The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.
____________________________________________
* 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
____________________________________________
1 Indeed, on December 6, 2018, the Disciplinary Board of the Supreme Court
of Pennsylvania filed a report and recommendation to suspend Attorney
Miller’s license for one year. It does not appear that the Judicial Conduct
Board of Pennsylvania filed a case with the Court of Judicial Discipline against
Judge Lunsford, who retired in in 2015.
2 Section 9543(a)(2)(i) delineates PCRA eligibility as follows:
(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
____________________________________________
(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
18 (“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,
____________________________________________
3 To be clear, while the majority contends “Under the instant facts, it is
undisputed that [Appellant’s] due process rights were violated and the ex
parte communications between the prosecutor and trial judge constitute
structural error[,]” the Commonwealth has consistently asserted that
structural error does not apply. See e.g. Commonwealth’s brief at 5
(“[Appellant’s] attempts to shoehorn the case under a "structural error" theory
are misguided.”).
-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
____________________________________________
4 Notwithstanding our High Court’s clear ratification, the majority refuses to
follow the obvious precedential authority of our holding in Commonwealth
v. Barnyak, 639 A.2d 40 (Pa.Super. 1994) because the relevant discussion
was bereft of legal analysis. See Majority Memorandum at 17 n.16.
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
-8-
J-S22029-25
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
____________________________________________
5 Indeed, Appellant does not refer to the Supreme Court’s holding in Bradley
once in his entire brief.
- 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.
____________________________________________
6 The majority’s characterization of Bradley’s “qualification” implicates the
second category of harmless error outlined in Taylor, concerning instances
where the effects of the error are too hard to measure. Even considering that
the categories may overlap in certain cases, as stated in the body of the
dissent, I find unpersuasive the majority’s preoccupation with the lack of a
reviewable contemporaneous record in this case.
- 11 -
J-S22029-25
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.
- 17 -