SUBMITTED: March 11, 2019
from the Order dated May 23, 2018 in the Court of Common
Pleas, York County, Criminal Division at No.
OPINION IN SUPPORT OF AFFIRMANCE
case forces us to confront a question of immense
constitutional significance: whether a lower court possesses
authority to order a higher tribunal to rehear an appeal
where a defendant alleges that a constitutional error - in
this case, a due process claim predicated on supposed
judicial bias - occurred during the original appellate
process. Without hesitation or meaningful analysis, Justice
Wecht would conclude lower courts do possess this power,
effectively authorizing those courts to undo our prior,
binding decisions. Respectfully, this conclusion is
indefensible. As I explain below, whether an allegation of
appellate court error is cognizable under the Post Conviction
Relief Act ("PCRA"), 42 Pa.C.S.
§§9541-9546, is an issue of first impression for
this Court, and the answer to that question is far from
obvious. Even if the Legislature had intended to make
appellate court errors of the nature alleged here cognizable
under the PCRA, I conclude the remedy sought by appellant and
sanctioned in the Opinion in Support of Reversal
("OISR") offends the Pennsylvania Constitution.
Accordingly, I would affirm the order of the PCRA court.
filed the instant, facially untimely PCRA petition - his
fourth - on December 8, 2014. In his petition, appellant
alleged he learned through various newspaper articles issued
in the fall of 2014 that former Justice Seamus P. McCaffery
had engaged in "ex parte emails with
[appellant's] party opponent, the [Office of] Attorney
General[, ]" between 2008 and 2014. PCRA Petition at 1.
During that period, this Court unanimously affirmed on
untimeliness grounds the order dismissing appellant's
third PCRA petition. See Commonwealth v. Taylor, 67
A.3d 1245 (Pa. 2013) ("Taylor IV"). In
appellant's view, the fact that former Justice McCaffery
traded emails with members of the OAG during the pendency of
Taylor IV "raise[s] a serious risk of actual
bias" implicating due process concerns. PCRA Petition at
1. The remedy for this alleged constitutional violation,
appellant argued, is the grant of "a new PCRA
appeal" in this Court. Id. at 13. See
also N.T. 4/26/2018, at 13-14 (arguing "[t]he issue
is . . . a due process violation" and "the remedy
that we are asking [for] is a new appeal").
PCRA court was not persuaded. See id. at 14
("What authority do I have to order the Supreme Court to
grant your client a new appeal? I have been waiting for that
response for a year and a half now, and I haven't seen
it."). Accordingly, it issued a notice of its intent to
dismiss appellant's petition on May 1, 2018. In its
notice the court explained that, even assuming appellant
could support his allegation of actual judicial bias with
real evidence, the PCRA court is inferior to this Court;
therefore, it lacked the authority to order this Court to
rehear appellant's prior PCRA appeal anew. See
Notice of Intent to Dismiss, 5/1/2018, at 3, citing
Pa. Const. art. V, §§ 2, 10. On May 23, 2018, the
PCRA court formally dismissed appellant's petition.
on appeal with the opposing positions forwarded by appellant
and the Commonwealth (which adopts the PCRA court's
position), Justice Wecht summarily credits the former and
assails the latter. Without citing any authority, the OISR
proclaims that "[i]f an error of constitutional
magnitude occurs during the appellate process, the PCRA is
the sole means of collaterally attacking the final judgment
on that basis." OISR at 9. Further, and again without
identifying any supporting authority, the OISR declares
"there is no requirement that a post-conviction claim be
premised upon a violation of rights occurring at trial, nor
is there any suggestion in the PCRA itself or in this
Court's precedent that alleged errors occurring in the
appellate process are immune from collateral attack, or that
only an appellate court can redress appellate errors."
Id. at 9-10. To my knowledge, and as appellant
apparently agrees, see Appellant's Reply Brief
at 2, this is an issue of first impression for this Court. As
such, it deserves far greater attention than the OISR accords
to it - particularly because I do not believe the answer is
nearly as simple as the hasty conclusions expressed in the
scope of the PCRA is explicitly defined in the Act as
This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The
action established in this subchapter shall be the sole means
of obtaining collateral relief and encompasses all other
common law and statutory remedies for the same purpose that
exist when this subchapter takes effect, including habeas
corpus and coram nobis. This subchapter is not
intended to limit the availability of remedies in the trial
court or on direct appeal from the judgment of sentence, to
provide a means for raising issues waived in prior
proceedings or to provide relief from collateral consequences
of a criminal conviction. Except as specifically provided
otherwise, all provisions of this subchapter shall apply to
capital and noncapital cases.
42 Pa.C.S. §9542 (emphasis added). We have explained
this language "demonstrates quite clearly that the
General Assembly intended that claims that
could be brought under the PCRA
must be brought under that Act."
Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001)
(emphasis in original). See also Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999) ("the PCRA
subsumes the writ of habeas corpus with respect to remedies
offered under the PCRA"), citing Commonwealth v.
Peterkin, 722 A.2d 638 (Pa. 1998). The precise question
we must answer first, then, is whether appellant's claim
can be brought under the PCRA.
order to state a cognizable claim under the PCRA, a PCRA
petitioner must plead and prove by a preponderance of the
evidence that his conviction resulted from one or more of the
errors or defects listed in 42 Pa.C.S.
§9543(a)(2)." Commonwealth v. Liebel, 825
A.2d 630, 632 (Pa. 2003). Although not explicitly stated in
his petition, the only error even arguably implicated by
appellant's judicial bias-based due process claim is
Section 9543(a)(2)(i). See N.T. 4/26/2018, at 14
(arguing that under the PCRA, "if it is a constitutional
violation, [a PCRA court] has jurisdiction"). That
section permits relief where a petitioner's conviction or
sentence resulted from "[a] violation of the
Constitution of this Commonwealth or the Constitution or laws
of the United States which, in the circumstances of the
particular case, 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).
little conceptual difficulty accepting that this language
encompasses judicial bias-based due process claims related to
a judge who presided over a trial or sentencing proceeding;
it is considerably more difficult, however, to reach the same
conclusion with respect to a supposed bias harbored by an
appellate jurist. This is so because appellate jurists, and
the appellate process generally, have no connection to
"the truth-determining process" or the reliability
of the "adjudication of guilt or innocence." Thus,
contrary to Justice Wecht's belief, see OISR at
9-10, a literal reading of Section 9543(a)(2)(i) in fact
supports the notion that appellate court errors, even those
of constitutional magnitude, are not
cognizable under the Act.
also recognize this Court has repeatedly expressed concern
that the unavoidable result of a literal reading of this
"truth-determining process" language "is a
bifurcated system of post-conviction review, in which certain
claims for relief are considered under the PCRA, while other
claims for relief are considered outside its framework."
Commonwealth v. Lantzy, 736 A.2d 564, 569 (Pa.
1999). Such a system, we have remarked, would run contrary to
the legislature's intent to make the PCRA the exclusive
vehicle for obtaining collateral review. See id.; 42
Pa.C.S. §9542. For this reason, at least in the context
of ineffective assistance of counsel claims, we have
"taken great pains on multiple occasions to explain why
we believe the General Assembly preferred a broader
construction of the PCRA's scope," regardless of the
"truth-determining process" language contained in
Section 9543(a)(2)(ii). Commonwealth v. Haun, 32
A.3d 697, 705 (Pa. 2011). See, e.g.,
Liebel, 825 A.2d at 635-36 (counsel's failure to
file petition for allowance of appeal on direct appeal
"sufficiently establishes that the truth-determining
process has been undermined"); Commonwealth ex rel.
Dadario v. Goldberg, 773 A.2d 126, 130 (Pa. 2001) (claim
that counsel had been ineffective during plea-bargaining
process was cognizable under Section 9543(a)(2)(ii) despite
fact that ineffectiveness may not have undermined
truth-determining process in traditional sense);
Commonwealth v. Chester, 733 A.2d 1242, 1250 (Pa.
1999) ("truth-determining" and "guilt or
innocence" language used in Section 9543(a)(2)(ii) does
not foreclose post-conviction review of penalty phase issues
in capital case); see also Lantzy, 736 A.2d at
569-70 (rejecting Superior Court's conclusion that for a
petitioner's claim to be cognizable under Section
9543(a)(2)(ii), the claim must raise a question of whether an
innocent individual has been convicted).
other hand, "the boundaries of cognizable claims under
the PCRA can only be extended so far as is consistent with
the purposes of the statute[.]" Commonwealth v.
Judge, 916 A.2d 511, 520 (Pa. 2007). Indeed, despite our
recognition of the legislature's intent to channel the
widest possible category of post-conviction claims into the
PCRA's framework, we have on occasion recognized that
certain issues fall outside the PCRA. See Commonwealth v.
West, 938 A.2d 1034, 1044 (Pa. 2007) (substantive due
process challenge to the continued validity of a judgment of
sentence after a nine-year pre-incarceration delay not
cognizable under the PCRA); Judge, 916 A.2d at 520
(allegation that Canada violated appellant's rights under
the International Covenant for Civil and Political Rights by
deporting him to face a death sentence not cognizable under
the PCRA because claim has "no connection to the
truth-determining process and do[es] not render the
underlying adjudication of guilt or innocence . . .
unreliable"). In these unique situations, we found the
claims "did not implicate any of the remedies ...