Commonwealth v. McCullough

• Decision Date: 25 March 2020
• Docket Number: No. 233 WDA 2016,233 WDA 2016
• Citation: 230 A.3d 1146
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Charles P. MCCULLOUGH, Appellant
• Court: Pennsylvania Superior Court

230 A.3d 1146

COMMONWEALTH of Pennsylvania, Appellee

v.Charles P. MCCULLOUGH, Appellant

No. 233 WDA 2016

Superior Court of Pennsylvania.

Argued November 28, 2017

Filed March 25, 2020

Reargument Denied July 6, 2020

Bruce A. Antkowiak, Latrobe, for appellant.

Michael W. Streilly, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: SHOGAN, STABILE, JJ., and FORD ELLIOTT, P.J.E.

OPINION BY STABILE, J.:

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 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.

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.

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 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

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