J-S24027-20
2020 PA Super 240
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL MCLAUGHLIN
Appellant No. 2793 EDA 2019
Appeal from the PCRA Order September 27, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0303571-2006
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
OPINION BY STABILE, J.: FILED SEPTEMBER 28, 2020
Appellant, Michael McLaughlin, appeals from an order denying his
petition seeking coram nobis relief on the ground that the judge who presided
over his trial should have recused himself because he himself was under
criminal investigation at the time of trial. We affirm. Coram nobis relief is
unavailable because claims of judicial bias are only cognizable under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Furthermore,
PCRA relief is unavailable because Appellant has completed service of his
sentence.
On September 4, 2007, following a four-day trial in which Appellant
represented himself, the jury found Appellant guilty of stalking his former
girlfriend. The Honorable Willis Berry sentenced him to 2-4 years’
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S24027-20
imprisonment followed by 3 years’ probation. On November 8, 2010, this
Court affirmed Appellant’s judgment of sentence (“McLaughlin I”). On April
7, 2011, the Supreme Court denied his petition for allowance of appeal.
In 2012, Appellant filed a PCRA petition and amended it several times.
Appellant argued, inter alia, that trial counsel provided ineffective assistance
by failing to object to the pre-trial waiver of counsel colloquy. On May 29,
2014, following an evidentiary hearing, the PCRA court denied Appellant’s
petition. Appellant timely appealed to this Court at 1965 EDA 2014.
While his appeal was pending, Appellant filed a second PCRA petition in
July 2014 alleging that Judge Berry’s own arrest and criminal prosecution in
2014 proved that he was biased against Appellant at the time of Appellant’s
trial in 2007. In September 2014, the PCRA court dismissed Appellant’s
second PCRA petition.
In his appeal at 1965 EDA 2014, Appellant argued both that trial counsel
was ineffective in connection with the pre-trial waiver of counsel colloquy and
that Judge Berry exhibited bias on behalf of the Commonwealth because he
knew he was the subject of a criminal investigation. In a memorandum on
December 8, 2015, this Court affirmed the May 29, 2014 order denying PCRA
relief. In the course of this memorandum, we held that Appellant could not
obtain PCRA relief because he had completed service of his sentence in this
case. We added in dicta that assuming Appellant’s claim was cognizable under
the PCRA, it lacked merit because Judge Berry did not become aware of the
criminal investigation against him until two years after Appellant’s trial.
-2- J-S24027-20
Commonwealth v. McLaughlin (“McLaughlin II”), 1965 EDA 2014, at 10-
11 (Pa. Super., December 8, 2015) (memorandum).
On June 3, 2016, Appellant filed a third PCRA petition, alleging again
that he was denied a fair trial because Judge Berry was biased against him at
the time of trial in 2007. On March 20, 2017, the PCRA court dismissed
Appellant’s petition without a hearing. On November 21, 2018, this Court
affirmed on the ground that Appellant was ineligible for PCRA relief because
he was no longer serving a sentence for his stalking conviction.
Commonwealth v. McLaughlin (“McLaughlin III”), 1249 EDA 2017, at
4- 5 (Pa. Super., November 21, 2018) (memorandum).
On November 27, 2018, Appellant filed the petition presently under
review, a petition for writ of coram nobis. Once again, Appellant contended
that he was denied a fair trial because Judge Berry presided over his trial while
he was under criminal investigation. Appellant argued that he had the right
to seek coram nobis relief because this Court held that PCRA relief was no
longer available. The court appointed counsel, who filed a “no merit” letter
and sought leave to withdraw under Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988).1 On September 27, 2019, the court dismissed Appellant’s petition and
granted counsel leave to withdraw. This appeal followed.
1 We have reviewed counsel’s “no merit” letter and motion for leave to withdraw and note that it complies with the technical requirements of Turner and Finley.
-3- J-S24027-20
Appellant raises a single issue on appeal: “Did the lower court commit
an error of law by denying Appellant’s writ of coram nobis without a hearing?”
Appellant continues to raise the same issue that he has raised unsuccessfully
in prior appeals: he is entitled to relief because Judge Berry was biased against
him due to his own criminal investigation. Since we held in McLaughlin II
and III that Appellant is not eligible for relief under the PCRA, Appellant now
seeks relief through a different and rarely used mechanism: a writ of coram
nobis. No relief is due.
A writ of coram nobis “is generally available to challenge the validity of
a judgment based on facts not before the court when the judgment was
entered.” Commonwealth v. Descardes, 136 A.3d 493, 494 n.1 (Pa. 2016).
This writ “provides a way to collaterally attack a criminal conviction for a
person . . . who is no longer ‘in custody’ and therefore cannot seek habeas
relief.” Chaidez v. U.S., 568 U.S. 342, 345 n.1 (2013).
However, the law prohibits petitioners from using coram nobis as an end
run around the PCRA. To explain, it is well-settled that “where a petitioner’s
claim is cognizable under the PCRA, the PCRA is the only method of obtaining
collateral review.” Descardes, 136 A.3d at 503. The fact that PCRA relief no
longer is available does not mean that coram nobis becomes a viable avenue
for relief. Id. If the claim was cognizable under the PCRA, it cannot be revived
through a writ of coram nobis. Id. It is equally well-settled that relief is
unavailable under the PCRA unless the defendant is “currently serving a
sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. §
-4- J-S24027-20
9543(a)(1)(i). Thus, when the defendant raises a claim that is cognizable
under the PCRA, but he has completed service of his sentence, he is ineligible
for relief under the PCRA. Commonwealth v. Ahlborn, 699 A.2d 718, 721
(Pa. 1997).
Presently, Appellant seeks coram nobis relief on the ground that Judge
Berry was biased against him. No relief is available. Judicial bias is a violation
of due process. Commonwealth v. Kohler, __A.3d__, 2020 WL 1973876,
*9 (Pa., Apr. 24, 2020) (“due process demands the absence of judicial bias,”
so litigant’s due process rights are violated if biased appellate judge decides
fate of his appeal); In Re Murchison, 349 U.S. 133, 139 (1955) (judicial bias
of trial judge constituted due process violation). Due process violations are
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J-S24027-20
2020 PA Super 240
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL MCLAUGHLIN
Appellant No. 2793 EDA 2019
Appeal from the PCRA Order September 27, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0303571-2006
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
OPINION BY STABILE, J.: FILED SEPTEMBER 28, 2020
Appellant, Michael McLaughlin, appeals from an order denying his
petition seeking coram nobis relief on the ground that the judge who presided
over his trial should have recused himself because he himself was under
criminal investigation at the time of trial. We affirm. Coram nobis relief is
unavailable because claims of judicial bias are only cognizable under the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Furthermore,
PCRA relief is unavailable because Appellant has completed service of his
sentence.
On September 4, 2007, following a four-day trial in which Appellant
represented himself, the jury found Appellant guilty of stalking his former
girlfriend. The Honorable Willis Berry sentenced him to 2-4 years’
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S24027-20
imprisonment followed by 3 years’ probation. On November 8, 2010, this
Court affirmed Appellant’s judgment of sentence (“McLaughlin I”). On April
7, 2011, the Supreme Court denied his petition for allowance of appeal.
In 2012, Appellant filed a PCRA petition and amended it several times.
Appellant argued, inter alia, that trial counsel provided ineffective assistance
by failing to object to the pre-trial waiver of counsel colloquy. On May 29,
2014, following an evidentiary hearing, the PCRA court denied Appellant’s
petition. Appellant timely appealed to this Court at 1965 EDA 2014.
While his appeal was pending, Appellant filed a second PCRA petition in
July 2014 alleging that Judge Berry’s own arrest and criminal prosecution in
2014 proved that he was biased against Appellant at the time of Appellant’s
trial in 2007. In September 2014, the PCRA court dismissed Appellant’s
second PCRA petition.
In his appeal at 1965 EDA 2014, Appellant argued both that trial counsel
was ineffective in connection with the pre-trial waiver of counsel colloquy and
that Judge Berry exhibited bias on behalf of the Commonwealth because he
knew he was the subject of a criminal investigation. In a memorandum on
December 8, 2015, this Court affirmed the May 29, 2014 order denying PCRA
relief. In the course of this memorandum, we held that Appellant could not
obtain PCRA relief because he had completed service of his sentence in this
case. We added in dicta that assuming Appellant’s claim was cognizable under
the PCRA, it lacked merit because Judge Berry did not become aware of the
criminal investigation against him until two years after Appellant’s trial.
-2- J-S24027-20
Commonwealth v. McLaughlin (“McLaughlin II”), 1965 EDA 2014, at 10-
11 (Pa. Super., December 8, 2015) (memorandum).
On June 3, 2016, Appellant filed a third PCRA petition, alleging again
that he was denied a fair trial because Judge Berry was biased against him at
the time of trial in 2007. On March 20, 2017, the PCRA court dismissed
Appellant’s petition without a hearing. On November 21, 2018, this Court
affirmed on the ground that Appellant was ineligible for PCRA relief because
he was no longer serving a sentence for his stalking conviction.
Commonwealth v. McLaughlin (“McLaughlin III”), 1249 EDA 2017, at
4- 5 (Pa. Super., November 21, 2018) (memorandum).
On November 27, 2018, Appellant filed the petition presently under
review, a petition for writ of coram nobis. Once again, Appellant contended
that he was denied a fair trial because Judge Berry presided over his trial while
he was under criminal investigation. Appellant argued that he had the right
to seek coram nobis relief because this Court held that PCRA relief was no
longer available. The court appointed counsel, who filed a “no merit” letter
and sought leave to withdraw under Commonwealth v. Turner, 544 A.2d
927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988).1 On September 27, 2019, the court dismissed Appellant’s petition and
granted counsel leave to withdraw. This appeal followed.
1 We have reviewed counsel’s “no merit” letter and motion for leave to withdraw and note that it complies with the technical requirements of Turner and Finley.
-3- J-S24027-20
Appellant raises a single issue on appeal: “Did the lower court commit
an error of law by denying Appellant’s writ of coram nobis without a hearing?”
Appellant continues to raise the same issue that he has raised unsuccessfully
in prior appeals: he is entitled to relief because Judge Berry was biased against
him due to his own criminal investigation. Since we held in McLaughlin II
and III that Appellant is not eligible for relief under the PCRA, Appellant now
seeks relief through a different and rarely used mechanism: a writ of coram
nobis. No relief is due.
A writ of coram nobis “is generally available to challenge the validity of
a judgment based on facts not before the court when the judgment was
entered.” Commonwealth v. Descardes, 136 A.3d 493, 494 n.1 (Pa. 2016).
This writ “provides a way to collaterally attack a criminal conviction for a
person . . . who is no longer ‘in custody’ and therefore cannot seek habeas
relief.” Chaidez v. U.S., 568 U.S. 342, 345 n.1 (2013).
However, the law prohibits petitioners from using coram nobis as an end
run around the PCRA. To explain, it is well-settled that “where a petitioner’s
claim is cognizable under the PCRA, the PCRA is the only method of obtaining
collateral review.” Descardes, 136 A.3d at 503. The fact that PCRA relief no
longer is available does not mean that coram nobis becomes a viable avenue
for relief. Id. If the claim was cognizable under the PCRA, it cannot be revived
through a writ of coram nobis. Id. It is equally well-settled that relief is
unavailable under the PCRA unless the defendant is “currently serving a
sentence of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. §
-4- J-S24027-20
9543(a)(1)(i). Thus, when the defendant raises a claim that is cognizable
under the PCRA, but he has completed service of his sentence, he is ineligible
for relief under the PCRA. Commonwealth v. Ahlborn, 699 A.2d 718, 721
(Pa. 1997).
Presently, Appellant seeks coram nobis relief on the ground that Judge
Berry was biased against him. No relief is available. Judicial bias is a violation
of due process. Commonwealth v. Kohler, __A.3d__, 2020 WL 1973876,
*9 (Pa., Apr. 24, 2020) (“due process demands the absence of judicial bias,”
so litigant’s due process rights are violated if biased appellate judge decides
fate of his appeal); In Re Murchison, 349 U.S. 133, 139 (1955) (judicial bias
of trial judge constituted due process violation). Due process violations are
cognizable under the PCRA as “violation[s] 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.A. § 9543(a)(2)(i). Thus, claims of judicial bias are
cognizable under the PCRA and cannot serve as the basis for coram nobis
relief. Moreover, as discussed above, Appellant cannot obtain PCRA relief on
his judicial bias claim because he has completed service of his sentence.
Therefore, we affirm the order dismissing Appellant’s petition for coram
nobis relief.
Order affirmed.
-5- J-S24027-20
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/28/20
-6-