J-S66009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
MEGAN BLAIR HOOKEY                       :
                                         :
                     Appellant           :     No. 1815 WDA 2016

              Appeal from the PCRA Order November 9, 2016
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0000404-2011


BEFORE:    BENDER, P.J.E., DUBOW, J., and PLATT*, J.

CONCURRING STATEMENT BY DUBOW, J.:               FILED FEBRUARY 05, 2018

      I agree with the reasoning and analysis of the Majority in its holding,

but disagree with the conclusion that the conversations that the trial court’s

staff had with the victims were not ex parte conversations. The Majority

reasons that because it was the trial court’s staff, and not the trial court

judge himself, who had the conversations with the victims, the conversations

were not ex parte.

      The Code of Judicial Ethics, Rule 2.9 (A), inter alia, prohibits a judge

from considering ex parte communications made to the judge outside of the

presence of the parties concerning a pending matter. The Rule also requires

that the judge make reasonable efforts to ensure that his staff does not

violate this rule on ex parte conversations:




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      A judge shall make reasonable efforts, including providing appropriate
      supervision, to ensure that this Rule is not violated by court staff,
      court officials and others subject to the judge’s discretion and control.

Code of Judicial Ethics, Rule 2.9 (D). My interpretation of this rule is that it

is not only the judge, but also the judge’s staff, who are prohibited from

having an ex parte conversation with a witness.

      In this case, the trial court judge at a probation revocation hearing

stated on the record that he had spoken to the alleged victims about threats

Appellant   had   made    to   them.   Appellant    argues   that   the   ex   parte

communications as well as other factors demonstrated that the trial judge

was biased and could not fairly preside over her PCRA claims. The trial court

justified the ex parte comments by stating in his PCRA Court Opinion that it

was not him, but his staff, who spoke to the alleged victims and conveyed

the information to him:

      When the phrase “the Court” is used it does not mean me,
      personally did something. Contrary to Ms. Hookey’s assertion,
      PCRA paragraph 32, I did not personally speak to any witness.
      My staff was the intermediary who received the call and engaged
      in the conversation and then relayed the contents to me.

PCRA Ct. Op., dated 4/24/17, at 3 n. 3.

      Based on this assertion, the Majority concludes that the trial court did

not have ex parte communications.            I disagree. The staff member’s

conversations outside of the presence of the parties with the alleged victims

are ex parte conversations in the same manner that they would be if it were

the trial judge having the conversations.          This fact, however, does not


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change my conclusion that, looking at the evidence as whole, the court was

neither biased nor prejudiced.




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