Com. v. Cook, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WESLEY COOK :
:
Appellant : No. 290 EDA 2019
Appeal from the PCRA Order Entered December 27, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0113571-1982
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM PER CURIAM: FILED OCTOBER 26, 2021
This matter returns to this Court after the Supreme Court of
Pennsylvania vacated our earlier decision which found we had no subject
matter jurisdiction to entertain the appeal. The Supreme Court ruled that this
Court was the proper forum since Appellant is no longer facing a penalty of
death. Further, the Supreme Court directed us to apply Commonwealth v.
Reid, 235 A.3d 1124 (Pa. 2020).
Mumia Abu-Jamal, formerly known as Wesley Cook, filed this appeal
from the orders denying his first four petitions under the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, after his appellate rights for all four
petitions were reinstated nunc pro tunc pursuant to his fifth PCRA petition.
Abu-Jamal claims that the prior PCRA courts erred in denying his first four
petitions, and raises arguments under the United States and Pennsylvania
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Constitutions.1 Abu-Jamal has also filed a petition for remand to the PCRA
court and a petition to expedite the remand, asserting that evidence turned
over by the Commonwealth during the pendency of this appeal requires a new
hearing.
Additionally, the Commonwealth has filed an application to file a sur
reply brief. And finally, Maureen Faulkner, the widow of Officer Daniel
Faulkner, who was the victim of the homicide Abu-Jamal has been convicted
of committing, asks us to allow her to intervene in this appeal.
Based on the following, we conclude that the PCRA court lacked
jurisdiction to reinstate Abu-Jamal’s appeal rights. We therefore dismiss these
appeals as the fifth PCRA petition was untimely. We also deny the
Commonwealth’s application to file a sur reply brief. Lastly, the pending
applications for relief filed by Abu-Jamal and Maureen Faulkner are dismissed
as moot.
Given our resolution of this matter, we need not dwell on the underlying
factual history of this case. A jury convicted Abu-Jamal of the first-degree
murder of Officer Faulkner on July 2, 1982. The next day, the jury sentenced
Abu-Jamal to death. The Supreme Court of Pennsylvania unanimously
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1Abu-Jamal does not re-raise all of the arguments that were presented in his
previous PCRA petitions. Rather, he has re-raised “the claims and arguments
that most clearly demonstrate that his trial was fundamentally unfair and
violated his rights pursuant to the United States and Pennsylvania
Constitutions.” Appellant’s Brief, at 8.
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affirmed Abu-Jamal's judgment of sentence in 1989, and the Supreme Court
of the United States denied Abu Jamal’s petition for a writ of certiorari in 1990.
Abu-Jamal filed PCRA petitions in 1995, 2001, 2003, and 2009. In each
instance, the PCRA court denied any relief on the petitions. Following these
decisions, Abu-Jamal was re-sentenced to a term of life in prison without
parole. On appeal, Abu-Jamal’s sentence to life in prison was affirmed by this
Court. See Commonwealth v. Abu-Jamal, 3059 EDA 2012, 2013 WL
11257188 (Pa. Super. July 9, 2013) (unpublished memorandum).
In 2016, Abu-Jamal filed his fifth PCRA petition seeking the
reinstatement of his appellate rights from his first four PCRA petitions
pursuant to Williams v. Pennsylvania, 136 S.Ct. 1899 (2016). In that case,
a Philadelphia jury had convicted Terrance Williams of first-degree murder in
1986 and sentenced him to death. At the time, the Honorable Ronald Castille
was the District Attorney of Philadelphia, and provided written authorization
for his Assistant District Attorney to seek the death penalty for Williams. In
2012, Williams filed a PCRA petition seeking, among other things, a new
penalty-phase trial. After the PCRA court granted Williams a new penalty-
phase trial, the Supreme Court of Pennsylvania, led by then Chief Justice
Castille, reversed and reinstated the death penalty. The Court denied
Williams’s motion for recusal of the Chief Justice based upon his participation
in the prosecution of Williams, and Chief Justice Castille penned a concurrence
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which strongly condemned the history of Williams’s counsel, the Federal
Community Defender Office.
Williams appealed to the Supreme Court of the United States, which
analyzed Chief Justice Castille’s participation in reviewing the
Commonwealth’s appeal from the Order of the PCRA court which granted a
new penalty-phase trial. The Supreme Court held that Chief Justice Castille’s
failure to recuse himself from the review of the Commonwealth’s appeal
“presented an unconstitutional risk of bias.” See Williams, 136 S.Ct. at 1907.
The Supreme Court of the United States therefore vacated the Pennsylvania
Supreme Court’s decision and remanded the matter for the Pennsylvania
Supreme Court to reconsider the appeal without the participation of Chief
Justice Castille. See id., at 1910.
Here, the PCRA court did not grant relief to Abu-Jamal pursuant to
Williams. At an earlier procedural stage, the PCRA court had ordered the
Commonwealth to produce its complete casefile for review. After conducting
that review, the PCRA Court denied Abu-Jamal's request for reinstatement of
his appellate rights under Williams by concluding that he failed to establish
that then-District Attorney Castille had significant involvement in a critical
decision in Abu-Jamal's prosecution.
However, the PCRA court found that Abu-Jamal had satisfied another
exception to the PCRA’s time-bar by presenting a 1990 letter from then-
District Attorney Castille to the Governor of Pennsylvania, urging the
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Governor, without reference to Abu-Jamal, to "send a clear and dramatic
message to all police killers that the death penalty in Pennsylvania actually
means something.” PCRA Court Opinion, 12/27/2018, at 30-3 (quoting Letter,
6/15/90). The PCRA court found that this letter constituted newly discovered
evidence that raised an appearance of bias and impropriety, and therefore
ordered the reinstatement of Abu-Jamal's appellate rights with respect to his
first four PCRA petitions.
As this letter is foundational to our analysis, we reproduce it here for
ease of reference:
Re: Death Warrants
Dear Governor Casey :
As you know, in February of this year the United States
Supreme Court upheld the constitutionality of the Pennsylvania
death penalty statute. Hence, no basis exists to further delay
issuing death warrants within the Commonwealth. In fact, such
action is necessary if death penalty cases are ever to move
forward to their ultimate conclusion.
Once death row inmates have their direct appeals denied,
there is little, if any, incentive for them to avail themselves of the
existent state and federal court collateral review processes.
Typically, they do so only if death warrants are signed. By way of
illustration, state collateral review petitions were filed by
defendants Leslie Beasley and Frederick Maxwell only after their
death warrants were signed. Further, once such state collateral
review challenges are disposed of, only reissuance of death
warrants will prompt these defendants to file federal habeas
corpus petitions. In fact, as to Mr. Beasley’s first death penalty
case, state collateral review proceedings – including Pennsylvania
Supreme Court review – have now been concluded. As he has not
yet sought federal court review, I ask that you immediately
reissue a death warrant in that case.
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Mr. Beasley’s case is especially pertinent now, in light of the
recent tragic events in Philadelphia over the past ten days in which
two police officers in separate incidents have been shot to death.
Ten years ago, on July 16, 1980, Leslie Beasley shot to death
Police Officer Ernest Davis, who was responding to a radio call of
“man with a gun.” On April 6, 1981, the jury convicted Beasley
and sentenced him to death as a police killer. I urge you to send
a clear and dramatic message to all police killers that the death
penalty in Pennsylvania actually means something. This can be
emphatically accomplished by immediate issuance of a death
warrant for Leslie Beasley.
My additional purpose in now contacting you is to identify
for you the Philadelphia County death row inmates who have
completed the direct appeal process and had their death
sentences affirmed, but who have not initiated collateral review
proceedings. I very strongly urge you immediately to issue death
warrants in each and every one of these cases. Only such action
by you will cause these cases to move forward in a legally
appropriate manner. These Philadelphia death row inmates are:
Dewitt Crawley …
Donald Hardcastle …
William Holland …
Arnold Holloway …
Kevin Hughes …
Robert Lark …
Reginald Lewis …
Ronald Logan …
Jerome Marshall …
Kelvin Morris …
Ernest Porter …
Florencio Rolan …
Brian Thomas …
Herbert Watson …
Raymond Whitney …
Terrance Williams …
Thank you for your consideration of this very significant
matter. I look forward to hearing from you.
Sincerely yours,
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Ronald D. Castille
District Attorney
Letter, 6/15/1990 (irrelevant procedural details from list of Philadelphia death
row inmates omitted).
After the court restored his appellate rights nunc pro tunc, Abu-Jamal
filed a single notice of appeal from the four orders denying his previous PCRA
petitions.2 The PCRA court ordered Abu-Jamal to file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). 3 Our review of the
PCRA court’s docket does not reveal any response to this order.4 Nevertheless,
the PCRA court provided this Court with a detailed opinion in support of its
order.
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2 We note that this single notice of appeal appears to violate our Rules of
Appellate Procedure, as each order denying a separate PCRA petition was a
final, appealable order. See Pa.R.A.P. 341(f)(1). As the Supreme Court
directed us to apply Reid on remand, we decline to quash the appeal on this
ground. See Pa.R.A.P. 2591.
3 The Commonwealth did not appeal the PCRA court’s order, though this does
not, under Reid, affect our ability to consider whether the PCRA court had
jurisdiction to restore appellate rights. See Reid, 235 A.3d at 1143 (stating
that “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”
from the order granting relief). The Commonwealth does argue in its appellate
brief to this Court that Reid, while not directly controlling, nonetheless
requires quashal of this appeal. See Commonwealth’s Brief at 20-21.
4 If Abu-Jamal failed to file the statement, it could have resulted in waiver of
his issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii). However, given our
directions on remand, we decline to find waiver. See Pa.R.A.P. 2591.
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Several days after the PCRA court’s order denying in part and granting
in part relief on Abu-Jamal's petition, the Commonwealth notified the court
that it discovered previously undisclosed boxes of its Abu-Jamal casefile. Abu-
Jamal subsequently filed the instant appeal. After receiving several extensions
to the briefing schedule, Abu-Jamal filed his appellate brief in conjunction with
an application for a remand to raise claims based upon evidence contained in
the newly disclosed boxes.
Shortly thereafter, Maureen Faulkner filed an application to intervene in
this appeal. This Court denied her application. Maureen Faulkner subsequently
filed a King’s Bench petition with the Supreme Court of Pennsylvania, seeking
removal of the Philadelphia District Attorney’s Office based on claims of bias
and conflict of interest. The Supreme Court exercised its King’s Bench
jurisdiction and directed that all proceedings below, including the instant
appeal, be stayed, but ultimately concluded Maureen Faulkner had failed to
establish grounds to remove the Philadelphia District Attorney’s Office from
prosecuting this appeal. Once the King’s Bench jurisdiction had been
relinquished, Maureen Faulkner once again filed an application to intervene in
this Court, arguing that the Supreme Court of Pennsylvania’s exercise of its
King’s Bench jurisdiction established that she was entitled to intervene in this
appeal.
In the meantime, this Court had directed the parties to show cause why
this Court should exercise jurisdiction over this appeal instead of transferring
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it to the Supreme Court. Both parties responded by indicating they had no
objection to a transfer to the Supreme Court of Pennsylvania. As noted, we
found that jurisdiction over these appeals properly resided in the Supreme
Court of Pennsylvania. However, the Supreme Court disagreed with our
reasoning, remanded the appeal to us, and directed us to apply Reid.
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. See Reid, 235 A.3d at 1131. The PCRA court
there, much like the PCRA court here, restored Reid’s right to appeal from a
previous PCRA order nunc pro tunc. However, the Pennsylvania Supreme
Court quashed the nunc pro tunc appeal, holding that the PCRA court did not
have jurisdiction to grant nunc pro tunc relief because Reid had failed to
establish his petition was timely under any of the exceptions to the PCRA’s
time bar.
As both Abu-Jamal and the Commonwealth recognize, this appeal is
distinguishable from the appeal in Reid. There, the PCRA court relied explicitly
on Williams in granting Reid nunc pro tunc relief. See id. Here, while Abu-
Jamal also initially relied exclusively upon Williams in his petition, the PCRA
court ultimately denied him relief pursuant to Williams because former
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Justice Castille did not have “significant, personal involvement in a critical trial
decision” in his case.5 As stated by the PCRA Court:
Accordingly, [Abu-Jamal’s] Williams personal significant
involvement based claim is denied as [Abu-Jamal] has not proved
beyond a preponderance of the evidence that Mr. Castille as
Assistant District Attorney or District Attorney had significant
personal involvement in a critical trial decision in [Abu-Jamal’s]
case as required by Williams.
PCRA Court Opinion, 12/27/2018, at 26-7.
Instead, the PCRA court granted relief on the independent basis of due
process concerns over the appearance of Justice Castille’s bias due to the
newly discovered evidence of the letter from then-District Attorney Castille to
Governor Casey. In explaining its rationale, the PCRA stated:
This court finds that recusal by Justice Castille would have been
appropriate to ensure the neutrality of the judicial process in
Petitioner’s PCRA appeals before the Pennsylvania Supreme Court.
As noted by the Pennsylvania Supreme Court in [Commonwealth
v. Darush, 459 A.2d 727 (Pa.1983),] recusal is warranted when
“a significant minority of the lay community could reasonably
question the court’s impartiality. 459 A.2d at 732. Proof of actual
bias is not required. Id. Rather, the appearance of impropriety is
sufficient to warrant recusal. [In Interest of] Mcfall, 617 A.2d
[707,] 712 (Pa. 1992). If due process requires recusal where there
is no evidence of bias as in Darush, then surely recusal would be
required here, where a significant minority of the lay community
could reasonably question Justice Castille’s impartiality due to the
June 15, 1990 letter to the Governor urging the issuance of death
warrants, particularly against individuals convicted of killing police
officers. A party is not limited in establishing personal bias in his
own case. [Commonwealth v.] Lemanski, 529 A.2d [1085,
1088]A showing of bias against a particular class of defendants is
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5 Commonwealth v. Reid, 235 A.3d 1124, 1132 (Pa. 2020).
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sufficient to warrant disqualification.Id.; Commonwealth v.
Bryant, 476 A.2d 422, [424] n.1 (Pa. Super. 1984).
Id., at 31.
In Reid, the Supreme Court of Pennsylvania held that Williams
announced a new constitutional rule. See Reid, 235 A.3d at 1154. As such, a
claim based on Williams is legally distinct from a claim based upon Darush,
McFall, Lemanski, and Bryant, the cases cited by the PCRA Court.
Further, the Supreme Court’s rejection of Reid’s newly discovered
evidence claim under the circumstances in Williams is factually and legally
distinct from the circumstances here. With Abu-Jamal, the PCRA court was
concerned not with an authorization to seek the death penalty, which was the
issue in Williams, but with the 1990 letter to the governor. As such, the PCRA
court did not base relief on a finding that Castille was involved in a critical
stage of Abu-Jamal’s prosecution, which again was the issue involved in
Williams. Instead, the PCRA court restored Abu-Jamal’s appellate rights
based on a theory that District Attorney Castille’s authorship of the 1990 letter
created an unacceptable appearance of impropriety when Justice Castille sat
in judgment of Abu-Jamal during his subsequent appeals. It is, therefore,
clear that the PCRA court did not grant Abu-Jamal relief based on Williams.
Before us, by way of this remand, is the Commonwealth’s contention
that the PCRA court lacked jurisdiction to grant relief on Abu-Jamal’s newly
discovered evidence claim. Specifically, the Commonwealth argues that Abu-
Jamal did not timely raise his newly discovered fact claim. The courts of this
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Commonwealth only have jurisdiction over a PCRA petition if it is timely filed.
See Reid, 235 A.3d at 1140.
Generally, for a petition to be timely under the PCRA, the petitioner must
file the petition within one year of the date that the petitioner’s judgment of
sentence becomes final. See 42 Pa.C.S.A. § 9545(b)1). A “judgment becomes
final at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” Id. at § 9545(b)(3).
A claim based on newly discovered facts qualifies for an exception to the
PCRA’s time bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). However, as with any
exception to the PCRA time bar, Abu-Jamal was required to file a petition
invoking the exception within 60 days of the date the claim could have first
been presented.6 See Commonwealth v. Burton, 158 A.3d 618, 627 (Pa.
2017). Here, the newly discovered fact is the 1990 letter. Abu-Jamal learned
of this fact no later than October 3, 2017, when the PCRA provided a copy of
the letter to him. As of sixty days later, Abu-Jamal had not filed any petition
____________________________________________
6On October 24, 2018, our General Assembly amended section 9545(b)(2),
extending the time for filing a petition from sixty days to one year from the
date the claim could have been presented. See 2018 Pa. Legis. Serv. Act
2018-146 (S.B. 915), effective December 24, 2018. The amendment applies
only to claims arising one year before the effective date of this section,
December 24, 2017, or thereafter. Here, Abu-Jamal concedes that this claim
arose no later than October 3, 2017, when the PCRA court provided the
Castille letter to Abu-Jamal. See Appellant’s Reply Brief, at 3. As a result, the
sixty-day period applies here.
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raising a claim based on the 1990 letter. The Commonwealth contends that
this timeline establishes that Abu-Jamal failed to successfully invoke the newly
discovered fact exception. See Appellee’s Brief, at 21.
Abu-Jamal responds that the PCRA court granted him an extension of
time to file this claim, as it granted him an extension for filing an amendment
to his fifth petition predicated on Williams. He asserts that he complied with
the PCRA court’s extension and filed the amendment timely on July 9, 2018.
As a result, he believes he successfully invoked the newly discovered fact
exception by timely filing the amended petition. Abu-Jamal relies upon the
Pennsylvania Supreme Court’s decision in Commonwealth v. Crispell, 193
A.3d 919, 929-30 (Pa. 2018), which held that motions to amend a pending
PCRA petition are governed by Pa.R.Crim.P. 905(A) and not the timeliness
provisions of the PCRA.
The Commonwealth counters that Crispell applies only to amendments
to timely filed petitions. See id., at 929 (“Because the PCRA court was faced
with a motion to supplement a timely petition, rather than a new petition, the
time restrictions of the PCRA did not apply”). Since Abu-Jamal’s 2016 petition,
predicated on Williams, was untimely pursuant to Reid, the Commonwealth
argues that Crispell does not apply, and Abu-Jamal’s fifth PCRA petition was
untimely ab initio.
We agree with the Commonwealth that Crispell is distinguishable from
this appeal but are not certain the distinction merits a different result. This is
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because we agree that the PCRA court erred in not dismissing Abu-Jamal’s
fifth petition as untimely.
Here, the PCRA court initially concluded that Abu-Jamal’s 2016 petition
qualified for the newly discovered fact exception to the time bar due to the
U.S. Supreme Court’s decision in Williams. See Order Granting Motion for
Discovery, 4/28/17, at n.1. It then permitted Abu-Jamal to amend the petition
based on discovery provided by the Commonwealth during these proceedings.
However, after the amended petition was filed, the PCRA correctly determined
that the claims under Williams did not merit relief. Furthermore, for the
reasons stated below, we determine that the claim of bias, based upon the
1990 letter, was untimely.
It is undisputed that Abu-Jamal raised the issue of then-District Attorney
Castille’s 1990 letter within 30 days of its discovery in the PCRA court, albeit
not by a pleading. See Letter, 10/19/17, at 3. It is also undisputed that Abu-
Jamal raised a claim asserting that the 1990 letter established an appearance
of Justice Castille’s bias in his amendment to his fifth PCRA petition. See
Amended PCRA Petition, 7/9/18, at ¶ 5.b.
Under the circumstances of this case, we need not reach the issue of
whether the PCRA Court’s earlier order gave Abu-Jamal additional time to file
the amended petition, as we conclude that he is due no relief pursuant to the
1990 letter. While the 1990 letter to the governor is evidence of a request by
then-District Attorney Castille for the issuance of a death warrant to facilitate
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and advance collateral review of death penalty cases, it is not equivalent to
the evidence our jurisprudence has recognized as sufficient to require
disqualification of a judge due to the appearance of impropriety.
Abu-Jamal was required to plead and prove the applicability of the newly
discovered evidence exception. See Commonwealth v. Blakeney, 193 A.3d
350, 364 (Pa. 2018). To do this, he was obligated to prove that the newly
discovered fact that supports his claim for relief was previously unknown. See
id., at 365. An implied pre-requisite of this burden is that the newly discovered
fact supports the legal claim presented. See, e.g., id., at 367 (“The question
for timeliness purposes is whether the newly-discovered facts form a predicate
for the underlying claim”).
This is the point at which the PCRA court erred. The PCRA court held
that the 1990 letter formed a predicate to Abu-Jamal’s claim that there was
an unacceptable appearance of impropriety when Justice Castille sat in
judgment of Abu-Jamal years later. A review of the legal contours of Abu-
Jamal’s claim reveals the PCRA court’s error.
Our courts have long recognized that the mere appearance of
impropriety, even in the absence of actual prejudice, is a sufficient basis to
require a judge to recuse from hearing a particular case. See
Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983). Where a Judge’s
impartiality may be reasonably questioned, she must recuse herself. See In
Interest of McFall, 617 A.2d 707, 713 (Pa. 1992). “The party who asserts
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that a trial judge must be disqualified bears the burden of producing evidence
establishing bias, prejudice or unfairness necessitating recusal.”
Commonwealth v. Lemanski, 529 A.2d 1085, 1088 (Pa. Super. 1987)
(citation omitted).
Our case law has recognized several ways a litigant can establish that a
judge should be disqualified due to the appearance of impropriety. First, a
litigant can establish that the jurist can reasonably be considered to harbor a
personal bias against the litigant. See Darush, 459 A.2d at 732 (requiring
disqualification of sentencing judge who could not refute an allegation that he
had said “[w]e want to get people like him [appellant] out of Potter County”);
see also Commonwealth v. Bryant, 476 A.2d 422, 424 (Pa. Super. 1984)
(recognizing allegation that trial judge had pre-determined appellant’s
sentence in prior cases for political purposes could be basis for
disqualification).
Here, we have little trouble in concluding that the 1990 letter to the
governor does not even arguably support a conclusion that Justice Castille
harbored a personal bias against Abu-Jamal. We agree with the PCRA court
that “there is no evidence that a policy to expedite death warrants was
implemented to target” Abu-Jamal. PCRA Court Opinion, 12/27/2018, at 19.
By Abu-Jamal’s “own admission, [his] case was not ripe for the issuance of a
death warrant at the time this alleged policy to expedite death warrants was
being developed by Mr. Castille as District Attorney[.]” Id.- 16 -
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Further, the 1990 letter was dated June 15th. At that time, Abu-Jamal’s
direct appeal was still pending before the Supreme Court of the United States.
See Abu-Jamal v. Pa., 498 U.S. 881. As such, Abu-Jamal was not even in
the class of litigants that District Attorney Castille was referencing in the letter.
The 1990 letter therefore cannot create a reasonable inference that Justice
Castille was personally biased against Abu-Jamal.
A second method involves establishing that the jurist could reasonably
be considered to have a personal interest in the outcome of the litigant’s case.
See McFall, 617 A.2d at 713. In McFall, the Federal Bureau of Investigation
caught a Common Pleas judge accepting a bribe from a litigant. See id., at
711. The judge agreed to become an undercover agent for the FBI in exchange
for a promise that the FBI would reveal her undercover status to any
prosecutor who later sought to charge her with accepting a bribe. See id. The
judge continued to act as a jurist in criminal cases for approximately nine
months. See id. Her cooperation with the FBI was not disclosed to any party
who appeared before her. See id.
After her cooperation was publicly disclosed, 29 litigants who had
appeared before the judge sought to nullify all judicial actions she had taken
while she was cooperating with the FBI. See id. The Supreme Court of
Pennsylvania concluded the litigants had established an appearance of
impropriety and ordered new proceedings for the litigants before a different
judge:
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[The Judge’s] potential prosecutors were the very individuals that
appeared before her to prosecute [the 29 litigants.] … One could
reasonably assume that, under the circumstances, [the Judge’s]
cooperation with the United States Attorney’s office cast her in the
role of a confederate of the prosecutors in the appellees’ cases.
The disturbing factor is not [the Judge’s] cooperation alone, but
rather the benefit she expected would derive from her
cooperation. Her agreement, whether coerced or formed under
her own free will, presents a situation palpably creating a
circumstance where she would have an interest in the outcome of
the criminal cases tried before her.
Id., at 711-713 (paragraphing omitted).
We conclude the 1990 letter cannot create a reasonable inference that
Justice Castille had a personal interest in the outcome of the litigation. There
is no evidence that Castille had ever personally participated in the prosecution
of Abu-Jamal:
By way of background, appellant was tried and convicted of the
first degree murder of Philadelphia Police Officer Daniel Faulkner
in 1982. Although [Castille] was employed as an Assistant District
Attorney in 1982, [he] did not personally prosecute or otherwise
participate in appellant's trial or his direct appeal. [He] resigned
from [his] position as an Assistant District Attorney shortly after
appellant filed his notice of appeal from his sentence of death and
did not return to the Philadelphia District Attorney's Office until
[he] was sworn in as District Attorney in January of 1986. At that
time, appellant's direct appeal was still pending before the
Supreme Court [of Pennsylvania].
…
[D]espite [his later election to the] position as District Attorney
while his appeal was pending, [he] did not participate personally
in the Office's appellate response to [Abu-Jamal’s] appeal or
otherwise gain knowledge of information exclusively within the
control of the District Attorney's Office by virtue of [his] position.
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Commonwealth v. Abu-Jamal, 720 A.2d 121, 122-23 (Pa. 1998). Further,
there is no allegation that District Attorney Castille approved the decision to
seek the death penalty against Abu-Jamal. Accordingly, we conclude the 1990
letter cannot support a claim that Justice Castille had a personal interest in
the outcome of any of Abu-Jamal’s appeals.
A third way we have recognized for establishing an appearance of
impropriety is showing that a jurist has a bias against a particular class of
litigants. See Lemanski, 529 A.2d at 1088. In Lemanski, the appellant was
charged with possession and manufacture of marijuana. See id., at 1087.
Prior to trial, he moved for disqualification of the trial judge based upon the
judge’s history of improper sentencing in drug cases. After his motion was
denied, a jury convicted him of both charges.
On appeal, the appellant highlighted the trial judge’s history of having
sentences reversed for failing to properly apply the sentencing guidelines. See
id., at 1088. Further, the appellant noted “comments from the bench and in
a local newspaper interview where [the trial judge] candidly expressed both
his displeasure with the Sentencing Guidelines and his opinion that in all drug
cases the maximum penalty should be imposed.” Id.
This Court concluded the appellant had established an appearance of
impropriety based on a bias against drug offenders:
The record before us indicates a predetermined policy with respect
to sentencing drug offenders and we thus find that appellant has
adequately supported his allegations of personal bias against a
“particular class of litigants.” We also are of the opinion that the
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personal bias alleged was of such nature and intensity so as to
prevent [appellant,] once convicted, from obtaining a sentence
uninfluenced by the court’s prejudgment of drug offenders
generally.
Id., at 1089.
Here, the critical point is that the 1990 letter precedes Justice Castille’s
election to the Supreme Court of Pennsylvania, and therefore, his transition
to the role of a jurist. In Lemanski, the evidence raising a reasonable
inference that the judge was biased against a class of litigant included
statements made by the judge while serving as a jurist. See id., at 1088.
Similarly, in Bryant, the statements evidencing bias were allegedly uttered
while the judge was serving as a jurist. See id., at 424.
In fact, our Supreme Court has been careful to avoid creating a
prophylactic rule that would disqualify all prosecutors from ever acting as a
jurist in cases involving defendants they had previously prosecuted. See
Darush, 459 A.2d at 731-32. “Absent some showing of prejudgment or bias
we will not assume a trial court would not be able to provide a defendant a
fair trial based solely on prior prosecutorial participation.” See id., at 731.
The 1990 letter is not evidence of prior prosecutorial participation. It is
evidence that while acting as an advocate, District Attorney Castille took a
policy position to advance completion of the appellate process for convicted
murderers: “I very strongly urge you immediately to issue death warrants in
each and every one of these cases. Only such action by you will cause these
cases to move forward in a legally appropriate manner.” He was not arguing
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that the law should be changed or should be ignored. Rather, he simply took
a position to facilitate collateral review of death sentences which was
subscribed to by many prosecutors at the time.
District Attorney Castille wrote the 1990 letter while acting as an
advocate, not as a jurist. Almost all jurists can have their impartiality
questioned as generally, they served as legal advocates before assuming the
role of a jurist. Mere advocacy of applying existing laws and procedures, such
as that contained in the 1990 letter, cannot create an unacceptable
appearance of impropriety. As a result, the 1990 letter is incapable of
supporting a claim that there was an unacceptable appearance of impropriety.
Additionally, we note the allegation that Justice Castille was possibly
biased against appellants like Abu-Jamal is hardly a surprising new discovery:
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.
Reid, 235 A.3d at 1153 (citation omitted). In fact, Abu-Jamal himself
challenged the propriety of Justice Castille sitting a jurist on Abu-Jamal’s
appeals more than 20 years ago. See Commonwealth v. Abu-Jamal, 720
A.2d 121 (Pa. 1998). In this light, the 1990 letter, while distinguishable from
the death penalty authorization at issue in Reid and Williams, is still nothing
more than “yet another conduit for the same claim” of bias against former
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Justice Castille. Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa.
2008). It therefore cannot qualify as a newly discovered fact. See id.As we determine the 1990 letter cannot be a predicate for a claim of an
unacceptable appearance of impropriety, we conclude the PCRA court did not
have jurisdiction to restore Abu-Jamal’s appellate rights nunc pro tunc. We
therefore quash this appeal as untimely. Other than the Commonwealth’s
application to file sur reply brief, which we deny, we offer no opinion on the
validity of the pending applications in this appeal, as we have no jurisdiction
to decide them.
Appeal quashed. The Commonwealth’s application to file sur reply brief
denied. Appellant’s application for remand and application to expedite remand
denied as moot. Maureen Faulkner’s applications to intervene denied as moot.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
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