Commonwealth v. Blakeney

193 A.3d 350

COMMONWEALTH of Pennsylvania, Appellee

v.Herbert BLAKENEY, Appellant

No. 753 CAP

Supreme Court of Pennsylvania.

Submitted: May 14, 2018

Decided: September 21, 2018

Francis T. Chardo, Esq., Dauphin County District Attorney's Office, Ryan Hunter Lysaght, Esq., Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania, Appellee.

Leor Veleanu, Esq., for Herbert Blakeney, Appellant.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

Justice Wecht announces the judgment of the Court with respect to Parts III and IV, in which Justice Donohue joins, and in which Justices Dougherty and Mundy concur in the result. Justice Wecht delivers an opinion in support of reversal with respect to Parts I and II, in which Justice Donohue joins. As to Parts I and II, Justices Dougherty and Mundy file separate opinions in support of affirmance.

ORDER

AND NOW , this 21^st day of September, 2018, the order of the Court of Common Pleas is affirmed by operation of law, as the votes among the participating Justices are equally divided.

Chief Justice Saylor and Justices Baer and Todd did not participate in the consideration or decision of this case.

OPINION

JUSTICE WECHT

Herbert Blakeney appeals from the dismissal of a facially untimely, second petition filed pursuant to the Post Conviction Relief Act ("PCRA").¹ Recognizing that his petition is untimely, Blakeney relies, inter alia , upon the exception to the one-year time-bar for newly discovered facts.² We affirm the PCRA court's orders denying Blakeney's requests for disqualification of the Dauphin County District Attorney's Office and recusal of the PCRA court. With respect to whether Blakeney has established that the facts upon which his claim is predicated were unknown to him and could not have been ascertained by the exercise of due diligence, this Court is equally divided. Accordingly, inasmuch as the Court is equally divided, the PCRA court's determination of untimeliness is affirmed.³

I. Background

We detailed the facts underlying Blakeney's convictions in our opinion on direct appeal, Commonwealth v. Blakeney ("Blakeney I "), 596 Pa. 510, 946 A.2d 645 (2008), and in our opinion following Blakeney's appeal from the denial of his first PCRA petition, Commonwealth v. Blakeney ("Blakeney II "), 631 Pa. 1, 108 A.3d 739 (2014). For purposes of today's proceeding, a brief summary will suffice.

Blakeney's estranged wife, Sacha Blakeney ("Sacha"), lived in an apartment with her friend Duana Swanson ("Swanson") and their respective children. One of Sacha's children, Basil, was fourteen months old (and not fathered by Blakeney). On February 1, 2000, Harrisburg police responded to a report of a domestic disturbance at the apartment, and officers escorted Blakeney from the scene. Afraid that Blakeney would return, Swanson asked the police "to keep an eye on the place." Blakeney I , 946 A.2d at 649.

In the early morning hours of February 2, 2000, Blakeney reentered the apartment. He carried a butcher knife. At that time, Sacha was not home. Blakeney confronted Swanson and the children in a bedroom. Blakeney grabbed Swanson by the arm as Swanson's son, Maurice, ran from the room. Maurice encountered Harrisburg Police Officer William Vernouski, who had heard Swanson screaming, standing on the threshold of the apartment door with his gun drawn. Officer Vernouski entered the apartment to find Blakeney stabbing Swanson repeatedly in the chest with the butcher knife. Blakeney continued to stab Swanson despite Officer Vernouski's repeated commands to drop the knife. Instead of complying, Blakeney strangled Swanson until she lost consciousness. When Swanson became unconscious, Blakeney grabbed Basil, clasping the child with his left arm while holding the knife in his right hand with the blade to Basil's throat. Officer Vernouski, who by that time had been joined by other officers, attempted to reason with Blakeney, who refused to put Basil down. Instead, Blakeney cut Basil's throat with the butcher knife in a sawing motion, causing the child's death. Blakeney relinquished control of Basil's body only after Officer Vernouski shot Blakeney three times.

Blakeney survived, and was charged with murder.⁴

In 2002, Blakeney proceeded to a jury trial in the Dauphin County Court of Common Pleas, with the Honorable John F. Cherry presiding. Blakeney chose to represent himself during trial, at both the "guilt" and "penalty" phases. Then-District Attorney Edward Marsico represented the Commonwealth at trial and on direct appeal.⁵ While representing himself, Blakeney, who is African-American and Muslim, made repeated references to his religion. For example, in his opening statement to the jury, Blakeney declared: "I don't want to cause nobody no problems. My job is clear. I am a Muslim .... This is a sign to my people, the Muslims. How you judge me today in front of them, that America has justice in their hearts still. Trust me. They will hear about this case." Notes of Testimony (N.T.), volume 2, 491-92.⁶ On August 8, 2002, the jury found Blakeney guilty of first-degree murder.

During the penalty phase, Blakeney declined to present any mitigating evidence, explaining to the court that he made this decision because "[t]his is a religious thing." N.T. 8/1/2002, volume 2, 925. The Commonwealth introduced evidence to support three aggravating circumstances, and the jury recommended a sentence of death. On October 17, 2002, Judge Cherry formally sentenced Blakeney to death. This Court affirmed. Blakeney I , 946 A.2d at 649. On February 23, 2009, the Supreme Court of the United States denied certiorari . Blakeney v. Pennsylvania , 555 U.S. 1177, 129 S.Ct. 1317, 173 L.Ed.2d 596 (2009).

In March 2009, Blakeney filed a timely, pro se PCRA petition. On December 21, 2010, Blakeney timely filed a counseled PCRA petition. The PCRA court denied relief without a hearing. This Court affirmed. Blakeney II , 108 A.3d at 739. Then-First Assistant District Attorney (now District Attorney) Francis Chardo represented the Commonwealth in post-conviction proceedings, and presently is counsel of record for the Commonwealth in Blakeney's ongoing federal habeas corpus proceedings.

On October 8, 2015, the Philadelphia Inquirer reported that media outlets had obtained a number of emails sent by and/or received from then-Justice Michael Eakin through a private email account that Justice Eakin established under the pseudonym "John Smith."⁷ The following day, the Reading Eagle (in a reprint of an Inquirer report) further described the emails. The Inquirer and the Eagle detailed the offensive content in these emails, sent or received by Justice Eakin, many of which referenced race, gender, religion, ethnicity, or class. The articles linked Justice Eakin's emails to unnamed members of the Dauphin County Court of Common Pleas and the Dauphin County District Attorney's Office. These emails had been in the possession of the Office of the Attorney General ("OAG"), which obtained them when they were sent to the official email addresses of persons employed by the OAG. The Inquirer began its account as follows: "Scroll through state Supreme Court Justice J. Michael Eakin's private inbox and it seems as if everyone is in on the joke: judges, state prosecutors, assistant U.S. attorneys, public defenders, private lawyers. Everyone, of course, except the defendants or victims who could wind up in their courtrooms or offices." The Inquirer and the Eagle described the emails as including:

An email sent by Justice Eakin containing a "joke" about a woman complaining to a doctor that her husband "beats me to a pulp," to which the doctor recommends that she "swish tea in her mouth" and not "swallow" until her husband is asleep, concluding: "You see how much keeping your mouth shut helps?"

An email sent by Justice Eakin containing the reference "Why I failed 4^th Grade" with a photo of a teacher asking the student for two examples of an abstract noun and the student responding "your t--s."

An email sent to Justice Eakin attaching a video called "Craziest white man ever" featuring a man picking up immigrant day workers (referred to as "beaners" and "animals") [ ]under the ruse that he needs help with his deck, then turning them in to U.S. immigration officials, then laughing hysterically as they scatter from his pickup truck and saying: "That's what I do every couple of weeks just to get rid of - ya know, thin out the herd a little bit," ... "Make sure they don't overpopulate."

An email sent to Justice Eakin containing a "joke" in which a mother laments that Muslim children "blow up so fast, don't they?"

An email sent in 2011, after [Jerry] Sandusky was arrested for sexually abusing minors, containing an image of Macaulay Culkin from "Home Alone," replacing the burglar behind him with a smiling [Jerry] Sandusky.

An email with a video in which a black woman complains that President Barack Obama wants to create jobs. "You mean I'm not going to get my government check?" the woman asks.

Petition for Writ of Habeas Corpus and for Collateral Relief ("Petition"), 11/30/2015, at 16-17 (citing William Bender, A Supreme Court Justice's Indecent Inbox , THE PHILADELPHIA INQUIRER , Oct. 8, 2015; Craig R. McCoy and Angela Couloumbis, Pa. Supreme Court Justice Reportedly Involved in Racist Email Exchanges , THE READING EAGLE , Oct. 9, 2015).⁸

An October 30, 2015 report by the Special Counsel to this Court further described the emails. In particular, the Special Counsel noted that Justice Eakin sent or forwarded many emails that were "insensitive, chauvinistic and offensive to women," including the first two emails discussed in the articles. Petition at 22 (citing Report of the Special Counsel Regarding the Review of Justice Eakin's Personal Email Communications, Joseph A. Del Sole, Oct. 30, 2015, attached as Exhibit 4, at 11). Although Justice Eakin did not send any emails that the Special Counsel characterized as racist, homophobic, or otherwise...