Commonwealth v. Blakeney, H., Aplt.

[J-50-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 753 CAP
:
Appellee : Appeal from the Order dated June 23,
: 2017 in the Court of Common Pleas,
: Dauphin County, Criminal Division at
v. : No. CP-22-CR-0001773-2000.
:
: SUBMITTED: May 14, 2018
HERBERT BLAKENEY, :
:
Appellant :
Justice Wecht announces the judgment of the Court with respect to Parts III
and IV, in which Justice Donohue joins, and in which Justices Dougherty and
Mundy concur in the result. Justice Wecht delivers an opinion in support of
reversal with respect to Parts I and II, in which Justice Donohue joins. As to Parts
I and II, Justices Dougherty and Mundy file separate opinions in support of
affirmance.
OPINION
JUSTICE WECHT DECIDED: September 21, 2018
Herbert Blakeney appeals from the dismissal of a facially untimely, second petition
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 Recognizing that his petition
is untimely, Blakeney relies, inter alia, upon the exception to the one-year time-bar for
newly discovered facts.2 We affirm the PCRA court’s orders denying Blakeney’s requests
for disqualification of the Dauphin County District Attorney’s Office and recusal of the
1 See 42 Pa.C.S. §§ 9541-46.
2 See 42 Pa.C.S. § 9545(b)(1)(ii).
PCRA court. With respect to whether Blakeney has established that the facts upon which
his claim is predicated were unknown to him and could not have been ascertained by the
exercise of due diligence, this Court is equally divided. Accordingly, inasmuch as the
Court is equally divided, the PCRA court’s determination of untimeliness is affirmed.3
I. Background
We detailed the facts underlying Blakeney’s convictions in our opinion on direct
appeal, Commonwealth v. Blakeney (“Blakeney I”), 946 A.2d 645 (Pa. 2008), and in our
opinion following Blakeney’s appeal from the denial of his first PCRA petition,
Commonwealth v. Blakeney (“Blakeney II”), 108 A.3d 739 (Pa. 2014). For purposes of
today’s proceeding, a brief summary will suffice.
Blakeney’s estranged wife, Sacha Blakeney (“Sacha”), lived in an apartment with
her friend Duana Swanson (“Swanson”) and their respective children. One of Sacha’s
children, Basil, was fourteen months old (and not fathered by Blakeney). On February 1,
2000, Harrisburg police responded to a report of a domestic disturbance at the apartment,
and officers escorted Blakeney from the scene. Afraid that Blakeney would return,
Swanson asked the police “to keep an eye on the place.” Blakeney I, 946 A.2d at 649.
In the early morning hours of February 2, 2000, Blakeney reentered the apartment.
He carried a butcher knife. At that time, Sacha was not home. Blakeney confronted
Swanson and the children in a bedroom. Blakeney grabbed Swanson by the arm as
Swanson’s son, Maurice, ran from the room. Maurice encountered Harrisburg Police
Officer William Vernouski, who had heard Swanson screaming, standing on the threshold
of the apartment door with his gun drawn. Officer Vernouski entered the apartment to
3 See Creamer v. Twelve Common Pleas Judges, 281 A.2d 57, 58 (Pa. 1971) (“The
principle is well established in this Commonwealth as well as many other jurisdictions
that, when an appellate court is equally divided, the judgment, order or decree of the court
below will be affirmed.”).
[J-50-2018] - 2
find Blakeney stabbing Swanson repeatedly in the chest with the butcher knife. Blakeney
continued to stab Swanson despite Officer Vernouski’s repeated commands to drop the
knife. Instead of complying, Blakeney strangled Swanson until she lost consciousness.
When Swanson became unconscious, Blakeney grabbed Basil, clasping the child with
his left arm while holding the knife in his right hand with the blade to Basil’s throat. Officer
Vernouski, who by that time had been joined by other officers, attempted to reason with
Blakeney, who refused to put Basil down. Instead, Blakeney cut Basil’s throat with the
butcher knife in a sawing motion, causing the child’s death. Blakeney relinquished control
of Basil’s body only after Officer Vernouski shot Blakeney three times. Blakeney survived,
and was charged with murder.4
In 2002, Blakeney proceeded to a jury trial in the Dauphin County Court of
Common Pleas, with the Honorable John F. Cherry presiding. Blakeney chose to
represent himself during trial, at both the “guilt” and “penalty” phases. Then-District
Attorney Edward Marsico represented the Commonwealth at trial and on direct appeal.5
While representing himself, Blakeney, who is African-American and Muslim, made
repeated references to his religion. For example, in his opening statement to the jury,
Blakeney declared: “I don’t want to cause nobody no problems. My job is clear. I am a
Muslim . . . . This is a sign to my people, the Muslims. How you judge me today in front
of them, that America has justice in their hearts still. Trust me. They will hear about this
4 Blakeney also was charged with (and later convicted of) attempted murder and
aggravated assault as to Swanson, who survived the attack.
5 The Honorable Edward Marsico has since been elected to, and commissioned a
Judge of, the Court of Common Pleas of Dauphin County.
[J-50-2018] - 3
case.” Notes of Testimony (N.T.), volume 2, 491-92.6 On August 8, 2002, the jury found
Blakeney guilty of first-degree murder.
During the penalty phase, Blakeney declined to present any mitigating evidence,
explaining to the court that he made this decision because “[t]his is a religious thing.” N.T.
8/1/2002, volume 2, 925. The Commonwealth introduced evidence to support three
aggravating circumstances, and the jury recommended a sentence of death. On October
17, 2002, Judge Cherry formally sentenced Blakeney to death. This Court affirmed.
Blakeney I, 946 A.2d at 649. On February 23, 2009, the Supreme Court of the United
States denied certiorari. Blakeney v. Pennsylvania, 555 U.S. 1177 (2009).
In March 2009, Blakeney filed a timely, pro se PCRA petition. On December 21,
2010, Blakeney timely filed a counseled PCRA petition. The PCRA court denied relief
without a hearing. This Court affirmed. Blakeney II, 108 A.3d at 739. Then-First Assistant
District Attorney (now District Attorney) Francis Chardo represented the Commonwealth
in post-conviction proceedings, and presently is counsel of record for the Commonwealth
in Blakeney’s ongoing federal habeas corpus proceedings.
On October 8, 2015, the Philadelphia Inquirer reported that media outlets had
obtained a number of emails sent by and/or received from then-Justice Michael Eakin
through a private email account that Justice Eakin established under the pseudonym
“John Smith.”7 The following day, the Reading Eagle (in a reprint of an Inquirer report)
further described the emails. The Inquirer and the Eagle detailed the offensive content in
6 The Notes of Testimony from Blakeney’s trial span two volumes, each of which
includes multiple days. For ease of reference, we cite to the volume and page number
rather than the date of the testimony.
7 Justice Eakin resigned from this Court on March 15, 2016. Barbara Goldberg,
Second Pennsylvania Judge Resigns amid ‘Porngate’ Scandal, REUTERS, March 15,
2016, https://www.reuters.com/article/us-pennsylvania-kane/second-pennsylvania-
judge-resigns-amid-porngate-scandal-idUSKCN0WH2MR (last viewed July 11, 2018).
[J-50-2018] - 4
these emails, sent or received by Justice Eakin, many of which referenced race, gender,
religion, ethnicity, or class. The articles linked Justice Eakin’s emails to unnamed
members of the Dauphin County Court of Common Pleas and the Dauphin County District
Attorney’s Office. These emails had been in the possession of the Office of the Attorney
General (“OAG”), which obtained them when they were sent to the official email
addresses of persons employed by the OAG. The Inquirer began its account as follows:
“Scroll through state Supreme Court Justice J. Michael Eakin’s private inbox and it seems
as if everyone is in on the joke: judges, state prosecutors, assistant U.S. attorneys, public
defenders, private lawyers. Everyone, of course, except the defendants or victims who
could wind up in their courtrooms or offices.” The Inquirer and the Eagle described the
emails as including:
An email sent by Justice Eakin containing a “joke” about a woman
complaining to a doctor that her husband “beats me to a pulp,” to which the
doctor recommends that she “swish tea in her mouth” and not “swallow”
until her husband is asleep, concluding: “You see how much keeping your
mouth shut helps?”
An email sent by Justice Eakin containing the reference “Why I failed 4 th
Grade” with a photo of a teacher asking the student for two examples of an
abstract noun and the student responding “your t--s.”
An email sent to Justice Eakin attaching a video called “Craziest white man
ever” featuring a man picking up immigrant day workers (referred to as
“beaners” and “animals”) [ ]under the ruse that he needs help with his deck,
then turning them in to U.S. immigration officials, then laughing hysterically
as they scatter from his pickup truck and saying: “That’s what I do every
couple of weeks just to get rid of - ya know, thin out the herd a little bit,” . . .
“Make sure they don’t overpopulate.”
An email sent to Justice Eakin containing a “joke” in which a mother laments
that Muslim children “blow up so fast, don’t they?”
An email sent in 2011, after [Jerry] Sandusky was arrested for sexually
abusing minors, containing an image of Macaulay Culkin from “Home
Alone,” replacing the burglar behind him with a smiling [Jerry] Sandusky.
[J-50-2018] - 5
An email with a video in which a black woman complains that President
Barack Obama wants to create jobs. “You mean I’m not going to get my
government check?” the woman asks.
Petition for Writ of Habeas Corpus and for Collateral Relief (“Petition”), 11/30/2015, at 16-
17 (citing William Bender, A Supreme Court Justice’s Indecent Inbox, THE PHILADELPHIA
INQUIRER, Oct. 8, 2015; Craig R. McCoy and Angela Couloumbis, Pa. Supreme Court
Justice Reportedly Involved in Racist Email Exchanges, THE READING EAGLE, Oct. 9,
2015).8
An October 30, 2015 report by the Special Counsel to this Court further described
the emails. In particular, the Special Counsel noted that Justice Eakin sent or forwarded
many emails that were “insensitive, chauvinistic and offensive to women,” including the
first two emails discussed in the articles. Petition at 22 (citing Report of the Special
Counsel Regarding the Review of Justice Eakin’s Personal Email Communications,
Joseph A. Del Sole, Oct. 30, 2015, attached as Exhibit 4, at 11). Although Justice Eakin
did not send any emails that the Special Counsel characterized as racist, homophobic, or
otherwise discriminatory to any group other than women, the Special Counsel noted that
Justice Eakin also received “a substantial number of emails with jokes which are racially
insensitive and disparaging of women and other groups,” including Latinos, African-
Americans, Muslims, and homosexuals. Report of the Special Counsel, Exhibit 4, at 13.
8 This is not a “gratuitous” recitation of irrelevant emails. See Opinion in Support of
Affirmance (Dougherty, J.) at 4, n.1. Rather, Blakeney’s claim of judicial bias, as
explained below, was in part rooted in the shared nature of emails that, if revealed by
other individuals involved, could cause professional embarrassment to Justice Eakin.
This potential embarrassment was not limited to apparent religious or racial bias, but
extended also to emails that the Inquirer described as “raunchy, racist, sexist or just
downright stupid.” Bender, A Supreme Court Justice’s Indecent Inbox, THE PHILADELPHIA
INQUIRER, Oct. 8, 2015. As the Inquirer explained, and as Blakeney alleged, “lewd or
pornographic material . . . could be used as future leverage over a judge.” Id.
[J-50-2018] - 6
According to the Special Counsel, many of these emails are repugnant in the eyes of the
public. Id. at 24.
Within sixty days of the publication of the Inquirer and Eagle articles, on November
30, 2015, Blakeney filed his second PCRA petition, the timeliness of which is at issue in
this appeal. In the Petition, Blakeney raised claims premised upon information discovered
in the articles. In particular, Blakeney alleged that ex parte communications occurred
between members of the Dauphin County District Attorney’s Office (including then-District
Attorney Marsico and then-First Assistant District Attorney Chardo), the Dauphin County
bench, and Justice Eakin.
Blakeney asserted that these communications evinced a personal relationship of
sufficient closeness and trust to demonstrate judicial bias, or at least the appearance
thereof, and the loss of objectivity in the handling and disposition of cases on the part of
Justice Eakin. Id. at 13, 14, 27 (“At some point a relationship goes beyond mere
professional acquaintanceship to one where personal fealty could well supplant the duty
of impartiality, even unconsciously.”). In this respect, Blakeney averred that Justice
Eakin’s involvement in the exchange of offensive emails, which included racial humor,
stereotypes, and “jokes” manifesting negative views of Muslims, was an embarrassing
activity that Justice Eakin would wish to keep private. Blakeney asserted that:
The shared, highly offensive emails during the pendency of [Blakeney’s]
case creates the appearance, if not the actuality of Justice Eakin’s bias in
favor of the Commonwealth’s and against [Blakeney’s] interests. . . Their
willingness to be included on emails that denigrate minorities and women,
and those of certain faiths − particularly the Muslim faith − demonstrates a
relationship of sufficient closeness and trust to create bias and loss of
objectivity in the handling and disposition of cases. Indeed, those who
exchange such publicly offensive emails − and potentially professionally
embarrassing communications − rely upon each other to hold them
confidential.
[J-50-2018] - 7
Petition, 11/30/2015, at 14; see also id. at 13 (asserting that communications that included
Justice Eakin, members of the District Attorney’s Office, and members of the Public
Defender’s Office “indicate personal relationships that create actual bias, or at the very
least an appearance of bias on the part of the Justice”); id. at 26 (relying upon reports
“that Justice Eakin sent and/or received sexist, racist, and homophobic emails on an email
network that included the Dauphin County District Attorney, his First Assistant, as yet
unnamed judges on the Dauphin County bench, and even the county’s public defender”);
id. (characterizing Justice Eakin’s involvement in offensive emails as “an embarrassing
activity which [Justice Eakin] wished to keep private. . . . The Dauphin County District
Attorney . . . was aware of these practices and could expose these practices at any time,
undermining [Justice Eakin’s] independence, integrity, and impartiality”).
Because members of the District Attorney’s Office were also party to some of the
emails, and could expose the Justice at any time, Blakeney asserted that Justice Eakin
was beholden to the prosecution to keep his emails private. Blakeney averred that such
circumstances undermined Justice Eakin’s independence, impartiality, and integrity.
According to Blakeney, the emails also demonstrated additional judicial bias, or
the appearance thereof, on the part of Justice Eakin arising from the nature and content
of the religiously, racially, and sexually offensive messages. Id. at 13. In furtherance of
this argument, Blakeney alleged that Justice Eakin’s judicial bias was particularly
prejudicial in light of the fact that Blakeney made his religion part of his case. Blakeney
observed that Justice Eakin participated in Blakeney’s direct appeal and in Blakeney’s
PCRA appeal, and that the emails were sent between 2008 and 2012, when Blakeney’s
[J-50-2018] - 8
direct appeal was pending in this Court, when his PCRA was pending in the PCRA court,
and when his PCRA appeal was pending before this Court.9
Blakeney asserted that Justice Eakin’s participation in his case violated his right to
due process of law. Id. at 15. In particular, the Due Process Clause of the United States
Constitution entitles a person to an “impartial and disinterested tribunal in both civil and
criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980). Even absent proof
of actual bias, the Constitution protects against the probability of prejudice. See Caperton
v. A.T. Massey Coal Co. Inc., 556 U.S. 868, 881 (2009) (providing that the inquiry “asks
not whether the judge is actually, subjectively biased, but whether the average judge in
9 Justice Dougherty considers Blakeney’s claim to be limited to one of religious and
racial bias, and finds dispositive to the Petition’s timeliness the fact that, according to the
articles, Justice Eakin received a single religiously offensive email and sent none.
Respectfully, we perceive this view to be incorrect.
First, this position disregards the premise of Blakeney’s claim of judicial bias. The
judicial bias alleged in the petition derived not only from Justice Eakin’s alleged personal
bias against African-Americans and Muslims, but also, and primarily, from the inclusion
in the emails of certain prosecutors from the Dauphin County District Attorney’s Office.
Nowhere does Blakeney limit his claim to emails that target his own race and religion.
Second, considering the scope of his claim, it is obvious that Blakeney does not
rely upon a lone email. Rather, Blakeney relies upon all of the emails reported in the
articles and by the Special Counsel that are repugnant generally and which are
disparaging to particular groups.
Third, Blakeney’s claim of judicial bias is not limited to emails which Justice Eakin
sent to his network of law enforcement officials. It also encompasses emails received by
Justice Eakin, which, according to Blakeney, demonstrate Justice Eakin’s intimacy with
the office prosecuting Blakeney, and which could have tempted Justice Eakin to align with
the prosecution in Blakeney’s appeals. As the Special Counsel noted, at no point did
Justice Eakin object to receiving such emails. Exhibit 4, at 11.
Finally, Justice Dougherty considers the Special Counsel to be a “neutral source”
that “contradict[s] the ‘fact’” that Blakeney alleges. See Opinion in Support of Affirmance
(Dougherty, J.) at 4. To the contrary, the Special Counsel’s characterization of the
offensive nature of the emails substantiates the claim of judicial bias that Blakeney
asserts.
[J-50-2018] - 9
his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for
bias’”) (citing Mayberry v. Pennsylvania, 400 U.S. 455, 465-66 (1971)). Based upon the
emails, Blakeney asserted that Justice Eakin’s judicial bias deprived Blakeney of an
impartial tribunal and created a structural defect that rendered the proceedings
fundamentally unfair and unconstitutional. Blakeney also claimed that Justice Eakin’s
judicial bias violated Blakeney’s equal protection rights, his Eighth Amendment right to
fairness and reliability in capital proceedings, his Sixth Amendment right to effective
counsel at trial, his Fourteenth Amendment right to effective counsel on appeal, and his
Pennsylvania law-based right to effective counsel throughout his first PCRA petition and
appeal.
Finally, Blakeney asserted that the involvement of members of the District
Attorney’s office in the email exchanges raised “concerns as to whether [Blakeney’s]
prosecution, including the choice to proceed with the case as a death penalty case, and
including the manner in which the jury was selected, was fair and unbiased.” Petition at
31. It should be emphasized that, while Blakeney raised this concern, his assertions
regarding involvement of the Commonwealth’s attorneys in the email exchanges were
made in service of his claim of judicial bias, rather than any claim of prosecutorial
misconduct. As relief for his claim of judicial bias, Blakeney sought the reinstatement of
his direct appeal and/or PCRA appeal in light of Justice Eakin’s participation in those
appeals.
Recognizing that the Petition was untimely on its face (because it was filed over a
year from the date that his conviction became final in 2009), Blakeney invoked two
[J-50-2018] - 10
timeliness exceptions to the PCRA’s one-year time-bar: Section 9545(b)(1)(i)
(governmental interference) and Section 9545(b)(1)(ii) (newly-discovered facts).10
On February 24, 2016, the Commonwealth filed its response. In that response,
the Commonwealth did not dispute the timeliness of the Petition. Rather, the
Commonwealth conceded that the Petition was, in fact, timely. Commonwealth’s
Response to PCRA Petition, 2/24/2016, at ¶ 9 (“As the facts underlying the claims in
[Blakeney’s] second PCRA petition were unknown to him and could not have been
discovered by the exercise of due diligence, the petition is not untimely.”).
Nor did the Commonwealth address the underlying claim of judicial bias on the
part of Justice Eakin. Rather, the Commonwealth’s sole response was to argue simply
that Blakeney was not entitled to relief on his underlying claim because “there was no
improper communication between the attorneys for the Commonwealth and Justice
Eakin.” Id. at ¶ 10. In this respect, the Commonwealth relied upon affidavits submitted
10 These subsections provide as follows:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final, unless the petition alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of
due diligence;
42 Pa.C.S. §§ 9545(b)(1)(i)-(ii). In addition, “[a]ny petition invoking an
exception provided in paragraph (1) shall be filed within 60 days of the date
the claim could have been presented.” Id. § 9545(b)(2).
[J-50-2018] - 11
by attorneys Marsico and Chardo asserting that they had received no communication
directly from Justice Eakin. Instead, the two had received unsolicited emails from a lawyer
named Terrence McGowan, who had received the emails from Justice Eakin and
forwarded them to others. The affidavits asserted that the two Commonwealth attorneys
neither responded to, nor forwarded, the emails. On the basis of the affidavits, the
Commonwealth asked the PCRA court to deny the Petition without a hearing.
On March 7, 2016, Blakeney filed a motion to disqualify the Dauphin County
District Attorney’s Office from participating in the litigation of the Petition. This motion
was based upon the Marsico and Chardo affidavits, which, according to Blakeney, placed
those two prosecutors in the role of witnesses to the events giving rise to the claim of
judicial bias in the Petition. Blakeney asserted that, as with any other witnesses, the
credibility and bias of these two attorneys was subject to challenge. Consequently,
Blakeney argued that continued participation by attorneys Marsico and Chardo on behalf
of the Commonwealth violated the Advocate-Witness Rule contained within Rule 3.7 of
the Pennsylvania Rules of Professional Conduct.11 Blakeney asserted that the inclusion
of attorneys Marsico and Chardo on the email chains demonstrated that these
11 Rule 3.7 provides as follows:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to
be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on
the client.
Pa.R.P.C. 3.7.
[J-50-2018] - 12
prosecutors have both a personal stake in the outcome of the case and an actual conflict
of interest, thus warranting application of the Advocate-Witness Rule.
Also on March 7, 2016, Blakeney filed a motion to recuse all judges of the Dauphin
County Court of Common Pleas, including Judge Cherry, from consideration of the
Petition. Blakeney noted that media reports revealed that two unnamed members of the
Dauphin County bench also were included in the email communications tied to Justice
Eakin. Blakeney asserted that the PCRA court’s judicial findings could involve comment
upon the conduct of fellow members of the Dauphin bench or credibility determinations
of these unnamed jurists, creating a conflict for the PCRA court that would give rise to the
appearance of impropriety, and warranting the recusal of the entire county bench.
On June 30, 2016, the PCRA court provided notice of its intent to dismiss the
Petition without a hearing, denied the motion to disqualify the District Attorney’s Office,
and denied the motion to recuse the Court of Common Pleas of Dauphin County.
Blakeney responded by updating the PCRA court with evidence that had become
available after he filed the Petition, including copies of the emails that were the subject of
the Inquirer and Eagle articles and those emails that were admitted into evidence in the
proceedings commenced against Justice Eakin in the Court of Judicial Discipline. On
June 23, 2017, the PCRA court dismissed the Petition as untimely.
The PCRA court explained that it rejected Blakeney’s reliance upon Section
9545(b)(1)(i) and (ii) because “[Blakeney’s] submissions do not constitute fact, but rather
a theory that the emails reflect a fact. The existence of emails, investigations or resulting
reports bear no nexus to [Blakeney’s] conviction and sentence.” PCRA Ct. Op.,
[J-50-2018] - 13
6/23/2017, at 4. The PCRA court provided no further analysis regarding the timeliness of
the Petition.
With respect to Blakeney’s request for Judge Cherry’s recusal, which had been
subsumed within Blakeney’s request for the recusal of the entire county bench, the PCRA
court held that this claim was “fully litigated or waived.” Id. In particular, Judge Cherry
observed that Blakeney had submitted computer discs containing more than a thousand
items, yet had not identified any emails to which Judge Cherry was a party. Judge Cherry
explained that he was not responsible for reviewing the thousands of items submitted in
order to identify whether his own name appeared anywhere therein.
II. Timeliness of the Petition
On appeal to this Court,12 Blakeney first argues that the PCRA court erred by
denying the Petition as untimely because he established the timeliness exception for
newly discovered facts. 42 Pa.C.S. § 9545(b)(1)(ii); Commonwealth v. Bennett, 930 A.2d
1264, 1270 (Pa. 2007) (applying Section 9545(b)(1)(ii) to hold that the exception “simply
requires [the] petitioner to allege and prove that there were ‘facts’ [upon which the claim
is predicated] that were ‘unknown’ to him and that he exercised ‘due diligence’”). In
particular, Blakeney asserts that the facts (i.e., the offensive emails) upon which his claim
of judicial bias is predicated were unknown prior to the Inquirer and Eagle articles, and
that he could not have ascertained the existence of the offensive emails any earlier by
the exercise of due diligence.
12 We have jurisdiction over this appeal pursuant to 42 Pa.C.S. § 9545(d) (“A final
court order under this subchapter in a case in which the death penalty has been imposed
shall be directly appealable only to the Supreme Court pursuant to its rules.”). We review
the PCRA court’s ruling to determine whether it is supported by the record and free from
legal error. Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007).
[J-50-2018] - 14
As further support, Blakeney relies upon our recent decision in Commonwealth v.
Chmiel, 173 A.3d 617 (Pa. 2017). In Chmiel, this Court held that an FBI press release
admitting errors in a high percentage of cases involving FBI testimony on microscopic
hair analysis was a fact that triggered the sixty-day window within which Chmiel was
entitled to file his claim that the hair comparison analysis admitted at trial was flawed.
Chmiel, 173 A.3d at 626. Blakeney asserts that the reasoning of Chmiel refutes the PCRA
court’s rationale that the Inquirer and Eagle articles, or the emails themselves, were not
the facts upon which Blakeney’s claim of judicial bias is predicated. Disputing the PCRA
court’s assertion that there was no nexus between the newspaper articles and Blakeney’s
conviction or sentence, Blakeney argues that this analysis goes to the merits of the
underlying claim of judicial bias, not to the timeliness of that claim. Blakeney also
observes that the Commonwealth did not argue to the PCRA court that the Petition was
untimely, did not dispute the emails’ existence or their offensive nature, and did not
maintain that Blakeney could have known about the emails sooner.13
The Commonwealth responds by claiming, for the first time on appeal, that
Blakeney’s PCRA petition is untimely, and not subject to any timeliness exception,
because the emails have no relationship to Blakeney’s case. This position is grounded
solely upon the Commonwealth’s assertion that no prosecutor exchanged emails with
13 Blakeney also relied upon the timeliness exception for governmental interference,
Section 9545(b)(1)(i), asserting that he did not know about the emails before the articles
were published due to the actions of government agents. In particular, Blakeney asserted
that the numerous shared, offensive emails were in the possession and control of the
OAG, which released the emails selectively over time. Not until publication of the articles
did the offensive emails and their link to Justice Eakin become public. Because we
resolve the timeliness of the Petition solely under Section 9545(b)(1)(ii), we express no
view upon the applicability of the governmental interference exception of Section
9545(b)(1)(i).
[J-50-2018] - 15
Justice Eakin, or, in the alternative, that the attorneys for the Commonwealth did nothing
more than receive emails.
Pursuant to Section 9545(b), a PCRA petition has to be filed within one year of the
date the judgment becomes final, “unless the petition alleges and the petitioner proves”
that one of the timeliness exceptions applies. 42 Pa.C.S. § 9545(b). As we have
explained, a petitioner has the burden to plead and prove the applicability of the timeliness
exceptions. Commonwealth v. Pursell, 749 A.2d 911, 914 (Pa. 2000). To prove the
exception for newly discovered facts, the petitioner must show that “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). A petition
invoking this exception must be filed “within 60 days of the date the claim could have been
presented.” Id. § 9545(b)(2). As the PCRA court’s conclusion did not rest upon Section
9545(b)(2), we focus solely upon Section 9545(b)(1)(ii).
In Bennett, this Court held that the timeliness exception for newly discovered facts
has two components that the petitioner must allege and prove. The petitioner must
“establish that: 1) ‘the facts upon which the claim was predicated were unknown,’ and 2)
‘could not have been ascertained by the exercise of due diligence.’” Bennett, 930 A.2d
at 1272 (quoting 42 Pa.C.S. § 9545(b)(1)(ii)) (italics in original). If the petitioner can
establish both of these components, then the PCRA court has jurisdiction over the claim.
In Chmiel, the petitioner filed an untimely PCRA petition alleging that his conviction
and death sentence rested upon unreliable hair comparison evidence in violation of the
Constitution. Chmiel, 173 A.3d at 621. This Court held that the FBI press release (entitled
“FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of
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Cases in Ongoing Review”) constituted a “fact” for purposes of Section 9545(b)(1)(ii).
Because Chmiel’s claim challenged the hair comparison analysis that had been used at
his trial, and because this post-conviction claim was predicated upon the newly
discovered fact (which could not have been discovered sooner with the exercise of due
diligence), we held that Chmiel properly had invoked the timeliness exception for newly
discovered facts. Id. at 626.
With regard to the first component of Section 9545(b)(1)(ii) as articulated in
Bennett, Blakeney has established that the facts upon which the underlying claim is
predicated were unknown. The claim that Blakeney raised in the Petition is one of judicial
bias, premised upon the argument that Justice Eakin’s participation in Blakeney’s direct
appeal and PCRA appeal violated various constitutional guarantees. The fact upon which
the claim is predicated is the group of emails, and the bias of Justice Eakin that they
suggest. With the publication of the newspaper reports, Blakeney, an African-American
and a Muslim, learned that a member of this Court had exchanged emails denigrating
African-Americans and Muslims. Blakeney also learned that Justice Eakin had
exchanged many other offensive emails with members of the prosecution, suggesting a
relationship of sufficient closeness that threatened Justice Eakin’s objectivity. These
newly discovered facts revealed the potential for judicial bias that Blakeney believes
unconstitutionally infected his appeals before this Court. The claim of judicial bias is
predicated upon the existence and content of offensive emails transmitted by a sitting
member of the court of last resort empowered to adjudicate Blakeney’s two appeals (save
for any resort to a federal forum).
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Turning to the second component of Section 9545(b)(1)(ii) as defined in Bennett,
Blakeney could not, by the exercise of due diligence, have ascertained that Justice Eakin
sent and received offensive emails. This fact was not made public until the Inquirer and
Eagle articles. Consistent with Bennett and Chmiel, the existence of the offensive emails,
the content of which was revealed to the public with the publication of the newspaper
reports and which serve as the factual predicate for Blakeney’s underlying claim, satisfies
the exception for newly discovered facts.
The PCRA court’s assertion that Blakeney’s “submissions do not constitute fact,
but rather a theory that the emails reflect a fact” is puzzling. PCRA Ct. Op. at 4. The
Inquirer and Eagle articles revealed the content of several racially and religiously
offensive emails. As further emails became public, Blakeney updated the PCRA court as
to their existence as well. There was nothing theoretical about the disparagement that
the emails revealed. Rather, the emails revealed facts about a High Court jurist who
participated in Blakeney’s direct appeal and PCRA appeal, and those facts served as the
predicate for a claim of judicial bias. The PCRA court also suggested that the emails bear
no nexus to Blakeney’s conviction or sentence. The law does not require a “nexus”
between the newly-discovered facts and the conviction or sentence for purposes of
satisfying the timeliness exception requirements of the PCRA. Rather, as explained
above, Section 9545(b)(1)(ii) requires that the facts upon which the claim are predicated
were previously unknown. Whether the newly-discovered facts bear a sufficient nexus to
Blakeney’s conviction or sentence for purposes of demonstrating judicial bias that
exceeds constitutional standards is an assessment of the merits of the underlying claim.
Consideration of the merits is distinct from a timeliness analysis. Commonwealth v.
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Stokes, 959 A.2d 306, 310 (Pa. 2008).14 The question for timeliness purposes is whether
the newly-discovered facts form a predicate for the underlying claim. Under our
precedent, in this case, they do.15 Chmiel, 173 A.3d at 625-26; Bennet, 930 A.2d at 1272-
14 Viewing Blakeney’s claim as predicated solely upon a single email that Justice
Eakin received, Justice Dougherty would find no connection between the claim of judicial
bias and that email. See Opinion in Support of Affirmance (Dougherty, J.) at 5. With all
due respect, this analysis improperly minimizes Blakeney’s claim so as to exclude the
judicial bias that Blakeney asserts derives from the inclusion of other individuals in the
email exchanges. This highly constricted perspective also leads Justice Dougherty to
ignore the other embarrassing emails detailed in the articles, all of which form the
foundation for Blakeney’s claim of judicial bias.
We disagree with Justice Dougherty’s view that there is no connection between
the claim of judicial bias and the newly discovered fact. The fact upon which the claim of
judicial bias is predicated is the existence of the offensive emails. This parallels the claim,
and the fact upon which the claim was predicated, in Chmiel. In both instances, the claim
(judicial bias that may have permeated Blakeney’s appeal, and questionable hair
comparison analysis that contributed to Chmiel’s conviction) is predicated upon the newly
discovered fact (emails suggesting judicial bias in Blakeney’s appeal, and the FBI’s
admissions concerning evidence introduced against Chmiel). In both instances, the
petitioners satisfied Section 9545(b)(1)(ii).
Justice Dougherty’s assertion that Justice Eakin’s personal beliefs are unknown,
see Opinion in Support of Affirmance (Dougherty, J.) at 6, is a merits consideration of
Blakeney’s claim. Justice Eakin’s personal beliefs about the content of the emails and
about the fealty he may have felt towards the prosecution is a question that may be
relevant to the merits of the underlying claim. But it is not pertinent for jurisdictional
purposes. The adequacy of Blakeney’s proof to establish a claim for relief is not before
us.
15 This is not to suggest any entitlement to relief on the merits. Satisfaction of the
PCRA’s timeliness requirements means only that a PCRA court has jurisdiction to
entertain a petitioner’s claim. To merit relief, a petitioner still would need to satisfy the
other requirements of the PCRA, such as establishing that the petitioner’s conviction or
sentence resulted from one or more of the circumstances enumerated in Section 9543(2),
42 Pa.C.S. § 9543(2). Failure to make such a showing is grounds for the denial of relief.
To the extent that Justice Dougherty wishes to save the “overly-encumbered”
PCRA courts from examining the merits of PCRA petitions, see Opinion in Support of
Affirmance (Dougherty, J.) at 4, we believe that such concern is misplaced. A petitioner’s
right to receive review in accord with the PCRA does not depend upon how busy the
courts may be. In addition, directing the PCRA court to assess the timeliness of PCRA
petitions in accord with the PCRA and this Court’s precedent does not necessarily add to
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73. We therefore disagree with the PCRA court on the question of the Petition’s
timeliness relative to the exception for newly-discovered facts. 42 Pa.C.S. §
9545(b)(1)(ii).
The Commonwealth’s suggestion that the timeliness of Blakeney’s Petition
depends upon whether the Commonwealth attorneys exchanged emails with Justice
Eakin or merely received emails is inapt. The emails allegedly reveal judicial bias on the
part of Justice Eakin that arises from the offensive content of the emails and their apparent
circulation to members of the District Attorney’s Office, which assertedly could have
caused Justice Eakin to be partial to the Commonwealth’s position in Blakeney’s appeals
before this Court. The question for timeliness purposes is whether the facts upon which
the claim of judicial bias is predicated were unknown and could not have been ascertained
by the exercise of due diligence. Whether prosecutors Marsico and Chardo exchanged
emails with Justice Eakin or merely received them has no bearing upon whether the
Petition is timely.
On this issue, Justice Dougherty characterizes the newspaper articles reporting on
the emails as allegations lacking in “any genuine basis” and contradicted by neutral
sources. See Opinion in Support of Affirmance (Dougherty, J.) at 4. We disagree on both
counts. The articles were premised upon emails that former Attorney General Kathleen
Kane turned over to the Judicial Conduct Board and the State Ethics Commission.
PCRA courts’ workloads. Establishing jurisdiction does not entitle a petitioner to relief;
indeed, it does not even entitle a petitioner to a hearing. See Commonwealth v. Morris,
684 A.2d 1037, (Pa. 1996) (providing that the right to an evidentiary hearing is not an
absolute one; a hearing should only be held on any issue which the PCRA court is not
certain lacks merit).
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Although the emails themselves were disclosed to the media by anonymous sources,
there is no reason to doubt the accuracy of the information that the media reported. We
have never held that media reports cannot be the source of newly discovered facts for
purposes of Section 9545(b)(1)(ii).16
In this case, Blakeney relied upon the articles as the trigger to comply with the
sixty-day requirement of Section 9545(b)(1)(ii). He appended the Report of the Special
Counsel to his petition, which supported the allegations reported in the articles.
Recognizing that he could not yet discern the precise nature and scope of the
constitutional violations he alleged, Blakeney also updated the PCRA court as he
discovered new information. We do not fault Blakeney for choosing to protect his rights
by filing the Petition within sixty days of the first time he became aware of this indication
of judicial bias.
It appears that the “neutral source” to which Justice Dougherty refers is the Special
Counsel’s report. However, this report did not contradict the articles. Rather, as
explained above, it corroborated the information provided therein.
Justice Dougherty also maintains that a petitioner is required to prove the new fact
upon which his claim is predicated. See Opinion in Support of Affirmance (Dougherty, J.)
at 2. In fact, a petitioner is required only to allege and prove that one of the timeliness
16 See Chmiel, 173 A.3d at 621 (concluding that the petitioner established the
applicability of Section 9545(b) when he filed a petition within sixty days of a newspaper
report about the FBI press release); Commonwealth v. Edmiston, 65 A.3d 339, 351 (Pa.
2013) (holding that studies and articles in the public domain defeated the petitioner’s
reliance on a new report to establish newly discovered facts). But see Commonwealth v.
Burton, 158 A.3d 618, 620 (Pa. 2017) (holding that the public record presumption does
not apply to pro se prisoner petitioners).
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exceptions applies. Substantiating the veracity of the fact upon which the claim is
predicated is a question for merits review of the claim. See 42 Pa.C.S. § 9543(a).
III. Disqualification of the District Attorney’s Office
Blakeney also argues that the trial court erred by denying his motion to disqualify
the Dauphin County District attorney’s Office and to recuse the Dauphin County Court of
Common Pleas, including Judge Cherry. As to the District Attorney’s Office, Blakeney
relies upon the affidavits from attorneys Marsico and Chardo to assert that these
prosecutors were parties to the offensive emails that form the factual predicate of the
underlying claim of judicial bias. Blakeney argues that the emails ultimately received by
attorneys Marsico and Chardo demonstrate that Justice Eakin trusted the recipients to
keep the emails confidential, lest he suffer professional humiliation, and that such a
relationship undermines the appearance of neutrality and lack of bias on the part of
Justice Eakin. Blakeney does not allege that attorneys Marsico or Chardo did anything
improper. Brief of Appellant at 31 (“[I]t has never been [Blakeney’s] claim that Mr. Marsico
or Mr. Chardo did anything improper. The bias instead lies with Justice Eakin, and in
particular, with the fact that he sent, or was party to, offensive emails to litigants in cases
before this Court and therefore knew that those same litigants were aware of his
connection to the offens[iv]e emails.”). Blakeney’s disqualification argument is premised
upon the Advocate-Witness Rule. He argues that the Marsico and Chardo affidavits have
created a factual dispute that will compel the PCRA court to consider the affiants’
credibility, thereby placing Attorneys Marsico and Chardo into the role of witnesses to the
factual predicate of the underlying claims. According to Blakeney, their appearance as
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counsel for the Commonwealth therefore runs afoul of the Advocate-Witness Rule. See
Pa.R.P.C. 3.7.
In response, the Commonwealth argues simply that there are no grounds for the
relief requested because there was no improper communication between Justice Eakin
and the attorneys for the Commonwealth.
The sole basis upon which Blakeney seeks the disqualification of the District
Attorney’s Office is the Advocate-Witness Rule. This rule is implicated when a lawyer “is
likely to be a necessary witness” at trial. Id. “Combining the roles of advocate and witness
can prejudice the tribunal and the opposing party and can also involve a conflict of interest
between the lawyer and client.” Id., Cmt. [1].
There is no reason to believe that attorneys Marsico or Chardo are likely to be
witnesses in Blakeney’s PCRA proceedings. As Blakeney concedes, his claim is that
Justice Eakin was biased, not that attorneys Marsico or Chardo did anything improper.
In seeking to prove his claim that Justice Eakin was biased, and that Justice Eakin trusted
the recipients of the emails to keep the emails confidential, Blakeney can introduce the
emails into evidence. To the extent that the claim of judicial bias rests upon Justice
Eakin’s knowledge of the recipients or senders of the emails, the emails sent by or
received by Justice Eakin, along with the identity of the sender and recipients and/or their
email addresses, will provide this information. Blakeney will not need to establish whether
attorneys Marsico or Chardo understood that they received emails that included Justice
Eakin somewhere along the chain, asked for the emails to be halted, complained about
the emails to the sender, or forwarded the emails along to other individuals. The
testimony of the Commonwealth attorneys is irrelevant to the underlying claim of judicial
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bias. Accordingly, Blakeney’s request for disqualification of the District Attorney’s Office
fails.
IV. Recusal of the PCRA Court
With respect to the question of judicial recusal, Blakeney argues that Judge Cherry
should have removed himself from the case, and that the entire Dauphin County Court of
Common Pleas should likewise recuse. Blakeney’s argument as to Judge Cherry is
twofold: First, according to Blakeney, Judge Cherry was a recipient of email blasts from
attorney Terry McGowan, including emails of which Justice Eakin and Dauphin County
prosecutors were recipients. On this basis, Blakeney asserts that Judge Cherry has
personal knowledge of disputed facts. Second, Blakeney asserts that Judge Cherry was
compromised in his role of presiding over Blakeney’s trial and PCRA petition by his role
on the Dauphin County Prison Board. See Blakeney I, 946 A.2d at 661-62, Blakeney II,
108 A.3d at 761.
The Commonwealth argues that Blakeney’s recusal motion as to Judge Cherry is
barred by the law of the case doctrine because this Court previously considered and
rejected Blakeney’s claim that Judge Cherry should have recused because of his role on
the Dauphin County Prison Board.
To the extent that Blakeney seeks Judge Cherry’s recusal because of Judge
Cherry’s alleged receipt of emails that involved Justice Eakin and Dauphin County
prosecutors, this claim is waived. As the PCRA court observed, although Blakeney baldly
asserted that Judge Cherry was included in one or more email chains that involved Justice
Eakin, Blakeney did not identify any emails received by Judge Cherry. Blakeney’s
counsel submitted computer discs to the PCRA court that contained over a thousand
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items, but failed to specify which items implicated Judge Cherry. Consequently, Judge
Cherry refused to respond to Blakeney’s unsubstantiated claims or to identify whether,
and to what extent, Judge Cherry’s name was on any of the emails, essentially concluding
that Blakeney’s failure to identify with precision which emails were linked to Judge Cherry
resulted in waiver. Blakeney has not confronted the PCRA court’s waiver analysis.
By failing to identify any emails to which Judge Cherry was a party, and by failing
entirely to develop the extent to which Judge Cherry had personal knowledge of the facts
at issue in the Petition, Blakeney has waived this aspect of his recusal motion. See
Commonwealth v. Briggs, 12 A.3d 291, 326 n.34 (Pa. 2011) (concluding that an entirely
undeveloped claim is waived).
To the extent that the recusal motion depends upon a conflict allegedly arising from
Judge Cherry’s role on the Dauphin County Prison Board, Blakeney did not raise this
issue in his recusal motion before the PCRA court. It is, therefore, also waived. Pa.R.A.P.
302 (“Issues not raised in the lower court are waived and cannot be raised for the first
time on appeal.”).
Moreover, the Commonwealth is correct that we considered and rejected this claim
on direct appeal, Blakeney I, 946 A.2d at 662 (finding no grounds for recusal on the basis
of Judge Cherry’s involvement with the Prison Board where “[t]he record reveals that
Judge Cherry was, in fact, fair and impartial, and indeed, that he demonstrated a great
deal of patience when interacting with the pro se appellant”), and on appeal from the
denial of Blakeney’s first PCRA petition, Blakeney II, 108 A.3d at 761 (holding that
Blakeney’s challenge to Judge Cherry’s failure to recuse himself was previously litigated).
Pursuant to the law of the case doctrine, there is no basis for recusal premised upon
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Judge Cherry’s involvement with the Prison Board. See Ario v. Reliance Ins. Co., 980
A.2d 588, 597 (Pa. 2009) (“The law of the case doctrine sets forth various rules that
embody the concept that a court involved in the later phases of a litigated matter should
not reopen questions decided by another judge of that same court or by a higher court in
the earlier phases of the matter.”).
Accordingly, there is no basis to require the recusal of Judge Cherry. Because we
affirm Judge Cherry’s refusal to recuse himself, there is no need to address Blakeney’s
argument that the rest of the Dauphin County Court of Common Pleas should be recused.
Justice Donohue joins the opinion.
Justice Dougherty concurs in the result as to Parts III and IV and files an opinion
in support of affirmance as to Parts I and II.
Justice Mundy concurs in the result as to Parts III and IV and files an opinion in
support of affirmance as to Parts I and II.
Chief Justice Saylor and Justices Baer and Todd did not participate in the
consideration or decision of this case.
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