Com. v. Cook, W.

• Court: Superior Court of Pennsylvania
• Decided: May 20, 2021
• Docket: 290 EDA 2019
• Status: Unpublished

Opinion

J-M03001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WESLEY COOK : : Appellant : No. 290 EDA 2019

Appeal from the PCRA Order Entered December 27, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0113571-1982

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

MEMORANDUM PER CURIAM: Filed: May 20, 2021

Mumia Abu-Jamal, formerly known as Wesley Cook, appeals from the

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

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

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

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

petitions on various grounds.1 Abu-Jamal has also filed a petition for remand

to the PCRA court, asserting that evidence turned over by the Commonwealth

during the pendency of this appeal requires a new hearing. Finally, Maureen

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1 Abu-Jamal does not re-raise all of the arguments that were presented in his previous PCRA petitions. Rather, he has re-raised “the claims and arguments that most clearly demonstrate that his trial was fundamentally unfair and violated his rights pursuant to the United States and Pennsylvania Constitutions.” Appellant’s Brief, at 8. J-M03001-21

Faulkner, the widow of Officer Daniel Faulkner who was the victim of the

homicide Abu-Jamal has been convicted of committing, asks us to allow her

to intervene in this appeal. Based on the following, we conclude the Supreme

Court of Pennsylvania has exclusive jurisdiction over these appeals. We

therefore transfer this appeal, Maureen Faulkner’s application to intervene,

and Abu-Jamal's application for remand to the Supreme Court of

Pennsylvania.

A jury convicted Abu-Jamal of the first-degree murder of Officer

Faulkner on July 2, 1982. The next day, the jury sentenced Abu-Jamal to

death. The Supreme Court of Pennsylvania unanimously affirmed Abu-Jamal's

judgment of sentence in 1989, and the Supreme Court of the United States

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

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

instance, the PCRA court denied any relief on the petitions. Important to this

appeal, the appeals from those denials all went directly to the Supreme Court

of Pennsylvania, as Abu-Jamal was then subject to a sentence of death. See

42 Pa.C.S.A. § 9711(h)(1). Subsequently, however, Abu-Jamal was re-

sentenced to a term of life in prison without parole. This Court affirmed the

life in prison sentence on appeal. See Commonwealth v. Abu-Jamal, 3059

EDA 2012, 2013 WL 11257188 (Pa. Super. July 9, 2013) (unpublished

memorandum).

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

reinstatement of his appellate rights from his first four PCRA petitions

pursuant to Williams v. Pennsylvania, 136 S.Ct. 1899 (2016). There, a

Philadelphia jury convicted Terrance Williams of first-degree murder in 1986

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

the District Attorney of Philadelphia, and provided written authorization for

the Assistant District Attorney in charge to seek the death penalty for Williams.

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

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

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

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

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

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

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

Community Defender Office.

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

analyzed Chief Justice Castille’s participation in reviewing the

Commonwealth’s appeal from the PCRA court’s order granting a new penalty-

phase trial. The Court held that Chief Justice Castille’s failure to recuse himself

from the review of the Commonwealth’s appeal “presented an unconstitutional

risk of bias.” See Williams, 136 S.Ct. at 1907. The Supreme Court of the

United States therefore vacated the Supreme Court of Pennsylvania’s decision,

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and remanded the matter for the Pennsylvania Supreme Court to reconsider

the appeal without the participation of Chief Justice Castille. See id., at 1910.

Here, the PCRA court initially ordered the Commonwealth to produce its

complete case-file for review. After conducting that review, the court denied

Abu-Jamal's request for reinstatement of his appellate rights under Williams

by concluding that he failed to establish that then District Attorney Castille

had significant involvement in a critical decision in Abu-Jamal's prosecution.

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

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

Attorney Castille to the Governor of Pennsylvania, urging the Governor to

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

in Pennsylvania actually means something.” PCRA Court Opinion, 12/27/2018,

at 30-3. The PCRA court found that this letter constituted newly discovered

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

ordered Abu-Jamal's appellate rights with respect to his first four PCRA

petitions be reinstated.

The PCRA court subsequently ordered Abu-Jamal to file a statement of

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

of the PCRA court’s docket does not reveal any response to this order.

Nevertheless, the PCRA court provided this Court with a detailed opinion in

support of its order.

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

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

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

Jamal subsequently filed the instant appeal. After receiving several extensions

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

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

the newly disclosed boxes.

Shortly thereafter, Maureen Faulkner filed an application to intervene in

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

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

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

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

jurisdiction and directed that all proceedings below, including the instant

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

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

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

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

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

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

appeal.

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

this Court should exercise jurisdiction over this appeal instead of transferring

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

objection to a transfer to the Supreme Court of Pennsylvania.

Prior to addressing any of the substantive or procedural issues before

us, we must determine whether we have jurisdiction over this appeal. See

Commonwealth v. Gentry, 101 A.3d 813, 816 (Pa. Super. 2014). Our

analysis starts with the observation that the appeals reinstated by the PCRA

court all originally went directly to the Supreme Court of Pennsylvania; this

Court had no involvement. “An award of nunc pro tunc relief is intended to put

the petitioner in the same position he or she was in just prior to the alleged

constitutional deprivation.” Commonwealth v. Koehler, 229 A.3d 915, 931

(Pa. 2020) (citation omitted). At the time of the original appeals, this Court

had no jurisdiction to review them. Therefore, the PCRA court’s reinstatement

of these appeals does not invoke this Court’s jurisdiction.

We acknowledge that the PCRA court’s order directed Abu-Jamal to file

his reinstated appeal in this Court. Further, since Abu-Jamal is no longer facing

the death penalty, the Supreme Court of Pennsylvania’s death penalty

jurisdiction no longer controls the appellate process. See Commonwealth v.

Rompilla, 983 A.2d 1207 (Pa. 2009) (concluding the Superior Court had

jurisdiction over an appeal filed by appellant whose original death sentence

had been vacated and reduced to a sentence of life in prison).

However, we conclude that it is Koehler, and not Rompilla, that

controls the procedural posture of this case. This is not an appeal from a new

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proceeding, such as the re-sentencing that occurred in Rompilla. Instead,

this is a nunc pro tunc appeal of prior decisions where appellate rights were

reinstated through the PCRA court’s order after it concluded that Abu-Jamal's

prior appeals were tainted by an appearance of bias. Therefore, we must put

Abu-Jamal in the same position he was in just prior to the alleged

constitutional violation. As the Supreme Court noted in Koehler, it is the only

judicial institution that can overturn its previous precedent. See Koehler, 229

A.3d at 938. Abu-Jamal's prior appeals of his PCRA petitions were never heard

in this Court, and we have no authority to issue a decision in conflict with the

decisions reached by our Supreme Court in those appeals. Accordingly, we

transfer this appeal to the Supreme Court of Pennsylvania. Similarly, we

transfer the associated application for intervention and application to remand

to the Supreme Court for its consideration.

Appeal transferred to the Supreme Court. Application for remand

transferred to the Supreme Court. Application for Intervention transferred to

the Supreme Court. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/20/21

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