Com. v. McCullough, C. ( 2020 )

J-A30004-17
2020 Pa. Super. 72
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
CHARLES P. MCCULLOUGH
Appellant No. 233 WDA 2016
Appeal from the Judgment of Sentence Entered December 17, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CC2009-10522
BEFORE: SHOGAN, STABILE, JJ., and FORD ELLIOTT, P.J.E.
OPINION BY STABILE, J.: FILED MARCH 25, 2020
This case returns to us following remand for the Court of Common Pleas
of Allegheny County (“trial court”) to conduct an evidentiary hearing regarding
the facts alleged in McCullough’s November 5, 2015 recusal petition. Upon
careful review of the record, we now affirm Appellant Charles P. McCullough’s
(“McCullough”) December 17, 2015 judgment of sentence relating to his
bench convictions for five counts of theft by unlawful taking and five counts
of misapplication of entrusted funds.1
The facts and procedural history underlying this appeal are uncontested.
Sometime in early 2006, the now-deceased victim Shirley H. Jordan
(“Jordan”), a nearly ninety-year-old widow without any children who lived in
a senior living facility, engaged the legal services of McCullough. Jordan,
whose assets were valued at approximately fourteen million dollars, executed
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1 18 Pa.C.S.A. §§ 3921(a) and 4113(a), respectively.
J-A30004-17
a power of attorney in favor of McCullough, who acted as her agent and co-
trustee of her trust. Subsequently, he was charged with twenty-four crimes
in connection with his improper use of his status as power of attorney for
Jordan to misappropriate her funds. Specifically, McCullough was charged
with seven counts of theft by unlawful taking, two counts of theft by deception,
one count of criminal conspiracy to commit theft, nine counts of misapplication
of entrusted funds, two counts of false reports to law enforcement authorities,
one count of unsworn falsification to authorities, one count of tampering with
public records, and one count of failure to disclose financial interests.2
On December 29, 2014, McCullough filed a petition for writ of habeas
corpus, seeking to dismiss with prejudice the charges filed against him. On
April 7, 2015, Senior Judge Lester G. Nauhaus (“Judge Nauhaus”) conducted
a hearing on the petition, at which McCullough’s trial counsel, Jon Pushinsky
(“Attorney Pushinsky”), notified Judge Nauhaus that McCullough would “go
non-jury.” N.T. Hearing, 4/7/15, at 15. Following the hearing, Judge Nauhaus
granted in part and denied in part the habeas petition. Specifically, Judge
Nauhaus granted habeas relief only with respect to count 15, i.e., a charge for
theft by deception.
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218 Pa.C.S.A. §§ 3921(a), 3922, 903(a)(1), 4113(a), 4906, 4904, 4911, and
65 Pa.C.S.A. § 1104, respectively.
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The case proceeded to a bench trial before Judge Nauhaus that began
with McCullough being colloquied on his decision to waive his right to a jury
trial. The trial court summarized the evidence adduced at trial as follows:
Jordan was employed as a secretary by Fred Jordan at his
successful real estate business from which he also managed his
assets. With Jordan’s assistance, he managed the financial affairs
of his marriage. After Fred Jordan’ s first wife died, he and Jordan
became romantically involved and married. Fred Jordan retained
Reed, Smith which represented him in connection with not only
his business but, also, his personal affairs. When he married
Jordan, they had lawyers at Reed, Smith prepare mutual wills for
each other where when one of the spouses died, the surviving
spouse inherited all of the other’s assets. At the death of the
second spouse, all of the assets were to be left in proportion to a
list of their charities. While Fred Jordan’s will contained a specific
charitable request to St. Clair Memorial Hospital, no such bequest
was made in Jordan’s will.
Fred Jordan died in 1994 and sometime in early 1995, Jordan
called Reed, Smith and asked to speak to one of the partners in
their estates and trust department. The individual that she asked
to speak to was not there and she was then asked to call back in
the hopes of contacting him on another date. When she did call
back, that partner was still not there and Stephen P. Paschall,
Esquire, was asked to handle this call. Jordan told him that she
and her husband had been represented by Reed, Smith and they
had prepared their wills. After meeting with her several times and
discussing the contents with her over the phone, Paschall
prepared a new will for her in light of the fact that her wealth had
increased significantly. Under this will a foundation would come
into existence after her death and a revocable trust was created
to provide for certain interests and protection for her during her
lifetime. Paschall prepared a will for her, disposing of her tangible
assets, the appointment of an executor and also created a trust
through a revocable declaration of trust in which she was the
settler and trustee. Paschall continued to represent Jordan until
2005 when he received a letter from her directing him to transfer
her files to McCullough.
During the time that Paschall represented Jordan, he would speak
to her on almost a weekly basis and sometimes for more than an
hour. In his dealings with her, he found that she was a very clever
and astute woman and she was reluctant to give up control of her
finances. During their telephone conversations, they would have
discussions about charitable contributions and Jordan indicated
that she had a particular desire to benefit animals and charities
that aided the blind. She also indicated to him that she had no
interest in donating to religious organizations.
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During the latter years of his representation of Jordan, his work
was primarily focused on collecting her dividend checks and
ensuring that they were deposited in the bank, preparing checks
for bills that she had and doing other financial driven assignments
for her. Paschall testified that he had lengthy political discussions
with Jordan and although she identified herself as a Goldwater
Girl, she was very supportive of Bill and Hillary Clinton and her
most frequent political comment was that she wanted to do
something to strengthen the [D]emocratic party in Upper St. Clair,
where she lived.
Demonstrating her sense of control, Jordan had two locks on the
front door of her house which required two different keys to unlock
them. She gave one key to an individual by the name of Dutch,
who was doing her landscaping and she gave the other key to
Paschall. Paschall received a telephone call sometime during 2004
from Dutch who indicated that there was mail piling up as were
the newspaper on the front door and that when he attempted to
gain entrance, he could not since he did not have the other key
nor could he ascertain whether or not there was anybody in the
residence. Paschall then went to Jordan’s house in Upper St. Clair
and he and Dutch then opened the front door only to find that she
was lying on the floor in the living room and it appeared that she
had been there for several days. Jordan responsively called his
name but in light of her physical condition, an ambulance was
called and she was taken to Presbyterian-University Hospital.
When he visited her the day following her admission, he found her
to be responsive and he was asked by her attending physician
whether or not he had a power of attorney to authorize medical
treatment for her and he responded that he did not. Paschall
decided that he would file an emergency proceeding to have him
named temporary guardian of her person. At a hearing before the
Honorable Lee Mazur, Paschall agreed to be the temporary guard
of her person but when asked if he wanted to be the guardian of
her estate, he told Judge Mazur that Mazur did not know this
woman and that if she survived this fall and found out that
Paschall had anything to do with her money, she would kill him.
Following her treatment at Presbyterian-University Hospital, she
was discharged to Heritage at Shadyside, which is a rehabilitative
facility where she stayed anywhere from fifteen to thirty days. At
the time of her discharge from the hospital, Paschall noticed that
she was responsive and lucid and requested a desire to return to
her home rather than another medical facility.
Jordan owned approximately seven acres of undeveloped real
estate directly across the street from St. Clair Country Club.
Sometime in late 2004 or early 2005, Upper St. Clair Township
desired to obtain an easement over a portion of this real estate
and directed its solicitor to contact Jordan’s lawyers in an attempt
to resolve the issue short of litigation. Upper St. Clair Township
attempted to negotiate with Jordan and her lawyers at Reed,
Smith to amicably resolve the question of obtaining an easement.
When they were unable to do so, they filed suit and McCullough
was assigned to represent Upper St. Clair Township in connection
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with this lawsuit. McCullough once mentioned to James Roddey
that Jordan was so impressed in the manner in which he handled
the case which he won for Upper St. Clair Township that she
discharged her lawyers and hired him to represent her.
McCullough then prepared a letter for Jordan to sign directing that
Paschall furnish all of Jordan’s file to McCullough.
In 2001, it came to the attention of Thomas L. Gray, relationship
manager of the trust/wealth management group at Pittsburgh
National Bank [(“PNC”)], that Jordan was making repeated
deposits of significant amounts of money at their Upper St. Clair
branch office. In light of the significant amounts of money that
Jordan was depositing, Gray decided to meet with her and explain
the benefits of the trust/wealth management department at [PNC]
and explained that they could monitor her stocks and make sure
that the dividend checks that she was receiving were timely and
appropriately deposited. Jordan had stocks in more than ninety
companies and was receiving dividend and interest checks on
almost a daily basis.
In the Fall of 2005, Gray received a telephone call from Paschall
who informed him that they were starting a guardianship
proceeding for Jordan in light of the injuries that she sustained in
a fall that she had in her home. In January of 2006, Gray received
a telephone call from McCullough advising him that he was now
representing Jordan and asked Gray to meet with him at Jordan’s
house. When they went to Jordan’s house, McCullough presented
Gray with a power of attorney that was signed by Jordan.
Gray met with members of his trust and wealth department and
they were of the opinion that a trust should be prepared for Jordan
in light of her age and her significant wealth. It was determined
that there would be two trustees, one being [PNC] and the other
being McCullough. Gray was advised by Jordan that she had hired
McCullough because she did not want to go through a
guardianship proceeding and stated that he had been successful
as the solicitor for Upper St. Clair Township. Gray went to the
Grand Residence where Jordan was staying and presented her
with the trust document which he explained to her and which he
believed that she understood and watched her sign that
document. In the months that ensued the relationship between
[PNC] and McCullough became strained due to the demands being
made by McCullough as to how Jordan’s finances were to be
handled. At one point McCullough wanted [PNC] to divest itself
from a substantial portion of Jordan’s assets and place them in
another banking institution, which [PNC] refused to do. In
addition, McCullough wanted [PNC] to purchase a half million-
dollar certificate of deposit from Northwest Bank, which it again
refused to do. McCullough also wanted the trust to purchase a
piece of real estate that was owned by one of McCullough’s other
clients. McCullough advised Gray that if they could not agree on
his requests, then he would terminate the trust.
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In March of 2006, Lana Boehm, was assigned to handle the day-
to-day dealings on Jordan’s account which consisted of the
collection of the dividend checks and depositing them in the
appropriate accounts for Jordan. Shortly after she began to work
on Jordan’s account, she received a communication from Gray
who told her that McCullough told her that Jordan wanted a ten-
thousand-dollar check to be drawn on her account made payable
to Catholic Charities and delivered to that organization. That
check was prepared and sent to Catholic Charities and Boehm
became concerned about the issuance of that check when she
received the acknowledgement letter from Catholic Charities
which was signed by Patricia McCullough. She asked Gray if
Patricia McCullough was related to McCullough and was informed
that she was his wife. Boehm believed that this was a conflict of
interest and then proceeded to pass this information along to
other people in her group.
The information concerning how McCullough was handling the
Jordan estate was eventually passed on to Frances E. Johnston, a
senior vice president of PNC’s wealth management group, who
served as the western regional trust director. After meeting with
a number of individuals who worked on the Jordan account,
Johnston had numerous reservations about how McCullough was
handling that account. She was concerned that McCullough had
requested that his sister, Kathleen, serve as a companion for []
Jordan and that she was to be paid at an above-market rate. She
was also concerned about the ten-thousand-dollar charitable
contribution made to Catholic Charities at the direction of
McCullough when his wife served as the executive director of that
organization. She also had concerns by a request by McCullough
to have PNC use five hundred thousand dollars of the trust assets
to buy CDs at Northwest Bank. She saw an absolute conflict of
interest in McCullough’s suggestion that the trust buy certain real
estate which was owned by another client of McCullough’s. In
addition to this conflict, this was not a sound investment strategy
for an individual who was ninety years old. The last thing that she
was concerned about was McCullough’s request that his son be
hired to cut Jordan’s lawn. Johnston reviewed these concerns with
Gray and Boehm and advised them to talk to McCullough as to
what they saw as conflicts of interest with respect to the handling
of Jordan’s affairs.
All of the individuals who dealt with Jordan’s estate were aware
that McCullough had a power of attorney and they believed that
the power of attorney was valid. The power of attorney had a
medallion guarantee on it, which is extremely unusual. That
guarantee was not part of the power of attorney, but rather, only
insured that power of attorney was a true and correct copy of the
original one that was signed. The power of attorney signed by
Jordan in favor of McCullough provided as follows:
The page that has the notice. “Know all persons by these
presence which are intended to constitute a general durable
Power of Attorney pursuant to the Pennsylvania Probate,
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Estates and Fiduciaries Code of 1972, 20 Pa.C.S.A., Sections
5601-5608, et seq., as amended, that I, Shirley H. Jordan,
of The Grand Residence, Suite 207, McMurray Road, Upper
St. Clair, Pennsylvania 15241 hereby revoke all prior Powers
of Attorney signed by me, including the one made by me in
favor of Lance Whiteman, and do make, constitute and
appoint Charles P. McCullough, Esq., as my true and lawful
agent, to act for me and in my name, to manage any and
all of my personal business and financial affairs should I be
incapacitated and not able to do the same myself and, in
connection therewith, to perform all such acts as my agent
deems necessary or proper, including specifically but not by
way of limitation, full authority to do any or all of the
enumerated acts set forth below.”
This power of attorney defined her incapacity as follows:
“For the purpose of determining whether I am incapacitated
as stated aforesaid, a written statement by my physician or
a physician selected by my agent that I am incapacitated
shall suffice.”
The power of attorney that Jordan executed was a spring power
of attorney since the document did not go into effect until it had
been determined that Jordan was incapacitated. The finding that
she was incapacitated required a written statement from her
physician or a physician selected by her agent that stated that she
was incapacitated. While no such written statement was ever
made, all of the people at PNC believed that McCullough’s power
of attorney was valid premised upon McCullough’s statements and
actions and the information that a guardianship proceeding had
been instituted on behalf of Jordan, which proceeding was
instituted prior to the signing of the power of attorney by Jordan.
Catholic Charities began its fundraising efforts for the year in
January of 2006 with a projected goal of six hundred thousand
dollars. In March of 2006, Patricia McCullough was named as the
executive director of Catholic Charities. The Catholic Charities
fundraising efforts were to continue through May when their
annual dinner was held and at which time they would announce
whether or not they had met their objective. Approximately a
week before the dinner which was held at the end of May, Patricia
McCullough told John D. Goetz, Esquire, who was the vice
president of the board of Catholic Charities that they were short
of their goal and it was unlikely that they would meet their goal.
The day of the dinner she then advised him that there had been a
last minute donation which allowed them to exceed their target
and as the executive director, she told this to all of the people in
attendance at that dinner that a last minute donation enabled
them to meet their projected target. Goetz read an article in the
Post-Gazette on April 13, 2007, which indicated that the money
given to Catholic Charities was given against Jordan’s will. They
held an emergency board meeting at which point Patricia
McCullough said that her husband was the trustee of Jordan’s trust
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and that Jordan voluntarily gave the money. In discussing this
particular contribution with other board members, they believed
that they should not take this since Jordan in the article
maintained that she did not want to give the money to Catholic
Charities and they also believed that it appeared to be a conflict
of interest. A vote was taken and it was agreed that the money
would be returned to the trust, which was done.
During the remainder of 2006, the conflicts between McCullough
and PNC as the trustees of Jordan’s trust, continued to increase
to the point where McCullough threatened to dissolve the trust if
PNC did not accede to his wishes. When PNC refused to do so,
McCullough sent PNC a letter advising it that the trust had been
dissolved and directed that it provide its first and final account.
In June of 2006, McCullough left Tucker Arensberg to become a
non-equity partner at Eckert Seamans. When McCullough left
Tucker Arensberg, he took all of his files with him, including
Jordan’s. McCullough met with Ray Vogliano and Jennifer Rawson,
who specialized in estate practice and taxation, concerning this
evolving estate plan for Jordan. McCullough told Ray Vogliano
that despite the fact that her will directed that a charitable
foundation would be created upon her death that Jordan, in fact,
wanted one created while she was alive. Jordan and Vogliano
discussed the significant tax benefits that would accrue to Jordan
by the creation of this charitable foundation prior to her death and
a decision was made to create the foundation. Rawson prepared
the articles of incorporation for the Shirley Jordan Foundation
although she normally would indicate that there would be three
directors, McCullough advised her that he wanted to have eleven
directors and provided her with the names of those individuals
which included James Roddey, Vincent Gastgeb, Jan Rea and
Susan Coldwell, Cheryl Allen and Doris Carson Williams among
others. All of these individuals were heavily involved in Republican
politics and none of them had ever met or heard of Jordan. It was
McCullough’s idea to meet six times per year and to pay each
director the sum of one thousand dollars for attending the
meeting.
When McCullough advised Roddey that he had a client who was
interested in forming a charitable foundation, Roddey suggested
that it be handled through the Pittsburgh Foundation since it
assembled numerous private foundations and controlled a
significant amount of money. McCullough told him that Jordan
wanted him to establish the foundation and wanted him to handle
its affairs. Roddey told McCullough that he thought that the
eleven-person board of directors was unwieldy, especially in light
of the fact that they were managing a relatively insignificant
amount of money for a charitable foundation. In addition, he
thought that there were too many meetings and they were being
paid too much money for their attendance. When Roddey received
the first check for one thousand dollars, he returned it since he
did not believe that they should be receiving that much money.
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In December of 2006, McCullough told Rawson to change the
number of directors to three and that the remaining individuals
could serve on the advisory board. The three directors were to be
McCullough, Jordan and John Zadar, who was in the trust
department of Northwest bank.
2007 was a municipal election year when people ran for the offices
for county executive, county council, the court of common pleas
and the appellate courts of the Commonwealth of Pennsylvania.
Cheryl Allen, who was a Judge on the Court of Common Pleas of
Allegheny County declared that she was a Republican candidate
for the Superior Court and formed a finance committee to help her
raise money for that campaign. James M. Norris, an attorney at
Eckert Seamans, sponsored an event to be held in their offices
and although Norris and McCullough were attorneys at Eckert
Seamans, they had never met before the Cheryl Allen fundraiser.
It was the one and only time that Norris had ever met or spoke to
McCullough. At that event, McCullough went up to Norris, handed
him an envelope and said this was for Judge Allen. Norris looked
into the envelope and saw that there was check drawn on the
account of Shirley Jordan and payable to Cheryl Allen’s campaign
committee in the amount of ten thousand dollars. In addition to
having Shirley Jordan’s name on the check, McCullough’s name
also appeared on that check.
During the 2007 election year, the office of county executive and
seats for county council members were also subject to election.
County council is composed of fifteen individuals, thirteen of
whom represented a specific legislative district and two
represented the county at large. In 1999, the county
executive/county council form of government replaced the three
commissioners and the first county executive elected was James
Roddey who began his term in 2000. David Fawcett, Esquire, was
elected to one of the two county-wide council seats and he was
subsequently reelected in 2003. Fawcett made the determination
that he did not want to run for a third term, thereby opening that
seat up for election.
When Roddey was elected county executive, McCullough was
recommended to him to become the county solicitor because of
his extensive experience in municipal law. Roddey appointed
McCullough as the county solicitor and over the next four years,
their relationship grew to the point that Roddey believed that
McCullough viewed him as a mentor. McCullough told Roddey that
he wanted to be a federal judge and this was his ultimate goal.
When David Fawcett declared that he did not intend to seek
reelection, McCullough went to Roddey and told him that he was
going to run for that county council seat. Roddey advised him
that it was not a good idea to run and that he should continue to
handle municipal work if he intended to pursue his goal of being a
federal judge. McCullough told Roddey that that was good advice
and that he would not run.
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Kevin Acklin, who was a city resident and registered [R]epublican
came to Roddey after he had learned that McCullough was not
going to run for the countywide county council seat. Acklin was
active in his community and was a good candidate and was from
the city and it would be a good idea to get a [R]epublican on
county council who lived in the city. Acklin sought Roddey’s
endorsement and Roddey told him that he would endorse him and
encouraged him to meet with other [R]epublican leaders. After
Roddey had committed to endorse Acklin, McCullough came back
to Roddey and told him he had reconsidered Roddey’s advice and
decided that he would run for the county council seat. Roddey
informed him that he had already committed to Acklin and he
would not go back on that commitment and that others in the
party had also endorsed Acklin. McCullough was not pleased to
find out that Acklin had secured these endorsements and the fact
that Roddey would not go back on his commitment to Acklin.
After receiving the endorsement of James Roddey, Acklin sought
out other members of the [R]epublican party and received
commitments from Vincent Gastgeb, Jan Rea and Susan Coldwell,
to endorse him for the county council seat. The [R]epublican party
holds an annual dinner shortly before its endorsement for
candidates called the Lincoln Day Dinner. Acklin attended that
dinner and saw that McCullough was also there. When he was on
his way home he received a telephone call from his friend, Michael
Devaney, who told him that McCullough had delivered very big
checks to [R]epublican candidates for county council.
The next day Acklin had a conversation with Gastgeb who told him
that he was very sorry that he had to withdraw his endorsement
because McCullough had made him his finance director. Gastgeb
also told Acklin that McCullough had given him a check for ten
thousand dollars but the money was from a client. The check,
however, bore not only the client’s name, but also, McCullough’s
name. Other checks went to Jan Rea and Susan Coldwell. All of
the checks had McCullough’s name on them even though they
were drawn on Jordan’s account.
Michael Devanney who is a political consultant with Cold Spark
Media was not working with Acklin as a client but, rather, as a
friend since they had known each other since high school.
Devanney helped him create his web page, helped him draft his
campaign literature and made suggestions as to how his campaign
should be run. When he heard that McCullough had decided to
run, he had a telephone conversation with McCullough where they
agreed to meet and the meeting took place at the Eat ‘N Park on
Banksville Road in the City of Pittsburgh. That meeting lasted
anywhere from an hour and one half to two hours and McCullough
told Devanney that he was in the race to stay, that he had a
wealthy client who was going to support his campaign and his
interests. McCullough also told him that he was going to make
campaign contributions to Rea, Coldwell and Gastgeb, even
though each of these individuals was unopposed in their primary
election campaigns. Devanney attended the Lincoln Day Dinner
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in late February and witnessed McCullough going around the room
glad-handing and apparently passing out the checks that he told
him that he was going to distribute.
John Zadar, who was in the trust department at Northwest Bank,
first met McCullough in the Fall of 2006 and McCullough told Zadar
that he had a client whose funds had to be handled and not
managed and asked that Zadar become a trustee in Jordan’s trust,
which he agreed to do. Jordan’s funds were not transferred to
Northwest until the early part of 2007, after the first and final
account of [PNC] had been approved.
In February of 2007, John Zadar and Lisa Carey of Northwest Bank
received an email from McCullough requesting four political checks
to be drawn on Jordan’s account made payable to Jan Rea, Susan
Coldwell, Vincent Gastgeb and Cheryl Allen. McCullough wanted
the checks immediately and wanted them hand-delivered to his
office. Lisa Carey said that there was not enough money in the
checking account to cover these checks so they had to draw down
on the trust account to provide for the money to cover these
checks. The checks were then personally delivered to McCullough
who gave them to his secretary, Susan Brunner, with a hand-
written note which she was instructed to write on the checks,
Shirley Jordan in care of Charles McCullough. She did as
instructed and gave those checks back to McCullough, which
checks were subsequently delivered to Cheryl Allen at a fundraiser
held in her honor at Eckert Seamans and to the county council
candidates at the Lincoln Day Dinner.
Erica Clinton Wight was a media research consultant for Kevin
Aklin’s campaign in 2007. When information arose that Jordan
had made four political contributions to various [R]epublican
candidates in the amount of ten thousand dollars apiece, she
decided to investigate why Jordan made these contributions.
Wight had never heard of Jordan being involved in any type of
politics ever before and as a media consultant, it was part of her
job to know the names of likely contributors and people prominent
in political spheres. Wight found out that Jordan was in the Grand
Residence and made a call to the main number for that facility.
She asked to speak to Jordan and was connected to Jordan’s room
when a caretaker answered the phone. She asked to speak to
Jordan and Jordan was then put on the telephone. She asked if,
in fact, she was speaking to Shirley Jordan and Jordan said she
was, and she introduced herself as working for the [R]epublican
party and she wanted to discuss with her the political contributions
that she made of ten thousand dollars to three different
candidates. When Jordan heard this she seemed to become
agitated, her voice got louder and became concerned when Jordan
told her she would never make donations to politics and she writes
her own checks.
In the Spring of 2007, Dennis Roddy, was working for the Post-
Gazette and was assigned by his editor to cover the appellate
judicial races since there was one candidate from Allegheny
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County who was seeking a spot on the Superior Court, that being
Cheryl Allen. Roddy reviewed her financial disclosure form filed
with the Department of State and discovered that she had listed
total assets in the amount of thirteen thousand dollars but ten
thousand dollars was from a single donation from Jordan. While
he was at his office, he received an anonymous envelope which
contained an account of the ten thousand dollar checks being
given to county council candidates and a rhetorical question as to
whether or not that the donor actually knew that this was
happening. While he had received information indicating that
county council candidates had received similar ten thousand dollar
checks, their deadline for filing their financial disclosure forms had
not passed and there was nothing in the public record as to those
donations. Roddy decided to check Jordan out and found out that
she lived in Upper St. Clair, although at the time she was living at
the Grand Residence. He checked for prior political contributions
and found none. In speaking with his political contacts, nobody
had ever heard of her. Roddy found out that she was over eighty
years old and inactive on the voter registration list since she had
not voted in more than seven years.
Roddy decided to visit her and went to the Grand Residence on
April 10, 2007 and was there for approximately one hour. Roddy
went to the registration desk and told the receptionist that he was
there to visit Jordan and she told him what room Jordan was in.
Roddy went to that room and saw Jordan and Jan Skowvron. He
told them who he was and produced his reporter’s identification
card from the Pittsburgh Post-Gazette. Jordan told him that she
would like to speak with him and he told her that he was covering
a political race and noticed that she was a substantial contributor
to one candidate and possibly more. Jordan responded, that’s my
lawyer, he wants to be important in politics. Jordan told him that
she had learned of a donation from a telephone call and she said
that her attorney had given the money. Roddy advised her that
it was ten thousand dollars per candidate and Jordan was startled
and gasped, “ten thousand, I can’t”, she would never make such
a donation to a political campaign. Her tone was surprised and
then angry. She was agitated, taken aback and quite surprised
by this and was angry at McCullough.
She told Roddy that McCullough had been taking too much control
over her affairs and said that he was a cheap politician. She was
angry, cross and clearly surprised, but coherent. The next day
Roddy received a telephone call from McCullough who told him
that Jordan was a Goldwater Girl and she wanted to resume her
political activities again and asked him if there were candidates to
support and he suggested three or four. He told Roddy that she
was particularly enthusiastic about Allen because she had become
active in her foundation. When Roddy asked Jordan whether or
not she would support Allen, she said no, she had her reasons but
would not disclose them.
Janet Skowvron who is a licensed practical nurse was in Jordan’s
room when Roddy arrived. She verified that Roddy produced his
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Post-Gazette identification and he was there to ask her certain
questions about political contributions that she had made. She
knew Jordan to be a very private person and when she found out
that political contributions were being made from her funds, she
told Roddy that McCullough was a crook. At the time that Roddy
was there, Jordan was lucid and comprehended all of the
information that was being given to her.
On April 13, 2007, the Post-Gazette published Roddy’s article with
respect to the political contribution allegedly made by Jordan to
Cheryl Allen. As a follow-up article, Roddy also reported that ten
thousand dollar political contributions were made to Rea, Gastgeb
and Coldwell. After reading these articles, Rea, Gastgeb and
Coldwell all decided to return the money to Jordan. Debbie Lesko,
the treasurer for Cheryl Allen’s campaign also returned the money
after she read Roddy’s articles. While Patricia McCullough did not
want anyone to know who the anonymous donor was who
contributed ten thousand dollars to Catholic Charities, the board
of Catholic Charities eventually determined that that anonymous
donation came from McCullough’s client Jordan, and they voted to
return the money, which they did.
Trial Court Opinion, 5/1/17 at 11-29 (record citations and footnote omitted).
At the conclusion of trial, Judge Nauhaus found McCullough guilty of five
counts of theft by unlawful taking and five counts of misapplication of
entrusted property. Judge Nauhaus scheduled sentencing for November 9,
2015.
On October 23, 2015, Attorney Pushinsky filed a motion to withdraw
from the case and to continue the November 9, 2015 sentencing to allow
McCullough time to secure substitute counsel. On November 3, 2015, a
hearing on Attorney Pushinsky’s motion was held before Judge Nauhaus.
Attorney Pushinsky notified Judge Nauhaus that McCullough had arranged for
substitute representation by Megan Will, Esquire (“Attorney Will”), who
informed Judge Nauhaus that she needed thirty days to prepare for
sentencing, as McCullough had retained her within the past week. Judge
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Nauhaus granted Attorney Pushinsky’s motion to withdraw and denied the
continuance, thereby preserving the scheduled sentencing date of November
9, 2015.
On November 5, 2015, McCullough filed a “Petition for Judicial Recusal,”
alleging that Judge Nauhaus engaged in ex parte communications with
Attorney Pushinsky and other court officers prior to rendering the guilty
verdicts.3 McCullough alleged that Attorney Pushinsky informed him of the
alleged ex parte communications. McCullough specifically alleged that, on
December 29, 2014, after Attorney Pushinsky petitioned the trial court for the
issuance of a writ of habeas corpus, Attorney Pushinsky called McCullough to
inform him that Judge Nauhaus “just called me and yelled at me for filing the
Habeas Petition.” Petition for Judicial Recusal, 11/5/15 at ¶¶ 4-5. McCullough
alleged that, in response, he stated to Attorney Pushinsky that Attorney
Pushinsky “needed to move to have [] Judge Nauhaus recused from
[McCullough’s] case.” Id. at ¶ 6. Attorney Pushinsky, however, failed to seek
____________________________________________
3 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. Carpenter, 725 A.d 154, 168-69 (Pa. 1999) (citation
omitted). With exceptions not applicable here, both the Code of Judicial
Conduct and Rules of Professional Responsibility prohibit ex parte
communications. See Code of Judicial Conduct Rule 2.9, and Rule of
Professional Conduct 3.5(b).
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recusal. Id. McCullough alleged that a second ex parte communication
occurred between Judge Nauhaus and Attorney Pushinsky. Prior to trial,
Attorney Pushinsky informed McCullough that Judge Nauhaus told Attorney
Pushinsky through a mutual friend “to go non-jury.” Id. at ¶ 10. According
to McCullough, Attorney Pushinsky informed him that “Judge Nauhaus
preferred jury trials only in capital cases” and that McCullough “‘would not be
sandbagged’ if he elected to have a nonjury trial.” Id. McCullough claimed
that Attorney Pushinsky told him “not to repeat this ex parte communication
to anyone.” Id. at ¶ 11. McCullough claimed that prior to learning of Judge
Nauhaus’ ex parte communication with Attorney Pushinsky, McCullough did
not wish to waive his right to a jury trial. Id. at ¶ 12. McCullough claimed
that he waived his right to a jury trial only because he “feared repercussions”
if he did not follow Judge Nauhaus’ directive to go non-jury. Id. McCullough
alleged a third ex parte communication, which purportedly occurred during
the pendency of his trial and prior to McCullough’s presentation of his defense,
i.e., six to seven weeks before Judge Nauhaus rendered the trial court’s
verdict. Id. at ¶ 14. McCullough alleged that “an acquaintance of
[McCullough], who has been involved in Allegheny County politics for some
time and who is familiar with [the] courthouse staff, told [McCullough] that he
had had a conversation with an individual who works in the courthouse and
who knew [Judge Nauhaus’] secretary.” Id. Specifically, McCullough alleged
that the secretary “advised the individual that [Judge Nauhaus] was of the
mind that the case was not proven, but after a conversation between [Judge
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Nauhaus] and his secretary, they agreed that a conviction of the five counts
dealing with the checks had to occur.” Id. McCullough further claimed that
Judge Nauhaus convicted him “of the charges associated with five particular
checks,” as foretold by the ex parte communication. Id. at ¶ 15.
Given the allegations contained in his recusal petition, McCullough
asserted a violation of his due process rights under the United States and
Pennsylvania constitutions insofar as he was not “afforded a right to a [trial]
before a neutral factfinder or a right to a jury trial.”4 Id. at ¶ 34. Thus,
recognizing a conflict in testimony, McCullough requested “a hearing by a
neutral factfinder.” Id. at ¶¶ 32-33. McCullough also requested that “Judge
Nauhaus recuse himself of his own volition, or, alternatively, grant a hearing
on [the recusal petition] so that the matters contained herein may be more
fully explored.” Id.
On November 9, 2015, on the day of sentencing, Judge Nauhaus
addressed McCullough’s petition for recusal on the record. In so doing, he
objected to the characterization of the alleged communications as ex parte
communications, believed the recusal matter to be a post-sentence issue, and
granted McCullough’s request to delay sentencing by thirty days. Sentencing
was rescheduled for December 17, 2015. McCullough was then colloquied on
his decision to delay sentencing beyond the ninety-day period. Id. at 12-14;
see Pa.R.Crim.P. 704(A) (“[S]entence in a court shall ordinarily be imposed
____________________________________________
4 McCullough’s petition makes clear the relief he seeks is not limited to
resentencing, but also may include a new trial.
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within 90 days of conviction or the entry of a plea of guilty or nolo
contendere.”).
On November 12, 2015, the Commonwealth filed a “Request for an
Evidentiary Hearing and Appointment of Judge to Preside over [McCullough’s]
Petition for Judicial Recusal.” The Commonwealth, inter alia, averred that
McCullough’s recusal petition alleged “material ex parte contacts between This
Honorable Court[, i.e., Judge Nauhaus], [Attorney Pushinsky], and unnamed
third parties.” Request for Evidentiary Hearing, 11/12/15, at ¶ 2. As a result,
the Commonwealth requested that Judge Nauhaus grant its request for an
evidentiary hearing and recuse himself from presiding over the hearing. On
November 16, 2015, McCullough filed a response to the Commonwealth’s
request for an evidentiary hearing. In the two-paragraph answer, McCullough
stated that he “joins in the Commonwealth’s request to have another judge
preside over [McCullough’s] hearing for judicial recusal.” Response to
Evidentiary Hearing, 11/16/15, at ¶ 1. On the same day, President Judge
Jeffrey A. Manning (“PJ Manning”) issued an order scheduling an evidentiary
hearing on McCullough’s recusal petition for November 19, 2015.5
PJ Manning presided over the evidentiary hearing, at which Martin L.
Schmotzer and Attorney Pushinsky testified. At the start of the hearing, PJ
Manning explained that he was presiding over the hearing because Judge
____________________________________________
5Given PJ Manning’s involvement, it appears that Judge Nauhaus granted the
Commonwealth’s request for an evidentiary hearing and recused himself from
presiding over the hearing.
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Nauhaus referred the recusal motion to him and to Judge David Cashman,
who was the administrative judge of the criminal division. N.T. Hearing,
11/19/15, at 4-5.
Mr. Schmotzer was called to the stand to testify about the third ex parte
communication. He testified that he was a friend of McCullough and that he
had conversations with McCullough about McCullough’s case. Id. at 10.
Specifically, Mr. Schmotzer testified that he relayed to McCullough a
conversation that “was told to [him] thirdhand.” Id. at 11. Mr. Schmotzer
explained, “[s]omeone called me up on the phone and asked to meet with me
about a conversation they had had, but it wasn’t with [Judge Nauhaus]. It
was with, you know, that person and the secretary, not the Judge.” Id. at 12.
The Commonwealth objected, based on hearsay, to the content of the
conversation. The trial court sustained the objection. Nonetheless, when
pressed by Attorney Will to name the source, Mr. Schmotzer refused to reveal
the source’s identity, without asserting any privilege. Id. at 15.
McCullough next called to the stand Judge Nauhaus, who along with his
counsel was present in the courtroom. Id. at 16. Judge Nauhaus’ attorney
objected, arguing that Judge Nauhaus was incompetent to testify under
Pa.R.E. 605 (prohibiting witness testimony of presiding judge). PJ Manning
agreed, and thus sustained the objection made by Judge Nauhaus’ attorney.
Id. at 23. McCullough thereafter sought to elicit the testimony of Attorney
Pushinsky, whom McCullough, on the record, granted a limited waiver of the
attorney-client privilege regarding two ex parte communications Attorney
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Pushinsky had with Judge Nauhaus. Id. at 24-26. Attorney Pushinsky,
however, through his counsel, insisted on a complete waiver of attorney-client
privilege before answering any questions. Over McCullough’s objections, the
trial court agreed with Attorney Pushinsky and permitted him to remain silent
in the absence of a full waiver of privilege. Following McCullough’s
presentation of witness testimony, PJ Manning concluded that McCullough
failed to produce any evidence to call into question Judge Nauhaus’
impartiality. Id. at 45. PJ Manning reasoned that the allegations in the
recusal petition, absent any evidence, were “scurrilous.” Id. at 46. PJ
Manning thus denied and “vacated and discontinued” McCullough’s recusal
petition. Id. at 47. Even though PJ Manning denied the recusal petition,
Judge Nauhaus also issued an order denying McCullough’s recusal petition on
December 10, 2015.
Sentencing occurred, as scheduled, on December 17, 2015. Instead of
Judge Nauhaus, Judge David R. Cashman (“Judge Cashman”) presided over
the sentencing hearing. Judge Cashman explained that “Judge Nauhaus did
not recuse himself but, rather, asked that the case be reassigned for the
purpose of sentencing because of a health issue that he had, and President
Judge Manning then assigned the case to me for the purpose of sentencing.”
N.T. Sentencing, 12/17/15, at 38. On the five counts of theft by unlawful
taking, Judge Cashman sentenced McCullough to six to twelve months’
incarceration on each count to run consecutively. Id. at 39-40. Judge
Cashman did not impose any additional penalty for the five counts of
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misapplication of entrusted property. Id. at 40. McCullough’s aggregate
sentence was 30 to 60 months’ imprisonment.
McCullough timely filed post-sentence motions, asserting, inter alia, that
he was entitled to a new trial because of “the improper handling and
disposition of [his] motion to recuse [Judge Nauhaus].” Amended Post-
Sentence Motion, 12/30/15, at 12. Following a hearing, Judge Cashman
denied McCullough’s post-sentence motions on February 5, 2016. Judge
Cashman, however, granted McCullough bond pending appeal on the condition
that McCullough surrender his passport and not leave the jurisdiction without
the court’s prior approval. McCullough timely appealed to this Court.
McCullough and the trial court complied with Pa.R.A.P. 1925.
On appeal, McCullough presented the following issues, reproduced here
verbatim:
[I.] Whether the evidence was insufficient as a matter of law on
the counts charging theft by unlawful taking, 18 PACS § 3921,
when the Commonwealth failed to prove beyond a reasonable
doubt that [McCullough] knowingly took the property of the
alleged victim unlawfully, since [McCullough] was a co-trustee of
the alleged victim’s estate, her attorney, and a person who held
(and believed he held) a valid power of attorney authorizing him
to request that co-trustees issue checks from her estate?
[II.] Whether the evidence was insufficient as a matter of law on
the counts charging misapplication of entrusted funds, 18 PACS §
4113, when the Commonwealth failed to prove beyond a
reasonable doubt that [McCullough] requested that donations be
made from the estate of an alleged victim for whom he was a
fiduciary knowing that the donations were unlawful and involved
a substantial risk of loss and detriment to the owner?
[III.] Whether serious procedural errors occurred in the litigation
of [McCullough’s] motion for recusal which alleged that three ex
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parte communications by [Judge Nauhaus] substantially
prejudiced him when,
a) [Judge Nauhaus] refused to affirm or deny whether the
ex parte communications actually took place;
b) the judge presiding over the hearing on the [recusal]
motion:
i. improperly excused [Judge Nauhaus] from
testifying about the communications by
erroneously interpreting Rule 605;
ii. improperly excused [Attorney Pushinsky] from
testifying about the communications by ruling that
[McCullough] had to waive the entirety of his
attorney/client privilege as a condition for counsel’s
testimony on the discreet matters at issue;
iii. improperly excused [Mr. Schmotzer] who would
have identified a key source of information on an
ex parte communication by wrongfully declaring
hearsay; and
c) the [trial court] failed to appoint an out of county judge
to hear the motion, in each instance and collectively
denying [McCullough] the opportunity to develop his
claim in violation of his rights to due process of law under
the constitutions of the United States and the
Commonwealth?
McCullough’s Brief at 4-5 (unnecessary capitalizations omitted).6
We first addressed and examined in detail McCullough’s third issue. See
Commonwealth v. McCullough, 201 A.3d 221, 238-45 (Pa. Super. 2018).
Briefly, we concluded that the trial court abused its discretion in (1) excusing
Judge Nauhaus and Attorney Pushinsky from testifying at the November 19,
____________________________________________
6 At that juncture, based upon our disposition of the initial appeal, we declined
to address McCullough’s first two issues, implicating the sufficiency of the
evidence. Those issues are now properly before us.
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2015 evidentiary hearing, and (2) allowing Mr. Schmotzer to withhold the
identity of the courthouse employee. Consequently, we remanded this case
to the trial court, on December 19, 2018, with instruction to conduct a new
evidentiary hearing on the recusal petition.
On April 5, 2019, McCullough issued a subpoena duces tecum to the
Judicial Conduct Board (“JCB”), seeking “[a]ny and all records regarding or
memorializing interviews of individuals generated in connection with the
investigation by the [JCB] of a complaint against Senior Judge [Nauhaus]
concerning his conduct while presiding over [this case] in the Court of
Common Pleas of Allegheny County.” Subpoena, 4/5/19 at 3 (unnumbered).
In specific, McCullough sought “all witness statements, reports of interviews
and/or other investigative reports reflecting statements obtained by
Investigator Doug Miller and/or any other investigator in connection with this
matter, including, but not limited to, interviews of Judge Nauhaus, [A]ttorney
[] Pushinsky, [Mr.] Schmotzer, and other persons.” Id. McCullough also
specifically stated that the subpoena did not contain a request for production
of any attorney work product, “any internal [JCB] documents or minutes
reflecting the deliberative process of the [JCB] undertook in connection with
this matter.” Id.
On April 22, 2019, the JCB filed a “Motion to Quash Subpoena and for a
Protective Order.” The JCB argued that Article 5, Section 18(a)(8) of the
Pennsylvania Constitution “mandates that the records and information that
[McCullough] seeks—if they exist—are not public, and the Board is
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constitutionally required to maintain strict confidentiality.” Motion to Quash,
4/22/19 at ¶ 5. The JCB further argued that, even if it possessed the
requested materials, McCullough could obtain the same by cross-examining
Judge Nauhaus, Attorney Pushinsky and Mr. Schmotzer at an evidentiary
hearing ordered by this Court on remand. Id. at ¶ 7. Accordingly, the JCB
requested that the trial court quash McCullough’s subpoena and protect “it
from further subpoena in this case without leave of court.” Id. at 3
(unpaginated).
On May 1, 2019, Judge Cashman conducted an evidentiary hearing at
the start of which the JCB argued its motion to quash the subpoena. Counsel
for the JCB argued that under the Pennsylvania Constitution, complaints
initiated by the JCB are not public information. N.T. Hearing, 5/1/19 at 6.
The JCB noted that McCullough’s right to confront a witness in a criminal case
was not implicated because “these weren’t witnesses that were called by the
Commonwealth or not witnesses that go to directly to a defendant’s guilt or
innocence. They go towards whether or not [Judge Nauhaus] should have
recused himself.” Id. (sic). The JCB further noted that “[w]e’re not dealing
with the case in chief against [McCullough] but a recusal hearing.” Id. at 7-
8. The JCB observed that McCullough could prove his recusal petition by
eliciting the testimony of Judge Nauhaus, Attorney Pushinsky and Mr.
Schmotzer, among others. Id. at 9. Ultimately, the JCB declined to confirm
or deny whether it ever had investigated a complaint filed against Judge
Nauhaus. Id. at 8.
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In response, McCullough’s counsel noted that McCullough “was
interviewed by the JCB.” Id. at 9. McCullough’s counsel further noted that
he sought only witness statements from the JCB because they might be Brady
materials or be exculpatory in nature.7 Id. at 18. “We have not sought access
to [the JCB’s] work file. We’re not trying to get th[eir] deliberative process.
We’re not even asking for their outcomes, Judge. All we have sought was
witness statements that are in the possession of the [JCB]. We believe they’re
in their possession.” Id. at 19. McCullough’s counsel argued that based on
the JCB’s and McCullough’s competing constitutional rights—one favoring
confidentiality and the other guaranteed a right to confront—“there’s a
balancing test the [c]ourt is required to conduct. And a criminal defendant’s
right to access statements should take precedence.” Id. The Commonwealth
declined to take a position on the subpoena issue. Id. at 21. Following the
hearing, the trial court granted the JCB’s motion to quash and the protective
order.8
Thereafter, the Commonwealth, represented by Attorney Michael W.
Streily, characterized McCullough’s claims relating to the recusal issue as
nothing more than “smoke and mirrors.” Id. at 22. The Commonwealth
remarked:
____________________________________________
7 McCullough’s counsel premised his argument on the Sixth Amendment to
the United States Constitution and Article 1, Section 9 of the Pennsylvania
Constitution.
8The docket reveals that the trial court filed the order granting the JCB’s
motion on May 9, 2019.
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However, the only way that we’re going to prove that this is smoke
and mirrors is by having a full hearing today. Because there are
pending charges against [McCullough], as Your Honor knows, at
CP-02-CR-000081-2016. They involve perjury, false swearing,
unsworn falsification. [McCullough] would have a Fifth
Amendment right.
Your Honor, we have to have a full hearing. We want
[McCullough] to take the stand. Your Honor I have discussed this
with his attorney, [Adam B.] Cogan. I have discussed this with
his attorney David Pollock, who represents him on the 2016
charges.
Your Honor, it would be the motion of the Commonwealth,
and this is subject to [McCullough] taking the stand and subjecting
himself to cross-examination. But Your Honor, we would make a
motion to nolle pros those charges at 2016, so that he has no fear
of self-incrimination and he can take the stand and be cross-
examined on these alleged ex parte communications.
Id. at 22-23. Thus, under Rule 585 of the Pennsylvania Rules of Criminal
Procedure, the Commonwealth agreed to nolle pros with prejudice the 2016
charges in exchange for McCullough taking the stand. Id. at 23. The trial
court, however, observed that the Commonwealth’s offer for nolle pros was
“premature” because McCullough had waived the recusal issue by failing to
raise it at the earliest possible moment. Id. at 24-26. McCullough’s counsel
did not object to the trial court’s rejection of the Commonwealth’s nolle pros
offer. Id. at 27. Rather, McCullough’s counsel agreed with the trial court and
proceeded to call the first defense witness, Judge Nauhaus. Id. (responding
by using the term “exactly” after the trial court called the Commonwealth’s
motion “premature”).
Judge Nauhaus testified that he presided over the instant case, which
involved, among other things, theft charges against McCullough. Id. at 29.
Judge Nauhaus was asked about the first instance of ex parte communication
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with Attorney Pushinsky in connection with McCullough’s filing of a habeas
petition. Id. at 30-31. Judge Nauhaus testified that he was disturbed about
the habeas filing and that he had a telephone conversation with Attorney
Pushinsky about it. Id. at 31. Judge Nauhaus acknowledged that he called
only Attorney Pushinsky and that the Commonwealth and McCullough were
not on the line. Id. at 32-33. Describing the contents of the telephone call,
Judge Nauhaus testified:
What I made known to [Attorney] Pushinsky was the fact that it
was the second habeas motion that had been filed in this case.
This case had been handled by another Judge and it went to the
Superior Court. It came back down. The other judge had ruled
on the original habeas motion. I called [Attorney] Pushinsky to
tell him it was the second motion. And to tell him that I would
hear it. And to tell him that this case had dragged on far too long
and to tell him when the hearing was going to be.
Id. at 32. Judge Nauhaus denied discussing anything else on that particular
call. Id. Judge Nauhaus testified that he did not consider his telephone call
with Attorney Pushinsky, which lasted five minutes, to constitute ex parte
communication. Id. at 33.
McCullough’s counsel then asked Judge Nauhaus whether he was ever
interviewed by or provided a statement to the JCB in connection with this
case. Id. at 34. The trial court, however, instructed Judge Nauhaus not to
answer the question, noting that it “had nothing to do with” the evidentiary
hearing and that it was irrelevant. Id. McCullough’s counsel did not object
to the trial court’s instruction. Instead, counsel asked Judge Nauhaus a follow-
up question relating to a possible investigation by the JCB pertainnig to
McCullough’s case. The trial court again instructed Judge Nauhaus that he did
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not “have to answer that either.” Id. McCullough’s counsel once again did
not object and continued his examination of Judge Nauhaus. Judge Nauhaus
then testified that he did not recall advising the Commonwealth or McCullough
of his telephone call with Attorney Pushinsky relating to the habeas motion.
Id. at 34-35.
Next, Judge Nauhaus denied that there was a second ex parte telephone
call with Attorney Pushinsky.9 Id. at 35. When asked whether he recalled
Attorney Pushinsky calling his chambers to set up a status conference, Judge
Nauhaus answered in the negative. Id. at 35, 37. McCullough’s counsel
thereafter questioned Judge Nauhaus about the allegation that he
communicated to Attorney Pushinsky through a mutual friend to go non-jury.
Id. at 37. Judge Nauhaus acknowledged that Attorney Pushinsky and he had
____________________________________________
9 As the parties concede, this second ex parte telephone call between Judge
Nauhaus and Attorney Pushinsky was never raised or challenged in the recusal
petition or at any point during the initial phase of this appeal. See
McCullough’s Supplemental Brief at 14, n.4; Commonwealth’s Supplemental
Brief at 22, n.5. McCullough also does not establish how or when he
discovered this alleged second ex parte telephone call. Additionally, our
December 19, 2018 remand order explicitly directed the trial court to conduct
a new evidentiary hearing on the recusal petition. Thus, because
McCullough did not allege the second ex parte communication in the recusal
petition, we agree with the Commonwealth’s assertion that he abandoned his
right to seek recusal on that basis. Commonwealth’s Supplemental Brief at
22, n.5. Insofar as McCullough attempts to raise the second ex parte
communication at the May 1, 2019 evidentiary hearing, we decline to consider
it because it was beyond the scope of our remand order. See
Commonwealth v. Sepulveda, 144 A.3d 1270, 1280 n.19 (Pa. 2016)
(noting that “where a case is remanded for a specific and limited purpose,
issued not encompassed within the remand order may not be decided on
remand, as a remand does not permit a litigant a proverbial second bite at
the apple.”) (citation omitted); see also Pa.R.A.P. 2591.
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a mutual friend, Paul Needle (“Mr. Needle”) whom he described as a
psychologist. Id. at 37, 43. Judge Nauhaus denied that he discussed with
Mr. Needle his preference for McCullough to go non-jury. Id. at 38. On the
contrary, Judge Nauhaus testified that he prefers “jury trials over non-jury
trials.” Id. at 38. Nonetheless, Judge Nauhaus testified that he shared with
Mr. Needle his general observation that McCullough’s case lacked jury appeal
because McCullough “was charged with scamming a demented, old woman
who had no heirs, but a load of money.” Id. at 47-48. Judge Nauhaus further
testified that he “talked to [Mr. Needle] about trial strategy” on a lot of cases,
including McCullough’s. Id. at 46. Finally, McCullough’s counsel questioned
Judge Nauhaus about the allegation that, during the pendency of McCullough’s
trial, Judge Nauhaus discussed with his secretary that McCullough was guilty
of five counts of theft. Id. at 39-41. Judge Nauhaus denied the allegation,
explaining that “[a]t the time of the trial, whether you know it or not, I was a
Senior Judge. And as a Senior, I didn’t have an assigned secretary. I shared
a secretary with I believe two other judges. That woman’s name was Peggy
Moore [(“Ms. Moore”)].” Id. at 40.
On cross-examination, Judge Nauhaus denied that he was friends with
Attorney Pushinsky or that he socialized with Attorney Pushinsky. Id. at 41.
Judge Nauhaus also denied that he yelled at Attorney Pushinsky during the
first telephone conversation relating to the habeas petition. Id. Judge
Nauhaus explained that he did not think his telephone call to Attorney
Pushinsky was improper because he was not discussing the issues involved.
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Id. at 42. “I was telling him when the hearing was going to be and I just
wanted this case to go forward. It was foot dragged.” Id.
Elaborating on his interaction with Mr. Needle, Judge Nauhaus
remarked:
I was not trying to back channel. I didn’t even know that he knew
[Attorney] Pushinsky. I was basically talking about the fact that
I knew about the case had no jury appeal at all. And we were just
talking about the whole case and the fact that there should be
consideration for a non-jury trial with a case like that. This was
[(sic)] case involved with scamming a demented woman.
Id. at 43. Judge Nauhaus further stated that Attorney Pushinsky never
responded to him in any way about the communication with Mr. Needle and
that Mr. Needle never gave him any feedback about Mr. Needle’s conversation
with Attorney Pushinsky. Id. at 43-44. Judge Nauhaus repeated that he
preferred jury trials because they were easier. Id. at 44. He once again
denied that he ever discussed McCullough’s case with his secretary, Ms.
Moore, and that he fairly and impartially presided over McCullough’s trial. Id.
at 45. Judge Nauhaus acknowledged that he did not let any anger toward
Attorney Pushinsky or McCullough affect the outcome of McCullough’s trial.
Id. Finally, in answering the question whether he felt any reason to recuse
himself from the guilt phase of McCullough’s trial, Judge Nauhaus stated:
At the time the motion was filed, the answer to that was no.
Eventually, I did recuse. It had to do with the fact I didn’t think I
could fairly sentence after all of these motions and all of these
things occurred. I didn’t think I could fairly sentence him. I asked
Judge Manning to assign it to someone else. So I did recuse
myself, but not for the reasons that were listed in the original
[recusal] petition.
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Id. On re-direct, Judge Nauhaus explained that he sent a letter to Judge
Manning “asking to give it to someone else.” Id. at 48. Judge Nauhaus denied
any involvement in sentencing McCullough. Id. at 48-49.
Judge Cashman noted that he entered Judge Nauhaus’ recusal on the
record at the sentencing hearing, explaining:
Judge Nauhaus told me that he had come from his position that
his blood pressure was off the chart and he couldn’t handle it any
further. And that’s why he gave it to Judge Manning, who was the
President Judge who supervises the work of the Senior Judges.
And Judge Manning as the President Judge gave it to me because
at the time I was the Administrative Judge in the Criminal Division.
Id. at 50-51. McCullough’s counsel acknowledged that there were no “threats
at the [status] conference” for McCullough to go non-jury. Id. at 55.
McCullough next called to the stand Attorney Pushinsky. Id. at 56. At
the start of Attorney Pushinsky’s testimony, McCullough waived his
attorney/client privilege in connection with any ex parte communications his
former counsel, Attorney Pushinsky, had with Judge Nauhaus as set forth in
the recusal petition. Id. at 57. Attorney Pushinsky testified that he was
McCullough’s trial counsel in the instant matter. Id. at 58. He testified that
he filed a habeas petition on December 29, 2014 and that, shortly thereafter,
he received a telephone call from Judge Nauhaus regarding the habeas filing.
Id. at 58-59. Attorney Pushinsky testified that Judge Nauhaus called his office
and talked to him after his secretary transferred Judge Nauhaus’ call to him.
Id. at 59. Attorney Pushinsky described Judge Nauhaus as “pretty upset” or
“upset, angry, bothered.” Id. Attorney Pushinsky recalled that Judge
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Nauhaus’ voice was raised and that he “started yelling at me about the motion
I had just filed.” Id. at 59-60. Describing the nature of Judge Nauhaus’
comments, Attorney Pushinsky recalled Judge Nauhaus stating that “[t]he
motion was improper. It was too long, you attached too many things to it.
Habeas corpus motions should properly be decided solely on the transcript.
And therefore, the arguments that I included in the motion and documentary
exhibits that were attached to the motion were improper.” Id. at 60. Attorney
Pushinsky testified that he found Judge Nauhaus’ response to be improper.
Id. Attorney Pushinsky also testified that he told Judge Nauhaus that he
was going to do [his] job as a lawyer and file the motions I thought
were appropriate. And that his job was rule on the motions. And
if he didn’t like the motions or thought the motion was incorrect,
he could rule against [him] and if I wanted to and thought it
appropriate, I take him up on appeal. His job was to decide
motions and my job was to file them.
Id. at 61. Attorney Pushinsky estimated that the telephone call with Judge
Nauhaus lasted five to ten minutes. Id. Attorney Pushinsky acknowledged
that prior to Judge Nauhaus’ call, he had never received a telephone call from
a judge regarding the filing of a habeas motion. Id. at 61-62. Attorney
Pushinsky confirmed that the Commonwealth and McCullough were not on the
telephone call with Judge Nauhaus. Id. at 62. Attorney Pushinsky added that
he would have declined to receive Judge Nauhaus’ call had he known the
reason for the call. Id.
I didn’t know why I got the phone call. If I had known in advance
what the phone call was going to be about, I wouldn’t have taken
the phone call. When my secretary said that Judge Nauhaus was
on the line, I had no idea what the call was about. He may have
wanted to say come in tomorrow for a status conference. I didn’t
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know what the conversation would be when I took [the] phone
call.
Id. Attorney Pushinsky testified that he considered Judge Nauhaus’ call to be
improper and ex parte communication. Id.
Attorney Pushinsky next testified about the second ex parte
communication he had with Judge Nauhaus. Id. at 63. Attorney Pushinsky
testified that, at some point prior to trial, he called Judge Nauhaus’ chambers
to schedule a status conference. Id. Someone on Judge Nauhaus’ staff
answered the call and placed him on hold. Id. at 63-64. Thereafter, according
to Attorney Pushinsky, Judge Nauhaus got on the line. Id. at 64.
The Judge wanted to know what I was calling about. I said
that I wanted to have a status conference and there were certain
issues related to the case that I thought should be discussed prior
to normal court proceedings. Issues on how to either address,
and I don’t mean answer necessarily, but how would we go to
present the issues.
....
The Judge asked what the issues were what I wanted to discuss
on the status conference.
Id. at 64-65. Attorney Pushinsky relayed that he neither anticipated speaking
directly with Judge Nauhaus nor wanted to discuss any substantive issues with
him. Id. at 63. As a result, when asked by Judge Nauhaus about what issues
he wanted to discuss, Attorney Pushinsky recalled telling Judge Nauhaus
something to the effect: “[y]ou don’t really want me to tell you now, do you?
Id. at 65. Judge Nauhaus, however, responded in the affirmative. Id.
I told him what the first issue was. He said, next. I told him what
the next issue, and he said no. I don’t remember how many
issues. But I was told that there would be no status conference
on those issues that I thought we should discuss at a status
conference.
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Id. Attorney Pushinsky testified that he did not discuss with Judge Nauhaus
whether McCullough would testify at trial. Id. at 66. He further testified that,
although Judge Nauhaus denied him the opportunity to have a status
conference, Judge Nauhaus did not deny any relief on the merits. Id. (“There
was no suggestion of what the rulings would be on the substantive issues.”).
Attorney Pushinsky relayed that the Commonwealth was not a part of this
second exchange with Judge Nauhaus. Id. at 64. Attorney Pushinsky testified
that he “worked very closely” with McCullough and that he discussed with
McCullough his call to Judge Nauhaus’ chambers. Id. at 68.
Attorney Pushinsky also testified about his communication with Mr.
Needle, a mutual friend of his and Judge Nauhaus’, relating to non-jury trials.
Id. Attorney Pushinsky recalled that, prior to trial, Mr. Needle conveyed to
him that Judge Nauhaus “thought we should consider going non-jury. I can’t
say that there was a preference for, that the Judge relayed a preference. That
was what the friend said to me.” Id. at 68. In clarifying, Attorney Pushinsky
stated that “I guess Judge Nauhaus was talking to [Mr. Needle] about the trial
that he was doing. And [Mr. Needle] said, Pushinsky should think about
going non-jury.” Id. at 70 (emphasis added). Attorney Pushinsky testified
that he and McCullough had “extensive discussions about the jury/non-jury
selection.” Id. at 72. Attorney Pushinsky further testified that McCullough
did not pursue a recusal motion until after verdict. Id. at 72.
On cross-examination, Attorney Pushinsky acknowledged that he did not
socialize with Judge Nauhaus. Id. at 73. Attorney Pushinsky recalled that
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when he entered his appearance, this case was before the Honorable Donald
Machen. Id. When McCullough inquired about Judge Machen’s reputation and
judicial temperament, Attorney Pushinsky relayed:
I would have told him that Judge Machen was known to be
mercurial and that he can appear on the bench one day as your
best friend, and the next moment fly off the handle. Go in
different directions, so you didn’t know who you were going to see
when you went before Judge Machen. And I believe I had a good
relationship with Judge Machen.
Id. at 74-75. Attorney Pushinsky recalled that he also had a conversation
with McCullough about Judge Nauhaus’ judicial temperament when this case
was assigned to him. Id. at 75.
With all the years that I’ve had, I’ve never had a case before Judge
Nauhaus. So I could only relate what I have heard from other
people. And he could be extremely acerbic, arrogant. And that I
speak to a number of lawyers who I could talk to who may have
had more experience with Judge Nauhaus to find out what it was
like to practice before Judge Nauhaus.
Id. at 75-76. Attorney Pushinsky reaffirmed that Judge Nauhaus called him
after he had filed the habeas petition to yell at him. Id. at 79 (“It wasn’t the
first time a judge has yelled at me and it probably wouldn’t be the last.”).
Attorney Pushinsky acknowledged that although he entered his appearance in
October 2011, he did not file the habeas petition until December 29, 2014.
Id. at 81. Explaining the timing of the habeas filing, Attorney Pushinsky
testified:
The file at that point was extensive. It would have taken me a
long time to go through with it. We had a change in Judge’s [sic].
That would have entailed change in strategy. Perhaps we didn’t
think the motion was appropriate while it was before Judge
Machen. If you tell me when Judge Nauhaus was assigned the
case, it probably wouldn’t have been all that long after Judge
Nauhaus got the case. And we started developing the case for it
to be tried before Judge Nauhaus.
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Id. at 81-82. For purposes of providing background, Attorney Pushinsky
testified:
I knew that the Judge was going to be leaving for a lengthy
vacation. [McCullough] and I believed that it was important to
get the motion in his hands before he left town. We actually, as I
recall, considered that he might get angry if we filed after he left
town. So as I recall, timed the filing so that he could have it, he
could take it with him and rule on it at his leisure. He’s going to
be away and there was nothing that was going to happen at the
trial. We weren’t looking for a ruling in the next 48 or 72 hours.
Nothing was going to occur until he came back to Pittsburgh[.]
Id. at 83-84. Attorney Pushinsky described his reaction after receiving Judge
Nauhaus’ call. Id. at 82. “I got angry and I yelled back at the Judge, so
physically upset[.] But I said to him, my job is to file motions and you rule
on them. You do what you want and I will take whatever appropriate action
we have for it.” Id. Attorney Pushinsky denied being intimidated by Judge
Nauhaus or being visibly shaken. Id. at 82-83. Attorney Pushinsky remarked
that he informed McCullough about Judge Nauhaus’ phone and discussed it
with McCullough in his office. Id. at 83. Attorney Pushinsky, however, denied
informing the Commonwealth:
Because I thought the Judge was blowing off steam. He was angry
that he got dropped this 100-page document on the eve of him
going away, and he got angry. Just like I said to [McCullough], I
would get angry and yell. I thought the Judge got angry. Yes, it
was improper. Would I have taken the call if I knew what the call
was about? The answer would be no. I didn’t think it really
addressed merit issues in terms of the merits of the case. And so
I didn’t want to make a mountain of what at that point I perceived
as a mole hill, even if it was improper.
Id. at 84-85. Attorney Pushinsky also denied that Judge Nauhaus’ call
influenced his opinion about whether McCullough should proceed jury or non-
jury. Id. at 85. He testified that he did not believe Judge Nauhaus’ call was
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a sufficient basis to seek his recusal. Id. Attorney Pushinsky acknowledged
that, during a hearing on February 2, 2015, he specifically rejected Judge
Nauhaus’ invitation to have McCullough seek his recusal in this case. Id. at
89.
Attorney Pushinsky remarked that he informed McCullough of his
conversation with Mr. Needle. Id. at 90. He, however, denied following up
with Judge Nauhaus on his conversation with Mr. Needle. Id. Attorney
Pushinsky conceded that he viewed his conversation with Mr. Needle as ex
parte, “but no different than any time the Judge’s [(sic)] in the Criminal
Division or even Civil Division suggest to counsel they ought to consider going
to a non-jury.” Id. Attorney Pushinsky, however, denied the allegation that
he told McCullough that Judge Nauhaus would sandbag him. Id. at 91. He
explained that he did not think a judge is going to “screw over, sandbag a
party that decides not to go in that direction. There was nothing said by Judge
Nauhaus that indicated to me that as much as I disagree with his verdict, he
wouldn’t do anything other than decide the case as he thought it should be
decided.” Id. Attorney Pushinsky testified that he did not view his
conversation with Mr. Needle as an implicit threat from Judge Nauhaus. Id.
at 92. Finally, Attorney Pushinsky acknowledged that it was McCullough’s
decision to go non-jury. Id. at 93 (“I looked over at [McCullough] and he
nodded his head at me. So I said, Your Honor we’ll go non-jury.”); see id. at
102 (noting McCullough decided to go non-jury).
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Following Attorney Pushinsky’s testimony, the Commonwealth informed
the trial court that it was withdrawing its offer to nolle pros the 2016 charges.
Id. at 104-05. McCullough objected. In so doing, he noted that he agreed
with the offer and that the Commonwealth withdrew it only because he
objected to the Commonwealth’s examination of Attorney Pushinsky based on
attorney/client privilege. Id. at 105, 115. The parties eventually stipulated
that McCullough “was in agreement with the offer.” Id. at 118.
McCullough next called Mr. Schmotzer to the stand, who testified that
he was a friend of McCullough, noting that this case has strained their
friendship. Id. at 107-08. Mr. Schmotzer indicated that he repeatedly urged
McCullough to opt for a jury trial. Id. at 108-09. Initially, Mr. Schmotzer
declined to answer questions about what he shared with McCullough six to
seven weeks prior to the verdict being rendered in this case. Id. at 108-09.
He then testified that he “spoke with one or two persons” about Judge
Nauhaus’ uncertainty relating to the charges pending against McCullough. Id.
at 112. While declining to name the individuals involved, Mr. Schmotzer
testified:
I will not give you their names. I will tell you this. It’s the
secretary from what I can recall. It was the secretary that
motivated the Judge to say something like, you have to find him
guilty because I think the charges were dismissed on all the small
counts. I think it was the secretary who was doing the motivation
of telling the Judge that he has to be found guilty of something
because of the optics of the case. I believe [McCullough] is an
honest man and a good man. But that’s not what the optics of
this case is.
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Id. Mr. Schmotzer, however, repeatedly refused to reveal the identity of the
source for this information, claiming that he gave the person his “word” and
would not break confidences. Id. at 113. In turn, Judge Cashman found Mr.
Schmotzer in civil contempt pending his identification of the source. Id.
Thereafter, McCullough asked the trial court’s permission to offer the
testimony of Attorney Pollock, who represents him in connection with the 2016
charges. Id. at 115. Among other things, McCullough sought to establish
that Attorney Pollock observed Judge Nauhaus in Judge Cashman’s chambers
“immediately prior to sentencing.” Id. Judge Cashman remarked: “I will
stipulate to that. He was in my chambers. And he was telling me his position
for recusal.” Id. at 116. Judge Cashman further stated that Judge Nauhaus
did not discuss McCullough’s case, but rather that “his blood pressure was out
of whack.” Id. Finally, Judge Cashman denied any involvement by Judge
Nauhaus in fashioning McCullough’s sentence. Id.
Judge Cashman asked Mr. Schmotzer to be brought back to cure the
contempt. Id. at 119. After Judge Cashman indicated that he would conduct
a contempt hearing the following day, Mr. Schmotzer agreed to answer the
question. Id. at 122-23. Mr. Schmotzer explained:
The Judge and the secretary were in their chambers. And they
were having a discussion, just talking. And the secretary
volunteered what she thought of the case. Judge Nauhaus has
not made a decision yet. From what I recollect, she said that
you have to convict him of something.
....
I think he was leaning towards an acquittal.
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Id. at 123. According to Mr. Schmotzer, this conversation was relayed to him
by a court employee. Id. He identified the empoyee as Janine Palmer who
also goes by Janine McVay (“Ms. McVay”). Id. at 125.
On cross-examination, Mr. Schmotzer acknowledged that he did not
know whether Ms. McVay worked in the court system when he spoke to her
about McCullough’s case. Id. at 125. When the Commonwealth confronted
Mr. Schmotzer about testimony at the November 19, 2015 hearing where he
stated that he told McCullough to go non-jury, Mr. Schmotzer remarked that
the transcript was “100 percent wrong.” Id. at 126-27.
Attorney Megan Will testified next. She testified that Mr. Schmotzer’s
recollection of what he said at the November 19, 2015 hearing was
inconsistent. She testified that “[a]t the hearing, he testified that he did tell
[McCullough] to go non-jury. He confirmed that with me on the phone the
night before that hearing.” Id. at 129 (emphasis added). The trial court kept
open the record for additional testimony.
On May 8, 2019, Judge Cashman resumed the evidentiary hearing, at
which McCullough offered the testimony of Mr. Needle, Ms. McVay and Ms.
Moore, Judge Nauhaus’ secretary. N.T. Hearing, 5/8/19, at 3.
Mr. Needle, a self-employed psychologist, testified that he had known
Judge Nauhaus for twenty-two years. Id. at 4-5. He recalled that he came
to be friends with Judge Nauhaus because they worked out at the same gym
at the same time. Id. at 5. He testified that he has known Attorney Pushinsky
for “[a]pproximately the same amount of time.” Id. Mr. Needle considered
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Attorney Pushinsky to be a friend. Id. Mr. Needle confirmed that he was a
mutual friend of Judge Nauhaus and Attorney Pushinsky. Id. at 6. Mr. Needle
testified that, prior to McCullough’s trial, he had a discussion with Judge
Nauhaus about a case. Id. at 6, 9. “I didn’t know at the time the man’s name
or what the case was about.” Id. at 6. Mr. Needle recalled that Judge
Nauhaus discussed with him his thoughts about the case. Id. Specifically,
Mr. Needle testified that “[Judge Nauhaus] said that he had read the case very
carefully and there was a lot of material. And it was his opinion that perhaps
a jury might not always understand the complexities of the case. So he
thought perhaps a non-jury trial would be appropriate.” Id. Mr. Needle,
however, could not recall Judge Nauhaus’ exact words. Id. According to Mr.
Needle, at the time he discussed McCullough’s case with Judge Nauhaus,
Judge Nauhaus was aware that Mr. Needle was friends with Attorney
Pushinsky. Id. at 7. Mr. Needle recalled that the conversation about
McCullough’s case “was fairly short,” “no more than five minutes. Id. at 7-9.
This discussion occurred in Judge Nauhaus’ living room with no one else
present. Id. at 8. Mr. Needle denied having any other conversations with
Judge Nauhaus regarding McCullough’s case. Id.
Mr. Needle testified that he had a conversation with Attorney Pushinsky
at a mutual friend’s dinner party, where he informed Attorney Pushinsky “what
I was told by Judge Nauhaus that he thought the case was highly complicated,
and perhaps a non-jury trial would be appropriate.” Id. at 9-10. Mr. Needle
recalled Attorney Pushinsky’s response. “He said, thank you very much, but
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I will give this information to my client. However, this decision is up to him
and not to me.” Id. at 10. According to Mr. Needle, his conversation with
Attorney Pushinsky lasted only a “few minutes.” Id. at 10. Mr. Needle also
testified that he did not have any follow-up discussions with Judge Nauhaus
regarding McCullough’s case after he spoke to Attorney Pushinsky. Id. at 11.
He also denied having any additional discussions with Attorney Pushinsky. Id.
On cross-examination, Mr. Needle denied that Judge Nauhaus instructed
him to tell Attorney Pushinsky that McCullough should opt for a non-jury trial.
Id. at 12.
McCullough next presented the testimony of Ms. McVay for purposes of
corroborating Mr. Schmotzer’s testimony. Id. at 14. Ms. McVay testified that
she knew Mr. Schmotzer because she worked for him in 2012. Id. at 15. She
testified that she was “good friends” with Mr. Schmotzer. Id. at 16. Ms.
McVay relayed that she also was friends with McCullough whom she first met
“through Allegheny County politics.” Id. She testified that she would
occasionally go out with Mr. Schmotzer and McCullough to talk about politics.
Id. at 17. Although she acknowledged that they discussed his charges, Ms.
McVay denied that they ever discussed McCullough’s trial. Id. According to
Ms. McVay, she was employed as a minute clerk by Allegheny County
courthouse when McCullough’s trial commenced in April 2015. Id. She
described that a minute clerk was tasked with assisting “the Judge in the
courtroom and do court orders.” Id. at 17-18. Ms. McVay, however, was a
floater, not assigned to any particular courtroom. Id. at 18. She further
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relayed that, as of the time of the hearing, she held the same position in the
courthouse. Id. When asked whether she could recall a conversation with
Ms. Moore, where Ms. Moore told her that she convinced Judge Nauhaus to
convict McCullough of the theft charges, Ms. McVay denied any knowledge of
any such conversation. Id. at 18-19. In fact, she denied ever having this
type of conversation with anyone. Id. at 18. Ms. McVay also denied that she
ever had this type of discussion with Mr. Schmotzer. Id. at 19. Specifically,
she denied that she ever had a conversation with Mr. Schmotzer “about the
verdict” in McCullough’s case. Id. Ms. McVay also denied that she told Mr.
Schmotzer not to reveal that she had a conversation with him. Id. at 21.
Similarly, according to Ms. McVay, Mr. Schmotzer never told her that he was
not going to reveal that she was the individual with whom he had the
discussions. Id.
On cross-examination, Ms. McVay reaffirmed that Ms. Moore “never told
[her] that Judge Nauhaus felt that the Commonwealth had not proved its
case.” Id. at 20. Likewise, she also reaffirmed that she “never told Mr.
Schmotzer that [Ms.] Moore told [her] that Judge Nauhaus felt that the
Commonwealth had not proven its case.” Id.
McCullough called his last witness Ms. Moore, who testified that she
works as a secretary to Judge Manning at the Allegheny County Courthouse.
Id. at 22. She testified that during McCullough’s trial, she was loaned out to
Judge Nauhaus. Id. She denied that she knew McCullough personally. Id.
However, she conceded that she knew “him from court.” Id. Ms. Moore
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testified that she knew Attorney Pushinsky, but denied any recollection of
Judge Nauhaus calling him following his filing of the habeas petition. Id. at
22-24. She also denied any recollection of Attorney Pushinsky calling Judge
Nauhaus’ chambers in connection with a status conference. Id. at 24. Ms.
Moore further denied the allegation that she had conversations with Judge
Nauhaus regarding the verdict in McCullough’s case during the pendency of
the case. Id. Specifically, she denied that she discussed with Judge Nauhaus
that the Commonwealth had not proven its case beyond a reasonable doubt.
Id. Ms. Moore recalled that she “may have talked about it with pleadings and
stuff, because I had to put all that stuff in order.” Id. at 24-25. She also
denied discussing the verdict in McCullough’s case with Ms. McVay or in the
presence of Ms. McVay. Id. at 25. Ms. Moore testified that she did not know
Ms. McVay as she was new to the courthouse at the time. Id. On cross-
examination, Ms. Moore rejected the allegation that she “ever t[old] Ms.
McVay that Judge Nauhaus had told [her] that the Commonwealth had not
proven its case against [McCullough], and that he felt compelled to issue a
verdict[.]” Id. at 26.
Given Ms. McVay’s and Ms. Moore’s testimony, McCullough’s counsel
abandoned Mr. Schmotzer’s allegation as a basis for seeking Judge Nauhaus’
recusal. Id. at 42 (“I can’t argue the merits of the petition on that point in
light of the testimony. I will not do that.”). Following the hearing, Judge
Cashman denied McCullough’s recusal petition for want of merit. See Trial
Court Order, 5/8/19. McCullough filed a supplemental appeal. The trial court
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directed McCullough to file a supplemental Rule 1925(b) statement.
McCullough complied, raising ten assertions of error containing multiple sub-
issues and spanning seven pages. In response, the trial court issued a
detailed supplemental Rule 1925(a) opinion, concluding that McCullough’s
recusal petition lacked merit.
On appeal before us,10 in addition to the two remaining issues regarding
sufficiency, see supra, at 20, McCullough now presents the following four
supplemental issues which we have renumbered for ease of disposition:
[III.] Whether the trial court erred in failing to grant McCullough
a new trial when Judge Nauhaus’ conduct established his lack of
impartiality and appearance of bias and impropriety?
[IV.] Whether Judge Nauhaus’ actions in discussing matters
pertaining to the resolution of McCullough’s case violated his
constitutional right to be present at all relevant proceedings?
[V.] Whether the trial court erred in quashing the subpoena to the
[JCB] where McCullough requested only witness statements that
went directly to the resolution of his recusal petition?
[VI.] Whether the trial court erred in failing to find prosecutorial
misconduct in the Commonwealth’s unilateral decision to rescind
____________________________________________
10 On July 10, 2019, we granted the JCB’s application to intervene in this
appeal to address McCullough’s fifth (“V”) supplemental issue. Upon invitation
by this Court, the JCB filed an intervenor’s brief on November 19, 2019. The
JCB asserts that the trial court did not err in granting its motion to quash
McCullough’s subpoena because Article V, Section 18 of the Pennsylvania
constitution mandates that the confidentiality of the complaints to, and the
investigations by, the JCB be protected. See Intervenor’s Brief at 12. The
JCB aptly notes that McCullough “does not cite any binding cases where a
court ordered the production of materials that were constitutionally protected
in a criminal trial, let alone a recusal hearing.” Id. at 20. The JCB points out
that, although he raised it below, McCullough has abandoned his argument
that “his Confrontation Clause rights under the Sixth Amendment or Article I,
Section 9 have been violated” by failing to assert it before us. Id. at 21, n.9.
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the agreement it had with McCullough to nol[le] pros charges
pending against him in exchange for his testimony at the recusal
hearing?
McCullough’s Supplemental Brief at 1 (unnecessary capitalizations omitted).11
We address Appellant’s claims seriatim. As mentioned, in addition to
the foregoing,12 McCullough argues his convictions for theft by unlawful taking
and misapplication of entrusted funds were not supported by sufficient
evidence.
With respect to his convictions for theft by unlawful taking, McCullough
claims the Commonwealth failed to prove beyond a reasonable doubt that he
knowingly and unlawfully took Jordan’s property because (1) he was a co-
trustee of Jordan’s estate; (2) served as her attorney; and (3) possessed, in
his opinion, a valid power of attorney authorizing him to ask other co-trustees
to issue checks from her estate. McCullough’s Brief at 31-42.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
____________________________________________
11We note that McCullough filed his supplemental reply brief on December 2,
2019.
12 McCullough seeks recusal based upon only the two telephone conversations
between Judge Nauhaus and Attorney Pushinsky and Mr. Needle’s
conversations with Judge Nauhaus and Attorney Pushinsky. As mentioned
earlier, however, we decline to consider the second alleged ex parte
conversation between Judge Nauhaus and Attorney Pushinsky. See, supra,
at note 10.
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addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
Section 3921(a) of the Crimes Code provides that “[a] person is guilty
of theft if he unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.” 18 Pa.C.S.A. §
3921(a).
Here, upon review of the evidence viewed in a light most favorable to
the Commonwealth as the verdict winner, we agree with the trial court’s
conclusion that the Commonwealth proved beyond a reasonable doubt that
McCullough committed theft by unlawful taking. See Trial Court Opinion,
5/1/17 at 32-40. The trial court found that McCullough drafted the springing
power of attorney in question, which called for Jordan to be declared
incompetent only upon a physician’s written determination. The trial court
further found that the power of attorney was not valid because a physician
never determined—nor put a determination in writing—that Jordan was
incompetent. Thus, in the absence of a written determination of incapacity by
a physician, the power of attorney was not valid. Without a valid power of
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attorney, McCullough could never have been a co-trustee of Jordan’s estate
or obtained her property to use as his own. In specific, the trial court found
that “[i]f McCullough had no power of attorney then he was incapable of
exercising control over Jordan’s property, could not have been appointed a
co-trustee of her estate and could only act as an attorney for Jordan.” Id. at
32. As a result, McCullough’s actions with respect to Jordan’s property were
unlawful.
Moreover, neither PNC nor Northwest Bank conducted an independent
investigation as to the validity of the power of attorney. The trial court found
that PNC was presented with a copy of the power of attorney which had a
medallion attached to it which only indicated what was being given to PNC
was a true and correct copy of the power of attorney that was given to
McCullough. Because McCullough had appointed himself co-trustee and was
acting not only in a capacity as Jordan’s lawyer, but also as Jordan herself,
PNC presumed that the power of attorney was valid. Similarly, when
McCullough dissolved the trust and directed PNC to file a first and final
account, he presented the power of attorney to Northwest Bank. In so doing,
he represented to Northwest Bank that the power of attorney was valid given
his ability to terminate the PNC trust. In light of McCullough’s representations,
the banks did not make an independent determination about whether the
springing feature in the power of attorney had occurred to render the power
of attorney valid.
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Relatedly, when McCullough joined Eckert Seamans and brought Jordan
over as a client, the lawyers that were working with him on Jordan’s affairs
also treated the power of attorney as being valid and made no independent
investigation as to whether or not the springing feature of that power of
attorney had occurred. “The fact that two banking institutions and several
lawyers did not do their independent investigation does not validate the power
of attorney, nor does it establish that McCullough was unaware of the invalidity
of the power of attorney that he created.” Id. at 36.
The trial court further determined that McCullough had conflicts of
interest in administrating Jordan’s trust. The trial court credited the testimony
of Frances Johnston of PNC who testified that she became uncomfortable with
the manner in which McCullough was handling Jordan’s affairs. Ms. Johnston
described the responsibilities of a trustee as, inter alia, administering “the
trust for the benefit of that individual, not the benefit of the trustee.” Id. at
34. “There is a duty to control and protect the trust property. There’s a duty
to keep the trust property separate from the property of the fiduciaries. And
there is a duty to avoid conflicts of interest.” Id. Ms Johnston specifically
testified that she observed “numerous conflicts with respect to the manner in
which McCullough was handling Jordan’s affairs.” Id. The trial court
summarized Ms. Johnston’s concern:
McCullough wanted his sister to be appointed as a caregiver to
Jordan at a rate higher than the normal rate. She also expressed
a concern that the ten-thousand-dollar check given to Catholic
Charities was not in Jordan’s interest. In addition, she was
concerned that the purchases of a five-hundred-thousand-dollar
certificate of deposit from another bank would dilute the control
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of [PNC] over Jordan’s assets. She was particularly concerned
about the fact that McCullough wanted the ninety-year-old woman
to purchase commercial real estate from another of McCullough’s
clients and she viewed this an absolute conflict of interest. Finally,
of no small concern was the manner McCullough was micro-
managing Jordan’s affairs by expressing a desire to have his son
cut Jordan’s grass.
Id. at 35.
McCullough’s argument that he did not have absolute authority of
Jordan’s property and that Northwest Bank controlled the issuance of checks
is belied by the record. The trial court found that “[w]hen McCullough created
a new trust, Northwest Bank was one of the trustees and instead of having
two trustees, it had three. John Zadar from Northwest Bank, Jordan and
[McCullough].” Id. at 36. The trial court explained that the “net effect of
having these three trustees is that McCullough stacked the deck because
regardless of what Northwest Bank would care to do with Jordan’s funds, it
would always be outvoted since [McCullough] was a trustee and he [also]
would be acting pursuant to his power of attorney so that any vote would
always be two to one.” Id. As a result, McCullough had an absolute authority
to do whatever he desired to do with Jordan’s property or funds and, contrary
to McCullough’s assertions, Northwest Bank lacked any power to restrain him.
To the extent McCullough argues that the Orphans’ Court Division of the
Court of Common Pleas of Allegheny County accepted as valid the power of
attorney and that, as a result, the trial court was bound by the law of the case
and coordinate jurisdiction doctrines to defer to the Orphans’ Court’s ruling,
such argument is devoid of merit. As the trial court found, “the Orphans’
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Court never ruled on the validity of the power of attorney but, rather,
examined the first and final account as prepared by [PNC] during its tenure
as a trustee of Jordan’s property.” Id. at 37.
Finally, McCullough argues that he did not intend to deprive Jordan of
the benefit of her property because the gifts to Catholic Charities and the
political candidates were aligned with Jordan’s donative dispositions and that
he did not personally benefit from these donations. We disagree. The
testimony of Jordan’s prior lawyer revealed that she never made donations to
religious organizations and any donations to charities were concerned with
animals and helping the blind. Jordan never expressed an interest in donating
to religious charities. Id. at 40. Additionally, the trial court found that, by
putting his name on the donation checks, McCullough derived a personal
benefit to the detriment, and at the expense, of Jordan. The trial court found
that McCullough “specifically directed his secretary to type on the checks that
these checks were generated by him from Jordan’s estate. The only purpose
for the inclusion of his name is to ensure that he received a benefit for those
contributions.” Id.
Thus, based upon the foregoing and viewed in a light most favorable to
the Commonwealth, we agree with the trial court that the Commonwealth
proved beyond a reasonable doubt that McCullough committed theft by
unlawful taking. As the trial court concluded:
When looking at McCullough’s power of attorney, it is clear that
there is no evidence in the record which would establish that the
springing event necessary to validate the power of attorney was
ever presented. If McCullough had no such power of attorney,
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then any actions that he took with respect to Jordan’s property
were unlawful and demonstrated his intention to take Jordan's
property and deprive her of it. If the power of attorney was valid
then in looking at the entire record, it is clear that the actions
undertaken by McCullough were not designed to benefit Jordan,
but were rather in violation of his fiduciary duties and these
actions were designed for the sole purpose of benefitting
McCullough both personally and politically.
Id. at 35. Accordingly, McCullough’s sufficiency claim regarding theft by
unlawful taking fails.
We next address McCullough’s sufficiency claim regarding his
convictions for misapplication of entrusted property. In this regard,
McCullough argues that “the Commonwealth failed to prove beyond a
reasonable doubt that he requested donations be made from the estate of
[Jordan] for whom he was a fiduciary knowing that the donations were
unlawful and involved a substantial risk of loss and detriment to the owner.”
Id. at 43-51.
Section 4113(a) of the Crimes Code provides that a person commits
misapplication of entrusted property “if he applies or disposes of property that
has been entrusted to him as a fiduciary, or property of the government or of
a financial institution, in a manner which he knows is unlawful and involves
substantial risk of loss or detriment to the owner of the property or to a person
for whose benefit the property was entrusted.” 18 Pa.C.S.A. § 4113(a).
Here, upon our review of the record, viewed in a light most favorable to
the Commonwealth as the verdict winner, we agree with the trial court’s
conclusion that the Commonwealth proved beyond a reasonable doubt that
McCullough committed misapplication of entrusted funds. See Trial Court
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Opinion, 5/1/17 at 40-49. McCullough argues that there is no proof that he
knew that the contributions made from Jordan’s estate were either unlawful
or presented a risk of loss to her estate. In support, he points out that Jordan’s
estate increased in value by almost two million dollars during the period of
time that he handled the estate and, consequently, she did not suffer any
losses. We disagree. As the trial court explained, “[t]he value of Jordan’s
estate did not increase because of McCullough’s stewardship but, rather
because of the bull market that affected the more than ninety companies in
which Jordan held an interest.” Id. at 41. When McCullough authorized the
issuance of five checks for $10,000 each, Jordan’s estate was deprived of
$50,000. That money, however, was returned when the individual recipients
of the checks understood that Jordan did not authorize the issuance of the
checks. Moreover, the issuance of the checks, as the trial court found, “no
way demonstrates Jordan’s donative disposition since she had no history of
political contributions nor did she have a history of donating to religious
charities.” Id. As stated, one of Jordan’s prior lawyers credibly testified that
“she did not like religious charities and would never donate to them.” Id. The
trial court further observed:
In a blatant exercise of sophistry, McCullough maintains that no
theft or misappropriation of entrusted property had occurred since
all of the money that he gave away was returned by the recipients.
The theft and misappropriation occurred when he gave Jordan’s
money to others. The fact that the money was returned is of no
moment.
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Id. When a defendant “disposes of property that has been entrusted to him
as a fiduciary . . . in a manner which he knows is unlawful and involves
substantial risk of loss or detriment to the owner of the property” under
Section 4113 (a), his intent to “replace” that property in the future is
irrelevant. The only pertinent inquiry is whether he disposes of entrusted
property in a manner that he knows is unlawful and involves a substantial risk
of loss or detriment to the owner of the property. Instantly, McCullough
knowingly disposed of Jordan’s funds when he issued five checks totaling
$50,000 and in so doing, he caused an actual, not a merely a risk of, loss to
Jordan. The crime was completed at that time, regardless of the later return
of the funds. See generally Commonwealth v. Grife, 664 A.2d 116, 119-
20 (Pa. Super. 1995), appeal denied, 676 A.2d 1196 (Pa. 1996) (holding
that, in the context of a prosecution involving theft by deception, when the
defendant obtains money through intentional falsehoods, “intent to repay
does not necessarily negate the crime of false pretenses” and thus the fact
that the defendant “might have had plans to pay the creditors back is of no
moment.”).
We also reject McCullough’s related argument that he did not gain a
personal benefit from the donations. Specifically, McCullough claims that
$50,000 donations solely benefitted Jordan. As a result, McCullough suggests
that he did not dispose of Jordan’s property in a manner which he knew was
unlawful. We disagree. The trial court found that McCullough personally
benefitted from the contributions he made from Jordan’s estate, without
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authorization, to Catholic Charities and the four Republican candidates totaling
$50,000. The trial court specifically found that Jordan had no interest in
donating to religious charities or supporting Republican candidates.
According to the trial court, McCullough donated $10,000 from Jordan’s
estate to Catholic Charities after his wife, Patricia McCullough, informed him
that the organization was falling short of its fundraising goal. Patricia
McCullough then served as the Executive Director of Catholic Charities. The
trial court found that, once McCullough delivered the check to his wife, she
“advised the people intimately connected with the fundraising activities not to
disclose the names of the donor or the fact that this anonymous donor was a
client of her husband.” Id. at 42. The trial court also found that “[i]t was
obvious that the check was delivered to Catholic Charities to help Patricia
McCullough in her role as the executive director and show that she was an
effective fundraiser.” Id.
With respect to donating to the four political candidates, the trial court
found that McCullough benefitted personally.
McCullough went to the Lincoln Day Dinner and began passing out
the checks to Vincent Gastgeb, Susan Caldwell and Jan Rea,
knowing that Kevin Aklin had already been endorsed by Jan Rae,
Vincent Gastgeb and Jim Roddey. In addition to providing
Gastgeb with a ten-thousand-dollar check, he also made him his
finance director for his campaign. As a result of these activities,
especially the issuance of the checks, Gastgeb withdrew his
endorsement of Acklin and endorsed McCullough, as did Jan Rea.
This contention of the lack of receipt of benefits for these
contributions is contradicted by McCullough’s own words. When
it became apparent that McCullough was going to run for the
county at large seat, Michael Devanney, who was helping Acklin,
called McCullough to set up a meeting to discuss McCullough’s
intentions. At that meeting McCullough told Devanney that he had
a wealthy client who was going to be supportive of his campaign
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and was supportive of his interests. If one were to accept
McCullough’s contention that Jordan suffered from dementia at all
times material to this case, then she could never have made a
rational decision to support McCullough’s candidacy and be
financially supportive of that candidacy or, more importantly, how
could she have signed the power of attorney prepared by
McCullough.
Id. at 43. McCullough regarded Jordan’s “money as his own and was using
her as a private bank to finance his political ambitions.” Id. at 44.
McCullough’s contention that he derived no benefit from the donations is
contradicted by the record. The trial court explained:
There is no rational explanation why McCullough had to have the
checks almost immediately and that they be personally delivered
by him. There is no rational explanation as to why he had to have
his secretary type his name of these checks. There is no rational
explanation as to why he had to personally deliver the checks to
Rea, Gastgeb and Caldwell at the Lincoln Dinner which was shortly
before the [R]epublican party endorsement, especially in light of
the fact that none of these candidates were opposed in the
primary election, although one might suggest he was personally
delivering the checks to save Jordan the postage charges. The
only rational explanation for all of the actions was to benefit
McCullough’s political aspirations which was done when these
candidates withdrew their endorsement of Acklin and endorsed
McCullough.
Id. at 44. Thus, based upon the evidence presented at trial, as detailed above
and viewed in a light most favorable to the Commonwealth, we hold that the
Commonwealth proved beyond a reasonable doubt that McCullough
committed misapplication of entrusted funds. McCullough’s use of the funds
did not benefit Jordan for whose benefit the trust was established when
McCullough donated from the trust to Catholic Charities and contributed to
political campaigns. As a result, he is not entitled to relief.
We now turn to McCullough’s issues three, four, and five, as they all
relate to his claim that Judge Nauhaus should have recused himself. Upon
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thorough review, we conclude that McCullough has abandoned his right to
seek Judge Nauhaus’ recusal. As set forth above, he failed to seek Judge
Nauhaus’ recusal “at the earliest possible moment.”13 See Lomas v. Kravitz,
130 A.3d 107, 390 (Pa. Super. 2015) (en banc) (“If the party fails to present
a motion to recuse at that time, then the party’s recusal issue is time-barred
and waived.”), aff’d, 170 A.3d 380 (Pa. 2017). The facts adduced at the
evidentiary hearing following remand have clarified that McCullough indeed
was aware of the alleged ex parte conversations between Judge Nauhaus and
Attorney Pushinsky and Mr. Needle and Judge Nauhaus and Attorney
Pushinsky prior to trial. As the record, which is detailed above, reveals, “[a]ll
of these [ex parte] conversations occurred prior to McCullough’s decision as
to how to try his case and he was informed by [Attorney] Pushinsky almost
immediately after each conversation occurred and what was said during these
conversations. . . . McCullough was fully advised as to all of these
conversations and made a knowing, intelligent and voluntary decision to
proceed with a non-jury trial.” Trial Court’s Supplemental Opinion, 8/20/19
____________________________________________
13 As Judge Cashman astutely observed, we did not decide the issue of waiver
when we remanded McCullough’s case for a new evidentiary hearing on the
recusal petition for purposes of fleshing out facts. See Trial Court’s
Supplemental Opinion, 8/20/19 at 49-52 (“Since there was no ruling on the
question of waiver, [McCullough] is not subject to the law of the case because
there was no disposition on this particular claim. . . . McCullough waived his
right to file a petition for recusal since he did not do it at the first instance as
required by law.”). Although the dissent had asserted waiver, the majority
declined to do so at that juncture because the evidentiary record was not
properly developed.
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at 20-21. McCullough was colloquied in open court and waived his right to a
jury trial both orally and in writing. N.T. Trial, 4/9-4/14/15 at 40-43. In other
words, despite his knowledge of the ex parte communications, McCullough
decided to waive his right to a jury trial. McCullough sought recusal only after
receiving an unfavorable verdict. As the trial court found, “McCullough knew
at all times of the facts which could give rise to the filing of a motion for recusal
and rather than protect his rights by filing the appropriate motion for recusal,
[he] decided to hold in reserve these alleged claims of judicial misconduct as
a hedge against him being found responsible for his criminal activities.” Trial
Court’s Supplemental Opinion, 8/20/19 at 52. Accordingly, McCullough
waived his recusal claim.
As for McCullough’s contention that Judge Nauhaus’ actions in discussing
matters pertaining to the resolution of his case violated his constitutional right
to be present at all relevant proceedings, such contention is waived.
McCullough did not raise this argument in his initial appeal and only does so
now following remand. As a result, this issue falls outside the scope of the
remand. See supra note 10.
McCullough’s claim that the trial court erred in quashing the subpoena
to the JCB likewise would be without merit.14 As the trial court explained, the
____________________________________________
14 As noted earlier, McCullough’s claim regarding the quashal of his JCB
subpoena is related to his effort to seek Judge Nauhaus’ recusal. It was in
this context that McCullough issued a subpoena to the JCB on remand.
Because we have determined that McCullough does not obtain relief on the
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Pennsylvania constitution prohibits the JCB from disclosing whether or not any
type of judicial inquiry has ever taken place. Id. at 13. Additionally,
McCullough also would not obtain relief on his related confrontation clause
argument. The trial court explained:
The confrontation clause applies to a criminal proceeding where
evidence is sought to be presented against a defendant who has
been denied the ability to challenge that evidence.[15] The
information sought by McCullough from the [JCB] did not involve
a criminal proceeding against McCullough but, rather, involved a
potential inquiry concerning the handling of McCullough’s criminal
case; the focus, however, being Judge Nauhaus. The purpose of
the [JCB] is civil in nature although it may lead to criminal
indictment; however, it is not a criminal proceeding. As previously
noted, the focus of the inquiry if, in fact it took place, was not
McCullough but, rather, Judge Nauhaus.
Id. at 14. Accordingly, McCullough is not entitled to relief.
Lastly, with respect to McCullough’s claim of prosecutorial misconduct
relating to the nolle pros offer, we agree with the Commonwealth’s assertion
that McCullough has abandoned this issue on appeal. Commonwealth’s
____________________________________________
underlying recusal issue, we need not address and resolve this issue involving
the JCB. To the extent we do, we conclude that the issue is bereft of merit.
15 The Sixth Amendment’s Confrontation Clause provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” See U.S. CONST. amend. VI (emphasis
added). The United States Supreme Court has held that “this bedrock
procedural guarantee applies to both federal and state prosecutions.”
Crawford v. Washington, 541 U.S. 36, 42 (2004) (citation omitted). Article
I Section 9 of the Pennsylvania Constitution provides: “In all criminal
prosecutions the accused hath a right . . . to be confronted with the witnesses
against him.” Pa. Const. art. I, § 9 (emphasis added). In light of the federal
and state constitutions, it is clear that the confrontation clause applies only to
criminal proceedings. See Detterline v. D’Ambrosio’s Dodge, Inc., 763
A.2d 935, 939 (Pa. Super. 2000) (“There is no support in the plain meaning
of the Confrontation Clause for a civil right to confront witnesses.”) (emphasis
in original).
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Supplemental Brief at 47. As set forth in detail above, McCullough’s counsel
agreed with the trial court’s conclusion that the nolle pros offer was
premature. See N.T. Hearing, 5/1/19 at 27. Even if this issue were not
abandoned, McCullough still would not be eligible for relief based on the
reasons outlined in the trial court’s supplemental opinion. See Trial Court’s
Supplemental Opinion, 8/20/19 at 36-47. Generally, “[p]rosecutorial
misconduct occurs where the ‘unavoidable effect’ of the prosecutor’s actions
is to ‘prejudice the jury, forming in their minds fixed bias and hostility towards
the accused so as to hinder an objective weighing of the evidence and impede
the rendering of a true verdict.’” Commonwealth v. Chmiel, 777 A.2d 459,
464 (Pa. Super. 2001). Here, the trial court explained:
There is nothing in the Commonwealth’s actions which would
constitute prosecutorial misconduct since th[e trial court] did not
reject the Commonwealth’s offer to nolle pros the case but only
made the determination that at the time that the request was
made, it was premature since there was another action currently
pending which had to be resolved. Since there was no decision
on the Commonwealth’s request for a nolle pros, it had the
opportunity to reassess its position and did so, at which time it
made the decision not to nolle pros McCullough’s other case. That
decision did not constitute prosecutorial misconduct but rather
was a decision of case management.
Id. at 46. McCullough’s claim therefore fails.
In sum, based on the foregoing, we conclude that McCullough’s
sufficiency claims lack merit and his recusal claims are waived because he
failed to file the underlying recusal motion at the earliest possible moment.
McCullough’s prosecutorial misconduct claim similarly is waived and otherwise
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without merit. Accordingly, we affirm the trial court’s December 17, 2015
judgment of sentence.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/25/2020
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