J-M03001-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WESLEY COOK 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

____________________________________________

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

- 2 -

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 resentenced 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).
J-M03001-21

- 3 -

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 penaltyphase 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 penaltyphase 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, 
J-M03001-21

- 4 -

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.
J-M03001-21

- 5 -

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. AbuJamal 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 
J-M03001-21

- 6 -

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 
J-M03001-21

- 7 -

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