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ANTHONY MCFALL. APPEAL COMMONWEALTH PENNSYLVANIA. (NINE CASES) ROBERT WISE. ANTHONY WHETSTONE. PERRY WALLACE. CHRISTOPHER VINCENT. GILBERT ORSINI. JAMAL CONNOR. JAMES MILES. TERRY FOSTER. COMMONWEALTH PENNSYLVANIA v. LEON JOHNSON. COMMONWEALTH PENNSYLVANIA (04/06/89)

filed: April 6, 1989.

IN THE INTEREST OF ANTHONY MCFALL. APPEAL OF COMMONWEALTH OF PENNSYLVANIA. (NINE CASES) IN THE INTEREST OF ROBERT WISE. IN THE INTEREST OF ANTHONY WHETSTONE. IN THE INTEREST OF PERRY WALLACE. IN THE INTEREST OF CHRISTOPHER VINCENT. IN THE INTEREST OF GILBERT ORSINI. IN THE INTEREST OF JAMAL CONNOR. IN THE INTEREST OF JAMES MILES. IN THE INTEREST OF TERRY FOSTER. COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LEON JOHNSON. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. RONNIE PIERCE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. ROBERT JACOBS. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. ROBERT LEWIS, JR. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. ALI SCOTT. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. DAVID GILES. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. LAWRENCE GOUCH. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. KENNETH GRAHAM. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. MICHAEL JENKINS. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. MICHAEL HATTON. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. CEDRIC BOHANNON. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. EDWARD BROWN. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. PATRICK GARRETT. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. TIMOTHY REEVES. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JAMES M. ROSSER. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JOSE TORRES. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. MARCUS WARD. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. AARON WHITE. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JAMES WALKER. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. RICARDO SEARS. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. DENNIS MASON. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. RALPH RIVERA. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. GEORGE H. MALENEY. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. BRIAN BRAXTON



Appeal from the Order of the Court of Common Pleas, Philadelphia County, Juvenile Division, at No. Juv. Pet. 6403-86-9; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. Juv. Pet 2759-86-4, Juv. No. 268347; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 8266-85-10; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. Juv. Pet. 9577-85-12, Juv. No. 266159; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Juvenile Division, at No. Juv. Pet. 2817-86-4, Juv. No. 268373; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. Juv. Pet. 9609-85-12, Juv. No. 266189; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Juvenile Division, at Juv. Pet. 3018-86-4, Juv. No. 257899; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Juvenile Division, at No. Juv. Pet. 5546-85-7, Juv. No. 260135; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Juvenile Division, at No. Juv. Pet. 2961-85-4, Juv. No. 260847; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 689-703 March, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 2235-2238 August Term, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 1904-1905 June 1986, M.C. Oct. Term, 1985, NOS. 2962-63; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 340-344 July 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. May Term 1986, 3081-86; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. C.P. April Term, 1986, Nos. 3237-3239; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. Nov. Term, 1986, No. 782; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 586, 588/589 November Term, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 2282 November Term, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. Aug. 1986-2596-2601; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 2642-2645 March, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 856-858 May Term, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 309-314 May, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 859-861 May, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. March Term, 1986, 1852-1860; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. C.P. March Term, 1986, Nos. 2138-2146; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. C.P. May Term, 1986, Nos. 291-293; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at 296/298 May Term, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 286-290 May Term, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. Aug. 1986-2258-66; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 396-403 Dec. 86; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 1489-1490 February Term, 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 2333, 34 Nov. 1986; Appeal from the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, at No. 8608-2254-57.

COUNSEL

Karen L. Grigsby, Assistant District Attorney, Philadelphia, for Com., appellant.

Brosky, Kelly and Hoffman, JJ. Kelly, J., files a dissenting opinion.

Author: Brosky

[ 383 Pa. Super. Page 360]

This is a consolidated appeal by the Commonwealth seeking reversal of the order of the Court of Common Pleas granting new adjudicatory hearings to all defendants who had various hearings before Judge Mary Rose Fante Cunningham.

This relief was granted because Judge Cunningham had, for a period of several months, been working as an "undercover agent" of the FBI regarding illegal payments by union officials to Common Pleas judges in Philadelphia. Judge Cunningham wore a recording device and recorded conversations with other judges for the benefit of Federal authorities. During this period of time Judge Cunningham continued to preside over criminal matters.

The history of these cases is as follows. In December, 1985, Judge Cunningham accepted $300.00 from Steven Traitz, Jr., an official of the Roofers' Union. Unbeknownst to either party the transaction was tape recorded by Federal agents. After learning that the conversation had been recorded, and being confronted by authorities, Judge Cunningham agreed to cooperate with the FBI in an ongoing investigation concerning cash gifts from the Roofers' Union to certain judges of the Philadelphia Court of Common Pleas. Part of Judge Cunningham's agreement with the FBI and the U.S. Attorney's Office was that she would tape record conversations as requested by the FBI. The letter of agreement provided that no Federal or state laws would be violated in the course of Judge Cunningham's cooperation, and explicitly stated that no immunity from state prosecution or other disciplinary proceedings would be afforded. However, the agreement promised that Federal authorities would make known to any court or other investigating or prosecuting body the full extent of the Judge's cooperation.

The period of Judge Cunningham's cooperation extended from February 12, 1986 through November 13, 1986. On

[ 383 Pa. Super. Page 361]

November 17, 1986, the Judge's involvement became publicly disclosed. Prior to this date, these facts were known only to the Judge herself, certain officials of the FBI, the Office of the United States Attorney, and the Judge's husband. During this time, Judge Cunningham actively participated in electronic eavesdropping by wearing a hidden recording device and surreptitiously recording conversations with Judge Mario Driggs and Judge Esther Sylvester, both of whom were subsequently indicted on Federal charges arising out of cash gifts received from the Roofers' Union. During this period, Judge Cunningham continued to preside in criminal and juvenile matters. On November 19, 1986, after her involvement became publicly known, Judge Cunningham was transferred by the Administrative Judge to the Family Court Division to hear non-criminal matters. On February 2, 1987, she was suspended by Order of the Supreme Court of Pennsylvania pending further action by the Court or its agencies.

Beginning on December 3, 1986, the Defender Association of Philadelphia, on behalf of twenty-nine appellees, filed motions seeking the nullification of all judicial actions taken in their respective cases by Judge Cunningham while she was simultaneously acting as an "undercover agent."*fn1 The Judge's actions were challenged as violative of the Pennsylvania Constitution's separation of powers doctrine, the federal guarantee of due process of law, and Pennsylvania case law requiring the recusal of a judge where even the appearance of impropriety surfaced. The appellees also alleged that Judge Cunningham had a real and tangible bias in their cases, since she was subject to prosecution for her actions by the District Attorney of Philadelphia, the prosecuting authority in each of the cases before her.

In the interest of judicial economy, the motions were assigned to the Honorable Carolyn Engel Temin of the Court of Common Pleas, Criminal Trial Division, for disposition. Judge Temin, finding for appellees, granted relief as

[ 383 Pa. Super. Page 362]

    follows: each appellee who had any portion of his case handled by Judge Cunningham was granted new proceedings, e.g. adjudicatory, preliminary and certification hearings, Municipal Court trials, and hearings on motions to quash. If the same result was obtained as at the original hearing, the case would be returned to its current status. All orders granting this limited relief were stayed pending appellate review.

The Commonwealth then filed an Application for the Assumption of Plenary Jurisdiction in the Pennsylvania Supreme Court, a request which the appellees joined. However, the Supreme Court denied this application. Subsequently, appellees filed motions in the Superior Court to quash the Commonwealth's appeals in 23 of the 32 cases, alleging that they were interlocutory. This court granted the motions to quash, but reinstated the appeals upon the Commonwealth's Petition for Permission to File an Interlocutory Appeal, consolidating them with nine appeals of right in which this court's jurisdiction had not been challenged. On appeal, the Commonwealth seeks reversal of Judge Temin's order granting all thirty-two appellees relief.

In granting the relief discussed above, the trial court stated that since Judge Cunningham agreed to cooperate as an undercover investigator for federal authorities on condition that her cooperation be made known to anyone who might be prosecuting her in the future, she placed herself in a position where she may have had a bias. As such, where the rights of defendants are involved, that bias must be revealed. Judge Temin's opinion states that "[w]hen that person is a witness, such facts must be made known to the judge or jury. To do otherwise would deny the defendant his Sixth Amendment right to confrontation. Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986). It follows that where the person is a judge, the facts must be revealed ...


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