PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 14-4506

____________

PAUL MCKERNAN,

 Appellant

v.

SUPERINTENDENT SMITHFIELD SCI;

THE DISTRICT ATTORNEY OF THE COUNTY OF 

PHILADELPHIA;

THE ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D. C. Civil Action No. 2-06-cv-02118)

District Judge: Honorable Norma L. Shapiro 

 

Argued on June 21, 2016
2

Before: FISHER, GREENAWAY, JR. and ROTH, 

Circuit Judges

(Opinion filed: February 28, 2017)

Maria K. Pulzetti, Esquire (Argued)

Federal Community Defender Office for

the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Joshua S. Goldwert, Esquire (Argued)

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

O P I N I ON OF THE COURT

 

* The Honorable D. Michael Fisher assumed senior status on 

February 1, 2017. 
3

ROTH, Circuit Judge:

In this appeal, Paul McKernan contends that, because 

of the egregious advice given him by his counsel, he was 

deprived of the right to a fair trial before an impartial tribunal.

He asserts that the judge in his murder trial was so concerned

over what she considered to be “slanderous,” “hurtful,” and 

“terrible things” written about her on a website that she lost 

her ability to be impartial. He further asserts that his counsel, 

unlike any competent counsel, failed to recognize this loss of 

impartiality and, in doing so, deprived him of the effective 

assistance of counsel that the Constitution guarantees. We 

agree with the latter argument and, for this reason, we will 

remand this case to the District Court with instructions to 

grant McKernan’s petition for a writ of habeas corpus unless 

within 60 days of the date of remand, the Commonwealth of 

Pennsylvania shall decide to retry Paul McKernan.

I.

In July 1998, after a bench trial in the Philadelphia 

County Court of Common Pleas, McKernan was convicted of 

first degree murder in the death of Mark Gibson. McKernan 

and Gibson were former roommates. McKernan was found to 

have killed Gibson with a baseball bat during an argument 

outside McKernan’s home. A witness to the events, Joseph

Rodgers, did not see McKernan strike Gibson but did hear “a 

loud thump,” after which he saw Gibson lying on the ground, 

bleeding profusely. McKernan told Rodgers that he hit 

Gibson in the chest, a statement contradicted by a defense 

witness who testified that he saw McKernan hit Gibson in the 

head. 
4

A medical examiner testified that Gibson died after 

being hit behind the ear with a blunt instrument, such as an 

aluminum baseball bat. McKernan admitted to hitting Gibson 

with the bat but claimed that it was in self-defense and that 

Gibson’s head injuries arose from the impact of Gibson 

hitting his head on the curb. The trial judge, Judge Lisa 

Richette, found McKernan guilty of first degree murder and 

sentenced him to a mandatory sentence of life in prison 

without the possibility of parole.

On the second day of the bench trial, after the 

Commonwealth had rested but before the defense had started 

its case-in-chief, Judge Richette called the victim’s mother, 

Beatrice Gibson, and his brother, David Gibson, into her 

robing room, along with the assistant district attorney, Mark 

Gilson, and defense counsel, Fred Harrison. McKernan was 

not present for the ensuing meeting, but the meeting was 

transcribed by the court reporter. 

It is difficult to convey in excerpts the inappropriate 

nature of this lengthy conference. It is even more difficult to 

understand why defense counsel Harrison failed to object to 

the proceedings or to move for the judge’s recusal at any 

point during the conference. Harrison himself noted in later 

testimony that he had never before or since been part of a 

similar conference. 

The judge began the conversation by saying that she 

was “very disturbed” after finding a website that the Gibsons 

had created, containing criticism of the judge.

1

 The judge

said to Mrs. Gibson that the site was “vicious and unfair” and 

 

1

J.A. at 249.
5

that the judge did not “want to hear this case if” Mrs. Gibson 

was “unhappy with” her.

2

 The judge had a printed copy of 

the website and read from portions of it. The website 

described an ongoing controversy between the judge and the 

actor Charlton Heston, who had criticized the judge as being 

soft on crime and referred to her as “Let ‘em Loose Lisa.” 

The judge read a passage from the website stating “Lisa 

Richette is a bleeding heart judge that often sympathizes with 

murderers and other violent criminals and gives them light 

sentences,” which the judge characterized as “a total lie.”3

The judge then accused the Gibsons of writing “dreadful, 

slanderous things about [her]” throughout the website.4

Despite the judge’s anger caused by the website, she 

sought the Gibsons’s approval of her actions in the trial. She 

characterized the case as “a horrible, horrible murder,”

5

told 

the Gibsons that she “just want[ed] to make sure that you 

folks are happy with me,”

6

and told the assistant district 

attorney she didn’t “want these people – they have already 

been hurt enough, and I don’t want them to have this case 

heard by a Judge in whom they have no faith.”7 She told the 

Gibsons, “You’re very fortunate, I’ll tell you what, you have 

a witness, you have Mr. Rodgers”8 because, “[m]any of these 

murders occur with nobody willing to come forward and say I 

 

2

Id.

3

Id. at 253.

4

Id. at 259.

5

Id.

6

Id. at 275.

7

Id. at 260.

8

Id. at 279.
6

saw it.”9 After being assured by the Gibsons that they were 

“satisfied” with Judge Richette presiding over McKernan’s 

trial, she concluded, “I don’t want to open the Daily News 

tomorrow and read the usual B.S.”10

Throughout this conversation, McKernan’s defense 

counsel stood mute. Indeed, it was Assistant District 

Attorney Gilson who eventually asked McKernan’s counsel if 

he was concerned about the conference, to which Harrison

replied, “The only input I have is I guess I need to apprise 

[McKernan] of what is going on.”11 After making this 

statement, Harrison did not request that the meeting be 

recessed, but rather left Gilson, the judge, and the Gibsons 

alone together in the robing room while Harrison conferred

with his client. As Harrison left, the judge said, “Go ahead, 

I’ll just talk to [the family] generally.”12 

In Harrison’s absence, David Gibson, the victim’s 

brother, who was primarily responsible for creating the 

offending website, offered to allow the judge to “red line” 

anything she did not approve of from the site and write her 

own thoughts about victimology, which David Gibson would 

post in the judge’s “defense.”13 The judge agreed to do so. 

The judge told Mrs. Gibson that she (the judge) would have 

acted similarly if the same events had happened to her son, 

 

9

Id. at 280.

10 Id.

11 Id. at 283.

12 Id.

13 Id.at 284.
7

noting that “we’re all mothers here.”14 She also told Mrs. 

Gibson that they were “very lucky” that they were assigned 

Mr. Gilson, the assistant district attorney, and that “Gilson is 

one of the best D.A.s in the world.” The Gibsons then left the 

judge’s chambers.15

After conferring with McKernan, Harrison returned to 

the robing room and told the judge and Gilson that his client 

had “concerns” because the website said the judge was “a 

lenient judge” and “the fact that you mentioned Mr. Rogers 

and his testimony, he thinks that you may be constrained to 

lean over backwards,” to prove Mrs. Gibson wrong and the 

judge would not give McKernan a fair trial. 16 Gilson had the 

same concerns. Harrison said that McKernan was unsure 

what to do.17 Harrison indicated that he had advised 

McKernan to continue before Judge Richette. He further

noted that he and Gilson believed what “might solve the 

problem would be if we brought Mr. McKernan back and let 

him talk to you just like you talked to” the victim’s family.18

McKernan was brought to the robing room where the 

judge told him that she had discussed the website with the 

victim’s family, that the family was now satisfied with her

because they had been assigned Mr. Gilson, and that the 

victim’s family wanted the judge to continue to hear the 

case.19 She told McKernan that the conversation was “not 

 

14 Id. at 286.

15 Id.

16 Id. at 287.

17 Id. at 288.

18 Id. at 287.

19 Id. at 290.
8

going to influence [her] thinking at all about this” and that she 

would “listen to your side of the case very carefully and . . . 

reach a verdict.”20 She also stated she would “try and pray to 

God that I be fair to you.”21 Although McKernan stated that 

he believed that the judge could be fair, Gilson seemed to 

sense some doubts in McKernan’s demeanor, causing him to

ask the judge to allow McKernan more time to speak with 

Harrison before continuing the colloquy.

22

 

After this second private conversation, Harrison stated 

that he “had an opportunity . . . to speak with [his] client by 

himself, and . . . indicated to him – reiterated to him what 

Your Honor has said to him previously. Mr. McKernan has 

indicated to me that he thinks that you can be fair.”23 Gilson

asked whether anyone had forced McKernan to accept Judge 

Richette and if anyone had threatened or promised him 

anything, to which McKernan replied no.24 The bench trial 

then resumed, with McKernan putting on his defense, after 

which the judge found McKernan guilty of First Degree 

Murder.

McKernan appealed his conviction to the Pennsylvania 

Superior Court, which affirmed in an unpublished opinion.25 

Among the grounds of the appeal were the claims that “the 

trial judge erred in failing to recuse herself” based on the 

 

20 Id. at 291.

21 Id.

22 Id. at 293-294.

23 Id. at 294.

24 Id. at 295.

25 Commonwealth v. McKernan, 776 A.2d 1007 (Pa. Super. 

Ct. 2001) (Table).
9

robing room conference and that Harrison was ineffective for 

failing to move for recusal. The Superior Court rejected both 

arguments, finding “neither trial court error nor ineffective 

assistance of counsel on this record.”

McKernan petitioned for post-conviction relief, which 

the trial court denied. On appeal, McKernan raised a single 

issue: whether McKernan’s “decision, mid-trial, to refuse the 

Trial Court’s offer to recuse itself” was a “knowing, 

intelligent and voluntary decision and under all the 

circumstances was a knowing waiver of a constitutional right 

at the time that it was made and were trial counsel, appellate 

counsel and post conviction counsel all ineffective for failing 

to raise and brief this very precise issue.” The Superior Court 

found that the issue had been previously litigated. In the 

alternative, the Superior Court analyzed the merits of 

McKernan’s motion for post-conviction relief, finding that 

habeas relief was not warranted. For both reasons, the 

Superior Court dismissed the petition. The Pennsylvania 

Supreme Court declined review.

McKernan then filed a pro se federal habeas petition 

raising, among other grounds, the question of whether “[t]rial 

counsel rendered IAC [ineffective assistance of counsel] by 

failing to challenge whether the petitioner entered a 

voluntary, intelligent and knowing waiver regarding the 

recusal of the trial judge.” A Magistrate Judge recommended 

denial of the habeas petition, to which McKernan, now 

represented by counsel, objected.

The District Court held an evidentiary hearing on 

November 24, 2008. After the hearing, the District Court 

denied the petition but granted a Certificate of Appealability 
10

on the issue of whether McKernan had made a substantial 

showing that the trial judge’s failure to recuse violated the 

due process requirement of a fair trial by a fair tribunal and

whether he might be actually innocent of first degree murder, 

if not some degree of homicide. A panel of this Court 

expanded the Certificate of Appealability to include the issue

of “whether the district court erred in denying [the] claim that

trial counsel performed ineffectively by failing to seek and 

secure relief for the trial court’s (alleged) bias.” We will 

consider only this second issue in our consideration of this 

appeal.

II.

The District Court had jurisdiction over this matter 

pursuant to 28 U.S.C. § 2254; we have jurisdiction pursuant 

to 28 U.S.C. §§ 1291 and 2253. Our review of the District 

Court’s opinion is plenary.26 In reviewing a habeas petition 

under § 2254, we must first be satisfied that the claims have

been exhausted, and have not been procedurally defaulted.

27

 

If these procedural requirements are satisfied, a habeas 

petition may be granted with respect to a claim that was 

adjudicated on the merits by a state court only if the state 

court proceeding “resulted in a decision that was contrary to, 

or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court 

of the United States; or resulted in a decision that was based 

on an unreasonable determination of the facts in light of the 

evidence presented in the State court proceeding.”28 

 

26 Showers v. Beard, 635 F.3d 625, 628 (3d Cir. 2011).

27 28 U.S.C. § 2254(b)(1)(A).

28 28 U.S.C. § 2254(d).
11

Under § 2254(d)(1), “[a] state court decision is an 

unreasonable application . . . if the court identifies the correct 

governing legal rule from the Supreme Court’s cases but 

unreasonably applies it to the facts of the particular case.”29 

This is a high standard, since “[i]t is not enough that a federal

habeas court, in its independent review of the legal question, 

is left with a firm conviction that the state court was 

erroneous.”30 Instead, “[t]he state court’s application of 

clearly established law must be objectively unreasonable 

before a federal court may grant the writ.”31

Here, McKernan has not procedurally defaulted his 

ineffective assistance of counsel claim, and has properly 

exhausted it in state court. Although the Superior Court 

dismissed McKernan’s Strickland claim under Pennsylvania’s 

“previous litigation rule,” we have held that claims resolved 

under this rule are not procedurally defaulted for purposes of 

federal habeas corpus.32 Similarly, we have held that claims 

 

29 Jacobs v. Horn, 395 F.3d 92, 100 (3d Cir. 2005) (internal 

quotation marks omitted).

30 Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir. 2011) 

(internal quotation marks omitted) (alteration in original).

31 Id. (internal quotation marks omitted) (alteration in 

original).

32 Boyd v. Waymart, 579 F.3d 330, 369-70 (3d Cir. 2009) (en 

banc) (opinion of Hardiman, J.) (collecting cases). The per 

curiam opinion in Boyd expressly rested on Judge Hardiman’s 

analysis of procedural default and exhaustion. Id. at 332 

(“For the reasons given in Part III of [Judge Hardiman’s]

opinion, we conclude Boyd's claim was properly exhausted 

and has not been procedurally defaulted.”).
12

dismissed under the previous litigation rule are properly 

exhausted.33 Accordingly, McKernan has satisfied the 

procedural requirements of a federal habeas petition, and we 

may consider the merits of his argument.

McKernan argues that the state courts unreasonably 

applied Supreme Court precedent as to whether McKernan’s 

trial counsel was ineffective for failing to seek Judge 

Richette’s recusal and for advising McKernan not to seek 

recusal. Because the Superior Court considered the merits of 

McKernan’s claims, and did not rest solely on the previous 

litigation rule, we treat its findings with the deference 

required by § 2254(d).

34

 The state court and the District 

Court correctly identified the appropriate Supreme Court 

precedent to apply as Strickland v. Washington.

35 Strickland 

established the familiar two prong test for evaluating 

ineffective assistance of counsel claims, under which the 

petitioner must first show that the counsel’s performance was 

deficient and, second, that the deficient performance was 

prejudicial to the defendant.

36

 To meet the first prong, 

counsel’s performance must fall “below an objective standard 

of reasonableness considering all the circumstances.”37 

Counsel’s performance is deficient only “when counsel made 

errors so serious that counsel was not functioning as the 

 

33 Staruh v. Superintendent Cambridge Springs SCI, et al., 

827 F.3d 251, 256 n.4 (3d Cir. 2016).

34 See Rolan v. Coleman, 680 F.3d 311, 319-21 (3d Cir. 

2012).

35 466 U.S. 668 (1984).

36 Id. at 687.

37 Jacobs, 395 F.3d at 102.
13

‘counsel’ guaranteed . . . by the Sixth Amendment.”38

III.

The deference due state court merits judgments under 

§ 2254(d) and Strickland is significant, but it “does not imply 

abandonment or abdication of judicial review.”39 We have no 

trouble holding that, in the unique circumstances of this case, 

counsel’s performance in failing to move for recusal of Judge 

Richette fell far below the minimal standards of competence 

in the profession and the state court’s failure to recognize this 

incompetence was an unreasonable application of the 

Strickland factors.

Counsel in this matter had tried many cases before 

Judge Richette and described her as a “colorful jurist.” He 

testified at the hearing before the District Court that, although 

he had never experienced a situation similar to the robing 

room conference, he believed that a bench trial before Judge 

Richette offered the best option for his client. The District 

Court found that Harrison’s decision was strategic in nature 

and was at least arguably rational. We disagree.

The right to a “fair trial in a fair tribunal is a basic 

requirement of due process” and derives directly from the 

Constitution.40 While a defendant is capable of waiving 

many rights, including the right to a jury, the absolute 

 

38 McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 

102 (3d Cir. 2012) (alteration in original).

39 Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (internal 

quotation marks omitted).

40 In re: Murchison, 349 U.S. 133, 136 (1955).
14

minimum standard for a constitutional trial is “an impartial 

trial by jury.”41 The importance of a fair tribunal is so etched 

into the bedrock of the American judicial system that few 

courts have even found a need to address it. The Seventh 

Circuit Court of Appeals, for instance, simply observed that 

certain procedural requirements must be followed, noting that 

“if the parties stipulated to trial by 12 orangutans the 

defendant’s conviction would be invalid notwithstanding his 

consent, because some minimum of civilized procedure is 

required by community feeling regardless of what the 

defendant wants or is willing to accept.”42 Similarly, the 

Second Circuit Court of Appeals reversed a district court’s

holding that a defendant waived his right to an impartial jury 

by failing to object to a juror who lied during voir dire, 

especially in light of subsequent events that revealed the juror 

“was actually biased against Defendants.”43

Considering the myriad procedural safeguards in place 

to avoid the seating of even one biased juror, out of twelve, it 

is inconceivable that, during a bench trial when the judge is 

the sole factfinder, a trial may proceed when that judge is 

biased. To do so is to conduct a trial before an unfair 

tribunal, violating the fundamental requirement for an 

acceptable trial. We therefore hold today that the right to an 

impartial trial extends to a bench trial, and that such right 

cannot be waived by a defendant.

The Commonwealth asserts, and the state courts found, 

 

41 Singer v. United States, 380 U.S. 24, 36 (1965).

42 United States v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985).

43 United States v. Parse, 789 F.3d 83, 120 (2d Cir. 2015)

(internal quotation marks omitted). 
15

that Judge Richette did not show herself to be “actually 

biased” against McKernan and, consequently, counsel was 

not ineffective for failing to move for recusal.

44

 The state 

courts applied the wrong constitutional test and compounded 

the error by finding that counsel was not ineffective. The 

Supreme Court has held that allegations of bias rise to the 

level of a constitutional deprivation when there is the 

“probability of unfairness” and there exists “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.”45 As an example, in Mayberry v. Pennsylvania, 

two pro se defendants directed near constant abuse at a state 

trial judge until the trial judge held them in contempt.46 The 

Supreme Court held that the judge, as the victim of the 

contemnor’s outbursts, was too close to the proceedings to be 

impartial enough to make the relevant contempt findings.47 

 

44 Because McKernan’s claim of ineffective assistance is 

premised on the alleged bias of Judge Richette, we must make 

a threshold inquiry as to whether there were grounds to 

believe that Judge Richette was biased; counsel would not be 

ineffective for failing to move for recusal absent some 

perceived partiality. However, this threshold inquiry does not 

necessarily support the existence of an independent due 

process claim. A due process claim lies where a judge would 

have been required to recuse herself. An ineffective 

assistance of counsel claim, on the other hand, may lie where 

counsel fails to file a motion for discretionary recusal for 

which there are good grounds.

45 In re: Murchison, 349 U.S. at 136 (internal quotation marks 

omitted).

46 400 U.S. 455, 460–62 (1971).

47 Id. at 466 (internal quotation marks omitted).
16

The Supreme Court held that the judge in Mayberry

was subjected to “highly personal aspersions” and “[i]nsults 

of that kind [that] are apt to strike at the most vulnerable and 

human qualities of a judge’s temperament.”48 Here, we know 

that the Gibsons’ websites struck “at the most vulnerable and 

human qualities of”49 Judge Richette’s temperament through 

the robing room conference transcript. In Mayberry, the 

Supreme Court noted that “a judge, vilified as was this 

Pennsylvania judge, necessarily becomes embroiled in a 

running, bitter controversy” and that “[n]o one so cruelly 

slandered is likely to maintain that calm detachment 

necessary for fair adjudication.”50 In the instant matter, Judge 

Richette admitted to her belief that she had been slandered by 

the victim’s family and indicated that she was determined to 

prove them wrong.

In a case such as McKernan’s, where the defense 

theory of the case was at least partially based on arguing a 

lesser degree of culpability, Judge Richette’s actions would 

have caused any competent attorney to seek recusal 

immediately.51 Judge Richette offered the victim’s family in 

a case in progress before her an opportunity to seek her 

recusal. She repeatedly implied that the assistant district 

attorney was the Gibsons’ attorney, when he in fact had no 

responsibility to the family of the victim, but rather to all of 

 

48 Id. (internal quotation marks omitted).

49 Id. (internal quotation marks omitted).

50 Id. at 465.

51 Cf. Breakiron v. Horn, 642 F.3d 126, 142 (3d Cir. 2011) 

(holding that counsel was ineffective for failing to strike an 

obviously biased venire panel).
17

the people of the Commonwealth of Pennsylvania. Most 

strikingly, Judge Richette sought repeatedly to assure the 

Gibson family that she was not “Let ‘em Loose Lisa,” a judge 

who was incapable of issuing harsh decisions.

As McKernan recognized, but McKernan’s counsel did 

not, a finding that McKernan was guilty of some offense 

involving a lower standard of culpability would play directly 

into the narrative the Gibsons had published on their website: 

the caricature of “Let ‘em Loose Lisa Strikes Again!” While 

McKernan’s counsel’s belief that Judge Richette was the best 

option for his client at the beginning of trial may have been a 

reasonable strategic decision, by the time Judge Richette held 

the robing room conference and revealed herself to be 

actively concerned with the her image on the internet and the 

victim’s family’s perception of her, any competent attorney 

would have realized that the strategy had to be revised.

Indeed, it appears that if McKernan had had no 

counsel at all, he would have made the decision to seek 

recusal. He expressed his concerns to his attorney, only to 

have his attorney inexplicably talk him out of those concerns, 

even going so far as to refer to his client’s very valid issues as 

a “problem” to be solved. If counsel is ineffective only where 

his conduct was so deficient as to render his client de facto 

without counsel, McKernan’s counsel may have been worse: 

he convinced his client to proceed before a tribunal that 

objectively had the appearance of bias against him. He 

advised his client to proceed before a court that was 

structurally deficient, something no competent attorney would 

ever do. Under § 2254, where “[t]he question is whether 

there is any reasonable argument that counsel satisfied 
18

Strickland’s deferential standard,”52 the answer here is “No.” 

Consequently, McKernan’s claim fulfills the first prong of 

Strickland.

Strickland’s second prong is easier to fulfill. To show 

prejudice, a petitioner need only “show that there is a 

reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been 

different.”53 This standard “is less demanding than the 

preponderance standard.”54 Here, the standard is easily met.

As noted above, McKernan’s defense centered on the 

degree of his culpability. McKernan’s argument was that he 

had struck Gibson in self-defense and Gibson died when his 

head hit the curb. In view of Judge Richette’s sensitivity to 

criticism for being lenient, it would not appear likely that she 

would now accept McKernan’s defense of a lesser degree of 

homicide. There is evidence in the record from which an 

impartial judge could have found a lesser degree of homicide. 

McKernan’s counsel himself admitted to the District Court 

that he was quite surprised by the verdict, thinking that there 

was virtually no chance under the facts of the case that 

McKernan would be found guilty of first degree murder. 

Thus, there is a reasonable probability that if McKernan’s 

counsel had been effective and moved for recusal, the 

outcome of the trial would have been different. The second 

Strickland prong is met here.

 

52 McBride, 687 F.3d at 103 (quoting Harrington v. Richter, 

562 U.S. 86, 105 (2011)).

53 Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir. 2001) (internal

quotation marks omitted).

54 Id.
19

Given this holding that petitioner met both prongs of 

the Strickland inquiry, it is unnecessary for us to reach the 

parties’ other arguments, and we express no opinion as to 

their validity. 

IV

For the foregoing reasons, we will reverse the decision 

of the District Court and remand with instructions to grant the 

petition for habeas corpus unless, within 60 days of the 

remand, the Commonwealth of Pennsylvania decides to retry 

the charges against McKernan.