Commonwealth v. McClure, No. 1982 MDA 2016

CourtSuperior Court of Pennsylvania
Writing for the CourtOPINION BY SOLANO, J.
Citation172 A.3d 668
Decision Date20 October 2017
Docket NumberNo. 3 MDA 2017,No. 145 MDA 2017,No. 1982 MDA 2016
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

172 A.3d 668

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

No. 1982 MDA 2016
No. 3 MDA 2017
No. 145 MDA 2017

Superior Court of Pennsylvania.

Argued June 20, 2017
Filed October 20, 2017


John B. Dempsey, Scranton, for Lunsford.

Bruce L. Castor, Jr., Assistant District Attorney, Ardmore, for Commonwealth, appellee.

Sean P. McGraw, State College, for McClure.

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

172 A.3d 672

OPINION BY SOLANO, J.:

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

During the trial court proceedings on her preclusion motion, McClure issued two subpoenas to former Judge Lunsford to obtain documents and testimony from him. Lunsford's motions to quash those subpoenas were denied, and this opinion addresses Lunsford's appeals at Nos. 1982 MDA 2016 and 3 MDA 2017 from the November 21, 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

172 A.3d 673

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

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

• On September 20, 2014, Judge Lunsford and his staff were at the Maryland shore. A picture of that event posted on social media showed Judge Lunsford with ADA Boob. Parks Miller posted comments about the picture.

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

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

[I]t appeared to courtroom observers that deference was given to the district attorney's office, Stacy Parks Miller and Nathan Boob in the management of the trial, which did not appear to be extended to the defense.

On numerous occasions, the court allowed the district attorney to engage in conduct in front of the jury that called into question the credibility and character of defense counsel and Ms. McClure's case. The manner in which the court made its rulings, whether intentional or not, imparted the appearance of partiality to the prosecution and a negative inference of defense counsel and [McClure]'s case.

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

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

• "On information and belief, Judge Bradley P. Lunsford admitted that he text messaged Assistant District Attorney Nathan Boob (trial counsel) during the course of Jalene McClure's trial held on September 8–11, 2014";
172 A.3d 674
• "It is believed that District Attorney Stacy Parks Miller [exchanged] text messages with this court"; and

• "On information, text messaging may have occurred between Assistant District Attorney Lindsay Foster and Judge Bradley P. Lunsford during the course of the McClure trial."

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

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

Parks Miller appeared at the October 30, 2014 hearing, but did not give testimony under oath. She said it was "absolutely untrue that this Court was texting Assistant District Attorney Nathan Boob during this trial." N.T., 10/30/14, at 5. Parks Miller continued, "In terms of the rest of the allegations, I am not dignifying them." Id....

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11 practice notes
  • Commonwealth v. Davis, 1964 EDA 2019
    • United States
    • Superior Court of Pennsylvania
    • October 6, 2021
    ...the standard of review regarding a motion to quash a subpoena is whether the trial court abused its discretion." Commonwealth v. McClure, 172 A.3d 668, 683 (Pa. Super. 2017); See Commonwealth v. Mucci, 143 A.3d 399, 411-12 (Pa. Super. 2016) ("So long as there is evidence which supports the ......
  • Commonwealth v. Alston, No. 1530 WDA 2018
    • United States
    • Superior Court of Pennsylvania
    • May 26, 2020
    ...cases, and a criminal defendant is entitled to request any potentially exculpatory, non-privileged information. Commonwealth v. McClure , 172 A.3d 668, 695 (Pa. Super. 2017). Furthermore, the comment to Pa.R.Crim.P. 107 states that "a subpoena shall be used not only for trial but also for a......
  • Commonwealth v. Magee, No. 3459 EDA 2016
    • United States
    • Superior Court of Pennsylvania
    • December 27, 2017
    ...remaining parts of the case as to permit the rest of the trial court proceedings to move forward. See generally Commonwealth v. McClure , 172 A.3d 668, 698–99 (Pa. Super. 2017) ; Commonwealth v. Hall , 327 Pa.Super. 390, 476 A.2d 7, 10 (1984). Permitting an immediate appeal from an order de......
  • Wexford Sci. & Tech., LLC v. Coltart Area Residents Ass'n, 694 C.D. 2020
    • United States
    • Commonwealth Court of Pennsylvania
    • July 23, 2021
    ...matter (that is, the ‘particular item, claim or assessment adjudged’) that is the subject of the appeal." Commonwealth v. McClure , 172 A.3d 668, 698-99 (Pa. Super. 2017) (citing Pa. R.A.P. 1701(c) ).As the Supreme Court explained in Rosen v. Rosen , 520 Pa. 19, 549 A.2d 561, 564 (1988), "[......
  • Request a trial to view additional results
11 cases
  • Commonwealth v. Davis, 1964 EDA 2019
    • United States
    • Superior Court of Pennsylvania
    • October 6, 2021
    ...the standard of review regarding a motion to quash a subpoena is whether the trial court abused its discretion." Commonwealth v. McClure, 172 A.3d 668, 683 (Pa. Super. 2017); See Commonwealth v. Mucci, 143 A.3d 399, 411-12 (Pa. Super. 2016) ("So long as there is evidence which supports the ......
  • Commonwealth v. Alston, No. 1530 WDA 2018
    • United States
    • Superior Court of Pennsylvania
    • May 26, 2020
    ...cases, and a criminal defendant is entitled to request any potentially exculpatory, non-privileged information. Commonwealth v. McClure , 172 A.3d 668, 695 (Pa. Super. 2017). Furthermore, the comment to Pa.R.Crim.P. 107 states that "a subpoena shall be used not only for trial but also for a......
  • Commonwealth v. Magee, No. 3459 EDA 2016
    • United States
    • Superior Court of Pennsylvania
    • December 27, 2017
    ...remaining parts of the case as to permit the rest of the trial court proceedings to move forward. See generally Commonwealth v. McClure , 172 A.3d 668, 698–99 (Pa. Super. 2017) ; Commonwealth v. Hall , 327 Pa.Super. 390, 476 A.2d 7, 10 (1984). Permitting an immediate appeal from an order de......
  • Wexford Sci. & Tech., LLC v. Coltart Area Residents Ass'n, 694 C.D. 2020
    • United States
    • Commonwealth Court of Pennsylvania
    • July 23, 2021
    ...matter (that is, the ‘particular item, claim or assessment adjudged’) that is the subject of the appeal." Commonwealth v. McClure , 172 A.3d 668, 698-99 (Pa. Super. 2017) (citing Pa. R.A.P. 1701(c) ).As the Supreme Court explained in Rosen v. Rosen , 520 Pa. 19, 549 A.2d 561, 564 (1988), "[......
  • Request a trial to view additional results

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