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Commonwealth v. McClure

Superior Court of Pennsylvania

October 20, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
JALENE R. MCCLURE APPEAL OF: RETIRED JUDGE BRADLEY P. LUNSFORD COMMONWEALTH OF PENNSYLVANIA
v.
JALENE R. MCCLURE APPEAL OF: RETIRED JUDGE BRADLEY P. LUNSFORD COMMONWEALTH OF PENNSYLVANIA Appellee
v.
JALENE R. MCCLURE Appellant

         Appeal from the Order Entered November 22, 2016 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001778-2012

          BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

          OPINION

          SOLANO, J.

         In 2014, Jalene R. McClure was convicted by a Centre County jury of assault and other offenses relating to injuries to a child at a daycare center that McClure operated. In 2016, we reversed McClure's conviction and remanded for a new trial. Commonwealth v. McClure, 144 A.3d 970 (Pa. Super. 2016). This case returns to us as a result of proceedings on remand in which McClure has sought to preclude retrial on double jeopardy grounds. Part of her argument in support of that relief is that there was misconduct during her trial on the part of the Centre County prosecutors and the presiding judge, the Honorable Bradley P. Lunsford.

         During the trial court proceedings on her preclusion motion, McClure issued two subpoenas to former Judge Lunsford to obtain documents and testimony from him. Lunsford's motions to quash those subpoenas were denied, and this opinion addresses Lunsford's appeals at Nos. 1982 MDA 2016 and 3 MDA 2017 from the November 21, 2016[1] and December 9, 2016 orders denying those motions. While those appeals were pending, the trial court proceeded with the case and ultimately denied McClure's double jeopardy motion. The second part of this opinion addresses McClure's appeal at No. 145 MDA 2017 from the December 22, 2016 order denying her motion to preclude retrial. Subject to instructions set forth in this opinion, we affirm in part the November 21, 2016 order denying Lunsford's first motion to quash; we vacate the December 9, 2016 order denying Lunsford's second motion to quash; and we vacate the December 22, 2016 order denying McClure's motion to preclude retrial.

         The charges relate to McClure's operation of her daycare business out of her home in August 2010. On August 18, 2010, the mother of five-month old P.B., one of the children entrusted to McClure's care, picked up her daughter from the daycare and was told by McClure that P.B. was sick and had vomited. While driving home, the mother noticed that P.B. was losing consciousness and took her to the hospital, where it was determined that P.B. had sustained head injuries, including a fractured skull and retinal hemorrhaging.

         Police Detective Dale Moore and a Children and Youth Services (CYS) employee interviewed McClure on the evening of the incident. McClure insisted during that interview that nothing had happened to P.B. at the daycare facility that day, but in an interview with Moore and the CYS employee five days later, on August 23, 2010, McClure gave verbal and written statements in which she said that she had tripped while carrying P.B. and fell, hitting P.B.'s head on a car seat.

         After further investigation, McClure was charged with assault and other offenses, and was tried on September 8-11, 2014, before Judge Lunsford and a jury. During the trial, an expert testified that P.B.'s injuries were consistent with a child who was shaken, and he opined that the injuries were sustained at McClure's daycare facility on August 18, 2010. At the conclusion of the trial on September 11, 2014, the jury found McClure guilty of aggravated assault, simple assault, two counts of endangering the welfare of a child, and recklessly endangering another person.[2]

         On October 13, 2014, prior to her sentencing, McClure moved for the recusal of Judge Lunsford. McClure alleged that Judge Lunsford had personal friendships with District Attorney Stacy Parks Miller, who was the lead prosecutor in her case, and with Parks Miller's co-counsel, Assistant District Attorney Nathan Boob. According to McClure, Judge Lunsford and the prosecutors engaged in text messaging, phone calls, social media contacts, and personal contacts outside of the courthouse. As examples of the personal relationships, McClure averred that:

• On September 14, 2014, three days after McClure's trial ended, Judge Lunsford was pictured with ADA Boob and other members of the district attorney's office who had been at an event called the "Color Run." Those pictures, showing Judge Lunsford at Champs Bar, were posted on social media, but later removed.
• On September 20, 2014, Judge Lunsford and his staff were at the Maryland shore. A picture of that event posted on social media showed Judge Lunsford with ADA Boob. Parks Miller posted comments about the picture.

         The photo of Judge Lunsford and ADA Boob at the Maryland shore on September 20, 2014, and the comments about the photo by Parks Miller were attached as exhibits to McClure's motion.

         McClure's motion also described a September 24, 2014 conversation initiated by Judge Lunsford with McClure's attorney, Bernard Cantorna, regarding McClure's trial. McClure alleged that "[b]oth the manner in which the trial was conducted and rulings from the trial court gave the appearance of a bias towards the prosecution and prejudice against the defense." Mot. for Recusal at ¶ 8. McClure alleged that during her trial:

[I]t appeared to courtroom observers that deference was given to the district attorney's office, Stacy Parks Miller and Nathan Boob in the management of the trial, which did not appear to be extended to the defense.
On numerous occasions, the court allowed the district attorney to engage in conduct in front of the jury that called into question the credibility and character of defense counsel and Ms. McClure's case. The manner in which the court made its rulings, whether intentional or not, imparted the appearance of partiality to the prosecution and a negative inference of defense counsel and [McClure]'s case.

Id. at ¶¶ 11-12 (numbers omitted). McClure listed examples of the court's allegedly biased rulings. Id. at ¶¶ 12-18. She also attached to her motion an affidavit by Attorney Maren Lynn Chaloupka (a consultant for the defense who attended the first day of McClure's trial), who opined that "the overall tone of the District Attorney was . . . indignant and highly emotional" and the "the atmosphere during the trial was chaotic and permissive of the District Attorney's conduct." Among other things, Chaloupka found it extraordinary that the court permitted one Commonwealth attorney (Boob) to conduct direct examination of witnesses and permitted a second Commonwealth attorney (Parks Miller) to make objections and present redirect examination.

         On October 23, 2014, McClure filed a motion to preserve and produce evidence, in which she alleged:

• "On information and belief, Judge Bradley P. Lunsford admitted that he text messaged Assistant District Attorney Nathan Boob (trial counsel) during the course of Jalene McClure's trial held on September 8-11, 2014";
• "It is believed that District Attorney Stacy Parks Miller [exchanged] text messages with this court"; and
• "On information, text messaging may have occurred between Assistant District Attorney Lindsay Foster and Judge Bradley P. Lunsford during the course of the McClure trial."

         Mot. to Preserve and Produce Evid., 10/23/14, at ¶¶ 1, 4, 5. ADA Foster did not participate directly in McClure's trial, but assisted with preparation of some aspects of it. McClure sought a court order requiring Parks Miller, Boob, Foster, and Judge Lunsford to preserve any e-mails, instant messages, or other forms of electronic communications from August 4, 2014, until the date of the motion. McClure also sought production of copies or screen shots of all information regarding those communications. McClure's motion was sent to Judge Lunsford on October 24, 2014.

         On October 30, 2014, Judge Lunsford held a hearing on the motions for recusal and to preserve and produce evidence. At that hearing, counsel for McClure (Cantorna) sought to elicit testimony from his law partner, James N. Bryant, in support of McClure's motion to preserve and produce evidence. Cantorna claimed that Centre County Court of Common Pleas President Judge Thomas King Kistler told Attorney Bryant that Judge Lunsford admitted to sending text messages to ADA Boob during McClure's trial. Cantorna also averred that the request for text messages and communications from ADA Foster was "based on information that Mr. Bryant was given by the Judiciary of Centre County." N.T., 10/30/14, at 2-3. The Commonwealth objected that Bryant's proposed testimony would be inadmissible hearsay, and the court sustained that objection, precluding Bryant's testimony.

         Parks Miller appeared at the October 30, 2014 hearing, but did not give testimony under oath. She said it was "absolutely untrue that this Court was texting Assistant District Attorney Nathan Boob during this trial." N.T., 10/30/14, at 5. Parks Miller continued, "In terms of the rest of the allegations, I am not dignifying them." Id. ADA Boob provided a document with a signed verification, stating that he did not exchange any text messages with Judge Lunsford during McClure's trial. Id. at 10. The trial court granted the Commonwealth's oral motion to quash a subpoena issued to ADA Foster shortly before the hearing, and Foster did not appear at the hearing. Id. at 5-6. During the hearing, Judge Lunsford stated:

• "There is no photo of Mr. Boob and I after the Color Run. I can guarantee you that." Id. at 13.[3]
• "There are no text messages between me or either of these two prosecutors [Boob and Parks Miller]. None whatsoever. None." Id. at 23.
• "I will reiterate there are no text messages between me and these two [Boob and Parks Miller]. I swear to God." Id. at 25.

         Judge Lunsford denied both the motion for recusal and the motion to preserve and produce evidence. N.T., 10/30/14, at 32. He explained that McClure had not satisfied her burden of proof. Id. at 29, 32. The next day, October 31, 2014, Judge Lunsford granted an October 20, 2014 motion by McClure to strike a Commonwealth notice of mandatory minimum sentences, and he sentenced McClure to an aggregate term of ten to twenty years' incarceration.

         While the foregoing proceedings were taking place, McClure pursued an alternative source of information about possible communications between Judge Lunsford and the DA's Office. On October 23, 27, and 29, 2014, her counsel filed requests to obtain records of such communications from Centre County pursuant to the Pennsylvania Right to Know Law, 65 P.S. §§ 67.101 to 67.3104. McClure's counsel obtained those records on November 6, 2014. Mot. to Preclude Retrial, 10/20/16, at ¶¶ 19-20, 25.[4]

         On November 7, 2014, McClure filed post-sentence motions, including a "Motion for Re-Sentencing and Recusal of Trial Court." Attached to that motion were phone records showing that text messages were exchanged between Judge Lunsford and DA Parks Miller, ADA Boob, and ADA Foster between August 4, 2014 (the day of jury selection in McClure's case), and October 10, 2014. The records showed that during the period of September 8-11, 2014, the days of McClure's trial, Judge Lunsford and ADA Foster exchanged 152 text messages; during the same period, Parks Miller received one message from Judge Lunsford. The records showed no text messages between Judge Lunsford and ADA Boob during McClure's trial. The records showed additional messages exchanged between Judge Lunsford and Parks Miller, Boob, and Foster before and after McClure's trial.[5]

         McClure's post-trial motions were assigned to the Honorable Pamela A. Ruest.[6] On December 23, 2014, Judge Ruest denied all of McClure's post-trial motions, without explaining her ruling. Judge Ruest's order stated that McClure had thirty days to file an appeal.

         On December 31, 2014, McClure filed an untimely supplemental post-sentence motion without leave of court. In that motion, McClure alleged that Judge Lunsford made false statements at the October 30, 2014 hearing on McClure's motion for recusal, and that Parks Miller and Boob knew those statements were false and did not correct the record. On January 7, 2015, the trial court issued an order allowing McClure to file her supplemental post-sentence motion pursuant to Pa.R.Crim.P. 720(B)(1)(b). The certified record contains no order formally disposing of that supplemental motion.

         On January 19, 2015, McClure filed a notice of appeal from her judgment of sentence. In a Pa.R.A.P. 1925(a) opinion written in connection with McClure's appeal, Judge Lunsford wrote that the text messages between himself and members of the District Attorney's Office were not about McClure's case and "did not give either side strategic or tactical advantage." Trial Ct. Op., 4/30/15, at 4. Judge Lunsford stated that he "had no personal bias or prejudice regarding a party, Defendant, or a party's attorney . . . ." Id. Judge Lunsford also addressed McClure's accusation that he had made false statements at the October 30, 2014 hearing. He explained that when he said in that hearing that there were no text messages between himself and Parks Miller and Boob, he was referring only to messages during McClure's trial. He added that he had not recalled a message he had sent to Parks Miller during a lunch break regarding returning to the courtroom before the jury was seated. Trial Ct. Op., 4/30/15, at 29-30.

         Judge Lunsford retired from the bench in January 2016. See Lunsford's Brief at 7.

         On August 8, 2016, this Court decided McClure's direct appeal. We vacated McClure's judgment of sentence and remanded for a new trial. See McClure, 144 A.3d at 973. We based our decision on issues unrelated to McClure's claim of misconduct involving the prosecutors and Judge Lunsford.[7] McClure had argued in her appeal that the trial court erred by denying her motion for recusal, and she sought a remand for a hearing relating to alleged ex parte communications between the District Attorney and Judge Lunsford in another case (the criminal prosecution of Randall Brooks in 2012) so that she could bolster her claim of improper conduct. See id. at 980. But because we vacated McClure's judgment of sentence on other grounds and because Judge Lunsford had retired from the bench, we held that those issues were moot. Id. We also denied as moot McClure's request, filed during the pendency of the appeal, for an evidentiary hearing in relation to her recusal request. Id.

         After our remand, on October 20, 2016, McClure filed her motion to preclude retrial on grounds of double jeopardy because the District Attorney's Office had engaged in prosecutorial misconduct. It is that motion that is the subject of these appeals. McClure alleged that ex parte communications between Judge Lunsford and members of the District Attorney's office "took place in the context of a deliberate effort to deprive Ms. McClure of any semblance of a fair trial." She further alleged that Parks Miller elicited improper testimony, made misrepresentations about evidence during McClure's trial, and withheld exculpatory evidence (interviews with experts who prepared reports but were not called by the Commonwealth to testify at trial).[8]

         In support of her assertion that Judge Lunsford had ex parte communications with members of the District Attorney's Office, McClure attached two exhibits to her motion to preclude a retrial:

• An affidavit from Maggie Miller, a former court reporter for Judge Lunsford. Miller averred that during the criminal trial of Randal Brooks in April 2012, Judge Lunsford told Miller that Parks Miller, the lead prosecutor in Brooks' case, sent Judge Lunsford text messages complaining about his rulings.
• Phone records showing: Judge Lunsford sent Parks Miller a text message during the second day of McClure's trial; Parks Miller sent Judge Lunsford a message on the day McClure's trial ended, after the conclusion of the trial; and ADA Foster and Judge Lunsford exchanged 152 text messages during the time period of McClure's trial.

         In connection with her motion to preclude retrial, McClure also filed a motion for discovery from the Commonwealth. Among other things, she sought (1) cell phone records between ADA Foster, ADA Boob, and DA Parks Miller from the date of jury selection in McClure's case to October 10, 2014; and (2) text messages among Judge Lunsford, Foster, Boob, and Parks Miller during that same period.

         McClure also served former Judge Lunsford with a subpoena to testify and to bring "copies of all text messages" that he exchanged with Boob, Foster, and Parks Miller from August 4, 2014 to October 29, 2014. Lunsford moved to quash the subpoena. On November 21, 2016, a hearing on the motion to quash was held before Clinton County Court of Common Pleas Senior Judge J. Michael Williamson, specially presiding. After hearing arguments from both sides, Judge Williamson denied Lunsford's motion to quash. In his order, dated November 21, 2016 and filed on November 22, 2016, Judge Williamson said: "Because the Court anticipates it will be necessary to have additional hearings beyond that scheduled for tomorrow, this Order is stayed until the next hearing is scheduled in anticipation of Mr. Lunsford filing an appeal from this Order." Order, 11/21/16. Lunsford filed a notice of appeal on December 2, 2016 (No. 1982 MDA 2016).

         A hearing on McClure's motions was held before Judge Williamson on November 22, 2016. At that hearing, the court incorporated the testimony of Maggie Miller, the former court reporter for Judge Lunsford, who had testified earlier that day in another case charging misconduct by prosecutors and Judge Lunsford, Commonwealth v. Grove, CP-14-CR-873-2013.[9] See N.T., 11/22/16, at 14. In the Grove hearing, Miller testified, over a hearsay objection, that in April 2012, during the criminal trial of Randall Brooks, Judge Lunsford told her that Parks Miller was sending him messages about Brooks' case.

         Also at the November 22 McClure hearing, Julie Lutz, a Centre County employee, testified that she gathered phone records in response to the Right to Know requests submitted by McClure's counsel. N.T., 11/22/16, at 57-61. Those records showed communications involving Judge Lunsford, Parks Miller, Boob, and Foster from August 4, 2014 (when jury selection in McClure's trial began) to mid-October, 2014 (shortly before McClure was sentenced). Id. at 61-66. Lutz testified that Judge Lunsford "turned in" his phone to the County in July of 2015 (about six months before he retired). Id. at 66. Elizabeth Dupuis, the County Solicitor, testified that an attorney for the county, Mary Lou Maierhofer, had a third-party agency try to download information from Judge Lunsford's phone, [10] but the download was unsuccessful because in late June of 2015 the phone was reset to factory settings. Id. at 75-76.

         Joan Parsons, who was the judicial secretary for Judge Lunsford for nineteen years, testified that Judge Lunsford had a habit of taking his cell phone into court when proceedings were occurring, including in 2014. Parsons asked Judge Lunsford more than once to stop that habit. N.T., 11/22/16, at 86-87. She also testified that approximately two weeks after McClure's trial, Boob went to a concert with Judge Lunsford and others in Maryland. Judge Lunsford posted photos from that day on social media. Id. at 89-90.

         Parks Miller testified that when McClure filed her October 23, 2014 motion to preserve evidence, the text messages from the time of McClure's trial were no longer on her phone. N.T., 11/22/16, at 93, 97-99. She did not know if they could have been recovered at that time. Id. at 98. Sometime between October 30, 2014 (when Judge Lunsford denied the motion to preserve evidence), and mid-January 2015, Parks Miller changed phones. Id. at 101.[11] With respect to the records obtained through the Right to Know Law that showed communications between Judge Lunsford and Parks Miller while McClure's case was before Judge Lunsford (including around the time that McClure filed motions in limine on August 21, 2014), Parks Miller said she did not know the subject of her conversations with Judge Lunsford, but she denied that they were related to McClure's case. Id. at 104-109, 110-111, 115, 116. Parks Miller also denied Maggie Miller's accusation that she sent Judge Lunsford messages about his rulings during the Randall Brooks trial. Id. at 112.

         Parks Miller testified that she talked to ADA Foster after McClure filed her post-sentence motion documenting a large number of text messages between Judge Lunsford and Foster. See N.T., 11/22/16, at 109-10. Parks Miller said that Foster told her that those texts were about the medical condition of an assistant district attorney who had just resigned and about plans for a tailgate event. Id. at 126-29. Parks Miller said that when she talked to Foster, she looked at Foster's phone, but the messages were no longer on Foster's phone at that time. Id. at 123-24.

         On December 2, 2016, McClure sent former Judge Lunsford another subpoena that sought testimony and records of his communications with members of the District Attorney's Office. The subpoena sought the same text messages as the first subpoena, and additionally:

(1) any and all correspondence, writings, text messages, emails, letters, summaries, statements, admissions, acknowledgments, or any other document or thing relating to any criminal cases where discussions occurred with the District Attorney's office, when the defendant[s] or defense counsel were not copied or included in that communication; (2) and any and all admissions, statements, acknowledgments, correspondence, writings or the like to the Judicial Misconduct Board or any other person or agency, relating to communications with the District Attorney's office where the defendant[s] or their attorney[s] were not included or copied on those communications.

         Subpoena, 12/2/16. Lunsford moved to quash that subpoena, and, after hearing arguments, Judge Williamson denied that motion on December 9, 2016, but stayed his order to give Lunsford an opportunity to file an appeal. On December 22, 2016, Lunsford filed a notice of appeal from the December 9 order (No. 3 MDA 2017). He also filed a motion to certify the trial court's December 9 order as immediately appealable pursuant to the Interlocutory Appeal Act, 42 Pa.C.S. § 702(b), but the trial court denied that motion. This Court consolidated Lunsford's appeals of the November 21, 2016 and December 9, 2016 orders denying his motions to quash. See Order, 2/10/17.[12]

         Also on December 9, 2016, the trial court resumed its hearing on McClure's motion to preclude retrial and motion for discovery. At that hearing, Lutz brought phone records showing Judge Lunsford's communications with Parks Miller and Boob from May 30, 2014, to December 4, 2014.[13] The records showed that text messaging stopped as of October 24, 2014, one day after McClure filed her motion for discovery. N.T., 12/9/16, at 7-11. Lutz testified that she did not have the ability to access the content of the text messages. Id. at 11-12, 15-16.

         Maierhofer, the attorney for the county who was given Lunsford's phone, brought to the hearing a report on an attempt to download the contents of Judge Lunsford's phone. Maierhofer testified that the county had Judge Lunsford's phone tested because "we had letters in other litigation on preserving information. So we needed to confirm or determine if there was information on there that would be relevant to those preservation letters." N.T., 12/9/16, at 22-23. When the county received the phone, it had been reset to factory settings. Maierhofer did not know who had reset the phone. The county first asked personnel in its information technology department to examine the phone, and when they found nothing, the county hired a forensic examiner to determine if any information remained on the phone. The examiner found nothing. Id. at 18-23, 29.

         ADA Foster also testified on December 9, 2016. She stated that her only role in the McClure case was to review transcripts of testimony that a defense expert, Dr. John Plunkett, had given in other trials. N.T., 12/9/16, at 34-35. Foster was present during parts of McClure's trial. Id. at 35. Foster did not remember when she switched phones. Id. at 40. She turned her phone in "several months" after McClure's trial, when ADAs received new phones and were asked to turn in their old ones. Foster gave the phone to First Assistant District Attorney Mark Smith and Parks Miller, and she did not know where the phone was currently. Id. at 40-41. Foster was not aware of any attempt to retrieve text messages from her phone. Id. at 41. She testified that she did not intentionally remove information from her phone. Id. at 56-7.

         Foster asserted that she did not recall whether any of the texts Judge Lunsford sent her during the trial referenced the proceedings. N.T., 12/9/16, at 45. Foster testified that the texts she and Judge Lunsford exchanged discussed an ADA who was ill and resigned, places Foster and her fiancé might visit, and social events. Id. at 45-48, 50-51, 55. Foster said she never discussed the merits of any case with any judge. Id. at 49.

         Parks Miller testified that she did not know the whereabouts of the phones she and Foster had at the time of the McClure trial. N.T., 12/9/16, at 117-18. Parks Miller did not try to download text messages from her phone. Id. at 119. On October 20, 2014, the day the defense filed a motion to strike mandatory minimum sentences in McClure's case, Parks Miller exchanged nine text messages with Judge Lunsford; Parks Miller could not recall the subject of those messages, but testified they were not about McClure's case. Id. at 120-21. Two days later, the court sent out a scheduling order, and Parks Miller and Lunsford exchanged two text messages. On October 24, 2014, the day McClure's motion to preserve and produce evidence was sent to Judge Lunsford, there were three messages between Parks Miller and Judge Lunsford. After October 24, and through the end of December 2014, there were no text messages between Parks Miller and Lunsford. Id. at 123.

         On December 22, 2016, Judge Williamson dismissed McClure's motion to preclude a retrial. The court said it was "deeply disturbed by the incredible number of text communications between Lunsford and members of the District Attorney's Office before and after [McClure]'s trial." Trial Ct. Op., 12/22/16, at 2. It noted, however, that "no evidence has been disclosed concerning the exact language of the extensive text messaging." Id. The lack of evidence was partly due to the fact that the relevant phones "were wiped clean, destroyed or otherwise made unavailable after the issue of the texting between Lunsford and the District Attorney's Office had been raised by defense counsel." Id. at 2-3. The court further noted that it had been unable to obtain Lunsford's testimony or cooperation from investigating agencies such as the Judicial Conduct Board. Id. at 3. The court concluded that McClure had failed to establish facts sufficient to warrant the dismissal of charges against her, but added: "[s]hould counsel for [McClure] be successful in securing additional factual information through use of the discovery tools we have granted to him, we will be willing to readdress [McClure]'s motion prior to or following the trial . . . ." Id. at 4. With regard to McClure's allegations of social activities between Lunsford and members of the District Attorney's staff, the court found "nothing so egregious as to warrant dismissal of the charges against [McClure]." Id.

         On December 30, 2016, the Commonwealth filed a motion for reconsideration of the opinion and order denying McClure's motion to preclude retrial, requesting that the court add language that McClure's motion was frivolous. On January 2, 2017, the trial court amended its December 22, 2016 order by adding the following:

Notwithstanding the above discussion, we find [McClure's] Petition is not frivolous. [McClure] is advised that our Order dismissing her Motion to Preclude Retrial is immediately appealable as a collateral order pursuant to [Criminal] Rule 587(B)(6).

Order, 1/2/17.

         On January 18, 2017, McClure filed a timely notice of appeal from the trial court's December 22, 2016 order (No. 145 MDA 2017). That same day, McClure filed numerous pre-trial motions in the trial court. The trial court scheduled a pretrial conference on "all Outstanding Issues" for 2:00 p.m. on January 25, 2017.

         On January 24, 2017, the Commonwealth filed in the trial court a "Motion to Continue Hearings in Light of Pa.R.A.P. 1701 Stay." Believing that the trial court intended to deny that motion, at approximately 10:00 a.m. on January 25, 2017, the Commonwealth filed in this Court an "Emergency Motion to Enforce Appellate Stay under Pa.R.A.P. 1701." In that motion, the Commonwealth argued that McClure's appeal of the order denying her double jeopardy motion deprived the trial court of jurisdiction to rule on pre-trial motions. On January 25, this Court entered an interim order directing the trial court to docket its disposition of the Commonwealth's Motion to Continue Hearings by 1:00 p.m., and stating that if the trial court denied that motion, all proceedings in the trial court would be stayed pending our disposition of the Commonwealth's January 25 Emergency Motion to Enforce Appellate Stay. In response to our order, the trial court entered an order continuing the trial until jury selection on June 5, 2017. In the same order, the trial court also (1) vacated a prior order which had revoked McClure's bail based on a violation of the conditions of her bail;[14] and (2) denied a January 9, 2017 request by the Commonwealth for the court to inquire into a "conflict issue" involving one of McClure's attorneys, Sean P. McGraw.[15]

         After the trial court filed its January 25, 2017 order, the Commonwealth filed a "Second Emergency Motion to Act on Interim Order and Vacate the Trial Court Granting Bail for Lack of Jurisdiction."[16] On February 9, 2017, this Court issued an order (1) staying the proceedings in the trial court pending disposition of McClure's appeal at 145 MDA 2017 and Lunsford's appeals at 1982 MDA 2016 and 3 MDA 2017; (2) vacating the scheduling dates set forth in the trial court's January 25, 2017 order; (3) denying the Commonwealth's request that we vacate the trial court's disposition of its request to remove Attorney McGraw; and (4) vacating the trial court's grant of bail in its January 25, 2017 order.[17] We further directed the trial court to forward the certified record to this Court and arranged for expedition of the case in this Court.

         On August 16, 2017, the Disciplinary Board of the Supreme Court of Pennsylvania made public a petition for discipline it had filed against Parks Miller on February 22, 2017. The petition charges Parks Miller with communicating ex parte with Judge Lunsford (and another judge) in numerous cases and making false statements in connection with the disciplinary matter. With regard to McClure's case, the petition charges Parks Miller with making false statements and failing to correct false statements by Judge Lunsford during the October 30, 2014 hearing on McClure's motion for recusal.[18]

         On August 29, 2017, McClure filed an application for relief in this Court, citing the petition for discipline. McClure's application contained (1) a motion to recuse the Centre County District Attorney's Office [19] from prosecuting this matter; (2) a motion for an order remanding this case "with a direction to the trial court that a negative inference is warranted regarding the destruction of evidence, that a new trial be barred and judgment of acquittal entered"; and (3) a motion for an order granting McClure permission to apply for reconsideration of the November 15, 2016 order revoking her bail. The Commonwealth filed a response on September 11, 2017, in which it denied McClure's allegations and opposed the relief she sought.

         Nos. 1982 MDA 2016 and 3 MDA 2017 (The Appeals by Former Judge Lunsford)

         We begin by addressing the consolidated appeals filed by former Judge Lunsford from the orders denying his motions to quash McClure's subpoenas.

         In its order dated November 21, 2016, the trial court declined to quash a subpoena that directed Lunsford to testify at the hearing on McClure's preclusion motion and to produce copies of all of his text messages with Parks Miller, Boob, and Foster between August 4, 2014 and October 29, 2014. In its order dated December 9, 2016, the trial court declined to quash a second subpoena that again directed Lunsford to testify, again directed him to produce the text messages, and further directed him to produce other correspondence and similar documents relating to ex parte communications with the DA's office regarding "any criminal cases where [such] discussions occurred" and "any and all admissions, statements, acknowledgments, correspondence, writings or the like to the Judicial Misconduct Board or any other person or agency" relating to ex parte communications with the DA's office. In his brief, Lunsford raises the following issue:

Whether subpoenas upon a retired judge seeking to probe his decision-making while presiding over a 2014 trial must be quashed based upon firmly rooted privileges and judicial immunity that protect members of the judiciary ...

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