Commonwealth v. Wharton

• Decision Date: 17 November 2021
• Docket Number: No. 788 CAP,788 CAP
• Citation: 263 A.3d 561
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Robert S. WHARTON, Appellant
• Court: Pennsylvania Supreme Court

263 A.3d 561

COMMONWEALTH of Pennsylvania, Appellee

v.Robert S. WHARTON, Appellant

No. 788 CAP

Supreme Court of Pennsylvania.

Submitted: June 29, 2021

Decided: November 17, 2021

Robert S. Wharton, Pro Se.

Daniel Peter Casullo III, Esq., Ronald Eisenberg, Esq., Lawrence Jonathan Goode, Esq., Philadelphia District Attorney's Office of Open Records, Philadelphia, for Appellee.

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

OPINION

JUSTICE MUNDY

Appellant Robert Wharton appeals from the order of the Court of Common Pleas of Philadelphia County dismissing his fourth petition pursuant to the Post-Conviction Relief Act (PCRA)¹ in this capital case.²

I. Background

We have previously summarized the facts underlying Appellant's conviction as follows:

On January 30, 1984, Appellant and Eric Mason gained entrance to the Hart residence at knife point. Appellant forced Mr. Hart to write him a check for work over which Appellant and Mr. Hart had disputed. After tying up Mr. and Mrs. Hart, Appellant and Mason took Mrs. Hart upstairs. They covered her eyes, nose and mouth with duct tape, tied her hands and feet with neckties, strangled her using a necktie, and held her head under water in the bathtub until she stopped breathing. Mr. Hart was taken to the basement where he was forced to lie down with his face in a pan of water while either Appellant or Mason held his foot on Hart's back and pulled on an electrical cord around Hart's neck causing his death. Appellant and Mason also abandoned the Harts’ infant daughter in a bedroom after turning off the heat in the house.

Commonwealth v. Wharton , 571 Pa. 85, 811 A.2d 978, 981 (2002) ( Wharton III ) (quoting Commonwealth v. Wharton , 542 Pa. 83, 665 A.2d 458, 459-60 (1995) ( Wharton II )). A jury convicted Appellant of two counts of first-degree murder, four counts of criminal conspiracy, four counts of burglary, and one count of robbery. The jury subsequently sentenced Appellant to death for each of the murder convictions, and the court sentenced him to a consecutive aggregate term of incarceration of 39 to 140 years for the remaining charges. On direct appeal, this Court denied guilt phase relief but vacated the death sentence and remanded for resentencing based on a holding that the trial court's failure to define the term torture for the jury was prejudicially deficient. Commonwealth v. Wharton , 530 Pa. 127, 607 A.2d 710, 724 (1992) ( Wharton I ). Following a new sentencing hearing, a jury once again sentenced Appellant to death for each of the murder convictions, which this Court affirmed. Wharton II , 665 A.2d at 463. Appellant filed three previous PCRA petitions, the first of which was denied, while the second two were dismissed as untimely. See Wharton III , 81 A.2d at 982 ; Commonwealth v. Wharton , 584 Pa. 576, 886 A.2d 1120 (2005) ( Wharton IV ); Commonwealth v. Wharton , 599 Pa. 251, 961 A.2d 107 (2008) (per curiam) ( Wharton V ). Appellant also filed a federal habeas petition that is currently pending in the District Court.

Appellant initiated the current litigation by filing a petition raising a claim pursuant to the United States Supreme Court's decision in Williams v. Pennsylvania, 579 U.S. 1, 136 S.Ct. 1899, 195 L.Ed.2d 132 (2016)³ , challenging the propriety of former Chief Justice Ronald Castille's participation in his prior appeals as a member of this Court due to the former Justice's involvement in the prosecution of Appellant's case when he was the District Attorney of Philadelphia County. At the time of filing, Appellant was represented by the Federal Community Defender Office. After the parties conducted discovery relating to Appellant's Williams claim, Appellant filed a petition requesting to proceed pro se . Following a Grazier⁴ hearing, the PCRA court granted Appellant's request. Appellant then filed an amended PCRA petition (Amended Petition), which included additional information in support of his Williams claim along with non- Williams claims requesting a new direct appeal and a new trial. Amended Petition, 4/24/18, at 1, ¶¶ 4-5. In his Amended Petition, Appellant asserted that this Court had treated him unfairly and disparately to similarly situated litigants throughout the history of his case. Id. at 4-11. According to Appellant, due to this unfair and disparate treatment, he has been denied equal protection and the right to fully and fairly litigate his prior appeals. Id. at 12. Appellant also asserted that this Court's actions during his prior appeals demonstrated judicial bias against him, violating his Due Process rights. Id. at 13-14. As a result of these alleged violations, Appellant contended the PCRA's time constraints, which would time bar his petition, are unconstitutional as applied to him and the PCRA court should address his substantive claims. Id. at 12.

In addition to the Amended Petition, Appellant also filed a Motion for Limited Appointment of Counsel and a Discovery Request. In support of his request for appointment of counsel, Appellant asserted that, due to the limited research resources available to him as an incarcerated pro se petitioner, he needed the assistance of counsel to assist in researching his claims. See Motion for Limited Appointment of Counsel, 2/6/19. The PCRA court denied Appellant's request for counsel. Order, 2/14/19. In his Discovery Request, Appellant requested the names and employment information of any individual who worked on his case for the Philadelphia District Attorney's Office, along with any documents relating to former District Attorney Castille's capital appeals policy. Discovery Request, 2/6/19, at ¶¶ 7, 9-12. Appellant explained the purpose of this request was to "substantiate the claims in the initial counseled PCRA petition[.]" Id. at ¶ 1. The PCRA court did not issue an order addressing this request.

The Commonwealth filed a Motion to Dismiss on June 3, 2019. The PCRA court issued a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907⁵ , indicating the non- Williams claims in Appellant's Amended Petition were time barred. Notice of Intent to Dismiss, 7/9/19. After an extension, Appellant filed a response to the Rule 907 notice and the PCRA court dismissed Appellant's petition on October 23, 2019. Appellant filed a timely notice of appeal, and the PCRA court directed him to file a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied with the Order and filed a concise statement of matters complained of on appeal, raising numerous claims of error related to both his Williams and non- Williams claims.

In its Rule 1925(a) opinion, the PCRA court noted that petitions filed pursuant to the PCRA, including second and subsequent ones, must be filed within one year of a petitioner's judgment of sentence becoming final, unless one of three timeliness exceptions applies. Trial Court Opinion, 1/15/2020, at 11 (citing 42 Pa.C.S. § 9545(b) ). The PCRA court determined that Appellant's conviction became final on June 10, 1996, when the United States Supreme Court denied his petition for certiorari. Id. at 12. Appellant did not file his current petition until August 8, 2016, therefore the PCRA court found the petition was facially untimely. Id . The PCRA court determined that Appellant's non- Williams claims did not satisfy any of the timeliness exceptions and thus the petition was untimely and the PCRA court was without jurisdiction to address the merits of the petition. Id.

As to its decision to deny Appellant's request for the limited appointment of counsel, the PCRA court determined that a petitioner is entitled to court appointed counsel for a first petition but is only entitled to the appointment of counsel on second or subsequent petitions if the judge determines an evidentiary hearing is required. Id. at 20. (citing Pa.R.Crim.P. 904 ). The PCRA court also observed that Appellant was initially represented by the Federal Community Defender Office but later requested to proceed pro se , a request the PCRA court granted after holding a Grazier hearing and determining Appellant's decision to proceed pro se was knowing, intelligent, and voluntary. Id. at 21. The PCRA court noted it determined that an evidentiary hearing was unnecessary. Id. As such, the PCRA court asserted it did not abuse its discretion in denying Appellant's request for the limited appointment of counsel.

The PCRA court next addressed Appellant's contention that it abused its discretion by failing to grant his request for specific discovery. It observed that, except on a petitioner's first counseled petition in a capital case, no discovery shall be permitted except upon leave of court after a showing of exceptional circumstances. Id. (citing Pa.R.Crim.P. 902(E)(1) & (2) ). The PCRA court noted it granted Appellant's prior, counseled discovery request and, according to the PCRA court, the parties engaged in a meticulous discovery process where the Commonwealth turned over all relevant documents which were in the possession of the Philadelphia District Attorney's Office. Id . In light of that discovery process, the PCRA court concluded Appellant failed to show exceptional circumstances necessitating the specific discovery requested in Appellant's second, pro se request. Id.

II. Issues

On appeal, Appellant raises the following issues:

1. Did the PCRA court err and/or abuse its discretion in not granting Appellant's limited appointment of counsel request as Appellant could not, through the limited legal research sources provided by the [Department of Corrections], argue all the requirements necessary to mount a thorough constitutional challenge argument?

2. Did the PCRA court err/and or abuse its discretion in dismissing the second PCRA petition on timeliness grounds as Appellant asserted facts and arguments that rendered the timeliness factor consideration secondary to an initial examination of said facts and arguments, which underpinned an unconstitutional as-applied challenge?

3. Did the

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