Com. v. McClure, J.

J-A15020-17 & J-A15021-17
2017 PA Super 334COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
JALENE R. MCCLURE
APPEAL OF: RETIRED JUDGE BRADLEY P.
LUNSFORD
No. 1982 MDA 2016
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
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JALENE R. MCCLURE
APPEAL OF: RETIRED JUDGE BRADLEY
P. LUNSFORD
No. 3 MDA 2017
Appeal from the Order Entered December 9, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001778-2012
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
J-A15020-17 & J-A15021-17
PENNSYLVANIA
Appellee
v.
JALENE R. MCCLURE
Appellant No. 145 MDA 2017
Appeal from the Order Entered December 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 BY SOLANO, J.: FILED OCTOBER 20, 2017
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
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2016 and 3 MDA 2017 from the November 21, 20161 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
____________________________________________
1The order dated November 21, 2016 was entered on the docket on
November 22, 2016. For ease of reference, we refer to it as the
November 21, 2016 order.
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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:
____________________________________________
2 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), 4304(a)(1), and 2705.
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 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
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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
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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
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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
____________________________________________
3 Judge Lunsford later conceded that he saw Boob at Champs Bar after the
Color Run, but not that he had posed for a picture with Boob. N.T.,
10/30/14, at 26.
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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
____________________________________________
4 In a later proceeding involving similar requests for communications
involving other Centre County judges, the Commonwealth Court held it was
improper for the county to produce such records without first obtaining
approval from the appropriate judicial open records officer. See Grine v.
County of Centre, 138 A.3d 88 (Pa. Cmwlth.), appeal denied, 157 A.3d
483 (Pa. 2016).
5An affidavit by Nicole Courter, who obtained the records, stated that she
counted the messages recorded on Judge Lunsford’s phone records, and she
provided the following totals:
a. 364 text messages and 24 media messages were sent or
received between the court and Assistant District Attorney
Lindsay Foster between August 4, 2014 and September 8,
2014[.]
(Footnote Continued Next Page)
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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.
(Footnote Continued) _______________________
b. 152 text messages and 1 media message were sent or
received between the court and Assistant District Attorney
Lindsay Foster from September 8, 2014 through September 11,
2014. Of those 152 text messages, 100 texts were sent or
received between the hours of 8:00 a.m. and 5:00 pm. Many of
those at times when the court was on the bench and trial [was]
in session.
c. 195 text messages and 3 media messages were sent
between the court and Assistant District Attorney Lindsay Foster
from after the trial on September 11, 2014 to October 10, 2014.
d. Assistant District Attorney Nathan Boob sent or received
text messages with the court 13 times prior to trial and 63 text
messages and 8 media messages post-trial from September 11,
2014 to October 10, 2014.
e. District Attorney Stacy Parks Miller received or sent 17 text
messages and 1 media message prior to trial; received 1 text
message from the court during trial; and received or sent 44
text messages and 4 media messages post trial to October 10,
2014.
Motion for Re-Sentencing and Recusal of Trial Court, Ex. A (Affidavit of
Nicole E. Courter). During oral argument, the Commonwealth contended
that the number of messages may have been lower, but the Commonwealth
submitted no documents to support that contention, and the records
appended to the affidavit confirm the totals listed.
6 On December 5, 2014, President Judge Kistler reassigned Judge Lunsford
to preclude him from handling any criminal matters except those in DUI
court. Judge Kistler did not provide any explanation in the reassignment
order.
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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.
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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
____________________________________________
7 Specifically, we held that the trial court erred in admitting evidence during
the trial regarding McClure’s divorce; in admitting a redacted version of
McClure’s statement to police, rather than the entire statement; and in
allowing a detective to testify about his opinion and that of a CYS worker
regarding McClure’s credibility. 144 A.3d at 975-77.
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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
____________________________________________
8 In light of our disposition, this opinion does not extensively discuss the
grounds for McClure’s motion other than the alleged misconduct involving
former Judge Lunsford.
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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
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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
____________________________________________
9 Grove was another Centre County case in which the defendant was
convicted in proceedings before Judge Lunsford. In an action under the Post
Conviction Relief Act, the defendant sought relief from his sentence and a
new trial on grounds that included due process violations relating to ex parte
communications between the Centre County prosecutors and Judge
Lunsford. The trial court ordered resentencing for reasons unrelated to the
communications and denied the request for a new trial because the
defendant failed to show how the alleged ex parte communications affected
any aspect of his criminal case other than sentencing. On appeal, we
affirmed. Commonwealth v. Grove, ___ A.3d ___, Nos. 358 MDA 2017
and 1158 MDA 2017, 2017 WL 3763408 (Pa. Super., Aug. 31, 2017).
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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
____________________________________________
10 At a later hearing date, Maierhofer explained that she made the effort to
download the information from Lunsford’s phone because the County had
received litigation requests in other cases for preservation of that
information. N.T., 12/9/16, at 22-23.
11 In mid-January 2015, police seized Parks Miller’s phone while investigating
allegations that Parks Miller forged a judge’s signature. N.T., 11/22/16, at
(Footnote Continued Next Page)
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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:
(Footnote Continued) _______________________
101. Parks Miller testified that the phone seized in January 2015 was not
the same phone that she used at the time of McClure’s trial. Id.
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(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
____________________________________________
12 On December 21, 2016, McClure filed an application to quash Judge
Lunsford’s appeal of the November 21, 2016 order. McClure claimed that
Lunsford, as a non-party, lacked standing to appeal. Lunsford filed a timely
response, and this Court issued an order denying the application to quash
without prejudice to McClure’s right to raise the issue again, if properly
preserved, in her appellate brief or in a new application after the appeal had
been assigned to a panel of this Court to decide the merits. Order, 2/23/17.
McClure did not raise the issue in her brief or file a new application.
Therefore, this issue is not presently before the Court.
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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.
____________________________________________
13These records thus covered a longer period of time than the records Lutz
brought to the November 22, 2016 hearing.
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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
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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
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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
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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
____________________________________________
14 On August 25, 2016, Judge Ruest had granted McClure bail with
conditions, including that McClure could not supervise minors other than her
own children. On November 7, 2016, the Commonwealth filed an
emergency motion to revoke McClure’s bail, alleging that McClure had
violated the terms of her release by supervising children. After a hearing on
November 15, 2016, Judge Williamson revoked McClure’s bail. Judge
Lunsford filed his notice of appeal on December 2, 2016; on December 19,
McClure filed a motion for bail pending that appeal. It was the
November 15, 2016 bail-revocation order that the trial court (Judge
Williamson) vacated in its January 25, 2017 order.
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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
____________________________________________
15 The “conflict issue” was not raised by motion; it was raised in New Matter
in the Commonwealth’s response to McClure’s motion for bail pending Judge
Lunsford’s appeal. McGraw had worked at the Centre County District
Attorney’s Office from January 2010 through March 2013, and the
investigation of McClure that led to the filing of criminal charges was ongoing
while McGraw was working there. The Commonwealth argued that because
of this fact, the Rules of Professional Conduct prohibited McGraw from
representing McClure. McGraw responded that he was not precluded from
representing McClure because he had no involvement in the McClure case
while he was at the District Attorney’s office.
16After we gave McClure time to respond to the Commonwealth’s motion,
the Commonwealth filed another motion seeking clarification on the issue of
bail. We then entered another interim order stating that the trial court’s
decision to reinstate a prior bail order was stayed pending our disposition of
the Commonwealth’s emergency motions.
17 On February 13, 2017, McClure filed an application for reinstatement of
bail in this Court. We deferred the application to the trial court. Initially,
(Footnote Continued Next Page)
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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
(Footnote Continued) _______________________
the trial court requested that this Court reinstate McClure’s bail. The trial
court stated, “[w]e are convinced that the conditions established by Judge
Ruest and the period of additional incarceration received by Defendant for
her violation of [the bail] conditions are sufficient pending what appears to
be possibly a lengthy delay in bringing this matter to a conclusion.” This
Court denied the trial court’s request and ordered the court to dispose of
McClure’s application in accordance with Pa.R.Crim.P. 523 (criteria to be
considered in determining bail) and Pa.R.Crim.P. 520(A) (requiring reasons
on the record for refusal of bail). On March 8, the trial court issued an order
addressing all of the Rule 523 criteria, as well as evidence that McClure
violated other conditions of her bail by committing harassment and by failing
to notify the Commonwealth of changes in her address. In that order, the
trial court denied McClure’s application for bail.
18The petition also makes allegations regarding Parks Miller’s use of a fake
Facebook profile to obtain information about McClure and her sons. The
Facebook profile is another ground raised by McClure in her double jeopardy
motion. It does not involve Judge Lunsford.
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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
____________________________________________
19 It is not clear whether McClure seeks recusal of District Attorney Parks
Miller only or of the entire Centre County District Attorney’s Office. In her
motion, McClure alleges that Parks Miller has a conflict of interest that
“mandates the immediate recusal of the prosecutor in this case.” McClure’s
App. for Relief Pursuant to R. 123, 8/29/17, at ¶ 32 (emphasis added). In
her prayer for relief, McClure “moves the court for an order recusing the
Centre County District Attorney’s office from prosecuting this matter any
further.” Id. (emphasis added). We note that throughout these
proceedings, the Commonwealth has been represented by special counsel
Bruce Castor, in addition to personnel of the District Attorney’s Office.
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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 from compelled
testimony regarding adjudicative acts.
Lunsford’s Brief at 6.
“Typically, the standard of review regarding a motion to quash a
subpoena is whether the trial court abused its discretion.” Leber v.
Stretton, 928 A.2d 262, 266 (Pa. Super. 2007), appeal denied, 945 A.2d
172 (Pa. 2008). However, where the issue raised is purely a question of
law, “this Court’s standard of review is de novo and our scope of review is
plenary.” Id.- 27 -
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Jurisdiction
Collateral Order
Before reaching the merits of Lunsford’s appeals, we first address this
Court’s jurisdiction to hear them. Lunsford contends that the orders denying
his motions to quash are collateral orders appealable under Pa.R.A.P.
313(b). McClure does not challenge our jurisdiction in her brief, but we may
address the issue sua sponte. See In re W.H., 25 A.3d 330, 334 (Pa.
Super.), appeal denied, 24 A.3d 364 (Pa. 2011).
“The question of whether an order is appealable under Rule 313 is a
question of law. Accordingly, our standard of review is de novo and our
scope of review is plenary.” K.C. v. L.A., 128 A.3d 774, 778 (Pa. 2015)
(citations omitted). As the Supreme Court stated in K.C.:
Otherwise known as the collateral order doctrine, [Appellate]
Rule 313(b) provides that an interlocutory order is collateral and,
therefore, immediately appealable, if it is: “[1] separable from
and collateral to the main cause of action where [2] the right
involved is too important to be denied review and [3] the
question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.”
Id. at 777 (quoting Pa.R.A.P. 313(b)).
Discovery orders are generally interlocutory and not immediately
appealable; however, discovery orders are immediately appealable if they
satisfy all three requirements of Rule 313. Ben v. Schwartz, 729 A.2d 547,
551-52 (Pa. 1999). In Leber, one of the parties to a defamation lawsuit
sought to compel testimony from two judges whose conduct was the subject
matter of the alleged defamation. 928 A.2d at 263-64. The judges moved
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J-A15020-17 & J-A15021-17
to quash to the subpoenas, asserting that their testimony was barred by the
deliberative process privilege, and the trial court denied those motions. Id.
at 264. In concluding that the orders denying the judges’ motions were
appealable, we explained:
The question of whether [the judges] can be compelled to testify
regarding decisions they have rendered would not require an
analysis of underlying defamation claims. Furthermore, the
deliberative process privilege has been determined to meet the
importance prong of Rule 313. In addition, the collateral order
exception uniformly has been applied when an appellant has
asserted the existence of a privilege. Moreover, once disclosed,
the confidentiality of potentially privileged information would be
irreparably lost and there would be no effective means of review
after final judgment.
Id. at 265-66 (citations omitted). The subpoenas issued to former Judge
Lunsford seek hearing testimony, rather than pretrial discovery, but we find
that the principles stated in Leber and similar cases apply here. Under
these decisions, the orders denying Lunsford’s motions to quash the
subpoenas issued by McClure are collateral orders.
Determining whether Lunsford can be compelled to testify and produce
documents regarding his ex parte communications does not require an
analysis of the substantive issues regarding the assault and endangerment
charges against McClure, or of the prosecutorial misconduct charges that
McClure makes in her dismissal motion; rather, Lunsford’s appeal turns on
resolution of collateral issues regarding judicial privileges. See Leber, 928
A.2d at 265-66. Further, to the extent the deliberative process privilege
protects the judicial communications about which McClure inquires, it
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J-A15020-17 & J-A15021-17
embodies a right “too important to be denied review.” See Pa.R.A.P. 313;
see Leber, 928 A.2d at 266 (“the deliberative process privilege has been
determined to meet the importance prong of Rule 313”). As we discuss
below, the privilege at issue here has long been widely recognized as
necessary to protect the integrity of the judicial system. Finally, if review is
postponed, “the confidentiality of potentially privileged information would be
irreparably lost,” for, once the purportedly privileged materials are released,
Lunsford would have no effective means of obtaining review. See Leber,
928 A.2d at 266. Accordingly, we conclude that these appeals are within our
jurisdiction.
Rule 1701
Though we have appellate jurisdiction, we conclude that the trial court
lacked jurisdiction to enter its order dated December 9, 2016, which
enforced McClure’s second subpoena addressed to Lunsford and is the
subject of Lunsford’s second appeal (No. 3 MDA 2017). We therefore must
vacate that order.
McClure served her second subpoena on Lunsford on December 2,
2016, the same day that Lunsford appealed from the trial court’s November
21, 2016 order declining to quash McClure’s first subpoena. To a large
extent, McClure’s second subpoena sought the exact same evidence from
Lunsford that she sought in the first subpoena — copies of text messages,
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and testimony from Lunsford.20 At the time of the trial court’s December 9,
2016 enforcement order, Lunsford’s December 2, 2016 appeal was pending
in this Court.
As we explain in greater detail in our discussion of jurisdiction
regarding McClure’s appeal (No. 145 MDA 2017) at the end of this opinion,
Rule 1701(a) of the Rules of Appellate Procedure divests a trial court of
jurisdiction to proceed in a case once an appeal has been filed. Rule 1701(c)
contains an exception permitting the court to proceed with the remaining
matters before it when the appeal pertains to a collateral issue in the case,
but only if that collateral issue is unrelated to and not intertwined with the
matters on which the trial court intends to proceed. Here, the trial court
proceeded to resolve a motion to quash a second subpoena to Lunsford that
presented privilege issues that were identical to those that the court had
decided in its November 21, 2016 order and that already were before this
Court for resolution. Because these issues were exactly the same, there can
be no question that resolution of Lunsford’s pending first appeal was closely
intertwined with resolution of Lunsford’s motion to quash McClure’s second
subpoena. Accordingly, under Rule 1701, the trial court was divested of
____________________________________________
20Issuance of the second subpoena while Lunsford’s first appeal was (or was
about to be) pending itself raises jurisdictional issues that we need not
address here. The subpoena told Lunsford: “You are ordered by the court to
come to the Centre County Courthouse . . . to testify on behalf of Jalene R.
McClure in the above captioned case and to remain until excused”; it further
ordered him to bring documents. The subpoena thus was a court order
addressed to Lunsford that directed him to do the same things that
Lunsford’s pending appeal to this Court sought to prevent.
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jurisdiction to address the issues presented by McClure’s second subpoena
until this Court decided Lunsford’s appeal and remanded the case. By
entering the December 9, 2016 order anyway, the trial court improperly
insisted on enforcing its own view of Lunsford’s claim of privilege, despite
the fact that this very issue was under review by this Court.
The fact that McClure’s second subpoena to Lunsford also sought
additional documents not requested in her first subpoena does not change
this analysis. Even with respect to those additional documents, the issue
that controlled whether the subpoena could be enforced was the privilege
issue that already was before this Court for resolution. It was error for the
trial court to resolve this question in the context of the second subpoena
before this Court decided Lunsford’s first appeal.
Because the trial court lacked jurisdiction to issue its December 9,
2016 order regarding McClure’s second subpoena, we vacate that order,
making it unnecessary to further address Lunsford’s appeal from it at No. 3
MDA 2017.
Lunsford’s Claim of Privilege
In declining to quash the subpoenas that McClure issued to former
Judge Lunsford, Judge Williamson explained his decision as follows:
[O]ur decision to refuse to quash the subpoenas against
Lunsford was based upon our belief that the Defendants in these
cases[21] are entitled to present their allegation that they were
____________________________________________
21At around the same time as McClure subpoenaed former Judge Lunsford in
her case, a similar subpoena was issued to Lunsford in the Grove case.
(Footnote Continued Next Page)
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J-A15020-17 & J-A15021-17
denied due process of law. While we acknowledge the general
princip[les] set forth by Lunsford in his original motions, we
believe these cases are so unique as to remove them from
general constitutional principles regarding the privileges of the
judiciary. Indeed, an argument could well be made that
Lunsford has waived any privilege with regard to the issue of his
alleged texting with the District Attorney’s Office by virtue of his
addressing the issue in the 1925(a) Statement he filed in the
original McClure appeal.
Trial Ct. Op., 2/23/17, at 2-3. The court thus appeared to recognize that the
communications at issue are subject to “privileges of the judiciary,” but to
hold that “unique” facts of this case made those privileges inapplicable or
that the privileges were waived by Judge Lunsford.
In his appeal, Lunsford argues that the trial court erred by
“disregarding firmly rooted privileges and immunities that prohibit compelled
testimony of judicial officers concerning their judicial decisions.” Lunsford’s
Brief at 21 (some capitalization removed). Lunsford contends that the trial
court’s reasons for denying his motions to quash were insufficient to
overcome these privileges and immunities. He also disputes the trial court’s
suggestion that he waived any privilege.
Our courts have long recognized that judges may not be compelled to
testify regarding their thought processes in reaching official judgments. In
Leber, we recounted:
(Footnote Continued) _______________________
Judge Williamson declined to quash that subpoena too, and Lunsford
appealed his decision in Grove to this Court. Judge Williamson issued a
single Rule 1925(a) opinion explaining his decisions regarding the subpoenas
in both the McClure and Grove cases. We ultimately dismissed Lunsford’s
appeal in the Grove case as moot.
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A century ago, the United States Supreme Court declared it
“wholly improper” to subject decision makers to the rigors of an
“elaborate cross-examination with regard to the operation of
their minds.” Chicago, Burlington, & Quincy Railway Co. v.
Babcock, 204 U.S. 585, 593 . . . (1907). Therein, the Court
declared:
Jurymen cannot be called, even on a motion for a new trial
in the same case, to testify to the motives and influences
that led to their verdict. . . . Similar reasoning was applied
to a judge. . . . All the often-repeated reasons for the rule
as to jurymen apply with redoubled force to the attempt,
by exhibiting on cross-examination the confusion of the
members’ minds, to attack in another proceeding the
judgment of a lay tribunal, which is intended, so far as
may be, to be final, notwithstanding mistakes of fact or
law.
Id. (citations omitted).[22]
A few decades later, the United States Supreme Court created a
concept known as “the deliberative process privilege.” See
United States v. Morgan, 313 U.S. 409 . . . (1941). . . .
Since Morgan, a number of jurisdictions, including the Third
Circuit, have utilized the rationale of that case to prohibit judges
from testifying under oath.
Leber, 928 A.2d at 267-68; see also Fayerweather v. Ritch, 195 U.S.
276, 306-07 (1904) (stating that subsequent oral testimony of trial court
judge about reasoning for his decision was inadmissible and that a judgment
“ought never to be overthrown or limited by the oral testimony of a judge or
juror of what he had in mind at the time of the decision”).
In Leber, we explained that this “deliberative process privilege”
protects “confidential deliberations of law, or policymaking that reflect
____________________________________________
22 Babcock dealt with testimony by members of a state adjudicatory board.
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opinions, recommendations or advice.” Leber, 928 A.2d at 268 (quoting
Commonwealth v. Vartan, 733 A.2d 1258, 1265 (Pa. 1999) (plurality
opinion)). Though this privilege has been recognized in a number of
jurisdictions, there is little Pennsylvania law on the subject. 23 We pointed
out in Leber that the privilege “benefits the public, and not the officials who
assert that privilege,” 928 A.2d at 268 (discussing Vartan), and several
courts have emphasized the benefit to the public of maintaining the
confidentiality of judicial deliberations by erecting a shield against outside
____________________________________________
23 The status of this privilege in the Pennsylvania Supreme Court has been
less than clear, but nothing in that Court’s decisions causes us to doubt the
privilege’s validity. In Vartan, an action in which contractors sought
testimony from the Chief Justice of Pennsylvania regarding construction of a
court building, a plurality of the Court applied the privilege to shield the
Chief Justice from being compelled to give that testimony. However, in a
later case dealing with administrators’ assertion of the privilege, the Court
stated that it had “not definitively adopted” the privilege. See LaValle v.
Office of Gen. Counsel of Com., 769 A.2d 449, 457 (Pa. 2001). In
Kennedy v. Upper Milford Twp. Zoning Hearing Bd., 834 A.2d 1104,
1119 n.28 (Pa. 2003), the Court, citing Vartan, stated: “Quasi-judicial
deliberations are widely considered to be protected by a legal privilege of
ancient origin and recent interest. Termed ‘judicial’ or ‘deliberative,’ the
privilege is closely related to the executive privilege that protects the
decision-making process of the chief executive from compelled disclosure.”
The Court said it had been “unnecessary to expressly endorse” the privilege
in LaValle. Id. In Tribune-Review Publ‘g Co. v. Dep't of Cmty. &
Econ. Dev., 859 A.2d 1261, 1266 n.2, 1269 (Pa. 2004), while again noting
that it had not yet formally adopted the privilege, the Court stated that it
“agree[s] with the principles we articulated in Vartan.” Most recently, in In
re Interbranch Comm'n on Juvenile Justice, 988 A.2d 1269, 1277-78
(Pa. 2010), a plurality of the Court, without qualification or noted dissent,
cited Vartan in stating, “Under the deliberative process privilege,
government officials may refuse to testify and may withhold documents
containing ‘confidential deliberations of law or policymaking, reflecting
opinions, recommendations or advice.’” That case dealt with a subpoena for
testimony and materials from Judicial Conduct Board personnel during an
investigation of the Luzerne County juvenile justice system.
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inquiry and influence. See, e.g., United States v. Dowdy, 440 F. Supp.
894, 896 (W.D. Va. 1977) (“Should a judge be vulnerable to subpoena as to
the basis of every action taken by him, the judiciary would be open to
frivolous attacks upon its dignity and integrity, and . . . interruption of its
ordinary and proper functioning” (internal quotation marks and citations
omitted)); In re Enforcement of Subpoena, 972 N.E.2d 1022, 1029
(Mass. 2012) (“In addition to ensuring the finality of judgments, protecting
judges from the post hoc probing of their mental processes also ensures the
integrity and quality of judicial decision-making”).
Leber is the only precedential appellate decision in Pennsylvania that
has applied the judicial deliberative process privilege, but we find it
instructive here. We held in Leber that “a judicial officer may not be
compelled to testify, and his or her deliberative process may not be inquired
into, when a plaintiff in a defamation case challenges the truthfulness of
statements made by a defendant where the subject matter of the alleged
defamation had been judicial conduct.” 928 A.2d at 270 (footnote omitted).
Leber was the District Attorney of Tioga County, and he brought defamation
suits against another attorney (Samuel Stretton) and a newspaper. Leber
alleged that Stretton “defamed him by stating he was unethical because of
statements [Leber] had publicly made concerning [two judges,]” and that
the newspaper defamed him by printing Stretton’s comments. Id. at 263-
64. The statements leading to the defamation suits related to the judges’
dismissal of proceedings after finding that a prima facie case had not been
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established. Id. at 264. Leber served the judges with subpoenas to testify,
and sought to ask them why they found there was no prima facie case. Id.
at 264, 266. We concluded that this questioning was prohibited, stating:
[Leber’s] desire to question [the judges] regarding events which
occurred in the course of their judicial duty not only will take
time away from their role as district judges but also necessitates
delving into the thought processes they utilized in those
positions. As a matter of public policy, we find this type of
questioning unacceptable and hold that judicial officers are
immune from testifying as to information surrounding their
conduct during an official proceeding.
Id. at 270.
Under Leber, outsiders may not inquire into confidential deliberations
relating to judicial decisions. 928 A.2d at 268. Here, McClure seeks
testimony relating to communications of former Judge Lunsford at the time
of her trial so that she can explore whether outside factors influenced her
conviction. She also seeks production of some of those communications —
particularly, the text messages between Lunsford and the prosecutors. We
therefore must examine whether the privilege extends to the information
that McClure seeks and, if so, whether the trial court erred in holding that
McClure may obtain it anyway. We conclude that: (1) the privilege does not
apply to McClure’s request for copies of any ex parte communications
between prosecutors and Judge Lunsford, but it does apply to inquiries about
Judge Lunsford’s decision-making during McClure’s trial; (2) to the extent
the privilege is applicable, it is absolute and therefore may not be
overridden; (3) Judge Lunsford did not waive the privilege; and (4) the trial
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court could properly exercise discretion in allowing McClure to obtain
unprivileged information from Lunsford, so long as it did so with appropriate
attention to the policies underlying the privilege.
Application of the Privilege to McClure’s Requests
McClure’s subpoena directs former Judge Lunsford to produce copies of
any ex parte communications between him and the Centre County
prosecutors at the time of this case. She also seeks to have him testify
about such communications.24 We hold that the privilege does not protect
such documents or information from disclosure.
As noted, the privilege is designed to protect “confidential
deliberations of law, or policymaking that reflect opinions, recommendations
or advice.” Leber, 928 A.2d at 268. Accordingly, courts have recognized
that the privilege is not applicable where the inquiry seeks other types of
information, although they have varied in describing what other types of
information may be sought.25 We suggested in dicta in Leber that judges
____________________________________________
24 Because it appears that the text messages and other communications no
longer exist, we anticipate that the main practical effect of our decision will
be with respect to the request for testimony. No offer of proof appears in
the record, but we assume that such testimony would include questioning
about whether and when ex parte communications took place and their
subject matter.
25 See, e.g., Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir.
1982) (holding that judge may testify regarding “personal knowledge of
historical facts or expert opinion[,]” but “may not be asked to testify about
his mental processes in reaching a judicial decision”), rev’d on other
grounds, 466 U.S. 668 (1984); Brinkerhoff v. Home Tr. & Sav. Bank,
205 P. 779, 784 (Kan. 1921) (“Like any other witness [a judge] was
(Footnote Continued Next Page)
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may be called to testify in matters that do not “implicate the judicial officer’s
thought processes in his or her professional capacity,” such as matters
where a judge merely happened to be a fact witness. 928 A.2d at 270 n.12.
In seeking copies of any ex parte communications, McClure does not
seek to intrude into deliberations that were part of proper and legitimate
decision-making, but instead she seeks to find out whether there were
outside influences that might have tainted her criminal trial. Courts around
the country generally agree that material ex parte communications are
improper in any case. They can extraneously influence decisions by
introducing information outside the court record, and can do so unfairly
because the communications are not shared with all participants. See, e.g.,
Rho-Sigma, Inc. v. Int'l Control & Measurements, Corp., 691 So. 2d
16, 17 (Fla. Dist. Ct. App. 1997) (per curiam); Matter of Marek, 609
(Footnote Continued) _______________________
competent to give testimony not inconsistent with the record as to the
identity of the matters actually litigated in the former action[,]” but the
judge’s “secret and unexpressed reasons which actuated him in making the
decision are not admissible any more than are those of a jury”); Burr v.
Woodrow, 64 Ky. (1 Bush) 602, 605–06 (Ky. 1866) (holding that while
inquiry into reasons that influenced the court was prohibited, judge could be
asked what happened at trial); State ex rel. Childs v. Hayward, 248 A.2d
88, 90 (N.H. 1968) (“[N]o magistrate should be subjected to interrogation
with respect to his mental processes or the reasons for his decision, nor
should he be subjected to interrogation with respect to the evidence
presented before him when there is an existing record thereof. This does
not mean, however, that judicial officers, not presiding over courts of record,
are exempt from giving testimony as to what evidence was presented before
them, when no record of such evidence was made”); State v. Donovan, 30
A.2d 421, 427 (N.J. 1943) (holding that judges are not immune from
process, counsel should call judges only if they cannot obtain factual
information from another source, and judges are not required to divulge
reasons for their decisions).
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N.E.2d 419, 420 (Ind. 1993) (per curiam); In re Conduct of Burrows, 629
P.2d 820, 826 (Or. 1981) (en banc). Ex parte communications thus are
widely forbidden as a matter of procedure, due process, and ethics, as they
deprive a litigant of the right to a fair trial before an impartial tribunal. See,
e.g., United States v. Barnwell, 477 F.3d 844, 854 (6th Cir. 2007); Yohn
v. Love, 76 F.3d 508, 516-17 (3d Cir. 1996); Abdygapparova v. State,
243 S.W.3d 191, 208-10 (Tex. App. 2007).26 In Pennsylvania, judges are
prohibited from receiving ex parte communications by the Code of Judicial
Conduct,27 and lawyers are prohibited from sending ex parte communications
____________________________________________
26The Restatement (Third) of the Law Governing Lawyers § 113 (Am. Law
Inst. 2000) states in Comment b:
Ex parte communication with a judicial official before whom a
matter is pending violates the right of the opposing party to a
fair hearing and may constitute a violation of the due-process
rights of the absent party. A communication made secretly may
not withstand scrutiny. Ex parte communication also threatens
to embarrass the parties’ relationship with the judicial officer,
requiring the officer either improperly to acquiesce in the
conduct or to make a censorious response.
27Rule 2.9(A) of the Code, part of Canon 2 (“A Judge Shall Perform the
Duties of Judicial Office Impartially . . .”), states:
A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the
judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter, except as follows:
(1) When circumstances require it, ex parte communication
for scheduling, administrative, or emergency purposes, which
does not address substantive matters, is permitted . . . .
(Footnote Continued Next Page)
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to a judge by the Rules of Professional Conduct.28 Accordingly, in seeking to
determine whether such forbidden communications took place in this case,
McClure is not invading a part of the judicial process that deserves privileged
protection.
(Footnote Continued) _______________________
(2) A judge may obtain the written advice of a disinterested
expert on the law applicable to a proceeding before the judge, if
the judge gives advance notice to the parties of the person to be
consulted and the subject matter of the advice to be solicited,
and affords the parties a reasonable opportunity to object and
respond to the notice and to the advice received.
(3) A judge may consult with court staff and court officials
. . ., or with other judges, provided the judge makes reasonable
efforts to avoid receiving factual information that is not part of
the record, and does not abrogate the responsibility to decide
the matter personally.
(4) A judge may, with the consent of the parties, confer
separately with the parties and their lawyers in an effort to settle
matters pending before the judge.
(5) A judge may initiate, permit, or consider any ex parte
communication when expressly authorized by law to do so.
207 Pa. Code Rule 2.9(A); see, e.g., In re Larsen, 616 A.2d 529 (Pa.
1992), cert. denied, 510 U.S. 815 (1993).
28 Rule 3.5 states, in relevant part:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or
other official by means prohibited by law;
(b) communicate ex parte with such a person during the
proceeding unless authorized to do so by law or court order;
....
204 Pa. Code §81.4, Rule 3.5.
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For this reason, the Supreme Judicial Court of Massachusetts held in
In re Enforcement of Subpoena that the judicial deliberative process
privilege does not bar discovery about ex parte communications. In that
case, the Massachusetts Commission on Judicial Conduct summoned a judge
accused of misconduct to a deposition. 972 N.E.2d at 1026. The subpoena
also requested numerous documents, including, “Any notes, notebooks,
bench books, diaries, memoranda, recordation or other written recollections”
of certain cases. Id. at 1026-27. In holding that the privilege did not
prohibit discovery about the ex parte communications, the court stated:
Nor does the privilege apply to inquiries into whether a judge
was subjected to improper extraneous influences or ex parte
communications during the deliberative process. By definition,
such influences and communications lie outside the protected
sphere of the judge’s internal deliberations. As in jury
deliberations, inquiry into extraneous influences does not probe
into subjective mental processes, and the existence of such
influences often can be objectively ascertained, and many times
the evidence can be corroborated.
972 N.E.2d at 1033 (footnote, quotation marks, brackets, and citation
omitted). The court held that although “so much of the subpoena as relates
to the judge’s internal thought processes and deliberative communications,
memorialized in notes, diaries, or otherwise, must be quashed,” the
remaining portions of the subpoena were not subject to objections under the
privilege. Id. at 1036.
In the absence of any reported Pennsylvania decisions discussing this
issue, we find the Massachusetts decision persuasive. The privilege should
not shield judicial conduct that is not supposed to be part of the judicial
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process in the first place. We therefore hold that the privilege does not
shield ex parte communications, and that McClure’s request in her subpoena
for copies of such communications and testimony about them therefore is
permissible. Consistent with the Massachusetts decision, however, we also
hold that any inquiry into former Judge Lunsford’s thought processes and
deliberative processes during McClure’s trial is barred under the privilege,
and McClure may not ask about such matters in any testimony by former
Judge Lunsford pursuant to her subpoena; she thus may not ask Judge
Lunsford why he rendered particular decisions in her case or whether those
decisions were influenced by specified information.
In concluding that the ex parte communications are not protected by
the privilege, we are guided by the Pennsylvania Supreme Court’s teaching
that the scope of a privilege should mirror its purpose. In Schanne v.
Addis, 121 A.3d 942 (Pa. 2015), the Court considered a privilege closely
related to that at issue here: the privilege applicable to statements made in
the course of a judicial proceeding. The Court explained that this privilege is
absolute and “provid[es] immunity for communications which are made in
the regular course of judicial proceedings and are material to the relief
sought,” whether the statements are made “by a party, a witness, an
attorney, or a judge.” 121 A.3d at 947. The privilege therefore “serves an
essential function in guaranteeing access to the courts and permitting the
free articulation and resolution of legal claims.” Id. But, the Court
explained, while the scope of this privilege has been extended to a “variety
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of scenarios connected with the sound administration of justice as that term
is broadly understood,” “it has also been made subject to limitations where
the administration of justice is not likely to be substantially affected.” Id. at
948-49. Thus, the privilege has been held not to apply to statements made
during “an extrajudicial act that occurred outside of the regular course of the
proceedings” because affording privileged status in that situation “would not
advance the privilege’s underlying policy aims.” Id. at 948. So too here
extending the deliberative process privilege to ex parte communications
would not serve its policy objective of protecting legitimate judicial decision-
making.
We also find instructive Pennsylvania authorities relating to obtaining
information from jurors. 29 Rule 606 of the Pennsylvania Rule of Evidence
(“Juror’s Competency as a Witness”) provides as follows in subpart (b)(1):
(1) Prohibited Testimony or Other Evidence. During an inquiry
into the validity of a verdict, a juror may not testify about any
statement made or incident that occurred during the jury’s
deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the
verdict. The court may not receive a juror’s affidavit or evidence
of a juror’s statement on these matters.
____________________________________________
29The U.S. Supreme Court recognized that there are similar reasons for
preventing judges and jurors from testifying about the motivations for their
decisions. See Babcock, 204 U.S. at 593.
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Pa.R.E. 606(b)(1).30 This Court has explained the rationale behind this “no
impeachment rule”:
[We] cannot accept the statement of jurors as to what transpired
in the jury room as to the propriety or impropriety of a juror’s
conduct. To do so, would destroy the security of all verdicts and
go far toward weakening the efficacy of trial by jury, so well
grounded in our system of jurisprudence. Jurors cannot impeach
their own verdict. Their deliberations are secret and their
inviolability must be closely guarded. Only in clear cases [of]
improper conduct by jurors, evidenced by competent testimony,
should a verdict, which is fully supported by the evidence, be set
aside and a new trial granted.
Commonwealth v. Messersmith, 860 A.2d 1078, 1084–85 (Pa. Super.
2004) (quoting Commonwealth v. Pierce, 309 A.2d 371, 372 (Pa. 1973)),
appeal denied, 878 A.2d 863 (Pa. 2005).
But Rule 606(b)(2) contains exceptions to this prohibition:
(2) Exceptions. A juror may testify about whether:
(A) prejudicial information not of record and beyond common
knowledge and experience was improperly brought to the
jury’s attention; or
(B) an outside influence was improperly brought to bear on
any juror.
____________________________________________
30 The Rules of Evidence do not address whether a judge may testify about
his decision-making process in a previous case or about any extraneous
influences on his decision. Rule 605 (“Judge’s Competency as a Witness”)
provides only that a judge may not be a witness at a proceeding at which he
presides. The Rules of Judicial Administration provide that in order to call a
judge to testify as a character witness, a party must “demonstrat[e] that the
character testimony to be given by the witness will not be merely cumulative
and that the rights of petitioner will be unduly prejudiced by the application
of the general rule prohibiting the appearance of judicial officers as character
witnesses.” See Pa. R.J.A. 1701(c)(3). The Rules of Judicial Administration
do not address other types of testimony by judges.
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Pa.R.E. 606(b)(2). We have explained:
Th[is] exception allows post trial testimony of extraneous
influences which might have affected (prejudiced) the jury
during their deliberations. Extraneous information has been
defined as information that was not provided in open court or
vocalized by the trial court via instructions. Under the exception
to the no impeachment rule, a juror may testify only as to the
existence of the outside influence, but not as to the effect this
outside influence may have had on deliberations. Under no
circumstances may jurors testify about their subjective
reasoning processes.
Messersmith, 860 A.2d at 1085 (internal quotation marks and citations
omitted).
Just as Pennsylvania law precludes inquiry into the deliberations of
jurors except to determine whether they were subjected to extraneous
information, so too does our law preclude any similar inquiry into a judge’s
deliberations, but subject to a similar exception regarding extraneous
information. As is true for jurors under Rule 606, a judge may be
questioned about the existence of an outside influence, but not about his or
her subjective reasoning processes or the effect of any influence on his or
her deliberations or decision.
Absolute or Qualified Privilege
McClure’s subpoena does not state whether the testimony she seeks
from Lunsford would be limited to questions about ex parte communications
or whether it would also delve into Lunsford’s reasoning for his decisions and
similar deliberative matters. While the former is not privileged, the latter is.
Therefore, because some of the requested testimony may be privileged, we
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need to address the trial court’s holding that “unique” circumstances of this
case may “remove [it] from general constitutional principles regarding the
privileges of the judiciary.” Trial Ct. Op., 2/23/17, at 2. Though unclear, it
appears from this statement that the trial court viewed the privilege’s
protection against inquiry into judicial deliberations as qualified (that is,
subject to being overridden on appropriate facts), rather than absolute. If
so, we disagree.
Pennsylvania appellate courts have not directly reached this question.
In Vartan, the Supreme Court plurality discussed the judicial deliberative
process privilege in the context of an “absolute immunity.” 733 A.2d at
1265. Our strong language in Leber suggests that we too viewed the
privilege as absolute. See Leber, 928 A.2d 270 (finding, as a matter of
public policy, that questioning judges regarding their thought process is
“unacceptable” and holding “that judicial officers are immune from testifying
as to information surrounding their conduct during an official proceeding”).
In Leber, we did not state any circumstances under which the privilege
would be qualified.
Courts outside Pennsylvania are in disagreement. Some have held
that the privilege is qualified, and may be overcome in extreme cases. For
example, in Matter of Certain Complaints Under Investigation by an
Investigating Committee of the Judicial Council of the Eleventh
Circuit (Williams v. Mercer), 783 F.2d 1488 (11th Cir.), cert. denied,
477 U.S. 904 (1986), a case dealing with communications between a judge
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and his staff, the court reasoned that the privilege “must be harmonized
with the principle that the public has a right to every man’s evidence” and
that disclosure of the communications therefore could be compelled if “the
investigating party can demonstrate that its need for the materials is
sufficiently great to overcome the privilege.” 783 F.2d at 1521-22 (internal
quotation marks, ellipses, and citation omitted). The court continued:
To meet this burden, the investigating party can attempt to
show the importance of the inquiry for which the privileged
information is sought; the relevance of that information to its
inquiry; and the difficulty of obtaining the desired information
through alternative means. The court then must weigh the
investigating party’s demonstrated need for the information
against the degree of intrusion upon the confidentiality of
privileged communications necessary to satisfy that need.
Id. at 1522; 31 see also Dowdy, 440 F. Supp. at 896-97 (holding that
judge could be compelled to testify regarding deliberative processes in
“extreme and extraordinary circumstances,” but that record did not support
compelling testimony on the facts before the court).
Other courts have held that the judicial deliberative process privilege is
absolute. These courts emphasize the importance of the interests protected
by the privilege and the narrowness of the privilege’s scope. See Thomas
v. Page, 837 N.E.2d 483, 493 (Ill. App. 2005); Office of Citizens'
____________________________________________
31 Williams arose out of the Eleventh Circuit’s investigation of a federal
district court judge for alleged misconduct that included soliciting a bribe in
return for an official judicial act. 783 F.2d at 1492. The court held that
subpoenas issued to the judge’s law clerks and secretaries were enforceable
in light of the seriousness of the charges being investigated and the court’s
need for the testimony. Id. at 1522-23.
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Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 19 (Iowa 2012); In re
Enforcement of Subpoena, 972 N.E.2d at 1033. As the court in Thomas,
another case addressing application of the privilege to communications
between a judge and his staff, explained:
We believe that the narrowness of the scope of the privilege
militates in favor of holding that it is absolute, rather than
qualified. The overriding public good requires that judges be
able to confer with each other and their staffs freely and frankly
without fear that their communications might be publicly
disclosed. Anything less than the protection afforded by an
absolute privilege would dampen the free exchange of ideas and
adversely affect the decision-making process.
Thomas, 837 N.E.2d at 493.
Although we acknowledge the animating principle under Williams that
the public has a right to “every man’s evidence,” we note that privileges
stand as an exception to this principle for important public policy reasons.
In construing the privilege to be inapplicable to ex parte communications, we
already have balanced the interests served by the privilege against those
served by permitting disclosure of requested information. Cf. DOT v.
Taylor, 841 A.2d 108, 113-14 (Pa. 2004) (explaining how demand for
“every man’s evidence” can be accommodated by carefully tailoring a
privilege’s scope). But we do not believe that diluting the privilege’s
remaining core protection for deliberative processes by making it subject to
a case-by-case balancing of competing interests would be appropriate.
As already discussed, one of the oft-repeated hallmarks of the judicial
deliberative process privilege is that it “benefits the public,” rather than the
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officials who assert it. Leber, 928 A.2d at 268; see Kennedy v. Upper
Milford Twp. Zoning Hearing Bd., 834 A.2d 1104, 1118 n.28 (Pa. 2003);
LaValle v. Office of Gen. Counsel of Com., 769 A.2d 449, 457 (Pa.
2001); Commonwealth v. Orie, 88 A.3d 983, 1012 (Pa. Super.), appeal
denied, 99 A.3d 925 (Pa. 2014). That public benefit gives the privilege a
strong claim to absolute protection, as it is grounded in constitutional
principles of separation of powers and the due process afforded by
independent decision-making. In Pennsylvania, other privileges related to
the judiciary are absolute, not qualified. See, e.g., Schanne, 121 A.3d at
947 (privilege applicable to judicial statements is absolute because “[a]
judge must be free to administer the law without fear of consequences”;
quoted citation omitted). We therefore conclude that the judicial
deliberative process privilege also is absolute and that the trial court erred to
the extent the court held that the privilege could be overcome by a showing
of “unique” or extraordinary facts in this case.
Waiver
In its opinion, the trial court said, “an argument could well be made
that Lunsford has waived any privilege with regard to the issue of his alleged
texting with the District Attorney’s Office by virtue of his addressing the
issue in the 1925(a) Statement he filed in the original McClure appeal.”
Trial Ct. Op. 2/23/17, at 2-3. McClure repeats that argument in her brief.
See McClure’s Brief at 16-17. Once again, we disagree.
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In his Rule 1925(a) opinion regarding McClure’s direct appeal, Judge
Lunsford acknowledged that he “had communications, including text
communications, with attorneys from the District Attorney’s office after jury
selection and prior to trial over the course of over one month.” Lunsford’s
Pa.R.A.P. 1925(a) Op., 4/30/15, at 2. He insisted, however, that “[t]he
communications did not concern [McClure] or her criminal case.” Id.; see
id. at 4 (“The text communications were not about this case (nor were they
inappropriate communications concerning any other cases) and did not give
either side a strategic or tactical advantage. The text messages did not
constitute ex parte communications under the Code of Judicial Conduct,
Canon 2.9”). McClure’s waiver argument relies on these statements.
We have already held that the privilege does not apply to ex parte
communications or testimony about such communications. Former Judge
Lunsford’s discussion of the ex parte communications in his opinion therefore
did not relate to privileged material and, accordingly, could not waive any
privilege relating to those communications.
The question is whether Lunsford’s Rule 1925(a) opinion waived the
privilege with regard to his deliberative processes and decision-making. A
review of the Rule 1925(a) opinion reveals that it did not discuss Lunsford’s
deliberations in McClure’s case. Therefore, even if the judicial deliberative
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process privilege could have been waived,32 Lunsford did not say anything in
his opinion that could have waived it.
We thus conclude that, on these facts, Lunsford did not waive the
judicial deliberative process privilege. That being the case, we need not
decide whether, on appropriate facts, the privilege is waivable.
Exercise of Discretion Regarding McClure’s Subpoena
In his brief, Lunsford makes an extended argument about why the
facts of this case did not justify McClure’s request for information from him.
See Lunsford’s Brief at 28-34. Though framed primarily as an explanation of
why the judicial deliberate process privilege could not be overridden,
Lunsford’s argument stands more broadly as an argument that the trial court
erred in not quashing McClure’s subpoena because judges generally should
be “immune” from testifying and the facts of this case are not so “unique” or
extraordinary as to vitiate their immunity. See id. Lunsford says that he “is
entitled to a presumption of regularity in the decisions and official acts” he
took during McClure’s trial, id. at 31, and he argues in favor of a broad
____________________________________________
32 Neither the trial court nor McClure has cited, nor have we found, any case
in which a judge was held to have waived the judicial deliberative process
privilege by writing an opinion in which he responded to allegations of bias.
McClure’s citation to Shell Oil Co. v. Internal Revenue Service, 772 F.
Supp. 202, 203-05 (D. Del. 1991), is inapposite, as that case did not involve
a judicial privilege and merely held that the Internal Revenue Service waived
a deliberative process objection to a Freedom of Information Act request by
reading from the requested document aloud at a meeting of oil industry
representatives. Because the privilege is for the benefit of the public and
not the officials who assert it, Leber, 928 A.2d at 268, any assertion that an
official could waive it should be closely scrutinized.
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“prohibition against compelled judicial testimony in Pennsylvania,” see id. at
29. Though unclear, Lunsford thus appears to be suggesting that his
protection against testifying may be broader than that provided by the
judicial deliberative process privilege alone.
In considering this argument, we note that a criminal defendant has a
constitutional right “to have compulsory process for obtaining witnesses in
his favor.” U.S. Const., Amend. 6; Pa. Const., Art. 1 § 9. There is no
exception in this provision for evidence from judges. The right to
compulsory process entitles a defendant to request “any potentially
exculpatory, non-privileged information.” Commonwealth v. Mejia-Arias,
734 A.2d 870, 877 (Pa. Super. 1999). But the defendant must articulate a
reasonable basis for the request, and the subpoenaed party retains the right
to resist the subpoena by asserting legitimate defenses, “including undue
breadth and improper inclusion of irrelevant information.” Id. at 876, 878(quoting In re Grand Jury Proceedings, Jacqueline Schofield, 846 F.2d
85, 91 (3d Cir. 1973)) (some formatting altered); see Commonwealth v.
Blakeney, 946 A.2d 645, 661 (Pa. 2008). Within this framework, the trial
court has discretion in deciding whether and how to enforce the subpoena.
See Commonwealth v. Mucci, 143 A.3d 399, 411 (Pa Super. 2016),
appeal denied, No. 701 MAL 2016 (Pa., Apr. 11, 2017); Commonwealth
v. Berger, 96 A.3d 1049, 1051 (Pa. Super. 2014).
To the extent Judge Williamson’s order enforcing McClure’s subpoena
would allow McClure to ask Lunsford questions about his judicial reasoning
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or other matters protected by the deliberative process privilege, Judge
Williamson abused his discretion. But, contrary to Lunsford’s suggestion
about a broader “prohibition against compelled judicial testimony in
Pennsylvania,” Judge Williamson retained discretion on the unique facts of
this case to enforce McClure’s subpoena to the extent that it sought
unprivileged information from Lunsford, including information about his ex
parte communications with the prosecutors. McClure articulated a
reasonable basis for seeking that information, and Judge Williamson found
that the facts adduced in this case were so extraordinary as to make
McClure’s request a reasonable one.
McClure produced telephone records showing that Lunsford exchanged
more than 150 text messages with prosecutors during the four days he was
presiding at McClure’s trial. There also were several additional messages on
dates before and after trial when significant events took place in the case.
McClure presented evidence that Lunsford appeared to have close personal
relationships with some of the prosecutors. She also presented evidence
that during at least one criminal trial other than this one (the Brooks trial in
2012), Parks Miller had sent text messages to Lunsford about that
proceeding. When these issues first surfaced, Lunsford made blanket
denials, which later turned out to be inaccurate, about posing for
photographs with prosecutors and exchanging text messages with some of
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them. 33 On the record before him, Judge Williamson therefore concluded
that it was appropriate to permit further examination of Lunsford regarding
the ex parte communications. He stated:
Unfortunately, no evidence has been disclosed concerning the
exact language of the extensive text messaging. One reason for
this is that the communication devices used by Lunsford, Foster,
Parks Miller and others in the District Attorney’s Office are no
longer in existence. When Lunsford returned his phone to
Centre County to secure a new phone, an investigation revealed
that it had been “set back to factory settings.” Foster’s phone
was turned over to Parks Miller. Parks Miller could not
remember if she turned her own phone in but denied knowing
where her phone was currently or where Foster’s phone was. All
of these phones were wiped clean, destroyed, or otherwise made
unavailable after the issue of texting between Lunsford and the
District Attorney’s Office had been raised by defense counsel.
Without testimony from Lunsford himself or the assistance of
investigating agencies which may have knowledge of the
contents of the text messages, we are unable to determine
whether in fact discussions occurred regarding [McClure] or her
trial.
Order, 12/22/16, at 2-3.
Lunsford argues that testimony by him is unnecessary because the
prosecutors are available to testify and have already testified that they did
not have ex parte communications with Lunsford about McClure’s case.
Lunsford’s Brief at 33. But although Parks Miller denied texting with
Lunsford about McClure’s case, she testified that she did not know what the
____________________________________________
33See N.T. 10/30/14, at 13 (“There is no photo of Mr. Boob and I after the
Color Run. I can guarantee you that.”), 23 (“There are no text messages
between me or either of these two prosecutors [Boob and Parks Miller].
None whatsoever. None.”), 25 (“I will reiterate there are no text messages
between me and these two [Boob and Parks Miller]. I swear to God.”).
Lunsford later clarified some of these statements. Trial Ct. Op., 4/30/15, at
29-30.
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text messages with Lunsford were about. N.T., 11/22/16, at 108, 111, 115-
16; N.T. 12/9/16, at 120-21. ADA Foster stated that she exchanged texts
with Lunsford about another ADA’s illness and about personal travel and
social events, but she also stated that she did not remember whether any of
the texts sent to her by Lunsford during McClure’s trial referenced the trial
proceedings. N.T. 12/9/16, at 45-48, 50-51, 55.
On this unique record, Judge Williamson had discretion to order that
former Judge Lunsford provide testimony, and, if they exist, documents 34
relating to his ex parte communications with the Centre County prosecutors.
Subpoenas compelling testimony from judges should be exceedingly rare,
and trial courts should decline to enforce such subpoenas without a strong
showing of a reasonable basis to compel a judge’s non-privileged testimony;
but the record was sufficient to enable Judge Williamson to find such a basis
here. We caution that care must be taken during any testimony by former
Judge Lunsford to assure that the questioning does not intrude into areas of
his judicial deliberations or other topics that are protected by the judicial
____________________________________________
34 In addition to seeking copies of text messages at the time of proceedings
in this case, McClure’s second subpoena also sought documents relating to
other criminal cases and documents provided to the “Judicial Misconduct
Board” (presumably, a reference to the Judicial Conduct Board of
Pennsylvania, see Pa. Const., Art. 5 § 18(a)). Lunsford has not raised any
specific issues in this appeal about the propriety of those additional requests,
and, for reasons already discussed, the trial court’s order enforcing
McClure’s second subpoena is not properly before us. Lunsford remains free
on remand to object to these requests on the basis of relevance,
overbreadth, or other grounds. See Mejia-Arias, 734 A.2d 878.
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deliberative process privilege. To the extent possible, the testimony should
be limited to the non-privileged ex parte communications.
In sum, we affirm the trial court’s November 21, 2016 order denying
Lunsford’s first motion to quash McClure’s subpoena to the extent that the
subpoena sought “copies of all text messages between [Lunsford], former
Assistant District Attorney Nathan Boob, Assistant District Attorney Lindsay
Foster, and District Attorney Stacy Parks Miller from August 4, 2014 to
October 29, 2014” and to the extent that the subpoena sought Lunsford’s
testimony to obtain factual information regarding ex parte communications
during this case. We reverse insofar as the order would permit McClure to
inquire about information protected by the judicial deliberative process
privilege, including any inquiries about Lunsford’s thought process in making
decisions or reasons for any of his rulings relating to the disposition of the
charges against McClure. We vacate the trial court’s December 9, 2016
order denying Lunsford’s second motion to quash.
NO. 145 MDA 2017
(THE APPEAL BY MCCLURE)
In her appeal from the December 22, 2016 order dismissing her
motion to preclude retrial based on double jeopardy, McClure raises the
following issues:
1. Was the evidence sufficient to establish judicial and
prosecutorial misconduct intended to deprive Ms. McClure of a
fair trial; conduct which ignored the bounds of legitimate
advocacy; and established a desire to win a conviction by any
means necessary?
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2. Did the Trial Court analyze the “incredible” number of text
communications between former Judge Lunsford and members
of the District Attorney’s office under the appropriate legal
standard and give sufficient weight to the fact that the relevant
phones were “wiped clean, destroyed or otherwise made
unavailable after the issue of texting had been raised by defense
counsel”?
3. Given former Judge Lunsford’s refusal to testify or produce
evidence, did the Trial Court commit error in failing to either (1)
draw a negative inference from the failure to preserve physical
evidence; or (2) require the testimony of Judge Lunsford and
production of the text messages?
McClure’s Brief at 4.
This Court has jurisdiction over an order denying a non-frivolous
double-jeopardy motion as a collateral order under Rule 313. See
Commonwealth v. Taylor, 120 A.3d 1017, 1021-22 (Pa. Super. 2015);
see also Pa.R.A.P. 313, Note; Pa.R.Crim.P. 587(B)(6). The trial court
specifically found that McClure’s motion to dismiss on double jeopardy
grounds was not frivolous. Order, 1/2/17. We therefore have appellate
jurisdiction over this appeal.
However, the December 22, 2016 order denying McClure’s motion to
dismiss on double jeopardy grounds was entered while Judge Lunsford’s
appeal from the November 21, 2016 order denying his motion to quash
McClure’s subpoena was pending. We conclude that the trial court lacked
jurisdiction to enter the December 22, 2016 order during the pendency of
that appeal, and we therefore vacate the December 22, 2016 order.
Although neither party addresses whether the trial court could exercise
jurisdiction to deny McClure’s double jeopardy motion while Lunsford’s
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appeal was pending, 35 we may raise the issue sua sponte. See, e.g.,
Grimm v. Grimm, 149 A.3d 77, 82 (Pa. Super. 2016), appeal denied, No.
449 WAL 2016, 2017 WL 1159583 (Pa., Mar. 28, 2017).
Pennsylvania Rule of Appellate Procedure 1701(a) provides, “Except as
otherwise prescribed by these rules, after an appeal is taken . . . the trial
court . . . may no longer proceed further in the matter.” Rule 1701(a)
reflects the fact that once an appeal is filed, jurisdiction over the case is
transferred to the appellate court, and the trial court therefore no longer has
power to act in it. See Jackson v. Hendrick, 746 A.2d 574, 575 (Pa.
2000) (“[f]iling an appeal normally divests the trial court of jurisdiction to
proceed”). However, this rule contains an exception for cases similar to this
one, in which the appeal is from an interlocutory or other order dealing with
only a discrete issue in the case. Rule 1701(c) states:
Limited to matters in dispute. Where only a particular item,
claim or assessment adjudged in the matter is involved in an
appeal, . . . the appeal . . . shall operate to prevent the trial
court . . . from proceeding further with only such item, claim or
assessment, unless otherwise ordered by the trial court . . . or
by the appellate court or a judge thereof as necessary to
preserve the rights of the appellant.
Pa.R.A.P. 1701(c).36
____________________________________________
35 The trial court does not address whether it had jurisdiction in its order
dismissing McClure’s motion to preclude retrial or in its Rule 1925(a)
statement.
36 The rule also contains an exception that permits the trial court to proceed
further on all issues in the case if the appeal is taken from an interlocutory
order that is not appealable. Pa.R.A.P. 1701(b)(6). Because Lunsford’s
(Footnote Continued Next Page)
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Under Rule 1701(c), when a party has appealed from a collateral
order, the trial court retains jurisdiction to continue to act on those parts of
the case that are unrelated to the collateral matter (that is, the “particular
item, claim or assessment adjudged”) that is the subject of the appeal. As
the Supreme Court explained in Rosen v. Rosen, 549 A.2d 561, 564 (Pa.
1988), “The purpose of Rule 1701(c) is to prevent appeals of collateral
issues from delaying the resolution of the basic issues where the proceeding
below can continue without prejudicing the rights of the party seeking the
interim review.” Whether and to what extent a trial court may proceed
under Rule 1701(c) depends on “whether the orders on appeal were relevant
to or at issue in the proceedings continuing in the trial court.” R.W.E. v.
A.B.K., 961 A.2d 161, 170 n.7 (Pa. Super. 2008). To the extent the matters
remaining in the trial court are not dependent on resolution of the issue on
appeal, the trial court may continue to address them. But when the
remaining proceedings in the trial court are “tightly intertwined” with the
collateral matter that is on appeal, the trial court may not take any action on
those intertwined matters until the appeal is concluded. See
Commonwealth v. Hall, 476 A.2d 7, 10 (Pa. Super. 1984) (trial court could
not proceed to trial under Rule 1701(c) so long as appeal from denial of
(Footnote Continued) _______________________
appeal was taken from a collateral order that is appealable under Rule 313,
that exception does not apply here.
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motion to recuse was pending, because recusal issue was too closely related
to the defendant’s right to a fair trial to permit the trial to proceed).37
Here, the trial court’s December 22, 2016 order denied McClure’s
motion to dismiss the charges against her on double jeopardy grounds
because McClure had failed to prove her double jeopardy claim. Order,
12/22/16, at 2, 4. But McClure had served her subpoenas on former Judge
Lunsford so that she could obtain evidence that she contended would help
prove that claim, and the trial court had declined to quash the subpoenas
because of the need for such evidence. Indeed, the court’s order denying
the double jeopardy motion stated, “Without testimony from Lunsford
himself . . . we are unable to determine whether in fact [ex parte]
discussions occurred regarding [McClure] or her trial.” Id. at 3. It 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 double jeopardy] motion prior to or
following the trial.” Id. at 4. The court’s own statements therefore
establish that the evidence McClure sought to obtain from Lunsford was
important to the double jeopardy motion and that the motion was dependent
on that evidence. On this record, then, the trial court did not have
jurisdiction to proceed to deny the double jeopardy motion while an appeal
____________________________________________
37The Hall decision predated promulgation of Pa.R.A.P. 1701(b)(6), which
would have permitted trial to proceed on the ground that the recusal
decision was a nonappealable interlocutory order. See Hall, 476 A.2d at 10.
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to determine whether the evidence could be obtained from Lunsford was
pending in this Court. The issue presented by Lunsford’s appeal was
“relevant to” and, indeed, “tightly intertwined” with McClure’s double
jeopardy motion. See R.W.E., 961 A.2d at 170 n.7; Hall, 476 A.2d at 10.
Because Lunsford’s pending appeal deprived the trial court of
jurisdiction to enter the December 22, 2016 order denying McClure’s motion
to preclude retrial, we vacate the trial court’s December 22, 2016 order. In
light of this disposition, we do not reach the substance of McClure’s appellate
issues and we deny McClure’s August 29, 2017 application for relief without
prejudice to McClure’s right to raise in the trial court the issues presented in
that application.
In No. 1982 MDA 2016, affirmed in part and reversed in part.
In Nos. 3 MDA 2017 and 145 MDA 2017, orders vacated.
McClure’s August 29, 2017 application for relief denied without
prejudice.
Case remanded for further proceedings consistent with this opinion.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2017
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