Commonwealth v. McClure
| Decision Date | 20 October 2017 |
| Docket Number | No. 3 MDA 2017,No. 145 MDA 2017,No. 1982 MDA 2016,1982 MDA 2016,3 MDA 2017,145 MDA 2017 |
| Citation | 172 A.3d 668 |
| Parties | COMMONWEALTH of Pennsylvania v. Jalene R. MCCLURE Appeal of: Retired Judge Bradley P. Lunsford Commonwealth of Pennsylvania v. Jalene R. McClure Appeal of: Retired Judge Bradley P. Lunsford Commonwealth of Pennsylvania, Appellee v. Jalene R. McClure, Appellant |
| Court | Pennsylvania Superior Court |
John B. Dempsey, Scranton, for Lunsford.
Bruce L. Castor, Jr., Assistant District Attorney, Ardmore, for Commonwealth, appellee.
Sean P. McGraw, State College, for McClure.
In 2014, Jalene R. McClure was convicted by a Centre County jury of assault and other offenses relating to injuries to a child at a daycare center that McClure operated. In 2016, we reversed McClure's conviction and remanded for a new trial. Commonwealth v. McClure , 144 A.3d 970 (Pa. Super. 2016). This case returns to us as a result of proceedings on remand in which McClure has sought to preclude retrial on double jeopardy grounds. Part of her argument in support of that relief is that there was misconduct during her trial on the part of the Centre County prosecutors and the presiding judge, the Honorable Bradley P. Lunsford.
During the trial court proceedings on her preclusion motion, McClure issued two subpoenas to former Judge Lunsford to obtain documents and testimony from him. Lunsford's motions to quash those subpoenas were denied, and this opinion addresses Lunsford's appeals at Nos. 1982 MDA 2016 and 3 MDA 2017 from the November 21, 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 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:
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:
Id. at ¶¶ 11–12 (numbers omitted). McClure listed examples of the court's allegedly biased rulings. Id. at ¶¶ 12–18. She also attached to her motion an affidavit by Attorney Maren Lynn Chaloupka (a consultant for the defense who attended the first day of McClure's trial), who opined that "the overall tone of the District Attorney was ... indignant and highly emotional" and the "the atmosphere during the trial was chaotic and permissive of the District Attorney's conduct." Among other things, Chaloupka found it extraordinary that the court permitted one Commonwealth attorney (Boob) to conduct direct examination of witnesses and permitted a second Commonwealth attorney (Parks Miller) to make objections and present redirect examination.
On October 23, 2014, McClure filed a motion to preserve and produce evidence, in which she alleged:
Mot. to Preserve and Produce Evid., 10/23/14, at ¶¶ 1, 4, 5. ADA Foster did not participate directly in McClure's trial, but assisted with preparation of some aspects of it. McClure sought a court order requiring Parks Miller, Boob, Foster, and Judge Lunsford to preserve any e-mails, instant messages, or other forms of electronic communications from August 4, 2014, until the date of the motion. McClure also sought production of copies or screen shots of all information regarding those communications. McClure's motion was sent to Judge Lunsford on October 24, 2014.
On October 30, 2014, Judge Lunsford held a hearing on the motions for recusal and to preserve and produce evidence. At that hearing, counsel for McClure (Cantorna) sought to elicit testimony from his law partner, James N. Bryant, in support of McClure's motion to preserve and produce evidence. Cantorna claimed that Centre County Court of Common Pleas President Judge Thomas King Kistler told Attorney Bryant that Judge Lunsford admitted to sending text messages to ADA Boob during McClure's trial. Cantorna also averred that the request for text messages and communications from ADA Foster was "based on information that Mr. Bryant was given by the Judiciary of Centre County." N.T., 10/30/14, at 2–3. The Commonwealth objected that Bryant's proposed testimony would be inadmissible hearsay, and the court sustained that objection, precluding Bryant's testimony.
Parks Miller appeared at the October 30, 2014 hearing, but did not give testimony under oath. She said it was "absolutely untrue that this Court was texting Assistant District Attorney Nathan Boob during this trial." N.T., 10/30/14, at 5. Parks Miller continued, "In terms of the rest of the allegations, I am not dignifying them." Id. ADA Boob provided a document with a signed verification, stating that he did not exchange any text messages with Judge Lunsford during McClure's trial. Id. at 10. The trial court granted the Commonwealth's oral motion to quash a subpoena issued to ADA Foster shortly before the hearing, and Foster did not appear at the hearing. Id. at 5–6. During the hearing, Judge Lunsford stated:
Judge Lunsford denied both the motion for recusal and the ...
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