Commonwealth v. Fears, L., Aplt.

[J-61-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 781 CAP
:
Appellee : Appeal from the Order dated May
: 16, 2019 in the Court of Common
: Pleas, Allegheny County, Criminal
v. : Division at Nos. CP-02-CR-
: 0008705-1994, CP-02-CR-009095-
: 1994 and CP-02-CR-0009201-1994.
LEROY FEARS, :
: SUBMITTED: July 7, 2020
Appellant :

OPINION IN SUPPORT OF AFFIRMANCE

JUSTICE MUNDY DECIDED: May 18, 2021
In this capital case, Appellant Leroy Fears appeals from an order of the Court of

Common Pleas of Allegheny County denying relief pursuant to the Post-Conviction Relief

Act, 42 Pa.C.S. §§ 9541- 9546 (“PCRA”). We consider whether the circulation of

inappropriate emails by former members of this Court during the consideration of

Appellant’s direct and post-conviction appeals constitutes a deprivation of Appellant’s

constitutional rights. We conclude it does not.

I. Background

On December 8, 1994, Appellant pled guilty to one count of first-degree murder,

one count of corruption of minors, and two counts each of involuntary deviate sexual

intercourse and abuse of a corpse. A penalty hearing was conducted on February 2,

1995, at the conclusion of which Appellant was sentenced to death. Appellant appealed

his sentence for reasons unrelated to his current petition. In 2004, this Court affirmed his
judgment of sentence. Commonwealth v. Fears, 836 A.2d 52, 56-58 (Pa. 2004), cert.

denied, 535 U.S. 1141 (2005).

Subsequently, Appellant filed his first counseled petition pursuant to the PCRA.

Appellant set forth claims regarding, inter alia, trial counsel’s ineffectiveness, the

voluntariness of Appellant’s jury trial waiver, and violations of his due process rights. See

Commonwealth v. Fears, 86 A.3d 795 (Pa. 2014). The PCRA court denied Appellant’s

claims, and he appealed. This Court denied Appellant’s requested relief on February 19,

2014. Relevantly, Justice Eakin authored the majority opinion, and was joined by Justices

Baer, Todd, McCaffery, and Stevens.1

Following the conclusion of Appellant’s direct and collateral appeals, news

accounts revealed that Justice Seamus McCaffery was involved in circulating

inappropriate emails with members of the Office of the Attorney General (“OAG”). 2 The

emails were discovered during an investigation conducted by former Attorney General

Kathleen Kane regarding an unrelated matter. The emails sent and received by then-

Justice McCaffery included images that contained demeaning portrayals of various

segments of the population, in addition to emails comprised of crude language on

sensitive subject matters. Justice McCaffery retired from his service on this Court in

October 2014.

Thereafter, Justice Michael Eakin was implicated in the scandal. In October 2015,

the Philadelphia Inquirer reported that media outlets had come into possession of multiple

emails from Justice Eakin’s private email account. The emails had been in the possession

1 Chief Justice Castille concurred in the decision, and then-Justice Saylor dissented.
2 See Karen Langley, High Court Justice Sent Emails with Explicit Content, Pittsburgh
Post Gazette (Oct. 2, 2014), https://www.post-gazette.com/news/state/2014/10/02/
Pennsylvania-environmental-secretary-resigns-amid-email controversy/
stories/201410020392

[J-61-2020] - 2
of the OAG, which obtained them when they were sent to the official email addresses of

several OAG employees with whom Justice Eakin communicated informally. 3 The

Inquirer detailed the content of several of the emails, many of which referenced race,

religion, gender, sexual orientation, ethnicity, or class. 4 An October 30, 2015 report by

the Special Counsel further described many of the emails. Report of the Special Counsel

Regarding the Review of Justice Eakin’s Personal Email Communications, Joseph A. Del

Sole, Oct. 30, 2015. It specified that Justice Eakin did not send many of the racist or

discriminatory emails, although he received a substantial number of them. Id. at 13. The

emails that originated from Justice Eakin were characterized as “insensitive, chauvinistic

and offensive to women.” Id. The Special Counsel included in its report that the emails

were repugnant in the eyes of the public. Id. at 24.

On February 8, 2016, Appellant filed the current PCRA petition, his second. 5

Appellant claimed Justice Eakin’s emails demonstrated judicial bias, asserting they

mocked minorities, victims of sexual abuse, and those involved with the criminal justice

system, as well as containing homophobic content. Petition, 2/08/2016, at 15-18.

Appellant alleged the emails directly related to Justice Eakin’s ability to fairly adjudicate

his case since Appellant, who is African-American, was sexually abused as a child. Id.

at 16.

3 Justice Eakin resigned from this Court on March 15, 2016.
4William Bender, A Supreme Court Justice’s Indecent Inbox, The Philadelphia Inquirer
(Oct. 8, 2015), https://www.inquirer.com/philly/news/20151008_A_
Supreme_Court_justice_s_indecent_inbox.html
5In 2014, Appellant filed a petition for writ of habeas corpus in the Western District of
Pennsylvania. Appellant alleged various claims of ineffective assistance of counsel and
constitutional violations. Following Appellant’s filing of the instant petition, Appellant
agreed to stay the federal habeas matter pending the resolution of this petition.

[J-61-2020] - 3
 After filing his initial, counseled petition, Appellant wished to temporarily suspend

his representation and proceed pro se. Following a hearing, the PCRA court determined

Appellant adequately waived his right to representation and appointed Attorney Michael

Machen as standby counsel. Hearing, 6/19/2018, at 9.

Appellant proceeded to file a series of amended petitions. In his first amended

petition, he alleged Justice Eakin demonstrated an unconstitutional bias against groups

with which Appellant identified through Justice Eakin’s failure to actively participate in the

Attorney General’s investigation. Amended Petition, 7/31/18, at 2-6. Approximately one

month later, Appellant again amended his petition to include the same claims of judicial

bias against Justice McCaffery. Amended Petition, 9/21/18, at 2-7. As a result of Justice

Eakin and Justice McCaffery’s actions, Appellant argued the panel deciding his direct

appeal and first amended PCRA petition was imbued with an insurmountable structural

defect, which rendered these proceedings fundamentally unfair. Id. at 22 (citing Johnson

v. United States, 520 U.S. 461 (1997)). Thus, Appellant alleged the proceedings violated

his state and federal constitutional right to due process. Id. at 20 (citing Tumey v. Ohio,

273 U.S. 510, 532 (1927)).

Lastly, in a document Appellant labeled as a supplement to his petition, Appellant

argued the constitutionality of the death penalty under Pennsylvania law. Supplemental

Petition, 8/17/18, at 2. Specifically, Appellant cited to the findings contained in the Joint

State Government Commission’s Report (“JSGC Report”) to argue the death penalty

violated Article I, Section 13 of the Pennsylvania Constitution. Id. at 11-34. As a result

of the aforementioned arguments, Appellant’s requested relief included, inter alia, the

vacatur of his guilty plea and death sentence, and an order for a new trial and/or

sentencing proceeding. Id. at 23. In acknowledgment of his facially untimely petition,

Appellant alleged both avenues of relief relied on newly discovered facts, and thus

[J-61-2020] - 4
qualified under the same exception to the PCRA’s timeliness requirement. Id. at 12 (citing

42 Pa.C.S. § 9545(b)(1)(ii)).6

On October 1, 2018, the Commonwealth filed an answer to the petition, conceding

the timeliness of Appellant’s pleading, but refuting his claim of judicial bias. Specifically,

the Commonwealth argued the Court of Judicial Discipline found that Justice Eakin’s

actions did not prejudice the administration of justice in any of the cases with which he

was involved, and thus could not form the basis of a judicial bias claim. Commonwealth

Answer at 13 (citing In re Eakin, 150 A.3d 1042 (Pa. Ct. Jus. Disc. 2016)). It pointed out

Justice Eakin was one of a number of justices to participate in the resolution of Appellant’s

case, and was joined by others in his majority opinion regarding Appellant’s first PCRA

petition. Id. at 14. Lastly, the Commonwealth asserted Justice Eakin’s involvement was

mainly limited to receiving emails, which does not per se establish the presence of bias.

Id. (citing Commonwealth v. Shannon, 184 A.3d 1010 (Pa. Super. 2018)).

6 At the time Appellant filed his second PCRA petition, Section 9545(b) provided 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.
...
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60
days of the date the claim could have been presented.
42 Pa.C.S. § 9545(b).

[J-61-2020] - 5
 On March 29, 2019, the PCRA court filed a notice of its intention to dismiss

Appellant’s PCRA petition without an evidentiary hearing pursuant to Pa.R.C.P. 907.

Appellant filed a response to the court’s notice, which was subsequently denied. The

PCRA court dismissed Appellant’s petition on May 16, 2019. Appellant filed a timely

notice of appeal to this Court. In his concise statement, which Appellant filed on August

7, 2019, he raised the following claims verbatim:

1. This court has jurisdiction under 42 Pa.C.S. § 9545(b)(1) to address
the substance of my claims.

2. My judicial bias claim was timely under 42 Pa.C.S. § 9545(b)(1). This
court’s summary dismissal of my amended and supplemental petitions
without a hearing violated my due process and equal protection rights
where my claim was first filed within 60-days of when the facts
supporting the claim were publically [sic] revealed in the Judicial
Conduct Board complaint filed against Justice Eakin. In re J. Eakin, 13
JD 2015.

3. My judicial bias claim based on the email scandal was not frivolous.
Justice Eakin was a party to emails which revels [sic] an inappropriate
bias against African American person, gay persons, victims of domestic
violence and persons involved in the criminal justice system. As a result,
I did not receive a fair adjudication of my direct and post-conviction
appeals, in violation of the Sixth, Eighth, and Fourteenth Amendments
to the U.S. Constitution, and Article 1, §§ 9 & 13 of the Pennsylvania
Constitution.

4. My judicial bias claim is based on the Join [sic] State Government
Commission’s report regarding the death penalty (Capital Punishment
in Pennsylvania: The Report of the Task Force and Advisory Committee,
June 2018), was timely under the newly discovered facts and
supplemental petitions without a hearing violated my due process and
Sixth Amendment rights where my claim was filed within 60 days of
when the facts supporting the claim were publically revealed in the
report.

5. My claim based on the Join [sic] State Government Commission’s
report regarding the death penalty (Capital Punishment in Pennsylvania:
The Report of the Task Force and Advisory Committee, June 2018) was
not frivolous. Pennsylvania’s capital punishment system is broken and

[J-61-2020] - 6
 violates Article I, Section 13 of the Pennsylvania Constitution and the
Eighth Amendment to the United States Constitution.

6. The court violated my due process rights by not allowing for discovery.
Rule 1925(b) Statement, 9/07/2019.

On October 2, 2019, the PCRA court filed its Rule 1925(a) statement. In regards

to the timeliness of Appellant’s petition, the court found it satisfied the requirements of the

newly discovered fact exception. PCRA Ct. Op., 10/02/2019, at *6. Citing

Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), the court stated the exception set

forth in Section 9545(b)(1)(ii) “does not require any merits analysis of the underlying

claim.” Id. at *4. Without further examination, the PCRA court concluded that “[Appellant]

has demonstrated that his instant PCRA petition was timely filed within the exception to

the one-year requirement under the newly discovered evidence requirements, and was .

. . timely filed within the 60-day period following the discovery of new facts.” Id. at *5.

Despite finding the petition timely, the court concluded Appellant’s collateral claims

regarding Justice Eakin’s emails were ultimately meritless under the after-acquired

evidence provision of the PCRA statute. The court relayed that pursuant to Section 9543,

which governs a petitioner’s eligibility for relief on the merits, relief may be owed to a party

where a litigant demonstrates, by a preponderance of the evidence, that the evidence:

“(1) could not have been obtained prior to the conclusion of trial by the exercise of

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used

solely to impeach the credibility of a witness; and (4) would likely result in a different

verdict if a new trial were granted.” Id. at *5 - *6 (citing 42 Pa.C.S. § 9543(a)(2)(vi);

Commonwealth v. Pagan, 950 A.2d 270 (Pa. Super. 2008)). Specifically, the court

concluded Appellant did not satisfy the fourth prong since he failed to demonstrate “the

judicial bias would have altered the outcome of any of his proceedings, including the direct

appeal of his initial PCRA petition.” Id. at *8. The PCRA court relied on the fact that

[J-61-2020] - 7
independent sources had concluded there was no evidence that Justice Eakin ever

demonstrated overt bias in his written opinions, and had decided each case in accordance

with the facts and the law. Id. at *8.

II. Jurisdiction

This matter is properly before this Court pursuant to 42 Pa.C.S. § 9546(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.”). However,

in order to evaluate the merits of Appellant’s claim, we must first have jurisdiction over

the matter. See 42 Pa.C.S. § 9545. Without jurisdiction, we are unable to consider the

merits of Appellant’s argument. See Commonwealth v. Fahy, 737 A.2d 214, 220 (Pa.

1999) (holding that where a party fails to satisfy the PCRA time requirements, this Court

has no jurisdiction to entertain the petition). Should Appellant establish jurisdiction, we

then consider whether the PCRA court’s ruling is supported by the record and free from

legal error. Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007). We review the

PCRA court’s legal conclusions de novo. Commonwealth v. Williams, 196 A.3d 1021 (Pa.

2018).

III. The Parties’ Arguments

As we glean from Appellant’s submitted brief, he contests the PCRA court’s

decision because it deprived him of impartial judicial review by an unbiased panel of this

Court. Appellant contends Justice Eakin’s email account and the contents therein

evidence the Justice’s inability to decide cases impartially, including Appellant’s. 7

Further, he argues the PCRA court erred in requiring he demonstrate actual bias in

satisfaction of the after-acquired evidence provision of the PCRA statute, claiming only

7At various points in his brief, Appellant suggests his direct appeal was also impartially
decided. Appellant’s direct appeal was written by Chief Justice Cappy and decided in
2004, which was before Justice McCaffery joined the Court.

[J-61-2020] - 8
the appearance of bias is required. He further states the court erred in determining that

the evidence of Justice Eakin’s email account would not have changed the outcome of

any of his proceedings, including his direct appeal.

Citing Williams v. Pennsylvania, 136 S.Ct. 1899 (2016), Appellant contends Justice

Eakin’s alleged bias resulted in a structural defect in the adjudication of his case. In

support of this argument, Appellant again restates the content of Justice Eakin’s email

account, and the subject matter contained therein. Lastly, Appellant questions the PCRA

court’s reliance on special counsel’s determination regarding the presence of bias in

Justice Eakin’s decisions.

Similarly, Appellant also contends a deprivation of his constitutional rights based

on judicial bias stemming from Justice McCaffery’s email scandal. Appellant claims

Justice McCaffery’s email activity demonstrates his inability to decide the cases before

him in an objective and fair manner. In support of his claim, Appellant details the contents

of several emails discovered during the investigation into Justice McCaffery’s account.

Appellant argues a “heightened reliability standard” applies in death penalty cases, and

that under this standard, he did not receive a fair determination based on the Justices’

biases. As a result of this alleged judicial bias, Appellant claims this Court violated his

due process rights pursuant to the Constitutions of the United States and this

Commonwealth.

Appellant further contests the PCRA court’s decision, claiming he was precluded

from viewing the contents of Justice Eakin and Justice McCaffery’s email accounts that

were not released to the public. He implicates standby counsel’s actions, claiming

counsel’s alleged refusal to assist to him in reviewing the material.

Lastly, Appellant disputes the propriety of the death penalty in Pennsylvania. In a

lengthy passage spanning nearly twenty-five pages, Appellant discusses the findings

[J-61-2020] - 9
contained in the JSGC Report.8 Appellant claims the JSGC Report demonstrates that

Pennsylvania’s capital punishment system is unconstitutional and arbitrarily imposed.

In response, the Commonwealth argues that the PCRA court correctly decided that

Appellant failed to prove he is due any relief, as he fails to demonstrate Justice Eakin’s

emails constitute after-acquired evidence within the parameters of the PCRA statute.9

Commonwealth’s Brief at 23 (citing Commonwealth v. Pagan, 950 A.2d 270 (Pa. Super.

2008) (“In order to obtain relief based on after-acquired evidence, Appellant must

demonstrate that the evidence: (1) could not have been obtained prior to the conclusion

of the trial by the exercise of due diligence; (2) is not merely corroborative or cumulative;

(3) will not be used solely to impeach the credibility of a witness; and (4) would likely result

in a different verdict if a new trial were granted.”)). Specifically, the Commonwealth

asserts that Appellant failed to show there was any unconstitutional bias during the course

of his first PCRA appeal that would have changed its outcome. It argues that for the most

part, Justice Eakin passively received emails rather than participated in sending them.

The emails that he did send contained no racial animus or otherwise. It notes that only

two emails sent by Justice Eakin even mention race, but asserts that mention of the topic

does not prove animus. Commonwealth’s Brief at 28 (citing In re Eakin, 150 A.3d 1042,

1048 (Pa. Ct. Jus. Disc. 2016)).

8“Capital Punishment in Pennsylvania: The Report of the Task Force and Advisory
Committee,” Joint State Government Commission Report, June 2018.
9 The Commonwealth concedes Appellant meets the jurisdictional requirements of the
PCRA statute pursuant to Section 9545(b)(1). According to the Commonwealth,
Appellant satisfies the exception to the time bar because his petition was based on the
newly-discovered fact of Justice Eakin’s emails—facts which were neither known nor able
to be ascertained by the exercise of due diligence. Since Appellant filed his PCRA petition
within sixty days of December 8, 2015, the date the disciplinary complaint was filed
against Justice Eakin, the Commonwealth asserts jurisdiction has been satisfied.

[J-61-2020] - 10
 Alternatively, even if the emails demonstrated bias, the Commonwealth asserts

that it does not follow that such bias affected Justice Eakin’s decisions. It claims that

Appellant has not presented any evidence of such bias in Justice Eakin’s jurisprudence,

as evidenced by his adherence to the facts and law of each case. Commonwealth’s Brief

at 32 (citing In re Eakin, 150 A.3d at 1060 (noting that the Judicial Conduct Board has not

produced any evidence that Justice Eakin has ever demonstrated any overt bias in his

written judicial opinions.)). The Commonwealth highlights the fact that Appellant has

provided no evidence that Justice Eakin exercised any bias while penning the majority

opinion in his first PCRA. Moreover, it points out, Justice Eakin was one of five Justices

who affirmed the lower court’s decision. Thus, if the decision had been biased, the

Commonwealth reasons the opinion would not have garnered a majority at all.

Next, the Commonwealth argues that Appellant’s claims regarding Justice

McCaffery’s alleged bias do not entitle him to relief, in part because they are waived, and

in part because of the same reasons Appellant’s previous claim fails. The Commonwealth

reiterates that it is unlikely that the decision in Appellant’s first PCRA case would have

been joined if it demonstrated any bias.

Based on the futility of Appellant’s preceding claims, the Commonwealth maintains

he was properly denied discovery. The Commonwealth asserts that he is not entitled to

discovery since he has failed to show any need for the compact discs containing Justice

Eakin’s or Justice McCaffery’s emails.

Lastly, the Commonwealth asserts that Appellant is not entitled to relief on his

claim regarding the constitutionality of the death penalty since it does not satisfy the

jurisdictional requirements set forth under the newly-discovered fact exception. It argues

that much of the information contained within the JSGC Report was within the public

domain before June 2018, or when Appellant claims he discovered it. Commonwealth’s

[J-61-2020] - 11
Brief at 51 (citing Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000) (asserting that publicly

available information does not constitute a newly discovered fact.)). Even assuming

arguendo that the Report passed jurisdictional muster, the Commonwealth argues its

admission either during trial or during Appellant’s first PCRA petition would not have

changed the outcome of his adjudication since the death penalty remains legal in

Pennsylvania.

IV. Analysis

A. Timeliness of Appellant’s Second PCRA Petition

Preliminarily, Appellant does not present a petition that meets the jurisdictional

requirements of this Commonwealth’s PCRA statute.10 Specifically, Appellant fails to

present a “fact” that meets the jurisdictional requirements of our PCRA statute, and fails

to set forth any information regarding the statute’s due diligence requirement.

As we have stated before, to be eligible for post-conviction relief, a party must

prove by a preponderance of the evidence that his conviction or sentence resulted from

one of the statute’s enumerated circumstances, see 42 Pa.C.S. § 9543(a)(2), and that

the issues have not been previously waived, id. § 9543(a)(3). A PCRA petition, including

a second PCRA petition, must be filed within one year of a final judgment, unless a party

pleads and proves he is entitled to one of the exceptions to the general rule. 42 Pa.C.S.

§ 9545(b). This limitation is jurisdictional. Commonwealth v. Bennett, 930 A.2d 1264

(Pa. 2007). As stated above, Appellant claims his petition is timely under our collateral

relief statute pursuant to Section 9545(b)(1)(ii). Accordingly, appellant is charged with

establishing “1) the facts upon which the claim is predicated were unknown and 2) could

10 This Court is entitled to consider jurisdictional questions sua sponte. See e.g., DEP v.
Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 646 (Pa. 2011) (“The question whether a
court has jurisdiction . . . may be raised at any time in the course of the proceedings,
including by a reviewing court sua sponte.”).

[J-61-2020] - 12
not have been ascertained by the exercise of due diligence.” Bennett, 930 A.2d at 1272

(italics in original). If a petitioner can establish both components, then jurisdiction over

the matter may be exercised. Commonwealth v. Blakeney, 193 A.3d 350 (Pa. 2018).

Without jurisdiction, this court does not have the legal authority to address substantive

claims. See Commonwealth v. Cox, 146 A.3d 221, 226 (Pa. 2016) (“a court may not

address the merits of any claim raised unless the petition was timely filed or the petitioner

proved that one of the three exceptions to the timeliness requirement applies”);

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008) (“The PCRA’s

timeliness requirements are jurisdictional in nature and must be strictly construed; courts

may not address the merits of the issues raised in a petition if it is not timely filed.”).

While the law provides that Appellant need not provide a nexus between the newly

discovered fact and his conviction, he still must provide a connection between the fact

and his underlying claim. See Bennett, supra, at 1273; see also Commonwealth v.

Robinson, 204 A.3d 326, 354 (Pa. 2018) (Dougherty, J. OISA) (“While I appreciate the

test for application of when newly-discovered facts will overcome the PCRA time bar

prohibits a merits analysis, the test does require that the claim be predicated on previously

unknown facts.”).11 Appellant fails to meet his burden, as he does nothing more than set

forth vague claims of various types of bias that allegedly permeated the review of his

11 The Opinion in Support of Reversal (OISR) submits that our analysis here imposes a
heightened nexus requirement, under which we effectively engage in a merits-based
inquiry. OISR at 12. As we have stated before, a petitioner bears the burden of proving
the applicability of one of the timeliness exceptions. Commonwealth v. Pursell, 749 A.2d
911, 914 (Pa. 2000). Moreover, whether a petitioner has carried his or her burden is a
threshold inquiry prior to considering the merits of any claim. See Commonwealth v.
Beasley, 741 A.2d 1258, 1261 (Pa. 1999). Thus, we require Petitioner prove the new
“fact” (i.e., offensive emails displaying cultural biases which implicate his case) upon
which his claim is predicated. See e.g., Commonwealth v. Blakeney, 193 A.3d 350, 367
(Pa. 2018).

[J-61-2020] - 13
direct and collateral appeals. Appellant essentially proposes the unsavory nature of

Eakin’s email account per se establishes his underlying claims regarding the violation of

his Constitutional rights. However, upon a careful evaluation of the sources cited by

Appellant, support for his claim falls short. Appellant attempts to maintain his burden by

citing to the Judicial Conduct Board opinion and Special Counsel report. Both renderings

determined that Justice Eakin did not send any emails implicating the topics alleged by

Appellant, and received only a few emails invoking the invidious subject matter. As the

Commonwealth argues in its brief (though in a different portion than that addressing

timeliness), there is a profound difference between sending and receiving emails.

Commonwealth’s Brief at 26; See also Blakeney, 193 A.3d at 378 (“We should not

overlook the fact that the allegation of bias here is based on the receipt of an email[.]”).

The mere receipt of invidious emails “should not be elevated to a finding of the existence

of judicial bias as a material fact.” Commonwealth v. Blakeney, 193 A.3d 350, 378 (Pa.

2018) (Dougherty, J. OISA).

As has been reiterated before, the undesirable content of these emails does not

excuse a party from meeting the basic standards of this Commonwealth’s pleading

requirements. Id. at 367 (“Of course the emails are repugnant, but their mere existence

does not demonstrate the fact of bias.”). Even though our jurisdictional query is not (and

should remain separate from) an analysis of the merits, Appellant is still required to state

his claim and demonstrate how those issues will be proved. Commonwealth v. Rivers,

786 A.2d 923, 927 (Pa. 2001). Permitting a party to overcome the PCRA’s jurisdictional

requirements with such scant evidence predicating his claim of unconstitutional bias

weakens the exception, which this Court relies on to safeguard against groundless claims.

Moreover, Appellant fails to demonstrate he exercised due diligence in

ascertaining the very facts he asserts. In Commonwealth v. Reid, 235 A.3d 1124 (Pa.

[J-61-2020] - 14
2020), this Court evaluated the propriety of a PCRA petition filed well after the one year

timeline prescribed under the statute. Following the Supreme Court’s decision in Williams

v. Pennsylvania, 136 S.Ct. 1899 (2016), Reid, the appellant, claimed, inter alia, that

jurisdiction over his petition existed based on the newly discovered fact that Chief Justice

Castille, in his previous capacity as District Attorney, had authorized the trial prosecutor’s

request to seek the death penalty. Reid, 235 A.3d at 1149. Specifically, Reid claimed

this fact, to which the Commonwealth later conceded, created an impermissible risk of

actual bias that violated his Constitutional rights. Id. at 1148 (citing Williams, 136 S.Ct.

at 1905). This Court determined Reid did not meet his burden in establishing jurisdiction

because evidence of District Attorney Castille’s involvement in capital cases began

emerging as early as 1993, when articles divulging this information were publicly reported.

Id. at 1152. Since Reid failed to exercise due diligence in ascertaining the facts he alleged

predicated his claim, this Court determined he failed to satisfy the exception to the PCRA

time bar. Id. at 1153.

Similarly, Appellant fails to demonstrate he meets the requirements of due

diligence. In fact, Appellant sets forth no information regarding his ascertainment of the

information which he alleges. See Commonwealth v. Yarris, 557 Pa. 12, 731 A.2d 581,

590 (1999) (60 day requirement of section 9545(b)(2) not satisfied where defendant failed

to explain why alleged information could not, with the exercise of due diligence, been

obtained earlier); see also Commonwealth v. Breakiron, 781 A.2d 94 (Pa. 2001). Rather,

he merely asserts he timely filed his petition exactly sixty days after December 8, 2015,

or when the Judicial Conduct Board first filed a complaint against Justice Eakin. However,

the information upon which Appellant’s claims are predicated was ascertainable upon the

exercise of due diligence nearly two months before, or when the Philadelphia Inquirer

article was first published on October 8, 2015. Like Reid, Appellant at this point had

[J-61-2020] - 15
reason to question the propriety of his case in light of publicly available information.

However, Appellant did not, nor did he explain in his petition how or when he became

aware of any of the preceding information. He does not explain to this Court or the court

below how he was attuned to the Judicial Conduct Board’s court filings, and not a widely

publicized newspaper article concerning a topic of broad public importance.12

Confusingly, Appellant implicates only Justice Eakin’s emails in his bid for

jurisdiction. However, had Appellant attempted to establish jurisdiction by asserting the

revelation of Justice McCaffery’s email account as a newly discovered fact, our

determination would not have been altered. In such a situation, Appellant’s petition would

not have been filed within sixty days of the date his claim could have been presented,

considering the Judicial Conduct Board rendered a decision regarding the McCaffery

emails on October 20, 2014. See In re McCaffery, 430 Judicial Administrative Docket (Pa.

2014). Accordingly, based on the information Appellant sets forth, he has failed to

demonstrate that he has brought his claim within sixty days of when his claim “could have

been presented.” 42 Pa.C.S. § 9545(b)(2). Since Appellant fails to satisfy the

requirements of the newly discovered fact exception to the PCRA statute’s time bar, this

Court is unable to exercise its jurisdiction over his claims.

B. Merits of Appellant’s PCRA Claims

12 By asserting that we “implicitly [rely] upon the public record presumption,” the OISR
misses the import of this passage. OISR at 16. We do not charge Petitioner with the
knowledge of these records based upon their availability to the public. The OISR is
correct that such a requirement would be in violation of our holding in Commonwealth v.
Small, 238 A.3d 1267 (Pa. 2020). Rather, in finding Petitioner failed to establish
jurisdiction, we rely on the dearth of information provided by Petitioner regarding any
exercise of diligence at all. While the OISR would allow Petitioner a second chance to
include more of the right kind of information, we submit it is the responsibility of a petitioner
to plead the information upon which jurisdiction may be exercised and relief may be
afforded.

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 1. PCRA Court correctly determined Appellant’s claim did not satisfy the after-

acquired evidence rule.

While our inquiry could end based on the lack of jurisdiction, because this Court

has an established disagreement on the topic of jurisdiction, we will alternatively address

the merits of Appellant’s claims. See Commonwealth v. Blakeney, 193 A.3d 350 (Pa.

2018); see also Commonwealth v. Robinson, 204 A.3d 326 (Pa. 2018). We conclude the

PCRA court correctly determined Appellant’s claims do not warrant relief under our

collateral relief statute.13 As stated above, Appellant seeks to obtain relief as a result of

the information that came to light regarding Justice Eakin and Justice McCaffery’s email

accounts. In its 1925(a) statement, the PCRA court determined Appellant implicated the

after-acquired evidence basis for relief.14

In order to obtain relief under our PCRA statute, a party must demonstrate by a

preponderance of the evidence that his conviction or sentence resulted from several

stated bases of relief. See 42 Pa.C.S. § 9543(a)(2). Under Section 9543(a)(2)(vi), relief

may be due where a party demonstrates “the unavailability at the time of trial of

exculpatory evidence that has subsequently become available and would have changed

the outcome of the trial if it had been introduced.” In order to obtain relief based upon

exculpatory, after-discovered evidence, a party must demonstrate that: “(1) the evidence

has been discovered after trial and it could not have been obtained at or prior to trial

through reasonable diligence; (2) the evidence is not cumulative; (3) it is not used solely

13Appellant’s petition and brief before this Court are poorly drafted, particularly in the
manner in which he seeks to articulate discrete legal bases upon which relief may be
granted.
14 As this Court has noted before, this test for “after-acquired evidence” offers a
substantive basis for relief. It differs in form and function from the test outlined in the
previous section describing the “newly discovered fact” test, which provides an exception
to the jurisdictional time bar. See Commonwealth v. Bennett, 903 A.2d 1264, 1270-72
(Pa. 2007).

[J-61-2020] - 17
to impeach credibility; and (4) it would likely compel a different verdict.” Commonwealth

v. D’Amato, 856 A.2d 806, 832 (Pa. 2004).

On appeal from the dismissal of Appellant’s PCRA petition, our review is limited to

examining whether the trial court’s determination is supported by the evidence of record

and free of legal error. Commonwealth v. Ali, 86 A.3d 173, 177 (2014). Our review of

issues of law is de novo, and our scope of review is plenary. Commonwealth v. Jette, 23

A.3d 1032, 1036 (Pa. 2011).

We have little trouble concluding that the PCRA court properly dismissed

Appellant’s claims.15 Specifically, the court was correct in concluding that Appellant did

not demonstrate that the emails, or any alleged bias he purports they reflect, would have

altered the outcome of his proceedings. As the PCRA court aptly points out, Appellant

avers no facts that would have resulted in a different outcome in any of his proceedings.

The Court of Judicial Discipline found there was no evidence that Justice Eakin “in his

written judicial opinions, ever demonstrated any overt bias due to the race, gender,

ethnicity, or sexual orientation of a litigant or witness.” In re Eakin, 150 A.3d 1042, 1048

(Pa. Ct. Jus. Disc. 2016).

Even if we were to ignore the well-reasoned conclusions of the Court of Judicial

Discipline, a quick survey of Justice Eakin’s email account supports our conclusion. As

the Commonwealth points out and as discussed supra, Justice Eakin only participated in

sending a small number of emails. The overwhelming majority of emails implicated in this

incident were sent by others, including all of the emails containing the invidious subject

matter cited by Appellant. Though we do not condone participating in exchanging emails

15 This is not to say the PCRA court correctly assumed Appellant implicated the after-
acquired evidence basis for relief. In fact, after a review of Appellant’s PCRA petition, we
find no mention of relief on the basis of after-acquired evidence.

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of this ilk, this Court would be hard pressed to find any connection between the

inappropriate and offensive subject matter and Justice Eakin’s execution of his

responsibilities as a member of this Court.16

Moreover, the constraints of our post-conviction relief statute make it unlikely this

Court is able to grant Appellant’s requested relief. Under the PCRA statute, when

considering the propriety of affording relief based upon the alleged presence of after-

acquired evidence, we are limited to examining the effect of the evidence on the litigant’s

trial. Clearly, the fundamental timing requirement of our statute as specified by our

legislature precludes relief in Appellant’s case for multiple reasons. First, Appellant never

stood trial; rather, he entered an open guilty plea in February 1994. Second and most

critical is the fact that none of these emails were in existence at the time of Appellant’s

trial-level proceedings. The earliest known emails originated in 2008, which far postdates

the time during which Appellant’s case was in the guilt-determining phase.

Fundamentally, this avenue of relief remains inapplicable to the very facts which Appellant

16 The OISR argues that, for several enumerated reasons, the Judicial Conduct Board’s
review does not provide the right kind of information, and as a result, additional fact-
finding is necessary. OISR at 24. We disagree. First, the Judicial Conduct Board
examined “only” 943 emails because that’s exactly how many were submitted by the
Attorney General’s office. See JCB Compl., at 23, ¶ 64. Second, while the Board “only”
described a small portion of the emails submitted by the Attorney General’s office, OISR
at 25, it still examined the full panoply of emails and labeled them according to the
invidious subject matter which each demonstrated. Lastly, the CJD relied on a factual
recitation substantially similar to the one put together by the JCB because the parties
entered into a joint stipulation in lieu of trial. In re Eakin, 150 A.3d 1042, 1047 (Pa. Ct.
Jus. Disc. 2016) (“In addition to factual stipulations, the parties have also stipulated to the
authenticity and admissibility of all exhibits set forth in their respective pre-trial
memoranda . . ..”); see also Joint Stipulations of Fact in Lieu of Trial and Waiver of Trial,
2/22/16. We thus disagree with the assessment that “90% of the total number of emails
[were] excluded by choice from the CJD’s review.” OISR at 25. Rather, from our
perspective, the CJD relied upon the information submitted to it and agreed upon by the
parties, who evaluated and organized the information for efficient review. Unlike the
OISR, we are satisfied that an objective evaluation of any alleged bias can be (and has
been) determined. OISR at 25-26.

[J-61-2020] - 19
presents in his petition for relief and brief before this Court. Appellant makes no argument

otherwise, and does not attempt to reimagine Section 9545(a)(2)(vi) in a way that would

suggest it exists as a viable theory providing relief. Accordingly, we affirm the PCRA

court’s determination that Appellant does not establish he is due any relief based on the

after-acquired evidence rule under the PCRA statute.

2. Appellant’s claim does not warrant relief since neither his conviction nor

sentence resulted from any constitutional defect.

Notably, the PCRA court fails to address the viability of Appellant’s claim to relief

on the grounds of a constitutional violation during appellate review of his first PCRA

petition. Considering Appellant makes it a central part of his petition to contest the

constitutionality of the adjudication of his first PCRA appeal, we find it necessary to weigh

in on these claims. As stated above, Appellant argues his first PCRA petition was not

decided fairly as a result of judicial bias. Due to this alleged judicial bias during the

consideration of appellate review of his petition, Appellant claims a violation of his due

process rights under the United States Constitution, as well as the Constitution of this

Commonwealth.17 He claims the proper remedy includes but is not limited to: the vacation

of his guilty plea, a new trial/sentencing proceeding, or the nunc pro tunc reinstatement

of his ability to appeal prior post-conviction proceedings.18

17Appellant also confusingly implicates nearly every other constitutional right that has any
arguable relevance in a heading located in a section of his petition entitled “Claim for
Relief.” PCRA Petition, 2/08/16, at p. 15. However, Appellant only addresses the due
process clause and judicial bias claims substantively. Since Appellant does not include
any argument regarding any other constitutional clauses, we only address issues related
to the Fourteenth Amendment right to due process.
18 This is what we assume Appellant seeks in his prayer for relief, wherein he requests
relief in the form of “reopen[ing] post-conviction proceedings.” PCRA Petition, 2/08/16.
p. 23.

[J-61-2020] - 20
 Under our PCRA statute, relief may be due where a conviction or sentence results

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). The Fourteenth Amendment guarantees that

no state “shall . . . deprive any person of life, liberty, or property without due process of

law.” U.S. Const. XIV, Sec. 1. Due process concerns extend to the actions of the

judiciary; accordingly, litigants are guaranteed an absence of actual bias on the part of

any judge adjudicating their case. In re Murchison, 349 U.S. 133 (1955). The concept of

bias encompasses matters in which an adjudicator has “a direct, personal, substantial,

[or] pecuniary interest” in the outcome of the matter. Tumey v. Ohio, 47 S.Ct. 437, 441

(1927). While a fair trial is indeed “a basic requirement of due process,” Murchison, supra,

349 U.S. at 136, “most matters relating to judicial disqualification [do] not rise to a

constitutional level.” FTC v. Cement Institute, 333 U.S. 683 (1948). In order to determine

whether a judge harbors an unconstitutional level of bias, the inquiry is an objective one

wherein the requisite question is whether “the average judge . . . is likely to be neutral, or

whether there is an unconstitutional potential for bias.” Williams v. Pennsylvania, 136

S.Ct. 1899 (2016) (citing Caperton v. Massey Coal Co., Inc., 129 S.Ct. 2252 (2009)

(internal citations excluded)). The Supreme Court has determined that there is an

impermissible risk of actual bias when a judge has had “significant, personal involvement

. . . in a critical decision regarding [the litigant’s] case.” Williams, 126 S.Ct. at 1905.

[J-61-2020] - 21
 Even assuming Appellant is entitled to his requested relief,19 we are unable to

discern even a hypothetical basis upon which relief could be granted. Unlike in Williams,

where the High Court determined that Justice Castille’s20 previous involvement as a

prosecutor constituted a significant personal involvement, no one adjudicating Appellant’s

direct appeal or previous PCRA petition was involved in prosecuting this case. Justice

Eakin did not have any prior interaction with Appellant’s case prior to it being argued

before this Court. Moreover, Justice Eakin’s email account and the content contained

therein does not render him a biased jurist. His participation in the inappropriate email

activity had no bearing on his ability to fairly apply the law to the facts of Appellant’s case.

As stated above, an independent evaluation confirmed what should be a common sense

conclusion: that none of Justice Eakin’s written opinions contained any bias, and certainly

none that reached the levels of constitutional interference. In re Eakin, 150 A.3d 1042,

1048 (Pa. Ct. Jus. Disc. 2016). Thus, to the extent Appellant even attempts to litigate

this issue, we conclude Appellant would be unable to establish his right to collateral relief

under the theory that his conviction or sentence was the result of a constitutional defect.

3. Appellant is due no relief on his claim regarding the Joint State Government

Commission Report.

In his brief to this Court, Appellant lastly argues he is due relief under the PCRA

statute as a result of the findings contained within the JSGC Report. Notably, Appellant

does not include this argument in his petition for PCRA relief. Rather, he argues this for

the first time in a supplement to a petition, as noted supra. Thus, we find Appellant has

waived this argument based on his failure to properly plead this issue by seeking leave

19This Court has fiercely debated a lower court’s ability to grant nunc pro tunc relief in
response to an appellate court’s error. See Commonwealth v. Taylor, 218 A.3d 1275 (Pa.
2019), Commonwealth v. Koehler, 229 A.3d 915 (Pa. 2020).
20 Justice Castille was a member of this Court until his retirement in 2014.

[J-61-2020] - 22
to amend his petition. Pa.R.Crim.P. 905(A) (“The judge may grant leave to amend or

withdraw a petition for post-conviction collateral relief at any time.” (emphasis included)).

As is clear from our rules of criminal procedure, a party must seek leave to amend, as

amendments (or supplements) are not self-authorizing. See Commonwealth v. Porter,

35 A.3d 4, 12 (Pa. 2012); see also Commonwealth v. Baumhammers, 92 A.3d 708, 730

(Pa. 2014) (“[I]t is clear from the rule’s text that leave to amend must be sought and

obtained, and hence, amendments are not ‘self-authorizing’.”).

V. Conclusion

After a review of the PCRA court’s decision to dismiss Appellant’s claim without an

evidentiary hearing, we agree that the court did not err in its actions. Appellant is unable

to set forth a claim under the PCRA statute pursuant to which he is entitled to collateral

relief. First, Appellant does not establish jurisdiction over his claims regarding Justice

Eakin and Justice McCaffery’s emails. He is unable to provide a connection between the

facts he alleges and the Constitutional violations he claims they predicate, nor how he

obtained this information with due diligence. Regardless of Appellant’s ability to establish

an exception to the PCRA statute’s timeliness requirement, the PCRA court did not err in

dismissing his claims. Appellant fails to set forth any evidence he is due relief on his

conviction or sentence based on the presence of after-acquired exculpatory evidence, or

that his conviction resulted from a constitutional defect. Moreover, Appellant waives his

argument regarding the contents of the JSGC Report, as he improperly declined to seek

leave of the PCRA court in order to amend his petition. Accordingly, the PCRA court

correctly dismissed Appellant’s petition without affording any relief.21

21 Based on this Court’s decision regarding Appellant’s central petition, we dismiss as
moot Appellant’s outstanding ancillary application for sua sponte judgment, application to
clarify prayer for relief, application to supplement Appellant’s claim regarding the death
penalty’s constitutionality, application for post-submission communication pursuant to

[J-61-2020] - 23
 Justice Dougherty joins this Opinion in Support of Affirmance.

Pa.R.A.P. 2801(a) (sic), application for post-submission communication to strike
Appellee’s response brief, and motion for leave of court.

[J-61-2020] - 24