Com. v. McCullough, C. ( 2018 )

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2018 PA Super 347COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES P. McCULLOUGH, : No. 233 WDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, December 17, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CC2009-10522
BEFORE: SHOGAN, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
DISSENTING OPINION BY FORD ELLIOTT, P.J.E.:
FILED DECEMBER 19, 2018
I very respectfully dissent. I do so because I believe this case and
Mr. McCullough’s claims represent nothing more than smoke and mirrors. The
Majority has carefully and thoroughly set forth the law on judicial impartiality,
recusal, and the panoply of a defendant’s rights and the need for a fair and
impartial trial. I agree with its discussion on the law. My concern is with the
application of that law to the facts of this case.
Because of the nature of the issue before us, and in the interests of full
disclosure, I report that I have known both Judge Lester G. Nauhaus and
President Judge Jeffrey A. Manning professionally and personally for many
years. As a member of the Superior Court for almost 30 years, I have affirmed
and reversed both judges on numerous occasions as the cases have
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warranted. I have personally and professionally known Mr. McCullough’s
counsel, Jon Pushinsky, Esq., for many years and have decided cases for and
against him as he appeared before this court as an advocate. I do not
personally know Mr. McCullough, however, I have great respect and regard
for his wife, Commonwealth Court Judge Patricia A. McCullough.
Any case must be taken in its context. For instance, Mr. McCullough is
not just any defendant, as he was, at the time of trial, an experienced lawyer.
This case was a very high profile case in Allegheny County with a great deal
of media coverage involving the acts of an attorney allegedly stealing money
from an elderly client. Perhaps for this reason, the Commonwealth originally
was the party seeking a jury trial and seeking to try both Mr. McCullough and
his sister, Kathleen McCullough, together on the charges involving
Mrs. Jordan. (See notes of testimony, 4/7/15 at 6-8.)1
It is clear from the notes of testimony from the April 7, 2015 status
conference that both counsel for Ms. McCullough and Mr. McCullough informed
the court that the defendants wished to go non-jury, much to the
inappropriate expression of joy by Judge Nauhaus. It is not a secret that trial
judges throughout Pennsylvania like non-jury trials, which is why
Mr. McCullough or the Commonwealth get to make that call, and not the
1 This writer acknowledges that she was a panel member in related issues
involving Mr. McCullough and Ms. McCullough. See Commonwealth v.
(Kathleen) McCullough, 86 A.3d 896 (Pa.Super. 2014); Commonwealth
v. (Charles) McCullough, 86 A.3d 901 (Pa.Super. 2014).
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presiding judge. It is also important to note that a defendant is entitled to a
fair trial, not a perfect one. Commonwealth v. Wright, 961 A.2d 119, 135
(Pa. 2008). If perfect trials were possible, there would be a lot less work for
this court. Errors that occur during a trial are always reviewed through the
lens of prejudice caused to the defendant.
What is critical to my review is that Mr. McCullough did not seek
Judge Nauhaus’s recusal until after trial, even though he was fully aware of
any recusal issue during trial and before the verdict. I do not condone any
ex parte communication between Judge Nauhaus and Attorney Pushinsky.2
However, I fail to see how partial denial of review on the habeas corpus
petition and the alleged third-party communication to Attorney Pushinsky, to
the effect that Judge Nauhaus likes non-jury trials, prejudiced Mr. McCullough
in any way. In order to establish grounds for recusal, the proponent must
establish the court’s personal bias or prejudice concerning a party or the
court’s knowledge of disputed evidentiary facts. Code of Jud. Conduct,
Rule 2.11(B). My review of the alleged circumstances of bias in this case
hardly worked to the prejudice of Mr. McCullough.
Mr. McCullough was thoroughly colloquied in open court and waived his
right to a jury trial both orally and in writing. As a lawyer, he knew exactly
2 Any violation of the Code of Judicial Conduct by Judge Nauhaus in this matter
is not subject to review by this court. Code of Jud. Conduct, Rule 2.9. See
also Reilly by Reilly v. Southeastern Pennsylvania Transp. Authority,
489 A.2d 1291, 1299 (Pa. 1985).
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what he was doing. If he wanted a jury trial, he knew he could have it. 3 He
did not make any objection at that time, nor at any point during the trial did
he seek Judge Nauhaus’s recusal. It was only after he was disappointed by
the verdict that he sought to have Attorney Pushinsky withdraw and, with new
counsel, filed the recusal motion.4
With respect to the communication involving Martin L. Schmotzer, a
friend of Mr. McCullough,5 I have a hard time finding a basis for the recusal of
Judge Nauhaus. As a judge, I have to rely on my judicial staff for counsel,
research, and review on cases which I decide, and this is permissible under
the Judicial Code. It seems the alleged problem here is with the impropriety
of Judge Nauhaus’s secretary. If one of my judicial staff discussed a pending
case outside chambers in the courthouse or a luncheonette, it would be
grounds for immediate dismissal. It would not be grounds for my recusal, and
I agree with Judge Manning, this evidence was not material to the recusal
issue. In any event, Mr. McCullough was aware of this alleged conversation
during trial and made no objection nor attempted to bring the issue to the
attention of the trial court until after the verdict. Obviously, the reported
comments communicated directly to Mr. McCullough regarding the sufficiency
3As noted by this court in Commonwealth v. Saltzberg, 516 A.2d 758, 761
(Pa.Super. 1986), a jury trial and verdict would have insulated the fact-finding
process, potentially relieving Mr. McCullough of his concerns.
4 Mr. McCullough was charged with 21 counts and convicted of 10.
5 This writer is also acquainted with Mr. Schmotzer.
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or lack thereof of the Commonwealth’s case would appear to work in
Mr. McCullough’s favor. I am not surprised Mr. McCullough did not raise the
issue with the trial court.
As for the testimony of Attorney Pushinsky and the limited waiver, I take
no position on whether the limited waiver was valid or not. I do so because,
as in my discussion supra, even assuming the existence of ex parte
communications between Attorney Pushinsky and Judge Nauhaus,
Mr. McCullough has not established how he was prejudiced by these obscure
exchanges.
Additionally, I believe that Judge Manning was correct in deciding that
Judge Nauhaus was not competent to testify pursuant to Pa.R.E. 605. The
Majority states:
As the Commonwealth observes, in referring the
recusal petition to [Judge] Manning and asking him to
hold the evidentiary hearing, Judge Nauhaus, in
essence, recognized that “he could not preside over
the hearing.” Moreover, Judge Nauhaus’ referral of
the recusal petition to [Judge] Manning suggests that
Judge Nauhaus recognized that the petition was not
frivolous or wholly without foundation. Nonetheless,
because Judge Nauhaus did not preside over the
hearing, it becomes clear that Rule 605 was
inapplicable sub judice and that the trial court, i.e.,
[Judge] Manning, abused its discretion in relying upon
Rule 605 to find Judge Nauhaus incompetent to
testify.
Majority Opinion at 34-35 (internal citations omitted).
I can find no support for this conclusion in the record. At the time of
the recusal hearing, Judge Nauhaus was still presiding over the trial and
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sentencing matters. The fact that Judge Nauhaus referred the recusal matter
to another judge did not mean that he recused himself from the underlying
case. Judge Nauhaus appeared at the hearing and asserted his refusal to
testify because in doing so his interests would become adversarial to
Mr. McCullough and therefore would require his recusal. Judge Nauhaus had
no obligation to testify if he still wished to preside over the underlying case.
It is of no moment that he did, in fact, subsequently ask that another judge
be assigned for sentencing.
Taken together, [Reilly and Municipal
Publications, Inc. v. Court of Common Pleas of
Philadelphia County, 489 A.2d 1286 (Pa. 1985),]
delineate the proper role of a judge in considering a
recusal motion alleging judicial prejudice. Absent an
abuse of discretion, the judge may properly decide
recusal motions concerning his impartiality if he
believes he can adjudicate the case fairly and
objectively. A trial judge is bound to excuse himself
only when he has personal knowledge of the disputed
facts and has decided to testify at the recusal hearing.
Reilly, [] 489 A.2d at 1299; Municipal
Publications, [] 489 A.2d at 1286. See also Reilly,
[] 489 A.2d at 1307 (Hutchinson, J., concurring).
Saltzberg, 516 A.2d at 760.
I understand the Commonwealth’s change of position on recusal during
the hearing before Judge Manning, for it would seem that all of the alleged
judicial bias worked in Mr. McCullough’s favor and not the Commonwealth’s.
However, this is Mr. McCullough’s appeal from his judgment of sentence, so
the Commonwealth’s protestations are not relevant.
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I cannot join in the Majority’s remand of this case. If I were to reach
the merits, I would affirm on the careful, extensive, and thorough opinion of
Judge Cashman filed on May 1, 2017.
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