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Commonwealth v. Shannon

Superior Court of Pennsylvania

April 24, 2018

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
EMANON K. SHANNON, Appellant

          Appeal from the PCRA Order October 4, 2016 in the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0002306-2005

          BEFORE: DUBOW, RANSOM, and STRASSBURGER [*], JJ.

          OPINION

          STRASSBURGER, J.

         Emanon K. Shannon (Appellant) appeals from the October 4, 2016 order which denied his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.[1] We affirm.

         On March 10, 2006, a jury convicted Appellant of robbery, aggravated assault, kidnapping, criminal conspiracy, and two firearms violations for his involvement in shooting one victim and kidnapping and holding another victim captive at gunpoint in a motel room. On April 27, 2006, the trial court sentenced Appellant to an aggregate term of 45 to 90 years of incarceration.[2]Appellant filed a direct appeal, [3] and this Court affirmed Appellant's judgment of sentence on August 21, 2007. Commonwealth v. Shannon, 935 A.2d 22 (Pa. Super. 2007) (unpublished memorandum). Appellant did not file a petition for allowance of appeal to our Supreme Court.

         On November 11, 2007, Appellant filed pro se his first PCRA petition. On December 6, 2007, the PCRA court appointed counsel, William Shreve, Esquire, to represent Appellant. On April 11, 2008, Attorney Shreve filed a Turner/Finley[4] "no merit" letter with the PCRA court. On April 16, 2008, the PCRA court issued an order granting PCRA counsel's petition to withdraw and giving Appellant notice of the PCRA court's intent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907. Thereafter, Appellant filed several pro se documents with the PCRA court. On December 31, 2008, the PCRA court issued an order which appointed Jeffrey B. Engle, Esquire, to represent Appellant, and scheduled a PCRA hearing.

         On June 4, 2009, the PCRA court denied Appellant's PCRA petition following an evidentiary hearing, and this Court affirmed that order on August 27, 2010. Commonwealth v. Shannon, 11 A.3d 1040 (Pa. Super. 2010) (unpublished memorandum).

         Appellant filed pro se his second PCRA Petition on October 20, 2010, and the PCRA court appointed Jonathan Crisp, Esquire, to represent Appellant.[5] On January 6, 2011, the PCRA court granted Appellant's request for reinstatement of his right to file a petition for allowance of appeal to the Supreme Court nunc pro tunc. Counsel did not file the petition for allowance of appeal, but instead filed a Turner/Finley "no merit" letter with the PCRA court. On February 15, 2011, the PCRA court granted Attorney Crisp's motion to withdraw as counsel, and permitted Appellant pro se to file a petition for allowance of appeal to the Supreme Court.[6]

         On February 8, 2016, represented by Lynn A. Ellenberger, Esquire of the Federal Public Defender's Office, Appellant filed the instant PCRA petition, his third.[7] In that petition, Appellant argues that he is entitled to a "new trial because it has been revealed that various members of the Dauphin County criminal justice system have been identified as receiving emails that have embroiled Supreme Court Justice J. Michael Eakin in proceedings before the Judicial Conduct Board [(JCB)] at a time when [Appellant's] post-conviction proceedings were pending." PCRA Petition, 2/8/2016, at ¶ 1. According to Appellant, "individuals involved in his proceedings may also have been privy to additional emails reflecting a bias against African-American persons and persons involved in the criminal justice system." Id. at ¶ 2. Based on the foregoing, Appellant "argues that his claims demonstrate that his trial, direct appeal and PCRA proceedings involved a miscarriage of justice." Id. at ¶ 45. He claims that the "shared, highly offensive emails during the pendency of [Appellant's] post-conviction proceedings case creates the appearance, if not the actuality, of bias against [Appellant's] interests." Id. at ¶ 51. Furthermore, Appellant recognized that his petition was facially untimely, but argued that the PCRA court had jurisdiction pursuant to either the newly-discovered facts[8] exception or the governmental-interference[9] exception to the PCRA time bar. Id. at ¶ 42.

         On March 10, 2016, Appellant, through counsel, filed a petition entitled "Motion for the Dauphin County Bench to Recuse Itself and to Disqualify the Dauphin County District Attorney's Office." In that motion, he set forth the following:

Since the filing of the [PCRA petition], [Appellant], who is African-American, has obtained one racially offensive email that contains images and accompanying commentary which makes fun of African-American individuals, communities and sensibilities, and generally contains racially insensitive and inappropriate stereotypes. This one email, which was sent to 123 recipients, has confirmed [Appellant's] suspicions: that many individuals involved in the criminal justice system in Dauphin County - even individuals using a "dauphinc.org" government email address - are privy to this and other racially insensitive emails showing an overall bias against individuals of color, making his trial, appeal and post-conviction proceedings inherently flawed and unconstitutional. Because this racist email was so widely shared, [Appellant] will not be able to have his instant post-conviction [p]etition adjudicated fairly and impartially. As a result, he moves to recuse the entire Dauphin County bench from presiding over this matter, and moves to disqualify the Dauphin County District Attorney's Office from representing the Commonwealth in this proceeding, which motion should be heard by a newly-appointed judge.

Motion to Recuse, 3/10/2016, at ¶ 2.

         According to Appellant, this email was sent to "three of [Appellant's] attorneys, including the attorney who was representing him at the time the email was sent." Id. at ¶ 9. Appellant requested the recusal of the Dauphin County judiciary and district attorney's office because of this "wide-spread racial prejudice in the criminal justice system." Id. at ¶ 17. Moreover, Appellant suggests that this email is evidence "that each and every entity involved in his legal proceedings - bench, prosecution and defense - has been privy to racially-charged emails at the time his legal proceedings were ongoing." Id. However, Appellant acknowledges that the current judge, the Honorable William T. Tully, "has [not] been involved in the inappropriate emails or personally harbors any racial prejudices against [Appellant]." Id. at ¶ 19. Nonetheless, Appellant claims that "[n]o judge in Dauphin County should decide [Appellant's] claims … [because] no Dauphin County judge can be objectively neutral." Id. at ¶ 20. Similarly, Appellant argues that the Dauphin County District Attorney's office should be disqualified. Id. at ¶ 25. Appellant suggests that due to the allegations against some attorneys in the office, "[a]ny assistant district attorney, even if personally untouched by the allegations of [Appellant's] [p]etition, would have an interest in protecting his or her supervisor's and colleagues' professional interests." Id.

         On June 6, 2016, the PCRA court entered an order denying Appellant's motion to recuse. Also on June 6, 2016, the PCRA court filed a notice of intent to dismiss Appellant's PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907. The PCRA court concluded that Appellant could not rely on the newly-discovered facts exception because he based his petition on only public records, case law, and newspaper articles. PCRA Court Opinion, 6/6/2016, at 5. Further, the PCRA court concluded that Appellant had failed to establish the governmental-interference exception because that timeliness exception "expressly excludes defense counsel from the definition of 'government officials, '" and the information could have been obtained earlier. Id. at 6.

         On June 27, 2016, Appellant filed a response to the PCRA court's Pa.R.Crim.P. 907 Notice. Appellant first attempted to refute the claim that he could have obtained this information earlier. See Response to Pa.R.Crim.P. 907 Notice, 6/27/2016, at ¶ 4. In addition, Appellant pointed out that an email, with the subject line "Prom Night, " "was received by actually four individuals who represented [Appellant]: Jeffrey Engle, who was representing [Appellant] at the time the e-mail was sent; William Shreve []; Ari Weitzman []; and Bruce Wolbrette." Id. at ¶ 20 (emphasis in original). Another email, entitled "Sex in the Shower, " was sent to Attorney Engle just days before he was appointed Appellant's counsel.[10] Id. at ¶ 32.

         Appellant then summarized the newly-discovered facts set forth in his petition.

. various members of the Dauphin County criminal justice system have received emails when [Appellant's] post-conviction proceedings were pending, which emails embroiled Supreme Court Justice J. Michael Eakin in proceedings before the Court of Judicial Discipline [(CJD)].
• the emails described in the JCB Complaint [] identify at least 14 individuals as recipients who are or were involved in the criminal justice system in Dauphin County. Two of those individuals represented [Appellant]; one individual appeared on behalf of the Commonwealth in [Appellant's] proceedings. Twelve of those individuals used the "dauphinc.org" email address.
• [Appellant] believed and averred that he was in possession of copies of emails that were described in the JCB Complaint[].
• a newspaper article reported Dauphin County District Attorney Marsico, his first assistant, a Common Pleas judge, the county's chief public defender, at least four assistant U.S. attorneys, a senior deputy attorney general and a police chief had received additional racist emails and other emails of inappropriate content that also implicated Justice Eakin.
• based on information and belief, persons involved in [Appellant's] criminal proceedings may also have been privy to those emails reflecting a racial bias and/or a bias against ...

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