193 A.3d 350
Pa.2018Background
- In 2000 Herbert Blakeney stabbed Duana Swanson and killed her 14‑month‑old child; he was convicted of first‑degree murder, sentenced to death, and his appeals and first PCRA were previously litigated and denied.
- In October 2015 media reports disclosed numerous offensive private emails sent or received by then‑Justice J. Michael Eakin, some circulated among judges, prosecutors, and other lawyers; a Special Counsel report corroborated their offensive character.
- Within 60 days of the press reports, on November 30, 2015, Blakeney filed a second, facially untimely PCRA petition asserting judicial‑bias claims predicated on the newly‑discovered emails (arguing Eakin’s participation in his appeals created an appearance or reality of bias).
- Blakeney invoked two timeliness exceptions: newly‑discovered facts (42 Pa.C.S. § 9545(b)(1)(ii)) and governmental interference (b)(1)(i); he also moved to disqualify the Dauphin County DA’s Office (advocate‑witness rule) and to recuse the Dauphin County bench and Judge Cherry.
- The Commonwealth initially conceded timeliness in the PCRA court but disputed merit and later argued on appeal the petition was untimely; the PCRA court denied disqualification and recusal and dismissed the petition as untimely.
- The Pennsylvania Supreme Court, equally divided as to whether Blakeney satisfied the due‑diligence prong of the newly‑discovered‑facts exception, affirmed the PCRA court’s untimeliness dismissal; it affirmed denial of disqualification and recusal.
Issues
| Issue | Plaintiff's Argument (Blakeney) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Timeliness under §9545(b)(1)(ii) (newly discovered facts) | The offensive emails were unknown until media reports; they are the factual predicate for a judicial‑bias claim and thus trigger the 60‑day window | Emails have no nexus to conviction; prosecutors did not exchange emails with Eakin (or only received them), so petition remains untimely | Court split: majority found emails can be "facts" and trigger the exception as unknown; the Court ultimately affirmed dismissal because the Court was equally divided on due‑diligence, so lower court affirmed (no relief) |
| Disqualification of Dauphin County DA’s Office (Pa. R. Prof. Cond. 3.7) | Marsico and Chardo’s affidavits place them as potential witnesses to emails; their continued advocacy violates the advocate‑witness rule | Prosecutors are not necessary witnesses; Blakeney’s claim is Eakin’s bias, not misconduct by Marsico/Chardo | Denial of disqualification affirmed — prosecutors not likely necessary witnesses; email evidence can be introduced without their testimony |
| Recusal of Judge Cherry / entire Dauphin bench | Judge Cherry received email blasts and had potential personal knowledge; prior Prison Board role compromised impartiality | Claim is waived/previously litigated; Blakeney failed to identify specific emails implicating Cherry; law‑of‑the‑case bars Prison Board argument | Denial of recusal affirmed — email receipt claim waived for lack of specificity; Prison Board issue previously litigated and barred |
| Scope of evidence sufficient to invoke timeliness exception (media reports) | Media reports and Special Counsel report revealed facts; petitioner need only allege newly discovered facts to invoke exception | Media allegations are unreliable; petitioner must prove the new fact | Court recognized media reports can supply newly discovered facts; assessment of truth belongs to merits, not jurisdictional timeliness analysis |
Key Cases Cited
- Commonwealth v. Blakeney, 946 A.2d 645 (Pa. 2008) (direct appeal decision describing trial facts)
- Commonwealth v. Blakeney, 108 A.3d 739 (Pa. 2014) (decision on first PCRA appeal)
- Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017) (FBI press release treated as newly discovered fact triggering §9545(b)(1)(ii))
- Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007) (two‑part test for §9545(b)(1)(ii): unknown facts and due diligence)
- Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (U.S. 2009) (due process inquiry into probability of judicial bias)
- Marshall v. Jerrico, Inc., 446 U.S. 238 (U.S. 1980) (right to an impartial and disinterested tribunal)
- Commonwealth v. Stokes, 959 A.2d 306 (Pa. 2008) (distinguishing timeliness/jurisdictional questions from merits review)