J-A15020-17 & J-A15021-17
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`2017 PA Super 334
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`COMMONWEALTH OF PENNSYLVANIA
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`v.
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`JALENE R. MCCLURE
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`APPEAL OF: RETIRED JUDGE BRADLEY P.
`LUNSFORD
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`IN THE SUPERIOR COURT
`OF
`PENNSYLVANIA
`
`
`
`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
`
`
`
`
`
`
`v.
`
`
`JALENE R. MCCLURE
`
`
`APPEAL OF: RETIRED JUDGE BRADLEY
`P. LUNSFORD
`
`
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`
`
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`IN THE SUPERIOR COURT OF
`PENNSYLVANIA
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`No. 3 MDA 2017
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`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
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`
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`COMMONWEALTH OF PENNSYLVANIA
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` IN THE SUPERIOR COURT OF
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`

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`J-A15020-17 & J-A15021-17
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`
`
`
`
`v.
`
`
`JALENE R. MCCLURE
`
`
`
`
`Appellee
`
`Appellant
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`
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`
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`
`
`PENNSYLVANIA
`
`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.
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`OPINION BY SOLANO, J.:
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`FILED OCTOBER 20, 2017
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`In 2014, Jalene R. McClure was convicted by a Centre County jury of
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`assault and other offenses relating to injuries to a child at a daycare center
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`that McClure operated. In 2016, we reversed McClure’s conviction and
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`remanded for a new trial. Commonwealth v. McClure, 144 A.3d 970 (Pa.
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`Super. 2016). This case returns to us as a result of proceedings on remand
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`in which McClure has sought to preclude retrial on double jeopardy grounds.
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`Part of her argument in support of that relief is that there was misconduct
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`during her trial on the part of the Centre County prosecutors and the
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`presiding judge, the Honorable Bradley P. Lunsford.
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`During the trial court proceedings on her preclusion motion, McClure
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`issued two subpoenas to former Judge Lunsford to obtain documents and
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`testimony from him. Lunsford’s motions to quash those subpoenas were
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`denied, and this opinion addresses Lunsford’s appeals at Nos. 1982 MDA
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`- 2 -
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`

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`J-A15020-17 & J-A15021-17
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`2016 and 3 MDA 2017 from the November 21, 20161 and December 9, 2016
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`orders denying those motions. While those appeals were pending, the trial
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`court proceeded with the case and ultimately denied McClure’s double
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`jeopardy motion. The second part of this opinion addresses McClure’s
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`appeal at No. 145 MDA 2017 from the December 22, 2016 order denying her
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`motion to preclude retrial. Subject to instructions set forth in this opinion,
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`we affirm in part the November 21, 2016 order denying Lunsford’s first
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`motion to quash; we vacate the December 9, 2016 order denying Lunsford’s
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`second motion to quash; and we vacate the December 22, 2016 order
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`denying McClure’s motion to preclude retrial.
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`The charges relate to McClure’s operation of her daycare business out
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`of her home in August 2010. On August 18, 2010, the mother of five-month
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`old P.B., one of the children entrusted to McClure’s care, picked up her
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`daughter from the daycare and was told by McClure that P.B. was sick and
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`had vomited. While driving home, the mother noticed that P.B. was losing
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`consciousness and took her to the hospital, where it was determined that
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`P.B. had sustained head injuries, including a fractured skull and retinal
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`hemorrhaging.
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`Police Detective Dale Moore and a Children and Youth Services (CYS)
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`employee interviewed McClure on the evening of the incident. McClure
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`____________________________________________
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`1 The 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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`- 3 -
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`

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`J-A15020-17 & J-A15021-17
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`insisted during that interview that nothing had happened to P.B. at the
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`daycare facility that day, but in an interview with Moore and the CYS
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`employee five days later, on August 23, 2010, McClure gave verbal and
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`written statements in which she said that she had tripped while carrying P.B.
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`and fell, hitting P.B.’s head on a car seat.
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`After further investigation, McClure was charged with assault and other
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`offenses, and was tried on September 8-11, 2014, before Judge Lunsford
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`and a jury. During the trial, an expert testified that P.B.’s injuries were
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`consistent with a child who was shaken, and he opined that the injuries were
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`sustained at McClure’s daycare facility on August 18, 2010. At the
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`conclusion of the trial on September 11, 2014, the jury found McClure guilty
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`of aggravated assault, simple assault, two counts of endangering the welfare
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`of a child, and recklessly endangering another person.2
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`On October 13, 2014, prior to her sentencing, McClure moved for the
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`recusal of Judge Lunsford. McClure alleged that Judge Lunsford had
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`personal friendships with District Attorney Stacy Parks Miller, who was the
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`lead prosecutor in her case, and with Parks Miller’s co-counsel, Assistant
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`District Attorney Nathan Boob. According to McClure, Judge Lunsford and
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`the prosecutors engaged in text messaging, phone calls, social media
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`contacts, and personal contacts outside of the courthouse. As examples of
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`the personal relationships, McClure averred that:
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`____________________________________________
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`2 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), 4304(a)(1), and 2705.
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`- 4 -
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`J-A15020-17 & J-A15021-17
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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.
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`
`
` 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.
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`The photo of Judge Lunsford and ADA Boob at the Maryland shore on
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`September 20, 2014, and the comments about the photo by Parks Miller
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`were attached as exhibits to McClure’s motion.
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`
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`McClure’s motion also described a September 24, 2014 conversation
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`initiated by Judge Lunsford with McClure’s attorney, Bernard Cantorna,
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`regarding McClure’s trial. McClure alleged that “[b]oth the manner in which
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`the trial was conducted and rulings from the trial court gave the appearance
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`of a bias towards the prosecution and prejudice against the defense.” Mot.
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`for Recusal at ¶ 8. McClure alleged that during her trial:
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`[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.
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`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.
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`Id. at ¶¶ 11-12 (numbers omitted). McClure listed examples of the court’s
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`allegedly biased rulings. Id. at ¶¶ 12-18. She also attached to her motion
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`- 5 -
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`J-A15020-17 & J-A15021-17
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`an affidavit by Attorney Maren Lynn Chaloupka (a consultant for the defense
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`who attended the first day of McClure’s trial), who opined that “the overall
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`tone of the District Attorney was . . . indignant and highly emotional” and
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`the “the atmosphere during the trial was chaotic and permissive of the
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`District Attorney’s conduct.” Among other things, Chaloupka found it
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`extraordinary that the court permitted one Commonwealth attorney (Boob)
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`to conduct direct examination of witnesses and permitted a second
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`Commonwealth attorney (Parks Miller) to make objections and present
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`redirect examination.
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`On October 23, 2014, McClure filed a motion to preserve and produce
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`evidence, in which she alleged:
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` “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
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` “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
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`not participate directly in McClure’s trial, but assisted with preparation of
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`some aspects of it. McClure sought a court order requiring Parks Miller,
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`Boob, Foster, and Judge Lunsford to preserve any e-mails, instant
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`messages, or other forms of electronic communications from August 4,
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`2014, until the date of the motion. McClure also sought production of copies
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`- 6 -
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`

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`J-A15020-17 & J-A15021-17
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`or screen shots of all information regarding those communications.
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`McClure’s motion was sent to Judge Lunsford on October 24, 2014.
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`On October 30, 2014, Judge Lunsford held a hearing on the motions
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`for recusal and to preserve and produce evidence. At that hearing, counsel
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`for McClure (Cantorna) sought to elicit testimony from his law partner,
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`James N. Bryant, in support of McClure’s motion to preserve and produce
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`evidence. Cantorna claimed that Centre County Court of Common Pleas
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`President Judge Thomas King Kistler told Attorney Bryant that Judge
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`Lunsford admitted to sending text messages to ADA Boob during McClure’s
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`trial. Cantorna also averred that the request for text messages and
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`communications from ADA Foster was “based on information that Mr. Bryant
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`was given by the Judiciary of Centre County.” N.T., 10/30/14, at 2-3. The
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`Commonwealth objected that Bryant’s proposed testimony would be
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`inadmissible hearsay, and the court sustained that objection, precluding
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`Bryant’s testimony.
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`Parks Miller appeared at the October 30, 2014 hearing, but did not
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`give testimony under oath. She said it was “absolutely untrue that this
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`Court was texting Assistant District Attorney Nathan Boob during this trial.”
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`N.T., 10/30/14, at 5. Parks Miller continued, “In terms of the rest of the
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`allegations, I am not dignifying them.” Id. ADA Boob provided a document
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`with a signed verification, stating that he did not exchange any text
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`messages with Judge Lunsford during McClure’s trial. Id. at 10. The trial
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`court granted the Commonwealth’s oral motion to quash a subpoena issued
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`- 7 -
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`J-A15020-17 & J-A15021-17
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`to ADA Foster shortly before the hearing, and Foster did not appear at the
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`hearing. Id. at 5-6. During the hearing, Judge Lunsford stated:
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` “There is no photo of Mr. Boob and I after the Color Run. I can
`guarantee you that.” Id. at 13.3
`
` 
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` “There are no text messages between me or either of these two
`prosecutors [Boob and Parks Miller]. None whatsoever. None.” Id. at
`23.
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` “I will reiterate there are no text messages between me and these two
`[Boob and Parks Miller]. I swear to God.” Id. at 25.
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`Judge Lunsford denied both the motion for recusal and the motion to
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`
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`preserve and produce evidence. N.T., 10/30/14, at 32. He explained that
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`McClure had not satisfied her burden of proof. Id. at 29, 32. The next day,
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`October 31, 2014, Judge Lunsford granted an October 20, 2014 motion by
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`McClure to strike a Commonwealth notice of mandatory minimum sentences,
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`and he sentenced McClure to an aggregate term of ten to twenty years’
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`incarceration.
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`While the foregoing proceedings were taking place, McClure pursued
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`an alternative source of information about possible communications between
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`Judge Lunsford and the DA’s Office. On October 23, 27, and 29, 2014, her
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`counsel filed requests to obtain records of such communications from Centre
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`County pursuant to the Pennsylvania Right to Know Law, 65 P.S. §§ 67.101
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`____________________________________________
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`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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`- 8 -
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`

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`J-A15020-17 & J-A15021-17
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`to 67.3104. McClure’s counsel obtained those records on November 6,
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`2014. Mot. to Preclude Retrial, 10/20/16, at ¶¶ 19-20, 25.4
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`On November 7, 2014, McClure filed post-sentence motions, including
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`a “Motion for Re-Sentencing and Recusal of Trial Court.” Attached to that
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`motion were phone records showing that text messages were exchanged
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`between Judge Lunsford and DA Parks Miller, ADA Boob, and ADA Foster
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`between August 4, 2014 (the day of jury selection in McClure’s case), and
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`October 10, 2014. The records showed that during the period of September
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`8-11, 2014, the days of McClure’s trial, Judge Lunsford and ADA Foster
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`exchanged 152 text messages; during the same period, Parks Miller received
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`one message from Judge Lunsford. The records showed no text messages
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`between Judge Lunsford and ADA Boob during McClure’s trial. The records
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`showed additional messages exchanged between Judge Lunsford and Parks
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`Miller, Boob, and Foster before and after McClure’s trial.5
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`____________________________________________
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`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).
`
` 5
`
` An 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:
`
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`364 text messages and 24 media messages were sent or
`a.
`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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`- 9 -
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`

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`J-A15020-17 & J-A15021-17
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`McClure’s post-trial motions were assigned to the Honorable Pamela A.
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`Ruest.6 On December 23, 2014, Judge Ruest denied all of McClure’s post-
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`trial motions, without explaining her ruling. Judge Ruest’s order stated that
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`McClure had thirty days to file an appeal.
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`(Footnote Continued) _______________________
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`152 text messages and 1 media message were sent or
`b.
`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.
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`195 text messages and 3 media messages were sent
`c.
`between the court and Assistant District Attorney Lindsay Foster
`from after the trial on September 11, 2014 to October 10, 2014.
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`Assistant District Attorney Nathan Boob sent or received
`d.
`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.
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`District Attorney Stacy Parks Miller received or sent 17 text
`e.
`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.
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`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
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` 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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`- 10 -
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`

`

`J-A15020-17 & J-A15021-17
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`On December 31, 2014, McClure filed an untimely supplemental post-
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`sentence motion without leave of court. In that motion, McClure alleged
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`that Judge Lunsford made false statements at the October 30, 2014 hearing
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`on McClure’s motion for recusal, and that Parks Miller and Boob knew those
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`statements were false and did not correct the record. On January 7, 2015,
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`the trial court issued an order allowing McClure to file her supplemental
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`post-sentence motion pursuant to Pa.R.Crim.P. 720(B)(1)(b). The certified
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`record contains no order formally disposing of that supplemental motion.
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`On January 19, 2015, McClure filed a notice of appeal from her
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`judgment of sentence. In a Pa.R.A.P. 1925(a) opinion written in connection
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`with McClure’s appeal, Judge Lunsford wrote that the text messages
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`between himself and members of the District Attorney’s Office were not
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`about McClure’s case and “did not give either side strategic or tactical
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`advantage.” Trial Ct. Op., 4/30/15, at 4. Judge Lunsford stated that he
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`“had no personal bias or prejudice regarding a party, Defendant, or a party’s
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`attorney . . . .” Id. Judge Lunsford also addressed McClure’s accusation
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`that he had made false statements at the October 30, 2014 hearing. He
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`explained that when he said in that hearing that there were no text
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`messages between himself and Parks Miller and Boob, he was referring only
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`to messages during McClure’s trial. He added that he had not recalled a
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`message he had sent to Parks Miller during a lunch break regarding
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`returning to the courtroom before the jury was seated. Trial Ct. Op.,
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`4/30/15, at 29-30.
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`- 11 -
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`

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`J-A15020-17 & J-A15021-17
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`Judge Lunsford retired from the bench in January 2016. See
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`Lunsford’s Brief at 7.
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`On August 8, 2016, this Court decided McClure’s direct appeal. We
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`vacated McClure’s judgment of sentence and remanded for a new trial. See
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`McClure, 144 A.3d at 973. We based our decision on issues unrelated to
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`McClure’s claim of misconduct involving the prosecutors and Judge
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`Lunsford.7 McClure had argued in her appeal that the trial court erred by
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`denying her motion for recusal, and she sought a remand for a hearing
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`relating to alleged ex parte communications between the District Attorney
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`and Judge Lunsford in another case (the criminal prosecution of Randall
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`Brooks in 2012) so that she could bolster her claim of improper conduct.
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`See id. at 980. But because we vacated McClure’s judgment of sentence on
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`other grounds and because Judge Lunsford had retired from the bench, we
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`held that those issues were moot. Id. We also denied as moot McClure’s
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`request, filed during the pendency of the appeal, for an evidentiary hearing
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`in relation to her recusal request. Id.
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`After our remand, on October 20, 2016, McClure filed her motion to
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`preclude retrial on grounds of double jeopardy because the District
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`Attorney’s Office had engaged in prosecutorial misconduct. It is that motion
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`____________________________________________
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`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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`- 12 -
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`J-A15020-17 & J-A15021-17
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`that is the subject of these appeals. McClure alleged that ex parte
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`communications between Judge Lunsford and members of the District
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`Attorney’s office “took place in the context of a deliberate effort to deprive
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`Ms. McClure of any semblance of a fair trial.” She further alleged that Parks
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`Miller elicited improper testimony, made misrepresentations about evidence
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`during McClure’s trial, and withheld exculpatory evidence (interviews with
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`experts who prepared reports but were not called by the Commonwealth to
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`testify at trial).8
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`In support of her assertion that Judge Lunsford had ex parte
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`communications with members of the District Attorney’s Office, McClure
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`attached two exhibits to her motion to preclude a retrial:
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` 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
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`motion for discovery from the Commonwealth. Among other things, she
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`sought (1) cell phone records between ADA Foster, ADA Boob, and DA Parks
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`____________________________________________
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`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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`- 13 -
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`J-A15020-17 & J-A15021-17
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`Miller from the date of jury selection in McClure’s case to October 10, 2014;
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`and (2) text messages among Judge Lunsford, Foster, Boob, and Parks Miller
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`during that same period.
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`McClure also served former Judge Lunsford with a subpoena to testify
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`and to bring “copies of all text messages” that he exchanged with Boob,
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`Foster, and Parks Miller from August 4, 2014 to October 29, 2014. Lunsford
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`moved to quash the subpoena. On November 21, 2016, a hearing on the
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`motion to quash was held before Clinton County Court of Common Pleas
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`Senior Judge J. Michael Williamson, specially presiding. After hearing
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`arguments from both sides, Judge Williamson denied Lunsford’s motion to
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`quash. In his order, dated November 21, 2016 and filed on November 22,
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`2016, Judge Williamson said: “Because the Court anticipates it will be
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`necessary to have additional hearings beyond that scheduled for tomorrow,
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`this Order is stayed until the next hearing is scheduled in anticipation of Mr.
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`Lunsford filing an appeal from this Order.” Order, 11/21/16. Lunsford filed
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`a notice of appeal on December 2, 2016 (No. 1982 MDA 2016).
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`A hearing on McClure’s motions was held before Judge Williamson on
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`November 22, 2016. At that hearing, the court incorporated the testimony
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`of Maggie Miller, the former court reporter for Judge Lunsford, who had
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`testified earlier that day in another case charging misconduct by prosecutors
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`- 14 -
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`

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`J-A15020-17 & J-A15021-17
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`and Judge Lunsford, Commonwealth v. Grove, CP-14-CR-873-2013.9 See
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`N.T., 11/22/16, at 14. In the Grove hearing, Miller testified, over a hearsay
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`objection, that in April 2012, during the criminal trial of Randall Brooks,
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`Judge Lunsford told her that Parks Miller was sending him messages about
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`Brooks’ case.
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`Also at the November 22 McClure hearing, Julie Lutz, a Centre County
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`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-
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`61. Those records showed communications involving Judge Lunsford, Parks
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`Miller, Boob, and Foster from August 4, 2014 (when jury selection in
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`McClure’s trial began) to mid-October, 2014 (shortly before McClure was
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`sentenced). Id. at 61-66. Lutz testified that Judge Lunsford “turned in” his
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`phone to the County in July of 2015 (about six months before he retired).
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`Id. at 66. Elizabeth Dupuis, the County Solicitor, testified that an attorney
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`for the county, Mary Lou Maierhofer, had a third-party agency try to
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`____________________________________________
`
`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).
`
`
`- 15 -
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`

`

`J-A15020-17 & J-A15021-17
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`download information from Judge Lunsford’s phone,10 but the download was
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`unsuccessful because in late June of 2015 the phone was reset to factory
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`settings. Id. at 75-76.
`
`Joan Parsons, who was the judicial secretary for Judge Lunsford for
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`nineteen years, testified that Judge Lunsford had a habit of taking his cell
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`phone into court when proceedings were occurring, including in 2014.
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`Parsons asked Judge Lunsford more than once to stop that habit. N.T.,
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`11/22/16, at 86-87. She also testified that approximately two weeks after
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`McClure’s trial, Boob went to a concert with Judge Lunsford and others in
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`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
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`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)
`
`- 16 -
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`

`

`J-A15020-17 & J-A15021-17
`
`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),
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`Parks Miller said she did not know the subject of her conversations with
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`Judge Lunsford, but she denied that they were related to McClure’s case.
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`Id. at 104-109, 110-111, 115, 116. Parks Miller also denied Maggie Miller’s
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`accusation that she sent Judge Lunsford messages about his rulings during
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`the Randall Brooks trial. Id. at 112.
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`Parks Miller testified that she talked to ADA Foster after McClure filed
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`her post-sentence motion documenting a large number of text messages
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`between Judge Lunsford and Foster. See N.T., 11/22/16, at 109-10. Parks
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`Miller said that Foster told her that those texts were about the medical
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`condition of an assistant district attorney who had just resigned and about
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`plans for a tailgate event. Id. at 126-29. Parks Miller said that when she
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`talked to Foster, she looked at Foster’s phone, but the messages were no
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`longer on Foster’s phone at that time. Id. at 123-24.
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`On December 2, 2016, McClure sent former Judge Lunsford another
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`subpoena that sought testimony and records of his communications with
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`members of the District Attorney’s Office. The subpoena sought the same
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`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.
`
`- 17 -
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`

`

`J-A15020-17 & J-A15021-17
`
`(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
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`hearing arguments, Judge Williamson denied that motion on December 9,
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`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
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`9 order (No. 3 MDA 2017). He also filed a motion to certify the trial court’s
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`December 9 order as immediately appealable pursuant to the Interlocutory
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`Appeal Act, 42 Pa.C.S. § 702(b), but the trial court denied that motion. This
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`Court consolidated Lunsford’s appeals of the November 21, 2016 and
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`December 9, 2016 orders denying his motions to quash. See Order,
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`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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`

`

`J-A15020-17 & J-A15021-17
`
`Also on December 9, 2016, the trial court resumed its hearing on
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`McClure’s motion to preclude retrial and motion for discovery. At that
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`hearing, Lutz brought phone
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`records
`
`showing
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`Judge Lunsford’s
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`communications with Parks Miller and Boob from May 30, 2014, to
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`December 4, 2014.13 The records showed that text messaging stopped as of
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`October 24, 2014, one day after McClure filed her motion for discovery.
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`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
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`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.
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`The examiner found nothing. Id. at 18-23, 29.
`
`____________________________________________
`
`13 These records thus covered a longer period of time than the records Lutz
`brought to the November 22, 2016 hearing.
`
`- 19 -
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`

`J-A15020-17 & J-A15021-17
`
`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
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`defense expert, Dr. John Plunkett, had given in other trials. N.T., 12/9/16,
`
`at 34-35. Foster was present durin