J. A30004/17
                              2018 PA Super 347



COMMONWEALTH 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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J. A30004/17

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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