Appeal from the Order of the Court of Common Pleas of Philadelphia County entered on November 8, 2007, dismissing the PCRA petition at No. CP-51-CR-: 0622491-1985
The opinion of the court was delivered by: Mr. Chief Justice CASTILLE*fn1
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
Appellant Ernest Porter, a death-sentenced prisoner, appeals from the order of the Court of Common Pleas of Philadelphia County denying as untimely his serial petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-9546; the pleading raised a claim under Brady v. Maryland, 373 U.S. 83 (1963).*fn2 After the appeal was briefed on the timeliness merits and submitted, the parties, upon direction of this Court, filed supplemental briefs addressing the jurisdictional issue of whether the PCRA court's order was final and appealable. Upon review, we determine that the order below is appealable and, on the merits, that the court's time-bar determination is correct; thus, we affirm. We also address: (1) the circumstances creating uncertainty respecting appealability, in an effort to ensure that those circumstances do not arise again; and (2) relatedly, the circumstances creating the unacceptable delay in this case, so that PCRA courts throughout Pennsylvania will take measures to avoid such delays. Finally, we direct the PCRA court to promptly dispose of appellant's long-pending prior PCRA petition, which raised an issue under Atkins v. Virginia, 536 U.S. 304 (2002).*fn3
Over twenty-six years ago, on April 27, 1985, appellant robbed and murdered Raymond Fiss as Mr. Fiss was opening his beauty shop in Philadelphia. On February 26, 1986, a jury found appellant guilty of first degree murder, robbery, and a firearms offense; the next day, the same jury sentenced appellant to death, finding a single aggravating circumstance (murder during commission of a felony) and no mitigators. This Court affirmed in Commonwealth v. Porter, 569 A.2d 942 (Pa. 1990), cert. denied, 498 U.S. 925 (1990), rehearing denied, 498 U.S. 1017 (1990); and appellant's first PCRA petition concluded with this Court's affirmance of the denial of relief in Commonwealth v. Porter, 728 A.2d 890 (Pa. 1999). Appellant's current counsel, Billy H. Nolas, Esq., now of the Philadelphia-based Federal Community Defender's Office ("FCDO"), represented appellant on the PCRA appeal.*fn4 Appellant then filed a federal habeas corpus petition in the U.S. District Court for the Eastern District of Pennsylvania.
In August 2002, appellant returned to Pennsylvania state court, with Attorney Nolas filing a second PCRA petition, raising a single new claim: that appellant was mentally retarded under the U.S. Supreme Court's then-recent decision in Atkins v. Virginia.*fn5 Thereafter, in June 2003, the federal district court decided appellant's federal habeas petition. Porter v. Horn, 276 F. Supp. 2d 278 (E.D. Pa. 2003). The district court dismissed appellant's guilt phase claims, but granted conditional penalty phase relief premised upon a finding of instructional error under the Third Circuit's precedent construing Mills v. Maryland, 486 U.S. 367 (1988), a case decided after appellant's trial. Porter, 276 F. Supp. 2d at 311. Thereafter, the parties filed cross-appeals to the Third Circuit, which still have not been decided. Appellant's federal appeal presumably is limited to the issues the district court certified for appeal.*fn6 See 276 F. Supp. 2d at 364-65. The Commonwealth's cross-appeal presumably concerns only the Mills issue.
At some point after appellant's Atkins serial petition was filed, the PCRA court apparently was persuaded to defer consideration. The existing certified record does not reveal when or how this came to pass. The record contains no motion to place the matter in abeyance, no order of abeyance entered by the PCRA court, and no statement of the reason the Atkins petition was set aside.*fn7 It was not unusual to refrain from deciding Atkins cases in the immediate wake of the decision, because the High Court left it to the individual states to determine how to implement Atkins, including the fixing of a standard to determine mental retardation. See, e.g., Commonwealth v. Bracey, 986 A.2d 128, 130 (Pa. 2009). Any delay for that purpose ended in 2005, when this Court addressed the Atkins standard in Commonwealth v. Miller, 888 A.2d 624 (Pa. 2005).
On June 15, 2006, less than six months after Miller announced the Atkins review standard, appellant filed what counsel called a "supplement and amendment" to the Atkins petition. The 2006 filing did not apprise the PCRA court of Miller, nor did it request a determination of the Atkins claim. Nor was the "supplement and amendment" relevant to Atkins. The filing instead raised a new claim under Brady v. Maryland, which appellant said had ripened in the prior sixty days; this claim involved possible impeachment of a prosecution witness, Vincent Gentile, premised upon a non-notarized statement Gentile allegedly gave to a FCDO investigator on April 20, 2006. There is no indication in the docket or elsewhere that appellant either sought, or was granted, leave to amend his existing Atkins petition to add the new Brady claim.
Following written submissions by the parties on the Brady issue, the PCRA court heard argument on September 25, 2007. Attorney Nolas stated that the PCRA court had held the 2002 Atkins petition "in abeyance," awaiting the outcome of the federal habeas corpus cross-appeals. N.T., 9/25/07, at 12. Counsel also stated that the Third Circuit was holding the federal cross-appeals, at his request, until appellant could exhaust his new Brady claim in state court. See, e.g., id. at 8 ("[T]he Third Circuit . has held the case in abeyance so this [Brady] issue could be resolved[.]"). Counsel then sought permission to "depose" witness Gentile. The prosecutor focused on the gate-keeping PCRA jurisdictional issue of timeliness, including the fact that the Superior Court had found a similar claim respecting the same witness, in another of appellant's criminal matters, to be time-barred. The prosecutor also argued that the deposition request was a "fishing expedition," and noted that the PCRA required appellant to show an entitlement to an evidentiary hearing first.
The PCRA court focused on the time-bar jurisdictional issue and ruled that "[t]he petition is denied." The court elaborated that it had read the parties' pleadings, and stated: "I am denying the PCRA petition on the grounds that it is not timely and it does not meet the requirements for the Brady material." Following the court's denial of the Brady petition, Attorney Nolas brought up the pending Atkins petition. Counsel did not request a decision on Atkins, which would resolve all pending issues in state court, possibly have appellant removed from death row if the Atkins claim succeeded, and free up the Third Circuit to pass upon the federal cross-appeals. Instead, counsel adverted to the Atkins petition as leverage to relitigate his request to depose Gentile, even though the court had just determined that the claim was time-barred. The following exchange occurred:
Nolas: This is a separate issue before the Court pertaining to Atkins in our submission that [appellant] has mental retardation.
Court: I didn't deal with that.
Nolas: That's before the Court. If you don't deny that today, what's wrong with taking [Mr. Gentile's] deposition?
Court: The two don't mix together. What have you submitted on the Atkins claim other than the fact that you are claiming that he was mentally deficient?
Nolas: Yes, that's our submission. [Appellant] has mental retardation.
Court: Is that issue [Atkins] before the Third Circuit?
Nolas: It is not before the Third Circuit.
Court: So that's squarely with me?
Nolas: Yes, Your Honor. I know Your Honor held it in abeyance because the Third Circuit reversed the death sentence and the Commonwealth is appealing that and [appellant is] appealing the denial of relief of the guilt phase from the Third Circuit. So I think the reasoning before was holding in  abeyance to see what the Third [C]circuit would do because if there's no death sentence then there's no point in us doing an Atkins.
Court: So there is no death sentence. All it is is an appeal?
ADA: Yeah, exactly. So I was going to suggest that you send [a] 907[*fn8 ] notice just on the after discovered evidence slash Brady claim. And we'll specify that that's the claim that you are denying today and then we'll leave in abeyance to [sic] the Atkins to hear from the Third Circuit.
Court: Let me see if I understand this. The Third Circuit has already taken the death penalty off the table.
Nolas: No, Your Honor. The District Court granted relief to [appellant] on an instructional error at the penalty phase. The Commonwealth appealed that to the Third Circuit. That appeal is pending [in] the Third Circuit along with an appeal from us arguing [other issues].
Court: So the death penalty is still on the table?
Nolas: It's still on the [t]able potentially, yes.
Nolas: And that's why we asked Your Honor to look at the Atkins issue.
Court: It appears that from what I read he won on the death penalty issue.
Nolas: He just won a new penalty phase from the District Court which is subject to [the] Commonwealth's appeal and may be subject to resentencing down the road. They didn't take the death penalty off the table.
Court: When will that issue be resolved?
ADA: They are waiting for us.
Nolas: They were waiting for Your Honor to decide on the [Brady] issue pertaining to Mr. Gentile.
Court: Okay. That's all. They [the Third Circuit] are not counting on me to deal with the Atkins issue?
Nolas: We've told them about it, but they haven't said that you should look at it or shouldn't look at it.
Court: So I just need to do a 907 with respect to the Brady claim and timeliness issue surrounding the [filing].
Nolas: And I think I have to object to that because that's strange. You have a proceeding before the Court with two claims that are being raised. And I guess with a 907 notice we'd restate our objections and file a notice of appeal and then you have no jurisdiction, so it's a non-process.
Court: What are you suggesting I do?
Nolas: I suggest you let us do [Mr. Gentile's] deposition.
Court: We are beyond that. What are you suggesting ...