Com. v. Brooks, R.

J-S22029-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1546 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000141-2012 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1547 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001515-2011 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1548 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000568-2011 J-S22029-25

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL D. BROOKS : : Appellant : No. 1549 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001927-2010 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1550 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0002130-2010

BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.* DISSENTING MEMORANDUM BY BOWES, J.: FILED: MAY 27, 2026 As I believe that the learned majority both misapplied the structural error doctrine and ignored the prevailing legal framework in granting Appellant relief under the Post-Conviction Relief Act, I respectfully dissent.

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* Former Justice specially assigned to the Superior Court.

-2- J-S22029-25

It is beyond cavil that Stacy Parks Miller, Esquire, then District Attorney of Center County, and the Honorable Bradley P. Lunsford both violated public trust and dishonored the legal profession and their respective offices.

However, as an error correcting court, our directive is not to review the ethics of those actions; that is for the respective boards of conduct, which were created to address those precise issues.1 We are simply tasked with determining whether Appellant established that he is entitled to a new trial pursuant to the PCRA. For the reasons explained infra, I would hold that he did not.

Appellant’s PCRA petition claimed that the prosecutor and trial judge violated his constitutional rights by engaging in ex parte communications during his 2012 criminal prosecution. See PCRA Petition, 9/27/19 at 10. In this vein, he sought substantive relief pursuant to 42 Pa.C.S. § 9543(a)(2)(i), alleging a constitutional violation that so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.2

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(Footnote Continued Next Page)

-3- J-S22029-25

The PCRA court ultimately denied relief on the merits of Appellant’s substantive claim. It reasoned: We have reviewed the lengthy transcribed record of the trial in this case. In our view, Judge Lunsford navigated the shoals between a vigorous and sometimes petulant prosecutor and an untrained pro se litigant with impartiality. We are unable to discern any evidence of an improper outside influence, let alone one that proved detrimental to the defendant. In fact, Judge Lunsford dealt with the defendant’s legal missteps with considerable patience and equity. We can find no evidence of bias in either his rulings or his charge to the jury.

See PCRA Opinion, 9/16/24, at 8 (quoting PCRA Opinion, 4/28/22, at 6-7) (emphases added).

In reversing the PCRA order, the majority acknowledges that the PCRA court reviewed the record and found no evidence that the communications affected Judge Lunsford’s rulings. The majority further observed that the Pennsylvania Supreme Court determined ex parte communications do not

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(a)General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: ....

(2) That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

-4- J-S22029-25 implicate the structural error doctrine; rather, a petitioner is still required to demonstrate harm, i.e., that it is likely to prejudice a party, in order to warrant relief. See Commonwealth v. Bradley, 459 A.2d 733 (Pa. 1983).

Nevertheless, the majority finds a structural error in this case, not due to any nuance in the structural error doctrine, but because Judge Lunsford did not maintain adequate records of the exchanges. See Majority Memorandum at (“in this instance where the trial judge failed to maintain an accurate and reviewable contemporaneous record of its ex parte communications, we may imply prejudice even where arguably none exists.) (cleaned up) (citation and quotations omitted).3 I respectfully reject this conclusion for three reasons insofar as the majority’s analysis: (1) misapprehends the relevant legal authority that applies specifically to ex parte communications; (2) contravenes the structural-error framework that our High Court set forth in Commonwealth v. Taylor, 309 A.3d 754, 780 (Pa. 2024); and (3) ignores Appellant’s argument applying that legal framework to his claim that the instant exchanges were structural error, not because of some clerical shortcoming,

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-5- J-S22029-25 but due to an appearance of impropriety. See Appellant’s brief at 32-40, 47 (arguing the alleged transgression implicates an appearance of impropriety that is so fundamentally unfair that it is tantamount to structural error, which warrants relief regardless of prejudice.). I address my concerns in succession.

Bradley involved a trial judge’s ex parte response to a jury question during deliberations. Having determined that the defendant failed to prove a reasonable likelihood of prejudice due to the court’s interaction with the jurors, the Supreme Court held “only those ex parte communications between a court and jury which are likely to prejudice a party will require reversal.” See Bradley, 459 A.2d at 734 (Pa. 1983) (emphasis added). Critically, in overruling Argo v. Goodstein, 228 A.2d 195 (Pa. 1967), its prior precedent stating that judge/jury ex parte interaction warranted reversal regardless of harm, the Supreme Court in Bradley adopted as law the rationale that then- Justice Roberts provided in his dissenting opinion addressing this issue in Yarsunas v. Boros, 223 A.2d 696, 698 (Pa. 1966) (Roberts, Justice (dissenting): The reason for prohibiting a trial judge from communicating with a jury ex parte is to prevent the court from unduly influencing the jury and to afford counsel an opportunity to become aware and to seek to correct any error which might occur. Where there is no showing either that the court's action may have influenced the jury or that its directions were erroneous, then the reason for the rule dissolves.

See Bradley, 459 A.2d at 736 (cleaned up). Hence, our Supreme Court has held that no relief is warranted in these cases absent an indication of influence.

-6- J-S22029-25

Later, in Commonwealth v. Barnyak, 639 A.2d 40, 44 (Pa.Super. 1994), this Court interpreted an ex parte communication between a judge and prosecutor as requiring “evidence of influence” in order to warrant relief. The High Court subsequently endorsed both Bradley and Barnyak in Commonwealth v. Carpenter, 725 A.2d 154, 169 n.9 (Pa. 1999)4, albeit in a case involving the dual conclusion that the at-issue exchange between the trial court and the prosecution was not an ex parte communication under the circumstances of that case and that the defendant did not claim a likelihood of harm. That capital appeal docket proceeding involved the Supreme Court’s review of a PCRA order denying, inter alia, Carpenter’s assertion that the trial court violated his due process by engaging in ex parte communications with the District Attorney about jury instructions. In denying relief, the PCRA court had concluded that the exchange was not an ex parte communication because it involved merely a procedural aspect of the case and the court had a similar discussion with Carpenter and his attorney the following day. Id. at 169. The High Court agreed, holding that the circumstances of the progressive

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Coincidentally, without providing a hint of legal authority for this proposition, the majority baldly posits, “Without any support, we cannot conclude that [Barnyak] supports the PCRA court’s ruling.” Id. The incongruity between the majority’s attempt to circumvent Barnyak for a lack of analysis and its own failure to present legal authority to support that principle is telling.

-7- J-S22029-25 exchanges “coupled with the absence by Appellant of any claim of prejudice because of the communication, convinces us that this claim is without merit.” Id. at 169 (emphasis added).

However, as the majority highlights as the cornerstone of its legal analysis, in announcing its holding that a defendant was required to demonstrate a likelihood of harm to warrant relief for an ex parte communication, the Bradley Court acknowledged the reality that in some instances where the content of the communication is unknown, it would be difficult to establish harm. The High Court cautioned, “We do, however, remind the trial bench that failure to maintain an accurate and reviewable contemporaneous record of all instructions and communications between the court and a jury may force an implication of prejudice where arguably none exists.” Bradley, 459 A.2d at 739.

What the majority characterizes as the Bradley Court’s “qualification” of its decision to find ex parte communications subject to the harmless error analysis is simply the High Court’s acknowledgement of the difficulty proving prejudice where there is no evidence regarding the substance of the communication. In that situation, the Supreme Court determined that it was reasonable to imply the substance of communication was, in fact, harmful.

However, that is not what occurred in this case. Indeed, the essence of the prosecutor’s missives to Judge Lunsford are undisputed: she repeatedly chastised him for what she viewed as adverse rulings. See Majority

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Memorandum at 13 (“At the very least, we have evidence that the prosecutor complained to the trial judge, during [the] trial, about the way the judge was handling objections and the trial in general.”); PCRA Opinion, 4/28/22, at 5 (“According to [the affiant], during the break Judge Lunsford stated . . . that [Attorney] Miller was “bitching to him” in text messages about the way [he] was handling some objections and handling the trial.”). Hence, the evidentiary dilemma that the Bradley court sought to avoid in some cases involving a judge’s ex parte communication with the jury simply is not present in the case at bar. While invoking this safety net to undermine the Bradley Court’s unequivocal decision to require a demonstration of harm, the majority both ignores the gist of the prosecutor’s messages to Judge Lunsford and fails to present any feasible reason why the lack of a contemporaneous record of those messages would have any bearing on this case, considering the acknowledged tenor of the ex parte communications. Thus, I find unconvincing the majority’s reliance upon the Bradley Court’s supposed qualification, in defiance of authoritative precedent concluding that a violation of due process based on an ex parte communication between a judge and either the jury or prosecution is not structural error. See e.g., Barnyak, and Carpenter.

Having explained the shortcomings with my colleagues’ position that the ex parte communication is tantamount to structural error, notwithstanding the Bradley Court’s holding to the contrary, I next address Appellant’s wholly

-9- J-S22029-25 separate argument that the ex parte communication should be considered structural error because it implicates an appearance of impropriety, which he asserts always results in fundamental unfairness.5 See Appellant’s brief at 8, 37-39. Although the majority does not address the merits of Appellant’s contention, it does state, in conclusory fashion, “Because it is well established that judicial bias is a violation of due process, under the specific facts of this case, we conclude that [Appellant] should be afforded PCRA relief and granted a new trial.” Majority Memorandum at 13 (cleaned up) (internal citations and quotations omitted). For the reasons outlined infra, I reject the majority’s inference that the record will sustain a finding of trial court bias.

I begin with a refresher on structural error. In Taylor, our Supreme Court outlined the three categories of trial court error that are prejudicial per se: “(1) when the constitutional right is one which does not protect against erroneous conviction, but instead protects some other interest; (2) when the effects of the violation are too hard to measure; or (3) when the violation will always result in fundamental unfairness.” Id. at 780. The Court expounded upon each of these categories thusly: The first was a violation of a constitutional right that is not designed to protect the defendant from erroneous conviction but instead protects some other interest, such as, for example, the right of an individual to conduct his or her own defense, inasmuch as impairment of that right contravenes the legal principle undergirding the constitutional guarantee – namely, that a ____________________________________________

- 10 - J-S22029-25 defendant has the fundamental right to make choices regarding the protection of his or her own liberty.

The second category concerned those situations where “the effects of the error are simply too hard to measure,” for instance, where a defendant is denied the right to proceed with counsel of his or her choosing. . . . [I]n such situations, the precise effect of the violation cannot be ascertained,” and because the government will, as a result, find it almost impossible to show that the error was harmless beyond a reasonable doubt, the efficiency costs of letting the government try to make the showing are unjustified.

Finally, . . . an error would be deemed structural if the error always results in fundamental unfairness. For example, if an indigent defendant is denied an attorney or if the judge fails to give a reasonable-doubt instruction, the resulting trial is always a fundamentally unfair one. It therefore would be futile for the government to try to show harmlessness. Id. at 777–78 (cleaned up) (citations and internal quotation marks omitted).

Appellant’s argument invokes the third category of error, one which always results in fundamental unfairness.6 He dedicates the majority of his argument to In Interest of McFall, 617 A.2d 707 (Pa. 1992) and Joseph v. Scranton Times L.P, 987 A.2d. 633 (Pa. 2009), two cases that concern not ex parte communications, but judicial corruption and the outright failure to disclose an obvious bias. I discuss these cases seriatim.

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McFall involved a trial judge’s failure to disclose to twenty-nine criminal defendants that she was actively working as an FBI informant while presiding over their prosecutions. Id. at 710. The twenty-nine defendants argued that the judge “could not have been impartial in discharging her judicial functions where she was beholden to one of the parties appearing before her.” Id. at 712. Our High Court agreed. In affirming the order awarding new criminal proceedings, it found “[t]he circumstances under which [the judge] participated as an ‘agent’ of both the judiciary and the prosecution created an environment of partiality which is unacceptable.” Id. at 713. The Court continued, [i]n this case the appearance of bias is obvious. [The judge’s] agreement with the prosecutorial arm was a quid pro quo bargain.

She agreed to assist the F.B.I. in their racketeering investigation, while the F.B.I. promised to make [her] cooperation known to the Pennsylvania authorities who would conduct [her] prosecution[.]

Moreover, these same Pennsylvania authorities were the very authorities who appeared before [the judge] to prosecute the [twenty-nine defendants]. Consequently, this obvious conflict of interest eradicated the appearance of justice in [the judge’s] courtroom. Id. Our Supreme Court relied upon McFall in Joseph v. Scranton Times L.P., 987 A.2d 633 (Pa. 2009), which Appellant cites for the proposition that the appearance of impropriety is sufficient to warrant relief in this case. In that defamation case implicating the two jurists involved in the Luzerne County “Kids for Cash” scandal, former President Judge Michael T. Conahan and former Judge Mark A. Ciavarella, the High Court assumed plenary - 12 - J-S22029-25 jurisdiction over the case pursuant to its King’s Bench authority. The issue of impropriety arose after it came to light that the judges, one of whom assigned the case to the other, were engaged in judge-shopping and co-conspirators in a scheme involving two private juvenile facilities in which they held a financial interest. In finding that judicial impropriety existed in the trial of the underlying defamation case, the High Court employed McFall to conclude that a new trial was warranted “to remedy the pervasive appearance of impropriety ... and to give justice, and the appearance of justice, an opportunity to prevail.” Id. at 682. The Supreme Court summarized the evidence of impropriety thusly, [Scranton Times] adequately demonstrated that, in response to [its] repeatedly voiced concerns [about] judge-shopping to have Ciavarella assigned to preside over this matter, both Conahan and Ciavarella reassured [it] that the case would be assigned randomly for trial. The evidence adduced at the hearing, however, showed these reassurances to be misleading, or even plainly false, as such random assignment did not occur as a matter of course in Luzerne County at that time, and certainly did not occur in this case. Indeed, the manner in which Ciavarella was assigned to preside over this case was so unusual that the long-time Luzerne County Deputy Administrator of Civil Trials noted on the docket that Conahan and William Sharkey, the former Court Administrator for Luzerne County, who is Conahan’s cousin (Sharkey has since resigned in the wake of federal corruption charges), had hand-assigned the case. The Deputy Administrator stated that she was motivated to make this unusual notation because she wanted to afford herself some protection. Id. Thereafter, the Hight Court concluded, It bears repeating: a jurist is either fair or unfair; there are no acceptable gradations. This case was assigned by Conahan, - 13 - J-S22029-25 through Sharkey, to Ciavarella for trial. After rendering a series of evidentiary decisions against [the defendants], Ciavarella returned a bench trial verdict in favor of [the plaintiffs] in the amount of $3.5 million. The inherently troubling nature of Conahan’s and Ciavarella’s compromised positions as jurists is enhanced, in this case, given that the subject matter of this defamation lawsuit concerned newspaper articles reporting on the undisputed fact of a federal criminal investigation into [the plaintiff’s] alleged ties to organized crime activities . . . [.] Id. at 682-83.

Plainly, both McFall and Scranton Times stand for the proposition that a demonstration of obvious judicial bias obviates the need to establish actual prejudice. In those cases, the mere appearance of impropriety is sufficient because the jurists’ bias is palpable. However, notwithstanding Appellant’s assertions, the record in the case at bar does not bear out obvious judicial bias. Indeed, as summarized, infra, the record supports the PCRA court’s contrary finding that Judge Lunsford remained impartial.

Appellant failed to allege any facts, let alone advance any evidence, tending to show bias, prejudice or unfairness on the part of the trial court judge. In short, in contrast to the facts underlying Taylor, McFall, and Scranton Times, the circumstances herein did not raise an appearance of partiality that would have warranted a new proceeding. First, unlike the basis for Appellant’s claim for relief in the case sub judice, none of those cases implicated an ex parte communication. For example, in Taylor, the High Court examined “a juvenile court violat[ion of] a juvenile’s Fifth Amendment right by . . . conditioning its ultimate finding of the juvenile’s amenability to

- 14 - J-S22029-25 treatment. . . upon a requirement that the juvenile admit guilt for the offenses he is alleged to have committed[.] ” Taylor, 309 A.3d at 783. In finding a fundamental unfairness in that situation, the Court reasoned, “By imposing such a manifestly improper requirement, a juvenile court has, in effect, created an irrebuttable presumption that, if the juvenile refuses to incriminate himself, he is not amenable to treatment, supervision, and rehabilitation, no matter what the other competent evidence of record demonstrates.” Id. It concluded, “[t]his type of constitutional violation therefore inevitably disrupts the framework of the certification process because of its distortive effect on the entirety of the juvenile court’s decision-making process.” Id. As our High Court gathered in Carpenter, by conditioning relief, at least in part, upon evidence of influence, there is no such distortive effect inherent to ex parte communications. Additionally, no indication can be drawn from the Taylor Court’s holding or rationale that it sought to overrule this line of cases by applying the doctrine of structural error to these violations and alleviating the need to establish actual prejudice.

Moreover, as it relates to the remaining cases Appellant cites in support of applying structural error, Judge Lunsford’s receipt of Attorney Miller’s ex parte communications does not implicate obvious bias and corruption based upon a judge’s quid-pro-quo cooperation with law enforcement in the hopes of easing her own criminal culpability, or a pair of dishonest jurists channeling cases to one another for their own pecuniary gain. While those situations

- 15 - J-S22029-25 involve clear conflicts of interest that created an environment of patent partiality, in no way is the bias inherent in those matters akin to Judge Lunsford’s failure to disclose his receipt of text messages from Attorney Miller complaining about unfavorable rulings. Indeed, as the Commonwealth highlights, the fact that “the rulings were cutting against . . . [A]ttorney [Miller] demonstrates the trial judge’s impartiality had not been compromised, despite the ex parte communications.” Commonwealth’s brief at 17-18.

In sum, Appellant’s position is founded upon cases that address the appearance of impropriety stemming from judicial bias and corruption.

However, the case at bar implicates neither of those transgressions. Rather, this matter concerns ex parte communications, and the dispositive legal authority addressing ex parte communications precludes relief absent evidence of influence, i.e. prejudice. See e.g., Bradley, Barnyak, and Carpenter.

I hasten to agree with the learned majority that Judge Lunsford’s failure to disclose to Appellant Attorney Miller’s ex parte communications is both abhorrent and violative of Appellant’s right to due process. However, neither of those truths constitutes structural errors. In addition, unlike the facts underlying the cases that Appellant invokes, the violation of due process did not undermine the entirety of the court’s decision-making process and there simply is no evidence that the communications influenced Judge Lunsford in any manner. Stated plainly, insofar as Appellant failed to present evidence of

- 16 - J-S22029-25 judicial influence in this case, he cannot satisfy the PCRA’s requirement to demonstrate that the alleged violation “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S § 9543(a)(2)(1). Accordingly, in contrast to my esteemed colleagues, I would conclude that the PCRA court did not err in denying Appellant’s claim for relief on that basis. Therefore, I respectfully dissent.

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J-S22029-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1546 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000141-2012 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1547 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001515-2011 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1548 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000568-2011 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA J-S22029-25

: v. : : : RANDALL D. BROOKS : : Appellant : No. 1549 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0001927-2010 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RANDALL DOUGLAS BROOKS : : Appellant : No. 1550 MDA 2024 Appeal from the PCRA Order Entered September 17, 2024 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0002130-2010

BEFORE: LAZARUS, P.J., BOWES, J., and STEVENS, P.J.E.* MEMORANDUM BY LAZARUS, P.J.: FILED: MAY 27, 2026 Randall Douglas Brooks appeals from the order, entered in the Court of Common Pleas of Centre County, denying, following a hearing, his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541- 9546. After careful consideration, we conclude that the ex parte communications between the lead prosecutor and trial judge in Brooks’

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* Former Justice specially assigned to the Superior Court.

-2- J-S22029-25 attempted murder trial amounted to structural error that denied him his right to a fair trial. Thus, we reverse and remand for a new trial.

This appeal concerns ex parte communications that then-District Attorney of Centre County, Stacy Parks Miller, Esquire, initiated with the Honorable Bradley P. Lunsford during Brooks’ 2012 trial for attempted murder causing serious bodily injury and related crimes. Brooks’ charges were brought in connection with an incident in which he “pulled up alongside of a vehicle being driven by a Matthew Ross and fired three shots into the Ross vehicle, one of which struck Mr. Ross in the shoulder.” Trial Court Opinion, 9/17/24, at 1. The trial court opined that Brooks “was angered by the ending of his romantic relationship with [] Jessica Rooney [] and her subsequent relationship with Mr. Ross.” Id. The remaining charges1 in the case stemmed from Brooks allegedly stalking and harassing Rooney and Ross, both prior to ____________________________________________

1 The jury found Brooks guilty of the following charges on the five separate informations: [No. CP-14-CR-1927-2010] two counts of aggravated assault, Pa.C.S.A. §§ 2702(a)(1), (a)(4), one count each of attempted criminal homicide, id. at §§ 2501, 903, stalking, id. at § 2709.1, possession of an instrument of crime, id. at § 907(a), and recklessly endangering another person, id. at § 2705; [No. CP-14-CR-2130-2010] two counts of intimidation of witness/victim, id. at §§ 4952(a)(2), (a)(3); [CP-14-CR-0568-2011] one count each of intimidation of witness/victim, stalking, id. at § 2709.1, and harassment, id. at § 2709(a)(7); [CP-14-CR-1515-2011] one count each of aggravated jury tampering, 42 Pa.C.S.A. § 4583.1, conspiracy-aggravated jury tampering, 18 Pa.C.S.A. § 4583.1, solicitation to commit perjury, id. at §§ 4901, 902, and two counts of solicitation to commit tampering/fabricating physical evidence; [CP-14-CR-0141-2012] two counts of intimidation of witness/victims false/misleading testimony, id. at §§ 4952(a)(2), (a)(3), and one count of harassment-communicates lewd/lascivious/threatening or obscene words, id. at. § 2709(a)(4).

-3- J-S22029-25 and after the shooting, and attempting to avoid criminal culpability for those crimes. See id. Brooks proceeded pro se throughout his jury trial, with appointed standby counsel. Brooks was convicted on all counts. Judge Lunsford sentenced Brooks to an aggregate term of 36¼ to 73 years of imprisonment.

On direct appeal, this Court affirmed the convictions but vacated Brooks’ judgment of sentence for attempted murder causing serious bodily injury and remanded for resentencing, concluding the jury had failed to make the requisite factual finding with regard to serious bodily injury. See Commonwealth v. Brooks, 122 A.3d 1120 (Pa. Super. 2015) (Table).

Upon resentencing, the trial court imposed an aggregate term of 28-56 years of incarceration. Brooks filed a post-sentence motion challenging the grading of his stalking offense. The trial court2 granted Brooks’ motion and resentenced him to 27¼ to 54½ years’ incarceration. Brooks filed another post-sentence motion that was denied by operation of law. We dismissed Brooks’ ensuing appeal, which raised a discretionary aspect of sentencing issue, due to counsel’s appellate briefing deficiencies. See Commonwealth v. Brooks, 195 A.3d 1051 (Pa. Super. 2018) (Table). Brooks did not seek allowance of appeal with our Supreme Court.

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2 Judge Lunsford retired from the bench in 2015. Brooks was resentenced in 2016 by the Honorable Johnathan Grine.

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Meanwhile, on December 6, 2018, the Disciplinary Board of the Supreme Court of Pennsylvania (Board) filed a report and recommendation in relation to charges leveled in 2017 by the Office of Disciplinary Counsel alleging Attorney Parks Miller violated the Rules of Professional Conduct by, inter alia, engaging in ex parte communications with judges, including Judge Lunsford.

Thereafter, on September 27, 2019, Brooks filed a timely pro se PCRA petition.

Counsel was appointed and subsequently amended the petition: (1) arguing that direct appeal counsel was ineffective for failing to preserve a challenge to the discretionary aspects of Brooks’ sentence; and (2) seeking substantive relief by alleging a constitutional violation that so undermined the truth- determining process that no reliable adjudication of guilt or innocence could have taken place.3 See 42 Pa.C.S.A. § 9543(a)(2)(i). As to the latter issue,

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3 Subsection 9543(a)(2)(i) delineates PCRA eligibility, in relevant part, as follows: (a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: *** (2) That the conviction or sentence resulted from one or more of the following:

(i) A violation of the Constitution of this Commonwealth or the Constitution or laws of the United States which, in the circumstances of the particular case, so undermined the truth-determining process (Footnote Continued Next Page)

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Brooks contended that Attorney Parks Miller and Judge Lunsford violated his constitutional rights by engaging in ex parte communications during his prosecution. See PCRA Petition, 9/27/19 at 10.

The PCRA court outlined the facts underlying Brooks’ substantive claim thusly: [T]he circumstances concerning these communications involved, inter alia, allegations of [Attorney Parks Miller’s] misconduct which occurred during cases which had been concluded prior to the Board proceedings, including Commonwealth v. Barry Grove, CP-14-CR-873-2013 and Commonwealth v. Jalene McClure, CP-14-CR-1778-2012.[4] Following a review of allegations of ex parte communication in these and several other cases, the . . .

Board concluded that the conduct of [Attorney Parks Miller] warranted the suspension of her law license for a period exceeding one year.

PCRA Opinion, 5/9/22, 2-3.5 Thereafter, the PCRA court noted the McClure court determined that the defendant failed to establish prejudice stemming from the ex parte communications so “as to warrant the dismissal of the charges against [her].” Id. at 4 (quoting McClure Order, 12/22/16, at 1-2,

____________________________________________ that no reliable adjudication of guilt or innocence could have taken place.

42 Pa.C.S.A. §§ 9543(a)(2)(i).

4 Both McClure’s And Grove’s trials took place after Brooks’ trial. However, the ex parte communications between the trial judge and DA Parks Miller in Brooks’ case did not come to light until “the development of a factual record in the Grove case.” PCRA Opinion, 4/28/22, at 4; see infra at 7.

5 The PCRA court essentially adopted the first eight pages of its former PCRA opinion from May 2022.

-6- J-S22029-25 vacated for lack of jurisdiction, Commonwealth v. McClure, 172 A.3d 668 (Pa. Super. 2017)).6 However, notably, in the McClure matter, “no definitive evidence demonstrating that the communications between ADA Foster[, the prosecutor in McClure’s trial,] and Judge Lunsford concern[ing] the McClure matter was produced.” See PCRA Court Opinion, 5/9/22, at 4, citing Order Dismissing Motion to Preclude Retrial in McClure (CP-14-CR-1778-2012), 12/22/16, at 1.7

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6 In McClure, a panel of this Court vacated the defendant’s judgment of sentence due to the trial court’s improper admission of evidence that our Court determined did not amount to harmless error. Thus, any issue regarding the ex parte communications between the ADA and Judge Lunsford was rendered moot by the grant of a new trial. Similarly, in Commonwealth v. Grove, 170 A.3d 1127 (Pa. Super. 2017), the defendant’s claim of ex parte communications between Judge Lunsford and the prosecutor, which only involved sentencing, was rendered moot because the PCRA court granted Grove a new sentencing proceeding on other grounds.

7 The PCRA judge in the instant matter also quoted the following portions of the opinion of the trial judge who ruled on the defendant’s motion to preclude retrial in McClure: [T]he 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 the texting between Lunsford and the District Attorney’s Office had been raised by defense counsel.

Id. at 5 (citation omitted); id., 5/9/22, at 3-4.

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The PCRA court further elucidated, In the course of the development of a factual record in the Grove case, . . . an affidavit was taken from Maggie Miller, a Centre County Court Reporter[,] concerning [Brooks’] trial[.] . . . Ms. Miller testified that “during a recess in trial in the instant matter, . . . Judge Lunsford told her that he and [Attorney Parks] Miller were texting one another. According to [the affiant], during the break Judge Lunsford stated . . . that [Attorney Parks] Miller was “bitching to him” in text messages about the way [he] was handling some objections and handling the trial. [The affiant continued] that she was disgusted by what Judge Lunsford had revealed to her and approached [Judge] Lunsford’s secretary, Joan Parsons[,] who informed her that [Judge] Lunsford would regularly bring his cell phone to the bench and that Ms. Parsons also viewed it as a problem. Thus[,] it is fair to conclude that in the instant case there were ex parte text communications between the District Attorney and the trial judge and that at least some of those communications involved the trial of [Brooks].

PCRA Opinion, 5/9/22, at 4-5 (cleaned up).8 Following an evidentiary hearing, the PCRA court denied relief on the merits of Brooks’ substantive claim, but granted his request for nunc pro tunc relief. Specifically, the court ordered, the petition . . . for Post-Conviction Collateral Relief in the nature of a request for a new trial is DENIED. The PCRA petition . . . in the nature of a request for reinstatement of his right to appeal is GRANTED and his right to file a direct appeal is REINSTATED nunc pro tunc.

Order, 4/29/22 (some capitalization adjusted). Notably, the PCRA court neglected to inform Brooks that he had thirty days to file a direct appeal, and Brooks did not exercise his nunc pro tunc right to file that appeal. Rather, he

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8 Brooks attached a copy of Maggie Miller’s affidavit to his PCRA petition as “Exhibit A.”

-8- J-S22029-25 appealed to this Court from the order denying his PCRA petition—challenging only the portion of the order denying his claim for substantive PCRA relief. We quashed the appeal, concluding that the substantive portions of the PCRA court’s ruling were a nullity pursuant to Commonwealth v. Harris, 114 A.3d 1 (Pa. Super. 2015), and Commonwealth v. Miller, 868 A.2d 578 (Pa. Super. 2005), which collectively held that the PCRA court lacks jurisdiction to rule on the remaining PCRA claims once it reinstates direct appeal rights. 9 See Commonwealth v. Brooks, 305 A.3d 962 (Pa. Super. 2023) (Table).

Without providing any guidance as to the state of Brooks’ reinstated direct- appeal rights, we concluded, “the ruling Brooks wishes to challenge via the instant appeal is a nullity.” Id. at *5.

Following our decision, and potentially confused by the procedural posture of the matter, Brooks still did not file a nunc pro tunc direct appeal.

Instead, on February 20, 2024, he filed the instant PCRA petition reviving the subsection 9543(a)(2)(i) claim regarding the alleged ex parte communications

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9 This Court has explained that “although the PCRA court may not properly review the merits of the substantive claims when direct appeal rights have been violated, that court’s review will serve the evidentiary purpose of completing the record for appellate review.” Harris, 114 A.3d at 6 n.4 (cleaned up) (internal quotation and citation omitted). The Harris Court continued, “[t]hus, after [a defendant’s] direct appeal rights have been exhausted or extinguished and his judgment of sentence becomes final, [the defendant] may seek collateral relief on grounds previously raised; the PCRA court may use the already developed evidentiary record and may supplement that record as it sees fit.” Id.

-9- J-S22029-25 between Attorney Parks Miller and Judge Lunsford.10 In that petition, Brooks once again averred that the communications amounted to “constitutional violations [that] were structural violations affecting the very framework of the trial itself and[, therefore,] defy [a] harmless error/prejudice analysis.” PCRA Petition, 2/20/24, at 33.

After a hearing, the PCRA court ratified its prior determination and denied relief. Again, it reasoned: We have reviewed the lengthy transcribed record of the trial in this case. In our view, Judge Lunsford navigated the shoals between a vigorous and sometimes petulant prosecutor and an untrained pro se litigant with impartiality. We are unable to discern any evidence of an improper outside influence, let alone one that proved detrimental to the defendant. In fact, Judge Lunsford dealt with the defendant’s legal missteps with considerable patience and equity. We can find no evidence of bias in either his rulings or his charge to the jury.

See PCRA Opinion, 9/16/24, at 8 (quoting PCRA Opinion, 5/9/22, at 6-7) (emphases added).

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10 Considering the irregular procedural posture this case presents, we find that Brooks’ judgment of sentence became final on October 5, 2023, thirty days after his direct appeal was quashed and where the court failed to properly inform Brooks of the timeframe within which to file his nunc pro tunc direct appeal. Hence, the instant petition was timely filed within one year of the date the judgment of sentence became final under the PCRA.

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These timely appeals11 followed. Brooks presents the following issues for our consideration:12 (1) Whether the trial court erred as a matter of law when it denied [Brooks’ PCRA] petition by utilizing [a] “harmless error” analysis despite the PCRA court’s factual finding that there were ex parte text message communications exchanged between the Centre County District Attorney and the trial judge during trial in the instant matter and that “at least some” of this ex parte communication involved the trial of [Brooks]?

(2) Whether the trial court erred as a matter of law when it denied [Brooks’ PCRA] claim that his conviction resulted from a violation of the [Pennsylvania] Constitution . . . or the [Federal] Constitution or laws of the United States which, in the circumstances of the instant case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place where the PCRA court concluded there were ex parte text message communications between the Centre County District Attorney and the trial judge during trial in the instant matter and that “at least some” of this ex parte communication involved [Brooks’] trial[?]

Appellant’s Brief, at 7.

This Court reviews the denial of PCRA relief “to determine whether the record supports the PCRA court’s findings and whether its order is free of legal ____________________________________________

11 In compliance with Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), Brooks filed separate notices of appeal, one for each docket number, from the PCRA court’s order denying relief. See also Commonwealth v. Johnson, 236 A.3d 1141 (Pa. Super. 2020) (en banc) (appeal not quashed under Walker where appellant filed multiple notices of appeal, each listing multiple lower court docket numbers, because appellant filed appropriate number of notices of appeal). On March 3, 2025, we granted Brooks’ motion to consolidate the five appeals for briefing and disposition. See Pa.R.A.P. 513.

12 The PCRA court did not order Brooks to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

- 11 - J-S22029-25 error.” Commonwealth v. Min, 320 A.3d 727, 730 (Pa. Super. 2024). We review the PCRA court’s legal determinations de novo, but we are bound by its “credibility determinations, when supported by the record[.]”

Commonwealth v. Hopkins, 231 A.3d 855, 871 (Pa. Super. 2020). “The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). An appellant has the burden to persuade this Court “that the PCRA court erred and that relief is due.” Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa. Super. 2019) (citation omitted). As Brooks is asserting relief pursuant to subsection 9543(a)(2)(i), he must demonstrate that the alleged violation “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.A. § 9543(a)(2)(1).

Brooks contends that the PCRA court erred when it employed a harmless error analysis in denying his petition. Specifically, Brooks argues that because the ex parte communications between Judge Lunsford and then-DA Parks Miller constituted a “structural defect in the constitution of the trial mechanism,” such structural errors “defy analysis by harmless error standards.” Appellant’s Brief, at 30-31. We agree.

A structural error is a “constitutional deprivation[] . . . affecting the framework within which [a] trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

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Because it is well established that “[j]udicial bias is a violation of due process[,]” Commonwealth v. McLaughlin, 240 A.3d 980, 983 (Pa. Super. 2020) (citation omitted), under the specific facts of this case, we conclude that Brooks should be afforded PCRA relief and granted a new trial.

Although we are not privy to the actual content of the ex parte communications between then-DA Parks Miller and Judge Lunsford, the sheer likelihood of bias on the part of the trial judge, who admitted to the communications, is simply “too high to be constitutionally tolerable.”

Williams v. Pennsylvania, 579 U.S. 1, 4 (2016). At the very least, we have evidence that the prosecutor complained to the trial judge, during Brooks’ trial, about the way the judge was handling objections and the trial in general.

See Commonwealth’s Brief, at 2 (“The evidence demonstrated that the trial judge told a court reporter that the former district attorney was sending him text message[s] during the trial which complained about the judge’s evidentiary rulings in favor of the Defendant.”); id. (PCRA court made finding former district attorney did have ex parte communication with trial judge “during the instant trial, and that at least some of those [text] messages involved the trial”). However, even without the specifics of the text messages exchanged between the prosecutor and trial judge, as an objective matter the probability of unfairness and bias is simply too great under the circumstances.

See Williams, supra at 16 (“Both the appearance and reality of impartial

- 13 - J-S22029-25 justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.”).

In Commonwealth v. McClure, 172 A.3d 668, 689 (Pa. Super. 2017), our Court acknowledged the fact that ex parte communications: 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. 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. Id. at 689 (citations omitted). Therefore, even though the PCRA court believed that Judge Lunsford “navigated the shoals between a vigorous and sometimes petulant prosecutor and an untrained pro se litigant with impartiality” and “dealt with [Brooks’] legal missteps with considerable patience and equity, ” PCRA Opinion, 9/17/24, at 8 (quotation omitted), that is not the proper focus of our constitutional inquiry.13 See In re Schlesinger, ____________________________________________

13 We also cannot ignore the multiple times that Brooks’ direct appeal rights were forfeited due to counsel’s inartful briefing, counsel’s two-time failure to file an appeal following the reinstatement of Brooks’ appellate rights, and the PCRA court’s failure to include the requisite 30-day appeal period notice in its order granting Brooks nunc pro tunc relief. See Commonwealth v. Brooks, 195 A.3d 1051 (Pa. Super. 2018) (Table) (dismissing appeal of discretionary aspects of sentence due to counsel’s failure to include Pa.R.A.P. 2119(f) statement); id., 305 A.3d 962 (Pa. Super. 2023) (Table) (quashing, for lack of jurisdiction, Brooks’ appeal from PCRA court’s order reinstating his direct appeal rights, but also ruling on Brooks’ remaining PCRA claim regarding ex parte communications at issue in current appeal). The fact that our Court quashed Brooks’ counseled appeal from the order granting him the right to appeal nunc pro tunc comes dangerously close to per se ineffectiveness where the claim would have, most likely, resulted in a new trial on direct appeal (Footnote Continued Next Page)

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172 A.2d 835, 840-41 (Pa. 1961) (“This Court has said . . . that ‘[e]very procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law.’”) (citation omitted).

In Commonwealth v. Bradley, 459 A.2d 733 (Pa. 1983),14 our Supreme Court explicitly overruled the legal conclusion set forth in Argo v. Goodstein, 228 A.2d 195 (Pa. 1967), that all ex parte communications between a judge and jury in the absence of counsel, “no matter how ____________________________________________ without a harmless error analysis. See Commonwealth v. Issac, 205 A.3d 358, 365-66 (Pa. Super. 2019), citing Weaver v. Massachusetts, 582 U.S. 286 (2017) (absence of harmless error for purposes of direct appeal of structural violation does not equate to presumed prejudice on collateral review).

14 Although the ex parte communications in Bradley took place between a trial court and jury, the Supreme Court disapproved the broad language requiring reversal in civil cases without first finding prejudice, and applied the rule to criminal cases. See id. at 734. Our Supreme Court has defined the term ex parte as: On one side only; by or for one party; done for, in behalf of, or on the application of, one party only. A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by[,] any person adversely interested.

Commonwealth v. McCullough, 230 A.3d 1146, 1158 n.3 (Pa. Super. 2020) (citation omitted). The rule regarding ex parte communications applies equally whether it involves communications between the judge and a jury or between a judge and lawyer concerning a pending or impending matter. See Code of Judicial Conduct, Rule 2.9(A) (“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[.]”).

- 15 - J-S22029-25 innocuous,” require a new trial, “even in the absence of prejudice to either party.” Bradley, 459 A.2d at 736. Therein, the Court “adopt[ed] a [new] rule requiring [a] reasonable likelihood of prejudice [to apply] . . . to all jury litigation.” Id. at 739 (emphasis added). Notably, however, the Bradley Court qualified its holding by stating that “[w]e do, however, remind the trial bench that failure to maintain an accurate and reviewable contemporaneous record of all instructions and [ex parte] communications between the court and a jury may force an implication of prejudice where arguably none exists.” Id. (emphasis added). See also Bruckshaw v. Frankford Hosp. of Phila., 58 A.3d 102, 114 n.8 (Pa. 2012) (recognizing Bradley Court “warned the trial bench that ‘failure to maintain an accurate and reviewable contemporaneous record of . . . communications between the court and a jury may force an implication of prejudice where arguably none exists’”).15 Here, not only do we lack an “accurate and reviewable contemporaneous record of” Judge Lunsford and former-DA Parks Miller’s ex parte

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15 We would be remiss if we did not mention, as well, the interplay of Rules of Professional Conduct 3.5(a)-(b) and Code of Judicial Conduct, Canons 1.2, 2.9 (A)(1)(b) & 4(b), with the instant matter. These Rules and Canons provide a window through which to view the floor of acceptable conduct on the part of both lawyers and judges. These are absolute proscriptions against ex parte conduct, except in the most ministerial circumstances and, even there, disclosure must be made to the defendant. See McClure, 172 A.3d at 689- (“In Pennsylvania, judges are prohibited from receiving ex parte communications by the Code of Judicial Conduct, and lawyers are prohibited from sending ex parte communications to a judge by the Rules of Professional Conduct.”).

- 16 - J-S22029-25 communications, but the facts also bear out that neither the prosecutor nor the trial judge disclosed these text messages, which occurred during Brooks’ actual trial, until years after Brooks was sentenced. Cf. Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999) (judge informed defense counsel, in chambers and on record, he talked to Commonwealth attorney prior day on procedural issue; defendant did not claim prejudice and Court held it was not an ex parte communication); Barnyak, supra at 44 (with no citation to authority, Court found defendant’s claim of improper ex parte communication prior to trial, in absence of evidence of influence, not basis for new trial);16 Grove, supra (claim found moot where defendant’s claim of ex parte

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16 In Barnyak, the trial court denied the defendant-wife’s motions to quash a subpoena and for a protective order. 639 A.2d at 44. On appeal, the defendant-husband argued that the court’s disposition of the motions was “inconsistent” with the holding of Commonwealth v. Hatfield, 593 A.3d 1275 (Pa. 1991), where the Supreme Court held that when a subpoena to testify has been challenged and no privilege to avoid testifying exists, whether “to force the unwilling spouse to give evidence” is a discretionary question for the trial court. Id. at 44. Related to this claim, the defendant contended that “ex parte communications transmitted from the Commonwealth’s attorney to the trial judge prior to trial ‘may have convinced the court to decide this case contrary to the decision in Hatfield.’” Id. (emphasis added). In disposing of the ex parte communications issue on appeal, our Court stated, with absolutely no citation to authority, “We find no evidence in the record that the trial judge was influenced. Therefore, even if the ex parte communications were improper, in the absence of evidence of influence, there is no basis for the grant of a new trial.” Id. Without any support, we cannot conclude that this decision supports the PCRA court’s ruling. Moreover, Grove, which relies upon Barnyak to support its decision that there must be evidence that the trial judge was influenced in order to grant a new trial, is similarly flawed. Id. at 9-10, 17-18.

- 17 - J-S22029-25 communications between judge and prosecutor could have only affected sentencing and new sentence hearing had been ordered). Moreover, unlike the case in Grove and McClure, we have more than mere speculation regarding the nature of the communications between Judge Lunsford and DA Parks Miller that occurred during the criminal trial in the matter. Those communications involved actual trial matters, or, more specifically, were discussions regarding the way the trial judge was ruling on objections— structural errors “affecting the framework within which the trial proceeds.” Arizona, supra at 310.

As advised by the Bradley Court, in this instance where the trial judge “fail[ed] to maintain an accurate and reviewable contemporaneous record of [its ex parte] communications,” we may imply prejudice even “where arguably none exists.” Id., 459 A.2d at 739. Under the instant facts, it is undisputed that Brooks’ due process rights were violated and the ex parte communications between the prosecutor and trial judge constitute structural error. Thus, Brooks is entitled to a new trial.17 ____________________________________________

17 Instantly, the PCRA court intimated that this Court could not remand for a new trial due to Double Jeopardy concerns—but was forced to acquit and discharge Brooks—because his claim is one of prosecutorial misconduct. See PCRA Court Opinion, 9/27/24, at 8. However, Brooks’ PCRA counsel clearly indicated that his claim is one of “structural errors which implicates the very foundation of the independence and constitutionality of the tribunal itself,” not prosecutorial misconduct. PCRA Hearing, 3/28/22, at 49. Thus, jeopardy would not attach. See Commonwealth v. Minnis, 83 A.3d 1047, 1051-53 (Pa. Super. 2014) (compiling cases where this Court remanded for new trial (Footnote Continued Next Page)

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Order reversed. Case remanded for new trial. Jurisdiction relinquished.18

Stevens, PJE, joins the Memorandum.

Bowes, J., files a Dissenting Memorandum.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/27/2026

____________________________________________ and, on remand, trial court determined that prosecutorial misconduct had risen to prosecutorial overreach, but double jeopardy barred retrial).

18 In reviewing whether these actions on the part of the prosecutor and the trial judge are structural violations of due process, we are mindful of the Rules and Canons already cited. See supra n.14. In light of the absolute prohibition against ex parte communications, the blatant disregard for the ethical rules governing the conduct of the two parties whose responsibility it is to ensure a trial that comports with due process is both abhorrent and violative of due process. This Court cannot allow a verdict reached under these circumstances to stand; to do so would render us complicit in the bad acts of both the prosecutor and the trial judge.

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