Com. v. Cook, W.

J-M03001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

WESLEY COOK :

:

Appellant : No. 290 EDA 2019

Appeal from the PCRA Order Entered December 27, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0113571-1982

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM PER CURIAM: FILED OCTOBER 26, 2021

This matter returns to this Court after the Supreme Court of

Pennsylvania vacated our earlier decision which found we had no subject

matter jurisdiction to entertain the appeal. The Supreme Court ruled that this

Court was the proper forum since Appellant is no longer facing a penalty of

death. Further, the Supreme Court directed us to apply Commonwealth v.

Reid, 235 A.3d 1124 (Pa. 2020).

Mumia Abu-Jamal, formerly known as Wesley Cook, filed this appeal

from the orders denying his first four petitions under the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, after his appellate rights for all four

petitions were reinstated nunc pro tunc pursuant to his fifth PCRA petition.

Abu-Jamal claims that the prior PCRA courts erred in denying his first four

petitions, and raises arguments under the United States and Pennsylvania

J-M03001-21

Constitutions.1 Abu-Jamal has also filed a petition for remand to the PCRA

court and a petition to expedite the remand, asserting that evidence turned

over by the Commonwealth during the pendency of this appeal requires a new

hearing.

Additionally, the Commonwealth has filed an application to file a sur

reply brief. And finally, Maureen Faulkner, the widow of Officer Daniel

Faulkner, who was the victim of the homicide Abu-Jamal has been convicted

of committing, asks us to allow her to intervene in this appeal.

Based on the following, we conclude that the PCRA court lacked

jurisdiction to reinstate Abu-Jamal’s appeal rights. We therefore dismiss these

appeals as the fifth PCRA petition was untimely. We also deny the

Commonwealth’s application to file a sur reply brief. Lastly, the pending

applications for relief filed by Abu-Jamal and Maureen Faulkner are dismissed

as moot.

Given our resolution of this matter, we need not dwell on the underlying

factual history of this case. A jury convicted Abu-Jamal of the first-degree

murder of Officer Faulkner on July 2, 1982. The next day, the jury sentenced

Abu-Jamal to death. The Supreme Court of Pennsylvania unanimously

____________________________________________

1Abu-Jamal does not re-raise all of the arguments that were presented in his

previous PCRA petitions. Rather, he has re-raised “the claims and arguments

that most clearly demonstrate that his trial was fundamentally unfair and

violated his rights pursuant to the United States and Pennsylvania

Constitutions.” Appellant’s Brief, at 8.

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affirmed Abu-Jamal's judgment of sentence in 1989, and the Supreme Court

of the United States denied Abu Jamal’s petition for a writ of certiorari in 1990.

Abu-Jamal filed PCRA petitions in 1995, 2001, 2003, and 2009. In each

instance, the PCRA court denied any relief on the petitions. Following these

decisions, Abu-Jamal was re-sentenced to a term of life in prison without

parole. On appeal, Abu-Jamal’s sentence to life in prison was affirmed by this

Court. See Commonwealth v. Abu-Jamal, 3059 EDA 2012, 2013 WL

11257188 (Pa. Super. July 9, 2013) (unpublished memorandum).

In 2016, Abu-Jamal filed his fifth PCRA petition seeking the

reinstatement of his appellate rights from his first four PCRA petitions

pursuant to Williams v. Pennsylvania, 136 S.Ct. 1899 (2016). In that case,

a Philadelphia jury had convicted Terrance Williams of first-degree murder in

1986 and sentenced him to death. At the time, the Honorable Ronald Castille

was the District Attorney of Philadelphia, and provided written authorization

for his Assistant District Attorney to seek the death penalty for Williams. In

2012, Williams filed a PCRA petition seeking, among other things, a new

penalty-phase trial. After the PCRA court granted Williams a new penalty-

phase trial, the Supreme Court of Pennsylvania, led by then Chief Justice

Castille, reversed and reinstated the death penalty. The Court denied

Williams’s motion for recusal of the Chief Justice based upon his participation

in the prosecution of Williams, and Chief Justice Castille penned a concurrence

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which strongly condemned the history of Williams’s counsel, the Federal

Community Defender Office.

Williams appealed to the Supreme Court of the United States, which

analyzed Chief Justice Castille’s participation in reviewing the

Commonwealth’s appeal from the Order of the PCRA court which granted a

new penalty-phase trial. The Supreme Court held that Chief Justice Castille’s

failure to recuse himself from the review of the Commonwealth’s appeal

“presented an unconstitutional risk of bias.” See Williams, 136 S.Ct. at 1907.

The Supreme Court of the United States therefore vacated the Pennsylvania

Supreme Court’s decision and remanded the matter for the Pennsylvania

Supreme Court to reconsider the appeal without the participation of Chief

Justice Castille. See id., at 1910.

Here, the PCRA court did not grant relief to Abu-Jamal pursuant to

Williams. At an earlier procedural stage, the PCRA court had ordered the

Commonwealth to produce its complete casefile for review. After conducting

that review, the PCRA Court denied Abu-Jamal's request for reinstatement of

his appellate rights under Williams by concluding that he failed to establish

that then-District Attorney Castille had significant involvement in a critical

decision in Abu-Jamal's prosecution.

However, the PCRA court found that Abu-Jamal had satisfied another

exception to the PCRA’s time-bar by presenting a 1990 letter from then-

District Attorney Castille to the Governor of Pennsylvania, urging the

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Governor, without reference to Abu-Jamal, to "send a clear and dramatic

message to all police killers that the death penalty in Pennsylvania actually

means something.” PCRA Court Opinion, 12/27/2018, at 30-3 (quoting Letter,

6/15/90). The PCRA court found that this letter constituted newly discovered

evidence that raised an appearance of bias and impropriety, and therefore

ordered the reinstatement of Abu-Jamal's appellate rights with respect to his

first four PCRA petitions.

As this letter is foundational to our analysis, we reproduce it here for

ease of reference:

Re: Death Warrants

Dear Governor Casey :

As you know, in February of this year the United States

Supreme Court upheld the constitutionality of the Pennsylvania

death penalty statute. Hence, no basis exists to further delay

issuing death warrants within the Commonwealth. In fact, such

action is necessary if death penalty cases are ever to move

forward to their ultimate conclusion.

Once death row inmates have their direct appeals denied,

there is little, if any, incentive for them to avail themselves of the

existent state and federal court collateral review processes.

Typically, they do so only if death warrants are signed. By way of

illustration, state collateral review petitions were filed by

defendants Leslie Beasley and Frederick Maxwell only after their

death warrants were signed. Further, once such state collateral

review challenges are disposed of, only reissuance of death

warrants will prompt these defendants to file federal habeas

corpus petitions. In fact, as to Mr. Beasley’s first death penalty

case, state collateral review proceedings – including Pennsylvania

Supreme Court review – have now been concluded. As he has not

yet sought federal court review, I ask that you immediately

reissue a death warrant in that case.

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Mr. Beasley’s case is especially pertinent now, in light of the

recent tragic events in Philadelphia over the past ten days in which

two police officers in separate incidents have been shot to death.

Ten years ago, on July 16, 1980, Leslie Beasley shot to death

Police Officer Ernest Davis, who was responding to a radio call of

“man with a gun.” On April 6, 1981, the jury convicted Beasley

and sentenced him to death as a police killer. I urge you to send

a clear and dramatic message to all police killers that the death

penalty in Pennsylvania actually means something. This can be

emphatically accomplished by immediate issuance of a death

warrant for Leslie Beasley.

My additional purpose in now contacting you is to identify

for you the Philadelphia County death row inmates who have

completed the direct appeal process and had their death

sentences affirmed, but who have not initiated collateral review

proceedings. I very strongly urge you immediately to issue death

warrants in each and every one of these cases. Only such action

by you will cause these cases to move forward in a legally

appropriate manner. These Philadelphia death row inmates are:

Dewitt Crawley …

Donald Hardcastle …

William Holland …

Arnold Holloway …

Kevin Hughes …

Robert Lark …

Reginald Lewis …

Ronald Logan …

Jerome Marshall …

Kelvin Morris …

Ernest Porter …

Florencio Rolan …

Brian Thomas …

Herbert Watson …

Raymond Whitney …

Terrance Williams …

Thank you for your consideration of this very significant

matter. I look forward to hearing from you.

Sincerely yours,

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Ronald D. Castille

District Attorney

Letter, 6/15/1990 (irrelevant procedural details from list of Philadelphia death

row inmates omitted).

After the court restored his appellate rights nunc pro tunc, Abu-Jamal

filed a single notice of appeal from the four orders denying his previous PCRA

petitions.2 The PCRA court ordered Abu-Jamal to file a statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b). 3 Our review of the

PCRA court’s docket does not reveal any response to this order.4 Nevertheless,

the PCRA court provided this Court with a detailed opinion in support of its

order.

____________________________________________

2 We note that this single notice of appeal appears to violate our Rules of

Appellate Procedure, as each order denying a separate PCRA petition was a

final, appealable order. See Pa.R.A.P. 341(f)(1). As the Supreme Court

directed us to apply Reid on remand, we decline to quash the appeal on this

ground. See Pa.R.A.P. 2591.

3 The Commonwealth did not appeal the PCRA court’s order, though this does

not, under Reid, affect our ability to consider whether the PCRA court had

jurisdiction to restore appellate rights. See Reid, 235 A.3d at 1143 (stating

that “it is appropriate for an appellate court to consider sua sponte the

timeliness of a PCRA petition from which nunc pro tunc appellate rights have

been reinstated, even where the Commonwealth has not separately appealed”

from the order granting relief). The Commonwealth does argue in its appellate

brief to this Court that Reid, while not directly controlling, nonetheless

requires quashal of this appeal. See Commonwealth’s Brief at 20-21.

4 If Abu-Jamal failed to file the statement, it could have resulted in waiver of

his issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii). However, given our

directions on remand, we decline to find waiver. See Pa.R.A.P. 2591.

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Several days after the PCRA court’s order denying in part and granting

in part relief on Abu-Jamal's petition, the Commonwealth notified the court

that it discovered previously undisclosed boxes of its Abu-Jamal casefile. Abu-

Jamal subsequently filed the instant appeal. After receiving several extensions

to the briefing schedule, Abu-Jamal filed his appellate brief in conjunction with

an application for a remand to raise claims based upon evidence contained in

the newly disclosed boxes.

Shortly thereafter, Maureen Faulkner filed an application to intervene in

this appeal. This Court denied her application. Maureen Faulkner subsequently

filed a King’s Bench petition with the Supreme Court of Pennsylvania, seeking

removal of the Philadelphia District Attorney’s Office based on claims of bias

and conflict of interest. The Supreme Court exercised its King’s Bench

jurisdiction and directed that all proceedings below, including the instant

appeal, be stayed, but ultimately concluded Maureen Faulkner had failed to

establish grounds to remove the Philadelphia District Attorney’s Office from

prosecuting this appeal. Once the King’s Bench jurisdiction had been

relinquished, Maureen Faulkner once again filed an application to intervene in

this Court, arguing that the Supreme Court of Pennsylvania’s exercise of its

King’s Bench jurisdiction established that she was entitled to intervene in this

appeal.

In the meantime, this Court had directed the parties to show cause why

this Court should exercise jurisdiction over this appeal instead of transferring

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it to the Supreme Court. Both parties responded by indicating they had no

objection to a transfer to the Supreme Court of Pennsylvania. As noted, we

found that jurisdiction over these appeals properly resided in the Supreme

Court of Pennsylvania. However, the Supreme Court disagreed with our

reasoning, remanded the appeal to us, and directed us to apply Reid.

In Reid, the Supreme Court of Pennsylvania reviewed the claim of a

petitioner who, like Abu-Jamal, filed a PCRA petition seeking restoration of his

appellate rights due to Justice Castille’s failure to recuse himself from

reviewing those prior appeals. See Reid, 235 A.3d at 1131. The PCRA court

there, much like the PCRA court here, restored Reid’s right to appeal from a

previous PCRA order nunc pro tunc. However, the Pennsylvania Supreme

Court quashed the nunc pro tunc appeal, holding that the PCRA court did not

have jurisdiction to grant nunc pro tunc relief because Reid had failed to

establish his petition was timely under any of the exceptions to the PCRA’s

time bar.

As both Abu-Jamal and the Commonwealth recognize, this appeal is

distinguishable from the appeal in Reid. There, the PCRA court relied explicitly

on Williams in granting Reid nunc pro tunc relief. See id. Here, while Abu-

Jamal also initially relied exclusively upon Williams in his petition, the PCRA

court ultimately denied him relief pursuant to Williams because former

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Justice Castille did not have “significant, personal involvement in a critical trial

decision” in his case.5 As stated by the PCRA Court:

Accordingly, [Abu-Jamal’s] Williams personal significant

involvement based claim is denied as [Abu-Jamal] has not proved

beyond a preponderance of the evidence that Mr. Castille as

Assistant District Attorney or District Attorney had significant

personal involvement in a critical trial decision in [Abu-Jamal’s]

case as required by Williams.

PCRA Court Opinion, 12/27/2018, at 26-7.

Instead, the PCRA court granted relief on the independent basis of due

process concerns over the appearance of Justice Castille’s bias due to the

newly discovered evidence of the letter from then-District Attorney Castille to

Governor Casey. In explaining its rationale, the PCRA stated:

This court finds that recusal by Justice Castille would have been

appropriate to ensure the neutrality of the judicial process in

Petitioner’s PCRA appeals before the Pennsylvania Supreme Court.

As noted by the Pennsylvania Supreme Court in [Commonwealth

v. Darush, 459 A.2d 727 (Pa.1983),] recusal is warranted when

“a significant minority of the lay community could reasonably

question the court’s impartiality. 459 A.2d at 732. Proof of actual

bias is not required. Id. Rather, the appearance of impropriety is

sufficient to warrant recusal. [In Interest of] Mcfall, 617 A.2d

[707,] 712 (Pa. 1992). If due process requires recusal where there

is no evidence of bias as in Darush, then surely recusal would be

required here, where a significant minority of the lay community

could reasonably question Justice Castille’s impartiality due to the

June 15, 1990 letter to the Governor urging the issuance of death

warrants, particularly against individuals convicted of killing police

officers. A party is not limited in establishing personal bias in his

own case. [Commonwealth v.] Lemanski, 529 A.2d [1085,

1088]A showing of bias against a particular class of defendants is

____________________________________________

5 Commonwealth v. Reid, 235 A.3d 1124, 1132 (Pa. 2020).

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sufficient to warrant disqualification.Id.; Commonwealth v.

Bryant, 476 A.2d 422, [424] n.1 (Pa. Super. 1984).

Id., at 31.

In Reid, the Supreme Court of Pennsylvania held that Williams

announced a new constitutional rule. See Reid, 235 A.3d at 1154. As such, a

claim based on Williams is legally distinct from a claim based upon Darush,

McFall, Lemanski, and Bryant, the cases cited by the PCRA Court.

Further, the Supreme Court’s rejection of Reid’s newly discovered

evidence claim under the circumstances in Williams is factually and legally

distinct from the circumstances here. With Abu-Jamal, the PCRA court was

concerned not with an authorization to seek the death penalty, which was the

issue in Williams, but with the 1990 letter to the governor. As such, the PCRA

court did not base relief on a finding that Castille was involved in a critical

stage of Abu-Jamal’s prosecution, which again was the issue involved in

Williams. Instead, the PCRA court restored Abu-Jamal’s appellate rights

based on a theory that District Attorney Castille’s authorship of the 1990 letter

created an unacceptable appearance of impropriety when Justice Castille sat

in judgment of Abu-Jamal during his subsequent appeals. It is, therefore,

clear that the PCRA court did not grant Abu-Jamal relief based on Williams.

Before us, by way of this remand, is the Commonwealth’s contention

that the PCRA court lacked jurisdiction to grant relief on Abu-Jamal’s newly

discovered evidence claim. Specifically, the Commonwealth argues that Abu-

Jamal did not timely raise his newly discovered fact claim. The courts of this

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Commonwealth only have jurisdiction over a PCRA petition if it is timely filed.

See Reid, 235 A.3d at 1140.

Generally, for a petition to be timely under the PCRA, the petitioner must

file the petition within one year of the date that the petitioner’s judgment of

sentence becomes final. See 42 Pa.C.S.A. § 9545(b)1). A “judgment becomes

final at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.” Id. at § 9545(b)(3).

A claim based on newly discovered facts qualifies for an exception to the

PCRA’s time bar. See 42 Pa.C.S.A. § 9545(b)(1)(ii). However, as with any

exception to the PCRA time bar, Abu-Jamal was required to file a petition

invoking the exception within 60 days of the date the claim could have first

been presented.6 See Commonwealth v. Burton, 158 A.3d 618, 627 (Pa.

2017). Here, the newly discovered fact is the 1990 letter. Abu-Jamal learned

of this fact no later than October 3, 2017, when the PCRA provided a copy of

the letter to him. As of sixty days later, Abu-Jamal had not filed any petition

____________________________________________

6On October 24, 2018, our General Assembly amended section 9545(b)(2),

extending the time for filing a petition from sixty days to one year from the

date the claim could have been presented. See 2018 Pa. Legis. Serv. Act

2018-146 (S.B. 915), effective December 24, 2018. The amendment applies

only to claims arising one year before the effective date of this section,

December 24, 2017, or thereafter. Here, Abu-Jamal concedes that this claim

arose no later than October 3, 2017, when the PCRA court provided the

Castille letter to Abu-Jamal. See Appellant’s Reply Brief, at 3. As a result, the

sixty-day period applies here.

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raising a claim based on the 1990 letter. The Commonwealth contends that

this timeline establishes that Abu-Jamal failed to successfully invoke the newly

discovered fact exception. See Appellee’s Brief, at 21.

Abu-Jamal responds that the PCRA court granted him an extension of

time to file this claim, as it granted him an extension for filing an amendment

to his fifth petition predicated on Williams. He asserts that he complied with

the PCRA court’s extension and filed the amendment timely on July 9, 2018.

As a result, he believes he successfully invoked the newly discovered fact

exception by timely filing the amended petition. Abu-Jamal relies upon the

Pennsylvania Supreme Court’s decision in Commonwealth v. Crispell, 193

A.3d 919, 929-30 (Pa. 2018), which held that motions to amend a pending

PCRA petition are governed by Pa.R.Crim.P. 905(A) and not the timeliness

provisions of the PCRA.

The Commonwealth counters that Crispell applies only to amendments

to timely filed petitions. See id., at 929 (“Because the PCRA court was faced

with a motion to supplement a timely petition, rather than a new petition, the

time restrictions of the PCRA did not apply”). Since Abu-Jamal’s 2016 petition,

predicated on Williams, was untimely pursuant to Reid, the Commonwealth

argues that Crispell does not apply, and Abu-Jamal’s fifth PCRA petition was

untimely ab initio.

We agree with the Commonwealth that Crispell is distinguishable from

this appeal but are not certain the distinction merits a different result. This is

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because we agree that the PCRA court erred in not dismissing Abu-Jamal’s

fifth petition as untimely.

Here, the PCRA court initially concluded that Abu-Jamal’s 2016 petition

qualified for the newly discovered fact exception to the time bar due to the

U.S. Supreme Court’s decision in Williams. See Order Granting Motion for

Discovery, 4/28/17, at n.1. It then permitted Abu-Jamal to amend the petition

based on discovery provided by the Commonwealth during these proceedings.

However, after the amended petition was filed, the PCRA correctly determined

that the claims under Williams did not merit relief. Furthermore, for the

reasons stated below, we determine that the claim of bias, based upon the

1990 letter, was untimely.

It is undisputed that Abu-Jamal raised the issue of then-District Attorney

Castille’s 1990 letter within 30 days of its discovery in the PCRA court, albeit

not by a pleading. See Letter, 10/19/17, at 3. It is also undisputed that Abu-

Jamal raised a claim asserting that the 1990 letter established an appearance

of Justice Castille’s bias in his amendment to his fifth PCRA petition. See

Amended PCRA Petition, 7/9/18, at ¶ 5.b.

Under the circumstances of this case, we need not reach the issue of

whether the PCRA Court’s earlier order gave Abu-Jamal additional time to file

the amended petition, as we conclude that he is due no relief pursuant to the

1990 letter. While the 1990 letter to the governor is evidence of a request by

then-District Attorney Castille for the issuance of a death warrant to facilitate

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and advance collateral review of death penalty cases, it is not equivalent to

the evidence our jurisprudence has recognized as sufficient to require

disqualification of a judge due to the appearance of impropriety.

Abu-Jamal was required to plead and prove the applicability of the newly

discovered evidence exception. See Commonwealth v. Blakeney, 193 A.3d

350, 364 (Pa. 2018). To do this, he was obligated to prove that the newly

discovered fact that supports his claim for relief was previously unknown. See

id., at 365. An implied pre-requisite of this burden is that the newly discovered

fact supports the legal claim presented. See, e.g., id., at 367 (“The question

for timeliness purposes is whether the newly-discovered facts form a predicate

for the underlying claim”).

This is the point at which the PCRA court erred. The PCRA court held

that the 1990 letter formed a predicate to Abu-Jamal’s claim that there was

an unacceptable appearance of impropriety when Justice Castille sat in

judgment of Abu-Jamal years later. A review of the legal contours of Abu-

Jamal’s claim reveals the PCRA court’s error.

Our courts have long recognized that the mere appearance of

impropriety, even in the absence of actual prejudice, is a sufficient basis to

require a judge to recuse from hearing a particular case. See

Commonwealth v. Darush, 459 A.2d 727, 731 (Pa. 1983). Where a Judge’s

impartiality may be reasonably questioned, she must recuse herself. See In

Interest of McFall, 617 A.2d 707, 713 (Pa. 1992). “The party who asserts

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that a trial judge must be disqualified bears the burden of producing evidence

establishing bias, prejudice or unfairness necessitating recusal.”

Commonwealth v. Lemanski, 529 A.2d 1085, 1088 (Pa. Super. 1987)

(citation omitted).

Our case law has recognized several ways a litigant can establish that a

judge should be disqualified due to the appearance of impropriety. First, a

litigant can establish that the jurist can reasonably be considered to harbor a

personal bias against the litigant. See Darush, 459 A.2d at 732 (requiring

disqualification of sentencing judge who could not refute an allegation that he

had said “[w]e want to get people like him [appellant] out of Potter County”);

see also Commonwealth v. Bryant, 476 A.2d 422, 424 (Pa. Super. 1984)

(recognizing allegation that trial judge had pre-determined appellant’s

sentence in prior cases for political purposes could be basis for

disqualification).

Here, we have little trouble in concluding that the 1990 letter to the

governor does not even arguably support a conclusion that Justice Castille

harbored a personal bias against Abu-Jamal. We agree with the PCRA court

that “there is no evidence that a policy to expedite death warrants was

implemented to target” Abu-Jamal. PCRA Court Opinion, 12/27/2018, at 19.

By Abu-Jamal’s “own admission, [his] case was not ripe for the issuance of a

death warrant at the time this alleged policy to expedite death warrants was

being developed by Mr. Castille as District Attorney[.]” Id.

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Further, the 1990 letter was dated June 15th. At that time, Abu-Jamal’s

direct appeal was still pending before the Supreme Court of the United States.

See Abu-Jamal v. Pa., 498 U.S. 881. As such, Abu-Jamal was not even in

the class of litigants that District Attorney Castille was referencing in the letter.

The 1990 letter therefore cannot create a reasonable inference that Justice

Castille was personally biased against Abu-Jamal.

A second method involves establishing that the jurist could reasonably

be considered to have a personal interest in the outcome of the litigant’s case.

See McFall, 617 A.2d at 713. In McFall, the Federal Bureau of Investigation

caught a Common Pleas judge accepting a bribe from a litigant. See id., at

711. The judge agreed to become an undercover agent for the FBI in exchange

for a promise that the FBI would reveal her undercover status to any

prosecutor who later sought to charge her with accepting a bribe. See id. The

judge continued to act as a jurist in criminal cases for approximately nine

months. See id. Her cooperation with the FBI was not disclosed to any party

who appeared before her. See id.

After her cooperation was publicly disclosed, 29 litigants who had

appeared before the judge sought to nullify all judicial actions she had taken

while she was cooperating with the FBI. See id. The Supreme Court of

Pennsylvania concluded the litigants had established an appearance of

impropriety and ordered new proceedings for the litigants before a different

judge:

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[The Judge’s] potential prosecutors were the very individuals that

appeared before her to prosecute [the 29 litigants.] … One could

reasonably assume that, under the circumstances, [the Judge’s]

cooperation with the United States Attorney’s office cast her in the

role of a confederate of the prosecutors in the appellees’ cases.

The disturbing factor is not [the Judge’s] cooperation alone, but

rather the benefit she expected would derive from her

cooperation. Her agreement, whether coerced or formed under

her own free will, presents a situation palpably creating a

circumstance where she would have an interest in the outcome of

the criminal cases tried before her.

Id., at 711-713 (paragraphing omitted).

We conclude the 1990 letter cannot create a reasonable inference that

Justice Castille had a personal interest in the outcome of the litigation. There

is no evidence that Castille had ever personally participated in the prosecution

of Abu-Jamal:

By way of background, appellant was tried and convicted of the

first degree murder of Philadelphia Police Officer Daniel Faulkner

in 1982. Although [Castille] was employed as an Assistant District

Attorney in 1982, [he] did not personally prosecute or otherwise

participate in appellant's trial or his direct appeal. [He] resigned

from [his] position as an Assistant District Attorney shortly after

appellant filed his notice of appeal from his sentence of death and

did not return to the Philadelphia District Attorney's Office until

[he] was sworn in as District Attorney in January of 1986. At that

time, appellant's direct appeal was still pending before the

Supreme Court [of Pennsylvania].

…

[D]espite [his later election to the] position as District Attorney

while his appeal was pending, [he] did not participate personally

in the Office's appellate response to [Abu-Jamal’s] appeal or

otherwise gain knowledge of information exclusively within the

control of the District Attorney's Office by virtue of [his] position.

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Commonwealth v. Abu-Jamal, 720 A.2d 121, 122-23 (Pa. 1998). Further,

there is no allegation that District Attorney Castille approved the decision to

seek the death penalty against Abu-Jamal. Accordingly, we conclude the 1990

letter cannot support a claim that Justice Castille had a personal interest in

the outcome of any of Abu-Jamal’s appeals.

A third way we have recognized for establishing an appearance of

impropriety is showing that a jurist has a bias against a particular class of

litigants. See Lemanski, 529 A.2d at 1088. In Lemanski, the appellant was

charged with possession and manufacture of marijuana. See id., at 1087.

Prior to trial, he moved for disqualification of the trial judge based upon the

judge’s history of improper sentencing in drug cases. After his motion was

denied, a jury convicted him of both charges.

On appeal, the appellant highlighted the trial judge’s history of having

sentences reversed for failing to properly apply the sentencing guidelines. See

id., at 1088. Further, the appellant noted “comments from the bench and in

a local newspaper interview where [the trial judge] candidly expressed both

his displeasure with the Sentencing Guidelines and his opinion that in all drug

cases the maximum penalty should be imposed.” Id.

This Court concluded the appellant had established an appearance of

impropriety based on a bias against drug offenders:

The record before us indicates a predetermined policy with respect

to sentencing drug offenders and we thus find that appellant has

adequately supported his allegations of personal bias against a

“particular class of litigants.” We also are of the opinion that the

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personal bias alleged was of such nature and intensity so as to

prevent [appellant,] once convicted, from obtaining a sentence

uninfluenced by the court’s prejudgment of drug offenders

generally.

Id., at 1089.

Here, the critical point is that the 1990 letter precedes Justice Castille’s

election to the Supreme Court of Pennsylvania, and therefore, his transition

to the role of a jurist. In Lemanski, the evidence raising a reasonable

inference that the judge was biased against a class of litigant included

statements made by the judge while serving as a jurist. See id., at 1088.

Similarly, in Bryant, the statements evidencing bias were allegedly uttered

while the judge was serving as a jurist. See id., at 424.

In fact, our Supreme Court has been careful to avoid creating a

prophylactic rule that would disqualify all prosecutors from ever acting as a

jurist in cases involving defendants they had previously prosecuted. See

Darush, 459 A.2d at 731-32. “Absent some showing of prejudgment or bias

we will not assume a trial court would not be able to provide a defendant a

fair trial based solely on prior prosecutorial participation.” See id., at 731.

The 1990 letter is not evidence of prior prosecutorial participation. It is

evidence that while acting as an advocate, District Attorney Castille took a

policy position to advance completion of the appellate process for convicted

murderers: “I very strongly urge you immediately to issue death warrants in

each and every one of these cases. Only such action by you will cause these

cases to move forward in a legally appropriate manner.” He was not arguing

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that the law should be changed or should be ignored. Rather, he simply took

a position to facilitate collateral review of death sentences which was

subscribed to by many prosecutors at the time.

District Attorney Castille wrote the 1990 letter while acting as an

advocate, not as a jurist. Almost all jurists can have their impartiality

questioned as generally, they served as legal advocates before assuming the

role of a jurist. Mere advocacy of applying existing laws and procedures, such

as that contained in the 1990 letter, cannot create an unacceptable

appearance of impropriety. As a result, the 1990 letter is incapable of

supporting a claim that there was an unacceptable appearance of impropriety.

Additionally, we note the allegation that Justice Castille was possibly

biased against appellants like Abu-Jamal is hardly a surprising new discovery:

To the contrary, as proven by other capital defendants who have

been raising recusal claims since long before the death penalty

authorization memorandum in Williams was discovered and the

decision in that case was handed down, those materials were

wholly unnecessary to support a recusal claim, as they only

validated a previously known fact.

Reid, 235 A.3d at 1153 (citation omitted). In fact, Abu-Jamal himself

challenged the propriety of Justice Castille sitting a jurist on Abu-Jamal’s

appeals more than 20 years ago. See Commonwealth v. Abu-Jamal, 720

A.2d 121 (Pa. 1998). In this light, the 1990 letter, while distinguishable from

the death penalty authorization at issue in Reid and Williams, is still nothing

more than “yet another conduit for the same claim” of bias against former

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Justice Castille. Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1269 (Pa.

2008). It therefore cannot qualify as a newly discovered fact. See id.

As we determine the 1990 letter cannot be a predicate for a claim of an

unacceptable appearance of impropriety, we conclude the PCRA court did not

have jurisdiction to restore Abu-Jamal’s appellate rights nunc pro tunc. We

therefore quash this appeal as untimely. Other than the Commonwealth’s

application to file sur reply brief, which we deny, we offer no opinion on the

validity of the pending applications in this appeal, as we have no jurisdiction

to decide them.

Appeal quashed. The Commonwealth’s application to file sur reply brief

denied. Appellant’s application for remand and application to expedite remand

denied as moot. Maureen Faulkner’s applications to intervene denied as moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/26/2021

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