Commonwealth v. Porter

Justice BAER,

dissenting.

This Court resolved Appellant’s first PCRA petition in 1999. As the Majority observes, on August 16, 2002, Appellant filed his second PCRA petition, in which he challenged his death sentence under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (holding that it is unconstitutional cruel and unusual punishment to execute a mentally retarded person) (hereinafter the “Atkins petition”).1 On June 15, 2006, Appellant presented a third filing to the PCRA court, raising for the first time a claim premised on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (declaring that due process is offended when the prosecution withholds evidence favorable to the accused that would tend to exculpate him or reduce the penalty imposed). The question before the Court is whether the Brady claim was an amendment to the pending Atkins petition, or a separate and discreet PCRA petition. The Majority finds that the Brady claim was brought in a new PCRA petition. I view it as an amendment to the Atkins petition. Pursuant to my interpretation, this case involves the straight forward application of the final order doctrine. Because I believe that the order from which Appellant appealed was not a final order by virtue *546of its disposition of only the Brady petition and not the Atkins petition, I would quash the appeal. Thus, I dissent.

As the Majority explains, following our disposition of Appellant’s first PCRA petition in 1999, Appellant filed a federal habeas corpus petition in the U.S. District Court for the Eastern District of Pennsylvania. While this federal action was pending, Appellant began new litigation in state court with the filing of his Atkins petition. Thereafter, the federal district court granted Appellant sentencing relief premised upon a finding of instructional error, relying upon the Third Circuit’s precedent construing Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). The parties filed cross-appeals to the Third Circuit.

Meanwhile, the PCRA court decided to defer consideration of Appellant’s Atkins petition. Although the record does not demonstrate the precise basis for this action, it appears that Appellant’s counsel persuaded the PCRA court to defer consideration until the parties’ cross-appeals before the Third Circuit were resolved. Maj. Op. at 515-18, 35 A.3d at 8-9. While the Atkins petition was pending with disposition stayed, Appellant filed what he titled a “supplement and amendment” to it raising the Brady claim.

Appellant then returned to federal court and persuaded the Third Circuit to defer consideration of the pending cross-appeals from the federal district court’s finding of instructional error under Mills until the newly filed Brady claim was resolved in state court. Consequently, the PCRA court was deferring consideration of the Atkins petition pending resolution of the cross-appeals to the Third Circuit, the Third Circuit was deferring the cross-appeals pending resolution of the Brady claim in PCRA court.

The PCRA court, in due course, accepted written submissions on the Brady claim, heard argument, and found that it was untimely. On September 25, 2007, the PCRA court orally informed Appellant that his Brady claim was going to be dismissed without a hearing, and ruled that “[t]he petition is denied.” Maj. Op. at 518, 35 A.3d at 9. The parties and the *547PCRA court, however, expressed an understanding that an appeal from the denial of the Brady claim would not affect the trial court’s decision to hold the Atkins petition pending disposition of the parties’ cross-appeals to the Third Circuit. Consequently, the denial of relief on the Brady claim is now presented to us on appeal, while the Atkins claim remains unresolved and pending before the PCRA court, and the cross-appeals to the Third Circuit also remain pending.

The Majority raises serial justifications for its belief that Appellant’s Brady claim was raised in a separate PCRA petition notwithstanding that the Atkins petition was pending when the Brady claim was filed. First, the Majority reasons that amendments to pending PCRA petitions may only be permitted upon prior direction or leave of the PCRA court. Maj. Op. at 523, 35 A.3d at 12 (citing Pa.R.Crim.P. 905). Because Appellant did not request and receive leave to amend the Atkins petition, the Majority does not consider the Brady claim to be an amendment. Second, the Majority observes that the PCRA court treated the Brady claim as a separate petition, by virtue of its order dismissing “the petition.” The Majority proceeds to consider whether the PCRA court had the authority to dismiss the Brady “petition” while holding the Atkins petition in abeyance, and finds no impediment to such resolution.

I disagree with the Majority’s analysis for several reasons. First, with respect to the procedural requirement that a petitioner who wishes to amend a pending PCRA petition must first seek and obtain leave of court, see Pa.R.Crim.P. 905, the Majority apparently views an amendment filed without prior approval by the PCRA court necessarily to be a new petition. Notably, the Commonwealth never objected to the filing of the Brady claim and there is no indication that the PCRA court focused on this issue. It does not follow that because Appellant did not seek permission to amend, the Commonwealth did not object to this failure, and the trial court did not recognize the procedural irregularity, that the filing is a new petition. Just as the Majority finds it obvious that the filing must be a new petition under these facts, I find it equally obvious that it was an amendment, notwithstanding *548that the issue of leave to file escaped the parties’ and court’s attention.

Moreover, I view the record as supporting this construction. Appellant’s Brady claim was asserted through an amendment to his pending Atkins petition, rather than through the filing of a new petition. Appellant styled this claim as a supplement and amendment to the petition for post-conviction relief, and the on-the-record exchange reproduced in the Majority opinion demonstrates that the parties and the court treated the Atkins claim and the Brady claim as two issues rather than two petitions. See Maj. Op. at 517-20, 35 A.3d at 9-10. When the PCRA court resolved only one of the two claims before it, Appellant indicated in his notice of appeal that he was solely appealing from that order, and indicated in his jurisdictional statement that he was appealing from the order “denying (at least in part)” his PCRA petition. The PCRA court’s imprecise reference to its denial of the “petition” either comes from loose language borne from lack of recognition of the issue now before this Court or because of the trial court’s understandable uncertainty regarding the treatment of the filings before it. Additionally, the Commonwealth’s belated supplemental argument that Appellant’s attempt unilaterally to amend his petition should not be permitted rests on the premise that Appellant’s Brady claim arose through an attempted amendment of the pending PCRA petition.

We have held that one cannot file a new PCRA petition in a trial court while a prior petition is under appellate review. Commonwealth v. Lark, 560 Pa. 487, 746 A.2d 585 (2000). This rule arises from this Court’s desire to avoid multiple, serial PCRA petitions. Id. at 588 (“Appellant could not have filed his second PCRA petition in the court of common pleas while his first PCRA petition was still pending before this court. The trial court had no jurisdiction to adjudicate issues directly related to this case; only this court did.”). In my view, the logic of Lark is in tension with the majority’s holding herein. While it is clear that Petitioner could not have filed his Brady petition if the Atkins petition had been finally decided and appealed from, the Majority holding means that *549so long as the trial court maintains jurisdiction, multiple claims can be presented to it in serial filings, the PCRA court can decide each individually and each can be subject to a separate appeal. While I do not suggest that the Majority envisioned this scenario, I do respectfully suggest that it is consistent with the Majority’s holding. I suggest also that it is wholly inconsistent with the Lark decision, and the wisdom that guided that pronouncement.

Because I view the Atkins and Brady issues as two claims in a single PCRA petition, I would conclude that the PCRA court issued an interlocutory order deciding only one of the two claims before it. This Court has exclusive jurisdiction only over final orders arising from capital cases, including those invoking the PCRA. See 42 Pa.C.S. § 722(4) (providing that “[t]he Supreme Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following classes of cases: ... (4) Automatic review of sentences as provided by 42 Pa.C.S. §§ 9546(d) (relating to relief and order) and 9711(h) (relating to review of death sentence).”); 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.”); 42 Pa.C.S. § 9711(h) (“A sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania pursuant to its rules.”); Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d 94, 95 n. 1 (2001) (“Our Court has exclusive jurisdiction of appeals from final orders denying post-conviction relief in capital cases.”). Consequently, I believe we can only review the PCRA court’s dismissal of Appellant’s Brady claim if the PCRA court issued a final order.

A final order is one that finally disposes of a PCRA petition. Pa.R.Crim.P. 910 (“An order granting, denying, dismissing, or otherwise finally disposing of a petition for post-conviction collateral relief shall constitute a final order for purposes of appeal.”); Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547, 550 (1999) (“A final order is ordinarily one which ends the litigation or disposes of the entire case.... ”); see also Common*550wealth v. Dowling, 584 Pa. 396, 883 A.2d 570, 575 (2005) (where the PCRA court did not clearly dispose of the appellant’s PCRA petition, we directed the court to enter a final order disposing of the petition to enable the appellant to appeal). Here, because the PCRA court only disposed of one of two pending claims before it, it did not issue a final order and, in my opinion, this Court lacks jurisdiction over the appeal.

Although I applaud the Majority’s desire for the prompt resolution of all PCRA claims, I favor such resolution in a final order, rather than the multiple orders the Majority necessarily embraces. Having a final order disposing of all claims and one appeal therefrom avoids the potential for piecemeal litigation, whereas permitting multiple PCRA petitions to be filed, considered, and appealed independently will likely breed mischief and encourage the sort of gamesmanship that occurred here.2

For example, it could permit a petitioner to file multiple untimely PCRA petitions raising unrelated claims and obtain review of each one independently, leading to multiple final orders, possibly inconsistent holdings, separate appeals, and a substantial burden on the orderly administration of justice. See Rae v. Pennsylvania Funeral Directors Ass’n, 602 Pa. 65, 977 A.2d 1121 (2009) (explaining that the consolidation of all contested rulings into a single appeal provides appellate courts with an opportunity to consider a trial court’s actions in light *551of the entire proceedings below, thereby enhancing the likelihood of sound appellate review); Pennsylvania Bankers Ass’n v. Pennsylvania Dept. of Banking, 597 Pa. 1, 948 A.2d 790 (2008) (collecting cases to document this Court’s efforts to avoid piecemeal litigation); Pentlong Corp. v. GLS Capital, Inc., 573 Pa. 34, 820 A.2d 1240 (2003) (warning that piecemeal litigation is inefficient and likely to yield inconsistent results); Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413, 416 (1987) (explaining that discouraging interlocutory appeals avoids “piecemeal determinations and the consequent protraction of litigation”) (quoting Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854, 855 (1954)). Accordingly, I would quash the appeal.3

Justice TODD joins this dissenting opinion. Chief Justice CASTILLE, in support of denial of appellant’s motion for recusal.

This capital appeal is from the denial of appellant’s serial petition for relief under the Post Conviction Relief Act (“PCRA”).1 Following submission on the briefs and supplemental briefing addressing jurisdiction, at the direction of the Court, appellant Ernest Porter, through his counsel, Billy H. Ñolas of the Philadelphia-based Federal Community Defender’s Office (“FCDO”), has filed a 19-page Motion for my recusal from the appeal, along with a request to refer the Motion to the full Court.2 For the reasons set forth below, I will deny the Motion and the referral request.

*552The relevant procedural history, including the record concerning the delay in this case, is set forth in the Court’s Opinion, filed contemporaneously with this Recusal Opinion. The recusal request is primarily based upon my Concurring Opinion in Commonwealth v. Spotz, 18 A.3d 244 (Pa.2011), which was joined by Mr. Justice McCaffery. Attorney Ñolas alleges that my discussion of the Porter record in the Spotz concurrence requires my recusal because I supposedly “expressly articulated an opinion about the merits” of Porter’s appeal and “accused counsel of misconduct” in this case. Ñolas does not seek the recusal of Justice McCaffery. The Commonwealth responds by noting that the recusal motion corroborates the administrative and institutional concerns addressed in my Spotz concurrence. Thus, the Commonwealth argues that each of the grounds for recusal lacks even a colorable basis, and that the Motion, which is significantly longer than appellant’s principal brief, further confirms the FCDO’s global strategy of delaying capital cases by forcing prosecutors and the Court to respond to “an endless series of frivolous claims.”

Attorney Ñolas first states that my recusal is required because my discussion of the Porter record in my Spotz concurrence included an “express prejudgment” of the merits of this appeal. Specifically, Ñolas says that my concurrence stated my “belief’ or “conclusion” that appellant’s serial Brady3 claim, the denial of which is the subject of Porter’s appeal, was time-barred under the PCRA. Nolas’s actual argument on this point is brief. Citing Canon 3A(6) of the Pennsylvania Code of Judicial Conduct and non-binding decisions from various federal Circuit Courts, Ñolas argues that my recusal is required because I made a public comment expressing my opinion on the merits of a pending appeal. Motion, ¶ 40.

The Commonwealth responds that counsel’s reliance on Canon 3A(6) is frivolous, since the Canon only discourages public comments concerning pending cases made outside a judge’s official duties, such as comments to the media; the Canon does not address “public comments” in the guise of *553formal judicial opinions.4 Respecting Attorney Nolas’s accusation of “prejudgment,” the Commonwealth notes that the concurrence in Spotz was issued long after this case had already been submitted to the Court for decision — indeed, the Spotz concurrence was filed after this Court had directed further briefing in this appeal, a directive that obviously resulted from consideration and deliberation. Thus, the Commonwealth submits, any commentary by the Spotz concurrence concerning the record in this case, whether involving the merits or not, reflects judging, not pre-judging.

This recusal argument indeed is frivolous, and distressingly so. Even though the Commonwealth’s points are well-taken,5 the argument is frivolous for a more fundamental reason: Attorney Ñolas blatantly misrepresents my concurrence in Spotz. Ñolas declares, as if the assertion were self-proving, that I “expressly articulated an opinion about the merits of the appeal,” further declaring that my “comments on Appellant’s pending appeal were not directed toward peripheral matters, but went to central issues before the Court. Chief Justice Castille stated his belief that Appellant has asserted a ‘time-barred Brady claim.’ ” Motion, 2 ¶ 6; 10 ¶ 39.

This is simply false. My concurrence in Spotz addressed the delay that Attorney Ñolas has orchestrated in this state capital case, which is plainly demonstrated by the transcript (and has been corroborated by the pleadings on this Motion). I offered no view on the merits of this appeal, much less did I “expressly prejudge” those merits.

Nolas’s argument to the contrary is revealingly non-contextual. My concurrence in Spotz quoted at length from the *554transcript of the PCRA hearing at which the trial court decided appellant Porter’s Brady petition. I prefaced the quotation from the Porter transcript in Spotz by noting that the exchange occurred after the PCRA court had already announced its intention to dismiss the Brady petition. The portion of the Porter transcript I quoted then set forth the PCRA court’s of-record ruling that the petition in this case was denied “on the grounds that it is not timely and does not meet the requirements for Brady material.” Later in the quotation, after the PCRA court noted the next step in implementing its time-bar decision — issuing a dismissal notice under Pa.R.Crim.P. 907 — Ñolas said he would object, and the court asked Ñolas what he would suggest the court do instead. Ñolas responded that he should be permitted to depose the Brady witness. At that point in the Spotz concurrence’s quotation from the transcript in Porter, I inserted the following clarifying notation in brackets: “i.e., drag out the disposition of the time-barred Brady claim.”

Remarkably, Attorney Nolas’s recusal argument does not acknowledge this context. The bracketed reference in the Spotz concurrence to “the time-barred Brady claim,” which appeared in a block quotation from the transcript in this case, was an explanatory factual reference to the status of the Brady claim, as already determined by the PCRA court and reflected in the very same quoted material. The bracketed reference also noted the effect of Nolas’s argument, faced with a time-bar ruling; the argument, if accepted, would have caused further delay in a case, already delayed for years, to pursue a claim deemed time-barred. Notably, Nolas’s request to depose the witness was not an answer or challenge to the court’s time-bar ruling; it was, instead, a request that would induce delay despite the petition being deemed time-barred. My bracketed comment accurately characterized the excerpt I quoted.

Moreover, my discussion of the Porter transcript in Spotz did not remotely examine the “central” Brady merits issue, as counsel falsely claims. Rather, the discussion was exclusively in connection with my concern about FCDO-induced delay in *555Pennsylvania capital cases generally. My concurrence in Spotz noted that the FCDO’s strategy of delay in cases such •as Spotz and Porter was made relevant by the FCDO’s global federal motion in yet another then-pending capital case, Commonwealth v. Dougherty, 585 CAP. That federal motion attacked this Court’s handling of its entire capital docket, including this case, blamed the delays on this Court, and claimed that this Court was indifferent to, and incompetent to manage, its capital docket. (Notably, there has been no averment that the FCDO has corrected the scurrilous accusations in its federal motion in Dougherty or "withdrawn that motion.) My final point about this case in Spotz was to accurately note that not once did Ñolas “forward the [FCDO’s] new-found concern with delay while ensuring delay in both judicial systems in Porter.” 18 A.3d at 348.

I did not “pre-judge” the Brady merits of this case in Spotz by discussing the delay that Attorney Ñolas has indisputably engineered here.6 My comments in Spotz had nothing to do *556with Ernest Porter’s cause; they had to do with the conduct of the FCDO in general, and of Ñolas in particular, in causing the delay in this case. Moreover, it is beyond remarkable thatÑolas forwards this recusal argument without acknowledging the FCDO’s motion and accusations in Dougherty, the point actually being made in my Spotz concurrence, and the context of my bracketed factual explanation in that responsive opinion. Because Nolas’s recusal argument in this case is premised upon an abject mischaracterization of my concurrence in Spotz, it is yet another example of the FCDO’s determination to tie up Pennsylvania courts with frivolous pleadings.

Next, Attorney Ñolas asserts that my recusal is required because my comments concerning his record actions in this and other cases express “animosity” toward him personally. Ñolas also complains that he was not given an opportunity to be heard before I noted what the record plainly disclosed about his role in creating the delay in this case. Finally, Ñolas argues that my remarks in Spotz concerning his role in causing the delay here were “unfounded.”

The Commonwealth responds that there is nothing improper in a Justice of this Court describing the record of abusive tactics of the FCDO in Pennsylvania capital cases. Furthermore, the Commonwealth notes that if a strong condemnation of such abuses were enough to warrant recusal, then virtually the entire Court would have to recuse in FCDO cases, since a number of the FCDO’s claims in Spotz were condemned by the Court’s Opinion as frivolous, or even “frivolous in the extreme.” The Commonwealth also stresses this Court’s institutional role, both as the Court of last resort in Pennsylvania and the ultimate arbiter of attorney discipline. Given that *557role, the Commonwealth emphasizes that this Court can, and must, police attorney conduct and when its constituent Justices act in fulfillment of that duty, their actions cannot reasonably be construed as bearing “personal animosity” toward the attorney involved; instead, the Court is merely fulfilling its constitutional mandate. No reasonable observer, the Commonwealth argues, would believe that the Justices of this Court should be deemed incapable of fairly adjudicating cases involving lawyers whose record misconduct those Justices may have noted and even condemned.

Furthermore, there is no support in the law for the ludicrous assertion that an attorney be given an “opportunity to be heard” before a court may notice and comment in a published opinion as to what a case record plainly discloses about that attorney’s relevant conduct. Of course, such a requirement would surely cause further delay in capital cases; but the Due Process Clause is not a Due Delay Clause. Moreover, the FCDO’s own actions indicate that it does not subscribe to this novel theory posed by Ñolas. My discussion in Spotz of examples of FCDO-induced delay in capital cases was occasioned in part by the motion filed in federal court by the FCDO in Dougherty, which attacked the competence of this Court to manage its capital docket, while failing to acknowledge the FCDO’s central role in causing delay in many of the cases they cited. Notably, the FCDO did not present its scurrilous accusation in Dougherty here first, or even, bother to serve this Court with a copy of the accusation, before lodging its attack in federal court.

In any event, I have considered Attorney Nolas’s Motion here as airing his grievance that ascribing any delay in Porter to his conduct is “unfounded.” The record plainly and unambiguously reveals otherwise. Furthermore, Nolas’s objections do not speak well of the organization of which he is a central part, beginning, as the motion does, with a factual mischaracterization. My Opinion for the Court in this case addresses the record in detail, as well as non-record material appended to this recusal motion that bears upon the delay question. That discussion encompasses all of the relevant circumstances *558that form the basis for Nolas’s current complaint, including his assertion that the Commonwealth initially requested that appellant Porter’s Atkins claim be held; Nolas’s misrepresentation of the holding and import of Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), in declaring that the Third Circuit’s “stay and abeyance” of the federal cross-appeals represented a favorable expression of view on the merits of appellant’s Brady claim; the content and significance of the FCDO’s less than candid status report to the Third Circuit in this case; and the content and significance of the record argument Ñolas made to the PCRA court below. My comments, here and in Spotz, are record-based and accurate. Contrary to the FCDO’s complaint in Dougherty about delay and incompetence on the part of this Court, Attorney Ñolas, on behalf of the FCDO, undertook a course of conduct in this case that ensured substantial delay in both state and federal court, without ever uttering a syllable of either admission or complaint concerning that consequence. That is a record fact. No further response will be made here; Ñolas and the FCDO have wasted enough of this Court’s time with their frivolous posturings.

Turning to Attorney Nolas’s argument respecting my supposed “personal animosity” toward him, this complaint reprises an argument Ñolas has made before. This time, the argument is cluttered with superficial citations to obviously inapposite authority, including concurring opinions, and nonbinding opinions involving trial judges. Motion, 10-11, ¶ 41. What Ñolas does not bother to include is a citation to the authority I cited, and the reasoning I provided, in rejecting an identical argument he made in Commonwealth v. Beasley, 594 Pa. 458, 937 A.2d 379 (2007) (Recusal Opinion of Castille, J.). That Opinion more than answers this claim; it would be a further waste of time chasing down Nolas’s contemptuous invocation of inapposite authority.

Finally, Attorney Ñolas further burdens the Court by including a near stream-of-consciousness argument citing “additional considerations” that, he says, “support the need” for my recusal. The first point reprises the FCDO’s repetitious *559complaint that my former position as the elected District Attorney of Philadelphia County requires my recusal, even though I had no actual involvement in appellant Porter’s trial or direct appeal. This claim is waived, since Ñolas failed to seek my recusal on this ground prior to submission of this appeal and the commitment of resources to it. In any event, I have addressed the argument in multiple prior opinions. See, e.g., Beasley, supra.

The second part of Attorney Nolas’s argument in this regard adverts to my election campaign in 1993, and hearsay reported in media accounts of that election. Motion, 14-17, ¶¶ 55-57. Any recusal argument premised upon this material was easily available to Ñolas before this appeal was submitted; the argument, thus, is waived. In any event, this complaint is unaccompanied by anything resembling a legal argument, and I am not obliged to disentangle the net in search of one, although I would refer Ñolas to the High Court’s opinion in Republican Party of Minnesota v. White, 536 U.S. 765, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002). Suffice it to say, the Commonwealth is correct that Nolas’s contortions serve only to corroborate my observations of the FCDO’s global strategy of delay.

Third, Attorney Ñolas says that my recusal opinions in Beasley, supra, and in Commonwealth v. Rainey, 590 Pa. 256, 912 A.2d 755 (2006) (Recusal Opinion of Castille, J.) betray an “antipathy” toward him which somehow requires my recusal. I addressed the FCDO’s perverse worldview in this regard, at length, in Beasley. If the FCDO truly feels aggrieved, and remains disinclined to require Ñolas to conform to his professional ethical obligations in Pennsylvania courts, the simple answer is to reassign Ñolas to the federal court system, where the FCDO is actually authorized by Congress to practice.

Turning to Attorney Nolas’s request that I refer this Motion to the full Court, the request is supported by no authority or argument. Even if there were some basis for the request, I would not burden the Court with this sort of pleading.

*560Based upon the foregoing considerations, I find that the motion requesting my recusal should be, and it hereby is, denied, per the attached order.

. This claim was filed within 60 days of the decision in Atkins as required by 42 Pa.C.S. § 9545(b)(2).

. I share the Court's concern for the gridlock created by federal counsel in this case. By persuading the PCRA court to defer consideration of the Atkins claim until the parties' cross-appeals in the Third Circuit were resolved, and then persuading the Third Circuit to stay resolution of the cross-appeals pending the PCRA court’s resolution of the Brady claim, it appears that counsel was able to delay final resolution of these capital proceedings indefinitely. Obviously, all courts, state and federal, should guard against such manipulation. I believe counsel's conduct in this case should be scrutinized to see if it has crossed a line from zealous advocacy to inappropriate manipulations of the court system. Notwithstanding my support for such review, I believe that this Court should adhere to its well-established final order doctrine, and require the PCRA court to address the pending Atkins claims before appellate review. Indeed, I believe such course will in the end prove not only qualitatively superior but more expeditious.

. I agree with the Majority that when a PCRA court inadvertently fails to address all claims raised in a petition, this Court may consider the issue if we can do so without the PCRA court's fact-finding. See Maj. Op. at 528, 35 A.3d at 15. Unlike those instances where a PCRA court has overlooked a claim, the court here intentionally chose not to address one of two major constitutional claims pending before it. Under these circumstances, I would remand to permit the PCRA court in the first instance to deal with the Atkins claim, and then review all aspects of this PCRA petition.

. 42 Pa.C.S. §§ 9541-9546.

. Neither the Chief Defender of the FCDO nor any other attorney from that organization is listed on the Motion filed by Attorney Ñolas.

. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

. The Canon reads as follows:

Judges should abstain from public comment about a pending proceeding in any court, and should require similar abstention on the part of court personnel subject to their direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.

. Nolas’s public comment theory is untenable; indeed, under his strained interpretation, even a judge’s comment at oral argument reflecting skepticism, or sympathy, on the merits would require recusal.

. The delay in this case that I described in Spotz — the federal/state logjam resulting once Ñolas both secured a federal stay and abeyance on Porter’s habeas appeal (over the objection of the Commonwealth) and then argued to the PCRA court that it could not decide either Porter’s Atkins petition or his new Brady claim — was chargeable solely to the FCDO's arguments and strategy. Ñolas tries to charge the delay to the Commonwealth, noting a non-record suggestion by the Commonwealth that the PCRA court set aside the Atkins petition, before Ñolas filed his Brady petition. The issue of responsibility for the delay occasioned by counsel’s machinations respecting the Brady claim is apparent on the face of the PCRA record here and is addressed in my Opinion for the Court. In addition, the Commonwealth’s response to the instant Recusal Motion addresses the point adequately:

Defense counsel also makes an argument ... that the Commonwealth agreed to his strategy of delay in this case, which involved telling the PCRA court that it could not act on the Atkins claim until the federal proceedings were complete while telling the federal court it could not act at all until the PCRA proceedings were finished. This is a gross mischaracterization. It is certainly true that the Commonwealth was willing to defer defendant’s Atkins claim until the time of re-sentencing (in the event the federal district court's order vacating the sentence of death is affirmed by the Third Circuit) if the PCRA court found such a procedure more efficient. Indeed, as defense counsel admits, Chief Justice Castille specifically quoted the Commonwealth’s position to that effect in his opinion. But the Commonwealth has never supported either [appellant’s] position that the *556PCRA court lacked authority to rule on his Atkins claim, or his paradoxical argument that the Third Circuit cannot decide the federal habeas appeal until he receives a ruling on the Atkins claim in state court — a ruling that, under his theory, can never occur. And it is those inherently contradictory positions for which defense counsel has successfully advocated, not the Commonwealth’s attempts at modest accommodation, that caused the enormous delay in this case.

Commonwealth's Answer, 10-11, ¶ 5. It is clear that all unnecessary delay in this case since Ñolas raised the Brady claim is chargeable to Nolas’s litigation strategy.