McFall, In Interest of
| Decision Date | 01 March 1986 |
| Docket Number | No. 104,No. 268347,No. 1474,No. 2759-86-4,No. 109,No. 1471,No. 108,No. 1469,No. 268373,No. 1466,No. 260135,No. 102,No. 103,No. 266159,No. 691-693,No. 1470,No. 1472,No. 242017,No. 1473,No. 257899,No. 106,No. 1468,No. 1467,C,No. 260847,No. 1475,No. 105,No. 101,No. 266189,No. 6403-86-9,No. 107,1466,6403-86-9,101,1467,2759-86-4,268347,102,1468,242017,103,1469,266159,104,1470,268373,105,1471,266189,106,1472,257899,107,1473,260135,108,1474,260847,109,1475,691-693 |
| Citation | 533 Pa. 24,617 A.2d 707 |
| Parties | In the Interest of Anthony McFALL atP. Phila. Cty., Juv. Div.,(E.D. Appeal Docket 1990). In the Interest of Robert WISE atP. Phila. Cty., Crim. Div.,; Juv.(E.D. Appeal Docket 1990). In the Interest of Anthony WHETSTONE atP. Phila. Cty., Crim. Div., Juv. Pet. 8266-85-10; Juv.(E.D. Appeal Docket 1990). In the Interest of Perry WALLACE atP. Phila. Cty., Crim. Div., Juv.Pet. 9577-85-12; Juv.(E.D. Appeal Docket 1990). In the Interest of Christopher VINCENT atP. Phila. Cty., Crim. Div., Juv. Pet. 2817-86-4; Juv.(E.D. Appeal Docket 1990). In the Interest of Gilbert ORSINI atP. Phila. Cty., Crim. Div., Pet. 9609-85-12, Juv.(E.D. Appeal Docket 1990). In the Interest of Jamal CONNOR atP. Phila. Cty., Crim. Div., Juv. Pet. 3018-86-4, Juv.(E.D. Appeal Docket 1990). In the Interest of James MILES atP. Phila. Cty., Crim. Div., Juv. Pet. 5546-85-7; Juv.(E.D. Appeal Docket 1990). In the Interest of Terry FOSTER atP. Phila. Cty., Crim. Div., Juv. Pet. 2961-85-4; Juv.(E.D. Appeal Docket 1990). COMMONWEALTH v. Leon JOHNSON atP. Phila. Cty., Crim. Div., |
| Court | Pennsylvania Supreme Court |
John W. Packel, Chief, Appeals Div., Jules Epstein, Asst. Defender, Thomas Johnson, Harvey Yanks, William James, George Newman, for appellees.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
This is an appeal by the Commonwealth of Pennsylvania from an Order of the Superior Court affirming an Order of the Court of Common Pleas granting new proceedings for twenty-nine defendants in cases where former Judge Mary Rose Fante Cunningham 1 presided. The cases of the twenty-nine appellees were consolidated 2 in the interest of judicial economy and assigned to Judge Carolyn Engel Temin of the Court of Common Pleas, Criminal Trial Division, for disposition. Judge Temin found for appellees. Each appellee who had any portion of his case handled by Cunningham was granted new proceedings, i.e., adjudicatory proceedings, preliminary and certification hearings, municipal court trials, and hearings on motions to quash.
The issue before this Court is whether it was a denial of the appellees' right to a fair and impartial tribunal for a judge to preside over their cases without revealing circumstances that raise questions as to her impartiality. Specifically, Cunningham became an undercover agent for federal law enforcement authorities in exchange for a promise that those authorities would make her cooperation known to any agency that chose to prosecute her for accepting a gift from a potential litigant. In this instance, Cunningham's potential prosecutors were the very individuals that appeared before her to prosecute the appellees. Restated, the question is whether the air of impropriety arising from such a setting is a sufficient basis for vitiating the proceedings without a demonstration of actual proof of prejudice. We hold herein that the impartiality of the court, which is a fundamental prerequisite of a fair trial, must be deemed compromised by appearance alone, thus eliminating the need for establishing actual prejudice. Therefore, for the reasons that follow, we affirm the order of the Superior Court affirming Judge Temin's grant of new proceedings to all appellees whose cases were argued before Cunningham during the time she cooperated with the Federal Bureau of Investigation ("F.B.I.").
The facts were stipulated by the parties. Cunningham was recorded accepting a $300.00 gift from Steven Traitz, Jr., an official of the Roofers Union. Upon learning that the conversation had been recorded, and being confronted by federal authorities, Cunningham agreed to cooperate with the F.B.I. in an ongoing investigation involving cash gifts from the Roofers Union to various judges of the Philadelphia County Court of Common Pleas. One portion of the agreement stipulated that Cunningham would record conversations as requested by the F.B.I. This agreement clearly stated that no immunity from the prosecution or other disciplinary proceedings would be afforded. However, the agreement explicitly promised that federal authorities would make known to any court or other investigating or prosecuting body the full extent of Cunningham's cooperation.
Cunningham's cooperation with the F.B.I. extended from February 12, 1986 through November 13, 1986. Cunningham wore a hidden recording device and secretly recorded conversations with two other judges, both of whom were subsequently indicted on federal charges arising out of cash gifts received from the Roofers Union. While working for the F.B.I., Cunningham continued to preside over criminal and juvenile matters. Her involvement was publicly disclosed on November 17, 1986. Prior to that date, Cunningham's agreement was known only to her and her husband, certain officials of the F.B.I., and the office of the U.S. Attorney. Following the public disclosure of her involvement, this Court suspended Cunningham pending further investigation.
Commencing on December 3, 1986, the Defender Association of Philadelphia, on behalf of twenty-nine 3 appellees, filed motions seeking the nullification of all judicial actions taken in their respective cases by Cunningham while she was simultaneously acting as an undercover agent. Anthony McFall was one of the appellees represented by the Defender Association. Cunningham's actions were challenged as violative of the Pennsylvania Constitution's separation of powers doctrine, the federal constitutional guarantee of due process of law, and Pennsylvania case law requiring the recusal of a judge where even the appearance of impropriety surfaced.
All motions filed by appellees were assigned to the Honorable Carolyn Temin of the Court of Common Pleas of Philadelphia, Criminal Trial Division, for disposition. Judge Temin found for appellees, holding that due process was violated by Cunningham's failure to reveal her situation and potential bias. Judge Temin's decision entitled each appellee to a new proceeding before another judge. All orders granting this limited relief were stayed pending appellate review.
The Commonwealth appealed Judge Temin's orders to the Superior Court and simultaneously sought plenary review by this Court. We denied the Commonwealth's application on May 19, 1987. Cunningham was removed from office by this Court on February 25, 1988. In re Cunningham, 517 Pa. 417, 538 A.2d 473, appeal dismissed sub nom. White v. Judicial Inquiry &...
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Com. v. White
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