Allegheny Courthouse, Pittsburgh. (Photo: Shutterstock)

An attorney and former Allegheny County councilman who was convicted for stealing from a client's estate has been granted a new hearing to test claims that the judge who handled his case had several ex parte communications that may have impacted the trial.

A split three-judge Superior Court panel Wednesday determined that Charles P. McCullough should be granted a new hearing regarding whether Allegheny County Judge Lester Nauhaus had improper communications with McCullough's former attorney and a court employee about the case.

According to McCullough's allegations regarding the ex parte communication, in one of the allegedly improper conversations, Nauhaus told McCullough's former counsel that the defendant “would not be sandbagged” if he decided to have a nonjury trial, rather than a jury trial.

McCullough had contended that Nauhaus should have been made to testify at the hearing regarding the recusal petition and that McCullough's former attorney, Jon Pushinsky, should not have been allowed to insist on a full waiver of attorney-client privilege, which severely limited his ability to testify during the hearing. McCullough also contended that another witness, who allegedly heard from a third party that Nauhaus had a conversation about his thoughts on the case with his secretary, should have been compelled to reveal the identity of that third party.

Superior Court Judge Victor Stabile, who wrote the majority's opinion, agreed.

“The trial court's ruling is especially concerning because, as the record indicates, [the witness, Martin L.] Schmotzer failed to assert any privilege as to his communication with the courthouse employee,” Stabile said in the 47-page opinion.

In Superior Court Judge Kate Ford Elliott's dissent, she said she agreed with the majority on the law but said McCullough's claims appeared to her as “nothing more than smoke and mirrors.”

According to the majority's opinion, McCullough, who is the husband of Commonwealth Court Judge Patricia McCullough, was charged with several crimes, including theft by deception, in connection with his handling of a now-deceased woman's $14 million estate.

In 2014, McCullough filed a petition for habeas corpus seeking to dismiss the charges against him. Pushinsky represented McCullough at the time, and a hearing was held on the habeas petition where Pushinsky told Nauhaus that McCullough wanted to have a nonjury trial.

Nauhaus dismissed one of the charges as a result of the habeas petition, and, following the bench trial, the judge found McCullough guilty of unlawful taking and misapplication of entrusted property.

Prior to sentencing, Pushinsky withdrew and another attorney began representing McCullough.

A few days before the sentencing, McCullough filed a petition asking that Nauhaus recuse over alleged ex parte communications. Specifically, the petition said that, after McCullough's habeas petition was filed, Pushinsky called McCullough and told him Nauhaus had “called me and yelled at me for filing the habeas petition.” McCullough also claimed that, before trial, Pushinsky told McCullough that Nauhaus had told him, through another attorney, that the judge preferred to do jury trials only in capital cases and that, if they chose to have a nonjury trial, McCullough would “not be sandbagged.”

McCullough also claimed that, before the verdict was rendered in the trial, an acquaintance of his who was involved in county politics and knew courthouse workers, spoke with a court employee who knew Nauhaus' secretary. The secretary, according to McCullough, had said that at first Nauhaus didn't think the case had been proven, but after speaking with the secretary, he “agreed that a conviction of the five counts dealing with the checks had to occur.”

According to Stabile, President Judge Jeffrey Manning handled the hearing, and, although Nauhaus appeared, Nauhaus contended he was “incompetent” to testify, since he can't be a judge and witness at the same time. Manning agreed, and Nauhaus did not end up testifying. Pushinsky was also called to the stand, but he insistent on a complete waiver of attorney-client privilege before answering any questions. Since McCullough agreed to only a limited waiver, Pushinsky provided very limited testimony before the court.

At the end of the hearing, Manning determined that McCullough failed to produce any evidence to call Nauhaus' impartiality into question and said the defendant's allegations were “scurrilous.”

The Superior Court majority, however, disagreed with Manning's rulings and sent the case back to the trial court for a new evidentiary hearing on the recusal petition.

Neither McCullough's attorney Adam Cogan nor the Allegheny County District Attorney's Office returned a call for comment. Nauhaus and Manning also each did not return a call for comment.

(Copies of the 47-page opinion in Commonwealth v. McCullough, PICS No. 18-1577, are available at http://at.law.com/PICS.)