Com. v. Blackson, J.

Opinion

J-S52004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOEL BLACKSON : : Appellant : No. 358 EDA 2020

Appeal from the PCRA Order Entered December 12, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1101781-1998

BEFORE: PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: Filed: January 21, 2021

Joel Blackson appeals from the order dismissing his third petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa. C.S.A. §§ 9541-9546.

We affirm.

Following a non-jury trial, the Honorable Willis Berry, Jr. convicted

Blackson of third degree murder and related offenses. Judge Berry sentenced

Blackson to an aggregate term of seventeen and one-half to thirty-five years’

incarceration. Blackson timely appealed, and this Court affirmed his judgment

of sentence. Blackson did not file a petition for allowance of appeal in the

Pennsylvania Supreme Court.

Blackson filed the instant PCRA petition, his third, alleging judicial bias.

On its face, the petition was untimely, having been filed more than thirteen

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* Former Justice specially assigned to the Superior Court. J-S52004-20

years after the judgment of sentence became final. But Blackson claimed his

petition met the timeliness exception for newly discovered fact evidence. His

petition asserted that Judge Berry, who was recently convicted for crimes of

dishonesty, was not a fair and impartial judge during his court proceedings.

Blackson also alleged in his petition that Judge Berry exhibited dishonesty

when he issued conflicting findings of fact in the 1925(a) Opinion filed in

connection with his direct appeal and the 1925(a) Opinion issued following his

denial of his first PCRA petition.

The PCRA court issued notice of its intent to dismiss the petition without

a hearing, pursuant to Pa.R.Crim.P. 907. The Rule 907 notice observed that

Blackson’s petition was untimely, and did not satisfy the newly discovered fact

exception to the PCRA’s time bar. The court ultimately dismissed the petition,

and Blackson filed a timely notice of appeal. Another panel of this Court,

however, held that Blackson’s petition satisfied the newly-discovered fact

exception to the one-year time bar and remanded the matter to the PCRA

court. See Commonwealth v. Blackson, 1371 EDA 2017 (Pa. Super. filed

June 7, 2019) (unpublished memorandum).

Upon remand, the PCRA court once again issued a Pa.R.Crim.P. 907

notice of intent to dismiss the PCRA petition without a hearing, and

subsequently dismissed the petition. Blackson then filed this timely appeal.

Blackson raises four issues on appeal. “Our standard of review for issues

arising from the denial of PCRA relief is well-settled. We must determine

whether the PCRA court’s ruling is supported by the record and free of legal

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error.” Commonwealth v. Presley, 193 A.3d 436, 442 (Pa. Super. 2018)

(citation omitted). In doing so, we read the record in the light most favorable

to the prevailing party. See Commonwealth v. Ford, 44 A.3d 1190, 1194

(Pa. Super. 2012). “A reviewing court on appeal must examine each of the

issues raised in the PCRA petition in light of the record in order to determine

whether the PCRA court erred in concluding that there were no genuine issues

of material fact and in denying relief without an evidentiary hearing.”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super.2007).

For ease of our discussion, we address Blackson’s first two issues

together, as they both assert claims of judicial bias. In alleging judicial bias,

Blackson contends that his right to due process was violated because Judge

Berry exhibited bias in favor of the Commonwealth during Blackson’s non-jury

trial, first PCRA petition, and untimely, second PCRA petition. To establish a

due process violation for judicial bias, Blackson must prove actual judicial bias

or that the “probability of actual bias on the part of the judge or decisionmaker

is too high to be constitutionally tolerable.” Rippo v. Baker, 137 S.Ct. 905,

907 (2017).

Blackson first argues the PCRA court erred in concluding that any judicial

bias against him amounted to nothing more than harmless error. See

Appellant’s Brief, at 12. However, as the record indicates, the PCRA court did

not subject Blackson’s claim to a harmless error analysis. Rather, the PCRA

court reviewed Blackson’s claim and concluded that Blackson failed to prove

actual judicial bias or the probability of actual bias on the part of Judge Berry.

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See PCRA Court Opinion, filed 5/18/20, at 5; see also Rippo, 137 S.Ct. at

907. Blackson nonetheless argues that the PCRA court erred when it

concluded that he failed to adduce evidence of actual judicial bias or the

probability of actual bias. He contends that there is evidence that Judge Berry

engaged in “compensatory bias” - that he exhibited bias in favor of the

Commonwealth to deflect attention away from his own criminal conduct. See

Appellant’s Brief, at 18. To support his contention, Blackson likens his case to

Bracy v. Gramley, 117 S.Ct. 1793 (1997).

In Bracy, the trial judge who presided over the petitioner’s trial was

later convicted on federal charges of accepting bribes from criminal

defendants in other cases. The petitioner sought to show that the judge’s

acceptance of bribes in those cases induced a compensatory bias against

defendants who did not bribe him so as not to appear “soft” on criminal

defendants. See id., at 1797. Although the judge was not bribed in the

petitioner’s case, the United States Supreme Court determined that the

petitioner had shown good cause to obtain discovery to support his

compensatory bias claim. See id., at 1799.

Here, Blackson’s attempt to liken his case to Bracy is unpersuasive for

several reasons. The first reason is that Judge Berry was convicted for crimes

of dishonesty – using his judicial office and staff to run his real estate business

– and not for accepting bribes from criminal defendants. By itself, Judge

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Berry’s improper use of government resources does not automatically imply

that Judge Berry was biased in performing his judicial responsibilities. Even

more, it does not support an inference that Judge Berry was biased against

Blackson. While Blackson implies that Judge Berry acted in a biased manner

because he was seeking leniency from the Commonwealth for his own criminal

actions, we note that the criminal investigation of Judge Berry’s real estate

practices did not begin until after Blackson’s post-conviction proceedings.

In the alternative, Blackson’s only concrete allegation of Judge Berry’s

compensatory bias is that the findings of fact in Judge Berry’s PCRA opinion

conflict with his original opinion. According to Blackson, Judge Berry’s original

opinion states that Blackson shot the victim with no provocation and without

justification. See Appellant’s Brief, at 13. The PCRA opinion, on the other

hand, describes the victim as the aggressor who provoked the fatal shooting.

See id. To that end, Blackson contends that the findings of fact in the PCRA

opinion support a verdict for self-defense and not for third degree murder.

See id., at 14. And for that reason, Blackson argues that Judge Berry should

have vacated his conviction for third degree murder, but did not because a

change in the outcome would have called attention to Judge Berry’s

wrongdoing. See id.

While the PCRA opinion conflicts with the original opinion, we cannot

conclude that the PCRA opinion supports a verdict for self-defense or that the

conflicting factual findings constitute evidence of Judge Berry’s compensatory

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bias. Even though the PCRA opinion portrays the victim as the aggressor, the

facts show that Blackson was never faced with death or serious bodily injury

to justify the use of deadly force. See PCRA Opinion, 08/28/06, at 2; see also

18 Pa.C.S.A. §505(b)(2). Therefore, the PCRA opinion does not support a

verdict for self-defense as Blackson asserts.

In addition, the conflicting findings of fact in Judge Berry’s PCRA opinion

and his original opinion could not alone support an inference that Judge Berry

engaged in compensatory bias. Blackson needed to show that Judge Berry’s

compensatory bias motivated him to alter the findings of fact in the PCRA

opinion for a nefarious purpose. Having failed to do so, Blackson’s allegation

of compensatory bias amounts to nothing more than a bald assertion that

Judge Berry was biased against him.

Under these circumstances, we cannot conclude the PCRA court erred in

finding that Blackson had failed to allege facts capable of establishing even a

probability of actual judicial bias. See Rippo, 137 S.Ct. at 907. This claim

merits no relief.

Next, Blackson argues that the Commonwealth violated Brady v.

Maryland, 373 U.S. 83 (1963), because it withheld crucial information as to

when it first learned of Judge Berry’s criminal conduct.

As an initial matter, we must determine whether Blackson included this

issue in his PCRA petition and preserved it for our review. Both the PCRA court

and the Commonwealth claim that Blackson failed to include the Brady issue

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in his PCRA petition and therefore waived it. Blackson, however, asserts that

he preserved the issue in his Brief in Opposition to the Motion to Dismiss.

Pennsylvania Rule of Criminal Procedure 902 provides that “[e]ach

ground relied upon in support of the relief requested shall be stated in the

petition. Failure to state such a ground in the petition shall preclude the

defendant from raising that ground in any proceeding for post-conviction

collateral relief.” Pa.R.Crim.P. 902(B).

Here, Blackson did not include the Brady claim in his petition. Nor did

he seek permission to amend his petition to include the same. Therefore, the

issue is waived. See Pa.R.Crim.P. 902(B); see also Commonwealth v.

Porter, 35 A.3d 4, 14 (Pa. 2012) (stating that a PCRA petitioner may not raise

new claims by supplementing a pending PCRA petition without court

authorization).

In any event, had Blackson included the Brady issue in his petition, he

would not be entitled to relief. Under Brady, a prosecutor has an obligation

to disclose all exculpatory information material to the guilt or punishment of

the accused. See Commonwealth v. Roney, 79 A.3d 595, 607-608 (Pa.

2013) (emphasis added). To establish a Brady violation, an appellant must

show that: (1) the evidence at issue was favorable to the appellant, either

because it is exculpatory or could have been used for impeachment; (2) the

evidence was suppressed by the prosecution, either willfully or inadvertently;

and (3) prejudice ensued. See id., at 607.

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Here, Blackson does not explain what exculpatory evidence the

Commonwealth withheld from him, other than that Judge Berry had been

under investigation for misuse of government resources. Also, he does not

explain how the evidence was favorable to him or how it could have been used

for impeachment at trial. Furthermore, Blackson fails to allege he suffered

prejudice because of the Commonwealth’s failure to disclose information as to

when it opened its investigation into Judge Berry. Therefore, even if this issue

were preserved, it would merit no relief.

In his final issue, Blackson argues that he suffered a miscarriage of

justice. However, Blackson failed to include this issue in his PCRA petition or

seek permission to amend his petition to include it for our review. Thus, the

issue is waived. See Pa.R.Crim.P. 902(B).

However, even if Blackson preserved this issue for our review, he would

not be entitled to relief. Blackson fails to present an argument as to how he

suffered a miscarriage of justice. Instead, he simply reasserts claims he made

elsewhere in his brief, which we already addressed in this memorandum.

Therefore, the issue would merit no relief.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/21/21

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