Commonwealth v. Robinson, A., Aplt.

[J-51-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 720 CAP
:
Appellee : Appeal from the Order dated
: 12/8/2015 in the Court of Common
: Pleas, Cumberland County, Criminal
v. : Division at No. CP-21-CR-0001183-
: 1996.
:
ANTYANE ROBINSON, : SUBMITTED: June 11, 2018
:
Appellant :
OPINION IN SUPPORT OF AFFIRMANCE
JUSTICE DOUGHERTY DECIDED: December 14, 2018
Justice Donohue, in her Opinion in Support of Reversal (OISR), would hold articles
published in October 2015 revealing a former justice of this Court sent and received
offensive emails raised new facts sufficient for appellant to overcome the PCRA time bar.
Thus, the OISR would vacate the PCRA court’s order dismissing appellant’s third PCRA
petition as untimely filed. The OISR asserts it would merely decide a jurisdictional issue,
and would not reach the merits of whether the new facts require an evidentiary hearing
on appellant’s claimed due process violation, namely, that alleged racial bias reflected in
the emails injects doubt as to the propriety of the Court’s disposition of appellant’s first
PCRA appeal. In my view, as the Commonwealth asserts, there is an insufficient nexus
between the published reports and the alleged constitutional violation: the referenced
“email traffic relates to a time period beginning over a decade after [appellant’s] trial and
several years after his 2005 initial PCRA case concluded; [appellant’s] case is not
referenced in the emails; and the content does not reflect any invidious discrimination or
bias in any court case.” Commonwealth’s Brief at 16-17. The OISR explains its approach
by characterizing the Commonwealth’s argument as “implicat[ing] the merits of the claim
raised, not the timeliness of the petition.” OISR (Donohue, J.) at 31. I respectfully
disagree.
In my view, the emails are simply not facts upon which the belated claim of a due
process violation can be predicated.1 Moreover, I would conclude appellant is not entitled
to a merits examination, as the Court of Judicial Discipline (CJD) in its comprehensive
and independent evaluation found as fact that the Judicial Conduct Board (JCB) produced
no evidence that Justice Eakin “in his written judicial opinions, ever demonstrated any
overt bias due to the race, gender, ethnicity, or sexual orientation of a litigant or witness.”
In re Eakin, 150 A.3d 1042, 1048 (Pa. Ct. Jud. Disc. 2016). The CJD also acknowledged
Eakin “presented credible witnesses that his judicial opinions were not reflective of any of
the biases expressed in any of the emails, but instead were decided, in each case, in
accordance with the facts and law.” Id. at 1060.2
The OISR would additionally disqualify the Cumberland County District Attorney’s
Office (DAO) on conflict of interest grounds from proceeding further in the matter, and
1The 2015 reports showed former Justice Eakin received and sent emails, the context
and content of which might be described as crude attempts at humor involving sexist,
misogynistic, homophobic, and racial or religious stereotypes and themes. None of the
emails referenced appellant’s case.
2 The OISR asserts the CJD made no finding whether “Eakin’s behavior reflected bias in
his judicial decisions[,]” but “noted only that the JCB did not present any evidence that
Eakin demonstrated bias in his written opinions and that Eakin presented witnesses to
contest any such claim.” OISR (Donohue, J.) at 31, n.20, citing In re Eakin 150 A.3d at
1048, 1060. The record is clear, however, the CJD “accept[ed] [the parties’] stipulations
of fact … as the facts necessary for the determination of this case[,]” see 150 A.3d at
1048 (emphasis added), and under the heading “FINDINGS OF FACT” included the fact
that no evidence was presented showing Eakin’s opinions reflected bias. I disagree with
the OISR’s minimization of this important aspect of the CJD’s ruling.
[J-51-2018] - 2
would direct the PCRA court to reconsider petitioner’s requests for additional discovery,
to amend his petition, and for an evidentiary hearing. Because, in my judgment, the
PCRA court was correct in concluding it lacked jurisdiction to consider the petition, I would
not reach the questions regarding an evidentiary hearing, disqualification of the DAO, or
requests for petition amendment and additional discovery. In the alternative, if jurisdiction
existed, I would conclude an evidentiary hearing, disqualification, petition amendment,
and additional discovery are not warranted.
Timeliness3 and Evidentiary Hearing
3 In opining the PCRA court had jurisdiction over the proceedings because new facts
served to overcome the facially untimely nature of appellant’s third petition, the OISR
acknowledges another jurisdictional hurdle — the fact appellant filed his third petition
prematurely. OISR (Donohue, J.) at 7 n.8. It is undisputed an appeal from appellant’s
second PCRA petition was pending before this Court when he filed the instant petition,
his third. The OISR cites Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000)
(subsequent PCRA petition cannot be filed while a pending petition remains unresolved),
but treats the present petition as filed after his second petition was finally adjudicated.
The OISR notes the Commonwealth presented no objection pursuant to Lark and this
Court’s disposition of appellant’s appeal from the denial of his second PCRA petition was
completed by the time the PCRA court finally adjudicated appellant’s third petition. OISR
(Donohue, J.) at 7 n.8. Without citation to authority, the OISR would determine “in the
interest of justice, we will regard as done that which ought to have been done” and treat
appellant’s third petition as properly filed. Id. Respectfully, the proviso to regard as done
that which ought to have been done has been employed by our courts almost exclusively
in the interests of judicial economy. For example, where a party has inadvertently failed
to file a praecipe for the entry of judgment or proper post-sentence motion, courts have
occasionally, in the interests of judicial economy, permitted the appeal to proceed despite
this minor procedural irregularity which would otherwise result in remand to perfect the
record or quashal without prejudice to file a subsequent appeal once the trial court’s final
order has been reduced to judgment. See McCormick v. Ne. Bank of Pa., 561 A.2d 328,
330 n.1 (Pa. 1989). To apply the proviso in the present circumstances expands its effect.
Normally, the proviso is used to permit an appeal from an otherwise resolved case
despite the lack of a final order. Here, the OISR would employ the proviso to permit post-
conviction proceedings to advance in an unresolved case. That being said, the
Commonwealth has failed to object to the PCRA court’s jurisdiction in the present appeal
on the basis of the premature filing. It maintains, instead, the PCRA court lacked
jurisdiction due to appellant’s failure to satisfy any exception to the PCRA time bar.
[J-51-2018] - 3
To be entitled to PCRA relief, appellant must establish, by a preponderance of the
evidence, his conviction or sentence resulted from one or more of the enumerated errors
in 42 Pa.C.S. §9543(a)(2). The only enumerated error applicable here is a constitutional
violation which “so undermined the truth-determining process that no reliable adjudication
of guilt or innocence could have taken place.” 42 Pa.C.S. §9543(a)(2)(i). The PCRA
requires that a petition seeking relief must be filed within one year of the date the
petitioner's judgment of sentence becomes final. 42 Pa.C.S. §9545(b)(1). This timeliness
requirement is jurisdictional in nature, and a court may not address the merits of any claim
raised unless the petition was timely filed or the petitioner proves that one of the three
exceptions to the timeliness requirement applies. Commonwealth v. Cox, 146 A.3d 221,
227 (Pa. 2016). The pertinent exception here is “the facts upon which the claim is
predicated were unknown to the petitioner and could not have been ascertained by the
exercise of due diligence[.]” 42 Pa.C.S. §9545(b)(1)(ii). This court has explained that
“the exception set forth in subsection (b)(1)(ii) does not require any merits analysis of the
underlying claim.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008)
(citations omitted). Moreover, any petition invoking this exception “shall be filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §9545(b)(2).
While I appreciate the test for application of when newly-discovered facts will
overcome a PCRA time bar prohibits a merits analysis, the test does require that the claim
be predicated on previously unknown facts. See Commonwealth v. Bennett, 930 A.2d
1264 (Pa. 2007) (emphasis added). Accordingly, to overcome the PCRA time bar, a
petitioner is required, at a minimum, to demonstrate some connection between the newly-
discovered facts and the claim. The OISR asserts the facts upon which appellant’s claim
is predicated did not become available until the relevant articles were published in 2015.
OISR (Donohue, J.) at 29-30, citing Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017).
[J-51-2018] - 4
Whether there is a connection between the newly-discovered facts regarding Eakin’s
emails to appellant’s underlying claim sufficient to overcome the time bar is not self-
evident in this case — as it was in Chmiel (where the published press release contained
an admission by the FBI that its microscopic hair analysis was flawed in the great majority
of cases in which hair analysis evidence was presented). Here there is no admission of
judicial bias; rather there was a denial of bias before the CJD, which determined there
was no evidence of bias. As I noted in Commonwealth v. Blakeney, 193 A.3d 350, 367
(Pa. 2018) (Dougherty, J., Opinion in Support of Affirmance) (OISA), a case involving
roughly analogous circumstances, “[o]f course the emails are repugnant, but their mere
existence does not demonstrate the fact of bias[.]” Accordingly, I would conclude
appellant’s third petition for PCRA relief was untimely filed and appellant failed to show
any exceptions apply as the facts relied upon were not sufficiently connected to the claim.
Moreover, even if the petition had been timely, no evidentiary hearing would be
warranted, as the CJD found as fact no evidence of bias.4
Petition Amendment and Additional Discovery
In my view, the PCRA court correctly determined it lacked jurisdiction to consider
appellant’s petition and thus I disagree with the OISR’s preferred disposition that the
PCRA court should reconsider permitting appellant to conduct additional discovery and
file an amended petition. I would conclude, as the PCRA court did, appellant made no
proper showing to permit petition amendment or additional discovery. With respect to
petition amendment, the OISR cites Commonwealth v. Sepulveda, 144 A.3d 1270, 1278
4 Indeed, to permit an evidentiary hearing at which Eakin and his witnesses would
presumably be called to testify on the question of bias would amount to the formalistic
and pointless repetition of judicial proceedings, the outcome of which is undoubtedly a
foregone conclusion.
[J-51-2018] - 5
(Pa. 2016), for the proposition courts should allow amendment pursuant to Pa.R.Crim.P.
905(A) “to avoid dismissal due to a correctible defect in claim pleading or presentation.”
OISR (Donohue, J.) at 35. The PCRA court considered the proposed petition
amendments “solely for the purpose of determining if they might somehow cure
[appellant’s] lack of timeliness in filing and grant jurisdiction to the [c]ourt[,]” and
concluded “the changes proposed by [appellant] fail to cure the issue of timeliness.”
PCRA Court Op., 10/23/17 at 10.5 If the claim were properly before us, I would determine
the PCRA court correctly denied the requested petition amendment.
With respect to additional discovery, I am also aligned with the PCRA court’s
rationale for denying the request. The court noted discovery in PCRA proceedings is
strictly limited and shall not be permitted except upon leave of court and a showing of
exceptional circumstances. Id. at 11, citing Pa.R.Crim.P. 902(e). The court determined
the discovery request was “wholly without merit” because appellant failed to demonstrate
the existence of exceptional circumstances, and explained as follows:
While the facts underlying his claim reflect a disturbing state of affairs within
the Pennsylvania Judiciary, [appellant] did not demonstrate that this
circumstance existed during the time of his conviction and appeal or that it
affected [the outcome of] his case in any way. No evidence was produced
or alluded to that discusses or touches on [appellant’s] case specifically.
Likewise, his discovery request was not for specific, known, material, but
rather he cast a wide net, hoping to snare something of both relevance and
substance. Such a discovery request within the framework of collateral
relief is a forbidden fishing expedition. Assuming the instant PCRA petition
was timely filed, [appellant] failed to demonstrate the exceptional
circumstances required for any discovery and, even if discovery was
5 Among other things, the court specifically determined there was no merit in appellant’s
claimed applicability to his case of Williams v. Pennsylvania, __ U.S. __,136 S.Ct. 1899(2016) (justice’s personal involvement in critical charging decision in defendant’s case
gave rise to unacceptable risk of actual bias endangering appearance of neutrality). The
PCRA Court noted the facts underlying Williams are not substantially similar to appellant’s
case and Williams has no retroactive application in any event.
[J-51-2018] - 6
appropriate, [appellant’s] generic, all-encompassing discovery request
would have been impermissible.
Id. at 11, 14 (emphasis in original).
Disqualification of DAO
In my view, because appellant’s PCRA petition was untimely and no exceptions
applied, disqualification of the Cumberland County DAO is unnecessary and improper, as
no jurisdiction exists to entertain further proceedings. Even if jurisdiction existed, I would
deny the disqualification request. The OISR asserts appellant’s claim is one of a conflict
of interest that does not require a showing of actual impropriety. OISR (Donohue, J.) at
42-43, citing Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011); Commonwealth v.
Eskridge, 604 A.2d 700 (Pa. 1992). The OISR also acknowledges the Commonwealth
relies on Commonwealth v. Breakiron, 729 A.2d 1088 (Pa. 1999), to support its competing
claim appellant must show an actual impropriety. The OISR opines the holding in
Breakiron, requiring proof of actual impropriety, was based on a non-precedential plurality
holding in Commonwealth v. Harris, 460 A.2d 747 (Pa. 1983), and notes the rule of
Breakiron arguably conflicts with Canon 1 of the Code of Judicial Conduct and the statute
making the canons applicable to prosecutors. OISR (Donohue, J.) at 44 n.26, citing 16
P.S. §1401(o) (“A district attorney shall be subject to the Rules of Professional Conduct
and the canons of ethics as applied to judges in the courts of common pleas of this
Commonwealth insofar as such canons apply to salaries, full-time duties and conflicts of
interest.”); Pa.C.J.C. 1.2 (“A judge shall act at all times in a manner that promotes public
confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid
impropriety and the appearance of impropriety.”)
I question the OISR’s reliance on Briggs and Eskridge, as both cases involved the
prosecutor’s potential conflicts at trial. Here, as in Harris and Breakiron, the claim of
conflict arises at the post-conviction stage. In Harris, the public defender who
[J-51-2018] - 7
represented the defendant on collateral appeal and sought withdrawal of the defendant’s
guilty plea in that proceeding, was appointed District Attorney during the pendency of the
appeal. The petition was denied. On a second petition, represented by new counsel, the
petitioner claimed the ineffectiveness of his prior post-conviction counsel “due to the
conflict of interest involving [counsel’s] appointment as District Attorney[.]” Harris, 460
A.2d at 749. The petitioner sought to withdraw his guilty plea, arguing the appointment
created an actual conflict of interest and an appearance of impropriety. A plurality of the
Court held an appearance of bias was insufficient to disqualify the prosecutor or
undermine his participation in the post-conviction proceedings and a post-conviction
petitioner must show actual impropriety. The plurality reasoned this heightened standard
should be applied because there is far less danger of prejudice when a prosecutorial
conflict arises during appellate proceedings. Id. at 750. I would apply this same rationale
to the instant matter. During collateral proceedings, a petitioner has the burden to prove
entitlement to relief, while the prosecutor merely responds to petitioner’s arguments; the
prosecutor’s role is quite different in collateral proceedings than at trial. Because the
discretion of the prosecutor is reduced during collateral proceedings, any prejudice
flowing from his or her continued participation is limited. Thus, if the petition to disqualify
the DAO were properly before the Court in the instant matter, I would conclude appellant
failed to substantiate entitlement to relief.
[J-51-2018] - 8