Com. v. Love

• Decision Date: 03 April 2006
• Citation: 896 A.2d 1276
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. James LOVE, Appellant.
• Court: Pennsylvania Superior Court

896 A.2d 1276

COMMONWEALTH of Pennsylvania, Appellee, v. James LOVE, Appellant.

Superior Court of Pennsylvania.

Submitted January 23, 2006.

Filed April 3, 2006.

COPYRIGHT MATERIAL OMITTED

William R. McElroy, Hatboro, for appellant.

Jacqueline M. Taschner, Asst. Dist. Atty., Easton, for Com., appellee.

BEFORE: JOYCE, BOWES, and McCAFFERY, JJ.

OPINION BY McCAFFERY, J.:

¶ 1 Appellant, James Love, appeals from the judgment of sentence entered July 1, 2005, by the Honorable Leonard N. Zito of the Court of Common Pleas of Northampton County ("trial court"). Specifically, Appellant asks us to determine whether the trial court made erroneous rulings on Appellant's motions seeking dismissal of the charges and a change of venue and on the introduction of certain evidence. Appellant also asks us to determine whether the trial court erred in finding that the evidence was sufficient to support Appellant's convictions of obstructing the administration of law or other government function and disorderly conduct, and that his sentence was excessive and illegal. After thorough review of the record and consideration of Appellant's arguments, we affirm.

¶ 2 The relevant facts and procedural history underlying this appeal, gleaned from the trial court opinion and the record below, are as follows. On July 8, 2004, a protection from abuse ("PFA") hearing was held before the Honorable Edward G. Smith, also of the Northampton Court of Common Pleas. Attending the hearing were Shawn Ghigliotti (the PFA petitioner), Greg Rapoli (the PFA defendant), Margaret Moyer (Rapoli's mother), and Appellant (Moyer's husband and Rapoli's stepfather). Moyer and Appellant testified on behalf of Rapoli.

¶ 3 At the conclusion of the hearing, Judge Smith ruled in open court that he was granting to Ghigliotti PFA relief against Rapoli. At that point, Moyer and Appellant became vocally agitated, angry, loud, and disruptive. The four deputy sheriffs assigned to keep order and security in the courtroom instructed Appellant and Moyer to be quiet and to return to their seats. The sheriffs' numerous requests for quiet went unheeded. Deputy Sheriff George Volpe approached Moyer in an attempt to forestall further disturbance from her. As he did so, Appellant intervened by placing his arm across Volpe's chest in an attempt to push him back. Volpe took Appellant by the arm and escorted him from the courtroom, securing him in a waiting area adjacent to the courtroom. When two of the other deputies then escorted Moyer from the courtroom, Appellant resumed his yelling, prompting Volpe to position himself in such a way as to prevent Appellant from assisting Moyer, who was struggling against the deputies' efforts to escort her from the courtroom. Appellant's loud and angry vocalizations continued for some time thereafter.

¶ 4 Deputy Sheriff Emil Schick filed charges against Appellant, Moyer, and Rapoli as a result of the events which had occurred on July 8, 2004. Specifically, Schick charged Appellant with one count of obstructing the administration of law or other government function,¹ three counts of disorderly conduct,² and two counts of harassment.³ Appellant filed omnibus pretrial motions to the charges, seeking (1) a change of venue, and (2) dismissal of all charges, because Schick purportedly lacked the legal authority to initiate criminal charges. The motion for change of venue was denied on January 10, 2005, and the motion to dismiss was denied on March 15, 2005, prior to jury selection.

¶ 5 Appellant was tried before a jury on March 15 and 16, 2005. The Commonwealth presented the testimony of the four deputy sheriffs who had been present in Judge Smith's courtroom at the time of the incident. The Commonwealth also presented the testimony of Karen Mengel, Judge Smith's court reporter on the day of the incident. Mengel had prepared the official transcript of the PFA proceeding, which included a supplement dictated by Judge Smith wherein he described the incidents that had occurred in his courtroom immediately after he announced his PFA ruling. Over Appellant's objection, Mengel read Judge Smith's supplemental record to the jury. Appellant did not call Judge Smith as a witness, although the Judge was available, nor did Appellant present any evidence.

¶ 6 Appellant was found guilty of one count of obstructing the administration of law or other government function, two out of the three counts of disorderly conduct, and both counts of harassment. Appellant was subsequently sentenced to one to three months' county imprisonment, one hundred (100) hours of community service, and eighteen (18) months' probation following incarceration, on the obstruction of the administration of law charge. He was also sentenced to two concurrent periods of twelve months' probation for his conviction of the two counts of disorderly conduct, to run consecutively to his sentence of probation for the obstruction of administration of law charge.⁴

¶ 7 Appellant has now filed this timely appeal in which he raises the following seven issues for our review:

I. Did the trial court err by finding that Deputy Sheriff Schick was a law enforcement officer and could properly serve as an affiant on a criminal complaint[?]

II. Did the trial court err by improperly denying a motion to recuse the Northampton County bench when the possibility existed that a member of the bench may be called as a witness at trial[?]

III. Did the trial court err by permitting the previously dictated testimonial statement of the Honorable Edward G. Smith to be read into evidence without giving the defendant the opportunity to confront the Honorable Edward G. Smith[?]

IV. Was the evidence insufficient to support a conviction for obstructing justice[?]

V. Was the evidence insufficient to support a conviction for disorderly conduct—engaging in tumultuous behavior[?]

VI. Was the evidence insufficient to support a conviction for disorderly conduct—hazardous or physical condition[?]

VII. Did the court penalize [Appellant] for exercising his constitutional right to a trial by imposing a sentence more harsh and excessive than the more culpable co-defendant[?]

(Appellant's Brief at 2-3).

¶ 8 Appellant first argues that the trial court erred by concluding that Deputy Sheriff Schick possessed the legal authority to be the affiant on a criminal complaint. The evidence showed that although Schick was fully trained as a deputy sheriff, he was not trained under the particular statutory provisions relating to Municipal Police Education and Training set forth at 53 Pa.C.S.A. §§ 2161-2171, and commonly referred to as Act 120. Appellant contends that Commonwealth v. Dobbins, 880 A.2d 690 (Pa.Super.2005), requires that deputy sheriffs be trained under Act 120 in order to act with the authority of a law enforcement officer. As this issue is one of law, our scope of review is plenary. Commonwealth v. Magliocco, 584 Pa. 244, ___, 883 A.2d 479, 481 (2005).

¶ 9 There is no question that deputy sheriffs are law enforcement officers possessing the power to enforce the laws. Commonwealth v. Lockridge, 570 Pa. 510, 519, 810 A.2d 1191, 1196 (2002); Commonwealth v. Leet, 537 Pa. 89, 93-96, 641 A.2d 299, 301-03 (1994); Dobbins, 880 A.2d at 691-92; Commonwealth v. Bennett, 827 A.2d 469, 476 (Pa.Super.2003). The law enforcement powers of sheriffs and their deputies derive from the common law and have remained unabated to this day, unless specifically and narrowly limited by statute. Dobbins, supra at 692. But cf. Kopko v. Miller, ___ Pa. ___, 892 A.2d 766 (2006) (holding that sheriffs and their deputies are not "law enforcement officers" for purposes of the Wiretapping and Electronic Surveillance Act, 18 Pa.C.S.A. §§ 5701-81).

¶ 10 Here, Schick issued a criminal complaint against Appellant pursuant to Pa. R.Crim.P. 504, which provides that a complaint be prepared by an "affiant." The comment to this rule establishes that an "affiant" can be a law enforcement officer, a police officer, or a private citizen. Schick, as a law enforcement officer, was therefore authorized to issue the criminal complaint against Appellant. Lockridge, supra.

¶ 11 Law enforcement officers must nevertheless be properly trained before they can carry out their duties. Id. at 516, 810 A.2d at 1194. However, there is no requirement that their training be that which is specifically prescribed by Act 120. Proper training of deputy sheriffs may fall under Act 120 or any comparable course of training. Commonwealth v. Kline, 559 Pa. 646, 653, 741 A.2d 1281, 1284-85 (1999); Bennett, 827 A.2d at 476. In fact, in addition to Act 120, the laws of this Commonwealth provide for the training of deputy sheriffs pursuant to the Deputy Sheriff's Education and Training Act ("Deputy Sheriff's Act"), 71 P.S. §§ 2101-2109. This act requires that deputy sheriffs complete appropriate training of not less than 160 hours (pursuant to Section 2105 of the Deputy Sheriff's Act), and continuing education of not less than 20 hours every two years (pursuant to Section 2106 of the Deputy Sheriff's Act).

¶ 12 Further, contrary to Appellant's assertions, Dobbins, supra, does not stand for the proposition that "law enforcement officers" may be only those individuals trained under Act 120. Rather, in Dobbins we noted that the deputy sheriff who investigated the crime and made the arrest had obtained training under Act 120, and was, therefore, qualified to carry out his duties.⁵ In any event, our Supreme Court's holding in Kline⁶ unquestionably establishes that a deputy sheriff need not be trained pursuant to Act 120 if he or she received comparable training pursuant to the Deputy Sheriff's Act.

¶ 13 In the case sub judice, the record reflects that Schick has completed all of the training required of a deputy sheriff including all continuing education updates pursuant to the Deputy Sheriff's Act. Thus, in accordance with Kline, Schick was duly authorized to carry out his duties as a law...