonwealth's claim that Chief Justice Castille's only involvement in capital prosecutions "amounted to a brief administrative act ... cannot be credited." Williams , 136 S.Ct. at 1907. "Chief Justice Castille's own comments while running for judicial office refute the Commonwealth's claim that he played a mere ministerial role in capital sentencing decisions." Id. This language punctures the factual assertions underpinning the Commonwealth's argument that Reid has not established jurisdiction under one of the three exceptions for untimely petitions under the PCRA, as outlined at 42 Pa.C.S. § 9545. Williams does more than discredit the Commonwealth's assertions minimizing then District Attorney Castille's involvement. It establishes that the violation is structural, and therefore not susceptible to "harmless error" analysis. Williams , 136 S.Ct. at 1909 ("The Court has little trouble concluding that 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.") (citation omitted).

In Marbury v. Madison , 5 U.S. 137, 1 Cranch 137, 2 L.Ed. 60 (1803), the Court declared that the "very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury" and warned that a government cannot be called a "government of laws, and not of men .... if the laws furnish no remedy for the violation of a vested legal right." Id. at 163. "It is a settled and invariable principle, that every right, when withheld, must have a remedy, and every injury its proper redress." Id. at 147 (citation omitted).

The General Assembly's recent 2018 amendment of the PCRA to extend the time in which certain claims may be brought emphasizes that, if the PCRA is to remain the sole avenue for collateral relief, it must empower courts to act when relief is warranted.⁶ "It is settled beyond peradventure that constitutional promises must be kept." William Penn Sch. Dist. v. Pennsylvania Dep't of Educ. , 642 Pa. 236, 170 A.3d 414, 418 (2017). "It must be remembered that statutes are presumptively constitutional and that courts must interpret them in that sense if possible ...." English v. Sch. Dist. of Robinson Twp. , 358 Pa. 45, 55 A.2d 803, 809 (1947) ; see also Herman , 161 A.3d at 212.

The Commonwealth argues that Reid waived his due process recusal-based claim by failing to raise it at the earliest moment. This argument, while grounded in the settled principle that the PCRA may not be used to resuscitate waived claims or impose delay by empowering strategic unfolding of claims (a strategy with little appeal outside of the death penalty context), has some problems. First, I note Chief Justice Castille has denied other motions for recusal.⁷ Further, while this Court may disagree as to how best to characterize the rule for which Williams stands, no one can dispute that if Reid had sought Chief Justice Castille's recusal, he would have been articulating a theory of due process that had not been recognized by this Court, rather than asserting a right to a fair appeal without structural constitutional error, as he now attempts. This difference is critical.

Even if the PCRA court was incorrect that the Supreme Court's Williams decision could constitute a new fact (though I find compelling the few exceptions to this rule), there remains the possibility that the Commonwealth's admission in its Letter Brief of June 1, 2017, in which it conceded that then District Attorney Castille must have personally reviewed and approved the office's decision to seek the ultimate sanction in this case, supports jurisdiction. This concession is a fact; PCRA courts are factfinders. Appellate courts must maintain a deferential approach to the factfinding of the lower courts. Applying an appropriately deferential review of the PCRA court's opinion in this case allows us to reach the result the law mandates: that the PCRA court, and this one, are empowered to act, but no sea change has occurred. The fact of the concession as to the memorandum is very specific and will not be likely to recur beyond a handful of capital cases in one county out of 67 across the Commonwealth. Though the fact may be quotidian, though it may surprise no one, it is a finding of fact by a trial court, a fact that until recently the Commonwealth vigorously denied.

Part of the quandary this Court now faces is that of course it was well-known that Chief Justice Castille, who campaigned on his death penalty record, pursued the death penalty with vigor in many cases as District Attorney, opposed litigation strategies by those he saw as zealous anti-capital campaigners, and believed strongly in his legacy as District Attorney, as is apparent by the way he spoke of it in his campaign and elsewhere. This is why Williams likely sought his recusal in the first place. This is not a scenario where a shocking fact reveals previously-unimagined potential bias in a jurist, mandating recusal. The Majority is not wrong to conclude that many aspects of what the PCRA court found to be factually "new" is actually old news.

In so concluding, however, we must acknowledge that the Commonwealth was less than forthcoming about this old news, as was Chief Justice Castille himself. The Commonwealth asserted before the highest court in our nation that then District Attorney Castille's involvement in Williams’ prosecution was merely ministerial. Chief Justice Castille himself, while acting as the head of this Court and of our entire third branch of government, similarly dismissed any concerns that he might need to recuse himself in these cases. It was only the United States Supreme Court's determination that the Commonwealth's factual position was too specious to be credited that broke the Commonwealth's factual insistence that the emperor was fully clothed and had been the whole time. Even if everyone knows the truth, only a court willing to say the truth can entertain justice. If Chief Justice Castille's role as District Attorney is old news, it is news that is only very recently finding an audience in our courts.

This raises the prospect that Reid, and similarly-situated defendants sitting on death row, will hear from this Court that they have what we might call a "Goldilocks" problem. Asking Chief Justice Castille to make an honest, searching assessment of whether he might need to recuse, while he was sitting as a Justice, was a strategy bound to fail – it was before Williams and therefore "too soon." Now, seemingly, we are asked to conclude that it is "too late" even though Reid brought his claim within sixty days of Williams’ paradigm shift. When was the time "just right" for Reid to ask for fair, constitutional appellate review of his first, timely-filed petition? What more can we ask of Reid and of similarly situated litigants, while maintaining that we are applying the Supreme Court's correction and vindicating our constitutions?

We must begin with the statute itself, to decide whether its discord with the present due process requirements is truly intractable. The PCRA specifies that "[o]riginal jurisdiction over a proceeding under this subchapter shall be in the court of common pleas" and "[n]o court shall have authority to entertain a request for any form of relief in anticipation of the filing of a petition under this subchapter." 42 Pa.C.S. § 9545(a). It is otherwise silent as to jurisdiction.⁸ In fact, subsection 9545(b), establishing the one-year limit and the three exceptions, does not mention jurisdiction or the courts at all – it appears to be directed entirely to potential petitioners.⁹ "[W]e must accept that when the General Assembly selects words to use in a statute, it has chosen them purposefully." Commonwealth v. Scolieri , 571 Pa. 658, 813 A.2d 672, 673 (2002) (citing 1 Pa.C.S. § 1921(b) ).

In Peterkin , this Court held that "as a matter of jurisdiction , a PCRA petition must be filed within one year of final judgment." Peterkin , 722 A.2d at 641 (emphasis added). I note that the plain language of the PCRA does not articulate such a nexus between its timeliness provisions and a court's jurisdiction to hear a petition. At the same time, however, the legislature did not place a temporal limit on jurisdiction; thus, Peterkin ’s holding is an example of judicial restraint. This means that the challenge we face is, to a significant degree, one of judicial crafting. Therefore this Court can, consistent with its precedent, clarify that within the jurisdictional strictures it has crafted to balance due process and other concerns such as finality, where the parties agree to establishment of the "new facts" exception it cannot be an abuse for a PCRA court to accept that agreement. For the same reasons, I would find that here, the Court may proceed to the merits of the petition. The body of cases impacted by Williams is small and unique, in that it is rare that this kind of structural error could be found. It is hard to imagine that there would be many other scenarios like this one, where the decision to seek the death penalty is approved at the highest level in the District Attorney's office, and the very person who makes the approval has the good fortune to become an appellate judge, and then happens to sit in judgment on the case in which they made that crucial decision. In the larger judicial districts, the District Attorney will not often set foot in a courtroom, let alone try a case. Surely we may hope that if an elected District Attorney in any county actually tries a case, that person would never subsequently sit in judgment as a jurist as to the same controversy. Then, the structural error would be hard to miss.

What makes this body of cases different is that the Supreme Court has instructed that the decision to seek capital punishment is one that "a responsible prosecutor would deem [ ] to be a most significant exercise of [their] official discretion and professional judgment." Williams , 136 S.Ct. at 1907. The Supreme Court in Williams did not make any broader a decision than that – a prosecutor who is the highest-level supervisor in their office, and who personally approves seeking the highest sanction, should not subsequently sit as a jurist in the same case. I share the Supreme Court's view that its decision in Williams "will not occasion a significant change in recusal practice." Id. at 1908. Nor should it occasion an ill-advised sprint to the courthouse for the vast majority of convicted persons.

Because we must balance the strictures of the PCRA with the fact that it is the sole path for collateral review and with the urgent ethical precept embodied by Williams , I would urge that this Court, noting that its jurisdictional approach to section 9545 is judicially crafted and therefore amenable to judicial fine-tuning, rely on the broad discretion given to factfinders and give the benefit of the doubt to the PCRA court's factual determinations below, including that the Commonwealth's concession, a factual one, is a new fact for purposes of the PCRA. This is especially so given that pre-Williams , the Commonwealth was still insisting that then District Attorney Castille's role in these cases was absolutely minimal, that as a matter of fact, he did very little and spent very little time and thought on death penalty cases. This wise deference to factfinders, a venerable principle in its own right, provides the leeway this Court needs to clear an otherwise seemingly intractable logjam, to which the right of due process may never be subservient.

Accordingly, I conclude that the PCRA court correctly determined that it had jurisdiction to review the merits of Reid's PCRA petition. Further, I agree with Justice Donohue's Dissenting Opinion as to the merits of Reid's claims, and therefore I join Section Three of that Opinion, affirming the PCRA court's denial of relief in most respects but remanding for an evidentiary hearing regarding certain penalty phase claims.¹⁰

Summaries of

Commonwealth v. Reid

Supreme Court of Pennsylvania.

Aug 18, 2020

235 A.3d 1124 (Pa. 2020)

holding that, an appellate court may consider the timeliness of a PCRA petition sua sponte because it implicates appellate jurisdiction

Summary of this case from Commonwealth v. Davis

holding that, an appellate court may consider the timeliness of a PCRA petition sua sponte because it implicates appellate jurisdiction

Summary of this case from Commonwealth v. Davis

In Commonwealth v. Reid, ___ Pa. ___, 235 A.3d 1124 (2020), a majority of a special panel of this Court determined that the Supreme Court of the United States' decision in Williams v. Pennsylvania, ___ U.S. ___, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016), could not serve as a basis to establish timeliness for purposes of the Post Conviction Relief Act.

Summary of this case from Commonwealth v. Murphy

Summary of this case from Commonwealth v. Daniels

quashing serial appeal after concluding Williams v. Pennsylvania, ___ U.S. ___, 136 S.Ct. 1899, 195 L.Ed.2d 132, does not provide exception to timeliness requirements of Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and thus PCRA court lacked jurisdiction to reinstate appellate rights nunc pro tunc

Summary of this case from Commonwealth v. Murphy

Summary of this case from Commonwealth v. Daniels

Summary of this case from Commonwealth v. Jones

In Reid, the Supreme Court of Pennsylvania reviewed the claim of a petitioner who, like Abu-Jamal, filed a PCRA petition seeking restoration of his appellate rights due to Justice Castille's failure to recuse himself from reviewing those prior appeals.

Summary of this case from Commonwealth v. Cook

noting that "even when the parties or a PCRA court do not address the timeliness of a PCRA petition, [our Supreme] Court will consider the issue sua sponte , as it is a threshold question implicating ... subject matter jurisdiction"

Summary of this case from Commonwealth v. Williams

Summary of this case from Commonwealth v. Cook

Commonwealth v. Reid

Summary

Opinion

OPINION

I. Background

a. The Williams Decision

b. Appellant's Second PCRA Petition

c. The PCRA Court's Opinion

b. Timeliness of Appellant's Petition

i. Governmental Interference & Newly Discovered Fact Exceptions

ii. New Constitutional Right Exception

c. Waiver

III. Response to the Dissents

a. Justice Donohue's Dissent

b. Judge McCaffery's Dissent

IV. Conclusion

II. Jurisdictional Review

III. Merits Review

Guilt Phase

I. Batson Claim

II. Failure to investigate and present exculpatory witnesses

III. Kloiber instruction

IV. Dozier plea deals

V. Terrance Lisby plea deal

VI. Bolstering Terrance Lisby's testimony

VII. Limiting instruction regarding prior bad act evidence

VIII. Instruction on witness bias

IX. Boston's testimony

X. Prosecutorial Misconduct in Closing

Penalty Phase

I. Mitigation evidence

II. Evidence of conversion to Islam

III. Simmons instruction

Conclusion

Commonwealth v. Reid

Commonwealth v. Reid

Case Details

Citations

Citing Cases

Commonwealth v. Reid

Summary

Opinion

OPINION

I. Background

a. The Williams Decision

b. Appellant's Second PCRA Petition

c. The PCRA Court's Opinion

b. Timeliness of Appellant's Petition

i. Governmental Interference & Newly Discovered Fact Exceptions

ii. New Constitutional Right Exception

c. Waiver

III. Response to the Dissents

a. Justice Donohue's Dissent

b. Judge McCaffery's Dissent

IV. Conclusion

II. Jurisdictional Review

III. Merits Review

Guilt Phase

I. Batson Claim

II. Failure to investigate and present exculpatory witnesses

III. Kloiber instruction

IV. Dozier plea deals

V. Terrance Lisby plea deal

VI. Bolstering Terrance Lisby's testimony

VII. Limiting instruction regarding prior bad act evidence

VIII. Instruction on witness bias

IX. Boston's testimony

X. Prosecutorial Misconduct in Closing

Penalty Phase

I. Mitigation evidence

II. Evidence of conversion to Islam

III. Simmons instruction

Conclusion

Commonwealth v. Reid

Commonwealth v. Reid

Case Details

CitationsCopy Citation

Citing Cases

Citations