201 A.3d 221
Pa. Super. Ct.2018Background
- Charles P. McCullough (defendant), who held power of attorney and was co-trustee for elderly Shirley Jordan, was convicted after a bench trial of five counts each of theft by unlawful taking and misapplication of entrusted funds; sentenced to an aggregate 30–60 months.
- Before sentencing McCullough filed a petition to recuse trial judge Lester G. Nauhaus, alleging multiple ex parte communications (with defense counsel, a mutual friend, and the judge’s secretary) that undermined judicial impartiality and coerced his waiver of a jury trial.
- Judge Nauhaus referred the recusal petition to President Judge Manning (PJ Manning), who held an evidentiary hearing; Judge Nauhaus appeared but PJ Manning sustained objections invoking Pa.R.E. 605 and excluded or limited testimony. Key witnesses (Judge Nauhaus, defense counsel Pushinsky, and a third-party witness Schmotzer) were largely not permitted to give the contested testimony.
- PJ Manning denied recusal for lack of competent evidence; sentencing later occurred before a different judge. McCullough raised procedural-due-process and evidentiary complaints about the handling of the recusal hearing.
- The Superior Court concluded the trial court abused its discretion in several evidentiary rulings at the recusal hearing and remanded for a new evidentiary hearing on the recusal petition.
Issues
| Issue | McCullough’s Argument | Commonwealth / Trial Court’s Argument | Held |
|---|---|---|---|
| Whether the presiding judge (Nauhaus) could be ruled incompetent to testify under Pa.R.E. 605 at the recusal hearing | Nauhaus’s testimony was essential; Rule 605 should not bar testimony where the judge did not preside (referral to PJ Manning) and the allegations directly implicated Nauhaus | Rule 605 renders a presiding judge incompetent to testify; PJ Manning applied Rule 605 to exclude Nauhaus | Court held exclusion was an abuse of discretion; Nauhaus may be called to testify at a new evidentiary hearing |
| Whether attorney Pushinsky could refuse to testify absent a full waiver of attorney-client privilege | McCullough gave a limited (topic-specific) waiver as to two communications; limited waiver is valid and sufficient to permit testimony on those discrete matters | Pushinsky demanded a full waiver; trial court required full waiver before testimony | Court held trial court erred; limited waiver (topic-limited) is permissible and Pushinsky could be compelled to answer within its scope |
| Whether witness Schmotzer could withhold identity of his source about alleged off-record communications involving the judge’s secretary | Source identity was critical to test an allegation that the judge considered off-record information during trial; refusal improperly blocked development of the record | Commonwealth argued hearsay and relevance; trial court sustained exclusion and allowed withholding | Court held trial court abused discretion in permitting withholding; identity was material and the court should allow development of that evidence at a new hearing |
| Whether an out-of-county judge should have been appointed to hear the recusal petition | McCullough requested an out-of-county judge given breadth of allegations against county judiciary | Trial court/PJ Manning found no basis to recuse entire Allegheny bench; request lacked particularized support | Court held denial of out-of-county judge was proper: no record support for whole-bench recusal |
Key Cases Cited
- Municipal Publications, Inc. v. Court of Common Pleas, 489 A.2d 1286 (Pa. 1985) (judge may be called as a witness at disqualification hearing where credibility of judge is in issue)
- Commonwealth v. Chmiel, 738 A.2d 406 (Pa. 1999) (limited waiver of attorney-client privilege allowed where client’s challenge to counsel makes privileged communications relevant)
- Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999) (definition and discussion of ex parte communications and prohibitions)
- Ney v. Ney, 917 A.2d 863 (Pa. Super. 2007) (trial court may not rely on or consider off-the-record facts)
- Commonwealth v. Stewart, 295 A.2d 303 (Pa. 1972) (due-process right to a fair trial by impartial factfinder)
- Lomas v. Kravitz, 130 A.3d 107 (Pa. Super. 2015) (discussing standards for bench-wide recusal requests)
- Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998) (party seeking recusal must produce evidence raising substantial doubt about judge’s impartiality)