230 A.3d 1146
Pa. Super. Ct.2020Background
- McCullough, an attorney, obtained a springing power of attorney and named himself co‑trustee for Shirley Jordan, a wealthy nonagenarian; no physician’s written finding of incapacity (the springing event) was ever produced.
- McCullough directed $50,000 in checks from Jordan’s accounts (including a $10,000 donation to Catholic Charities run by his wife and four $10,000 political donations bearing Jordan’s and his name); recipients later returned funds when unauthorized.
- He was charged with numerous offenses and, after electing a bench trial, was convicted of five counts of theft by unlawful taking and five counts of misapplication of entrusted funds; sentenced to an aggregate 30–60 months’ imprisonment.
- McCullough filed a post‑verdict recusal petition alleging ex parte communications between Judge Nauhaus and defense counsel (and a mutual friend) that prompted waiver of a jury; initial evidentiary hearing raised procedural issues, and the Superior Court remanded for a new evidentiary hearing.
- On remand the trial court held an expanded evidentiary hearing, quashed a subpoena to the Judicial Conduct Board (JCB), found McCullough had waived his recusal claim (having known of the communications before waiving a jury), and denied relief.
- The Superior Court affirmed: (1) the sufficiency of the evidence to convict (POA was invalid; McCullough unlawfully and self‑interestedly disposed of entrusted funds), and (2) the recusal/subpoena claims were waived or without merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency — theft by unlawful taking (18 Pa.C.S. §3921) | McCullough: he was co‑trustee/attorney and reasonably believed the POA authorized the transfers, so no unlawful taking. | Commonwealth: the POA was a springing instrument never triggered (no physician’s writing); banks and lawyers’ assumptions do not validate it; McCullough exercised unlawful control and acted for personal/political benefit. | Affirmed. POA invalid; evidence (conflicts, conduct, checks bearing his name) supports guilty verdicts. |
| Sufficiency — misapplication of entrusted funds (18 Pa.C.S. §4113) | McCullough: donations were consistent with client’s interests or otherwise benefited her; estate actually grew, so no substantial loss; no knowledge of unlawfulness. | Commonwealth: he disposed of entrusted property in a way he knew was unlawful and that posed substantial risk/detriment; he personally benefited politically and via wife’s charity. | Affirmed. Issuance of the checks completed the offense even if funds were later returned; jury rationally found knowing, unlawful disposal and personal benefit. |
| Recusal / impartiality / new trial | McCullough: alleged ex parte communications between Judge Nauhaus and counsel/friend improperly influenced case outcome and coerced waiver of jury; hearing procedures prevented full development of the claim. | Commonwealth / trial court: McCullough knew of the communications before waiving jury and failed to seek recusal at the earliest opportunity; thus the claim is waived; evidentiary hearing did not show disqualifying bias. | Denied. Superior Court held McCullough waived recusal by not moving promptly and affirmed that remand hearing produced no basis for disqualification. |
| JCB subpoena / confrontation / Brady / nolle pros offer | McCullough: sought witness statements from Judicial Conduct Board as potentially exculpatory/Brady material and to develop recusal claim; argued confrontation/access concerns. | JCB: Article V §18 confidentiality of JCB inquiries requires non‑disclosure; statements (if any) not necessary because witnesses could be examined at hearing; prosecution later rescinded a contingent nolle pros offer. | Trial court quashed subpoena; Superior Court agreed JCB confidentiality predominates and confrontation clause did not compel production for a recusal hearing; prosecutorial misconduct claim was abandoned or meritless. |
Key Cases Cited
- Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (standard for reviewing sufficiency of the evidence)
- Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014) (application of sufficiency standard; circumstantial evidence)
- Commonwealth v. Grife, 664 A.2d 116 (Pa. Super. 1995) (repayment intent does not negate theft/false‑pretense offenses)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause principles)
- Lomas v. Kravitz, 130 A.3d 107 (Pa. Super. 2015) (en banc) (recusal must be sought at earliest possible moment; otherwise waived)
- Commonwealth v. Sepulveda, 144 A.3d 1270 (Pa. 2016) (limits of remand scope)
- Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999) (definition and prohibition on ex parte communications)