from the Order Entered November 22, 2016 In the Court of
Common Pleas of Centre County Criminal Division at No(s):
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
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.
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 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.
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.
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.
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.
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.
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.
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
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.
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,
• "It is believed that District Attorney Stacy
Parks Miller [exchanged] text messages with this court";
• "On information, text messaging may have occurred
between Assistant District Attorney Lindsay Foster and Judge
Bradley P. Lunsford during the course of the McClure
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.
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.
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
• "There is no photo of Mr. Boob and I after the
Color Run. I can guarantee you that." Id. at
• "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.
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.
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.
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.
post-trial motions were assigned to the Honorable Pamela A.
Ruest. 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.
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.
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.
Lunsford retired from the bench in January 2016. See
Lunsford's Brief at 7.
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. 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.
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).
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.
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.
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
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. 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.
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,
but the download was unsuccessful because in late June of
2015 the phone was reset to factory settings. Id. at
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.
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. 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.
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.
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.
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.
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. 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.
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.
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.
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.
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.
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]."
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).
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.
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; 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.
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." 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. We further directed the trial
court to forward the certified record to this Court and
arranged for expedition of the case in this Court.
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
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  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
1982 MDA 2016 and 3 MDA 2017 (The Appeals by
Former Judge Lunsford)
begin by addressing the consolidated appeals filed by former
Judge Lunsford from the orders denying his motions to quash
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 ...