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Commonwealth v. McCullough

Superior Court of Pennsylvania

February 27, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KATHLEEN MCCULLOUGH, Appellant

Argued October 22, 2013

Appeal from the Order of the Court of Common Pleas, Allegheny County, Criminal Division, No(s): CC 200919379. Before MACHEN, J.

Scott Coffey, Pittsburgh, for appellant.

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

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and MUSMANNO, J.

OPINION

Page 897

PANELLA, J.

Appellant, Kathleen McCullough, appeals from the order entered March 28, 2012, by the Honorable Donald E. Machen, Court of Common Pleas of Allegheny County, which denied McCullough's Motion to Dismiss. We affirm.

On February 19, 2009, McCullough was charged with theft by unlawful taking and conspiracy along with her brother, Charles McCullough, regarding $4,575.01 in fees paid to McCullough for providing care and companion services to the alleged victim, Shirley H. Jordan, in 2006. Charles McCullough is alleged to have improperly used his status as power of attorney to misappropriate funds from Jordan. These fees, at a rate of $60 per hour, were deemed exorbitant by the Commonwealth, but a prior orphans' court proceeding allegedly approved payment from the Jordan estate to McCullough for the companion services by order dated September 28, 2006.

On July 25, 2011, McCullough filed a Motion to Join Motion to Dismiss originally filed by her brother, Charles McCullough,

Page 898

based upon the orphans' court proceedings. McCullough independently filed a renewed Motion to Dismiss on March 19, 2012. The trial court denied the Motion to Dismiss on March 28, 2012, and declined to certify the matter for an immediate interlocutory appeal. On May 31, 2012, McCullough filed a Petition for Judicial Review in the Superior Court, which this Court granted.[1]

On appeal, McCullough raises the following issues for our review:

1. Did the trial court err in denying Appellant's Motion to Dismiss since the Commonwealth failed to establish a prima facie case against Appellant, the allegations of theft and conspiracy have been discredited and barred by an existing [orphans'] court determination that the companion fees received by Appellant were appropriate and, additionally, she will be severely prejudiced by having to be tried in an approximate four week jury trial wherein co-defendant Charles McCullough was charged with 24 criminal counts and the sheer length and breadth of ...

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