Com. v. Sharp

• Decision Date: 20 September 1996
• Citation: 453 Pa.Super. 349,683 A.2d 1219
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Jason Robert SHARP, Appellant.
• Court: Pennsylvania Superior Court

Page 1219

683 A.2d 1219

453 Pa.Super. 349

COMMONWEALTH of Pennsylvania, Appellee, v. Jason Robert SHARP, Appellant.

Superior Court of Pennsylvania.

Argued May 7, 1996.

Filed Sept. 20, 1996.

David J. Foster, Lemoyne, for appellant.

Daniel W. Stern, Assistant District Attorney, Harrisburg, for Com.

Before POPOVICH, SAYLOR and EAKIN, JJ.

EAKIN, Judge:

Jason Robert Sharp appeals from the judgment of sentence entered by the Court of Common Pleas of Perry County, following his conviction for possession with intent to deliver heroin. For the reasons that follow, we reverse.

On May 31, 1994, Perry County Sheriff George Frownfelter and Deputy Sheriff Donald Smith conducted a visual search of property owned by Richard Sheibley, after receiving Sheibley's permission for that search. Located in Carroll Township, Perry County, the premises were leased and occupied by appellant's parents, Timothy Loy and Christine Sharp; appellant also lived on the premises. The officers observed at least nine growing marijuana plants before they were approached by Christine Sharp. Sharp gave Sheriff Frownfelter permission to search the area around the house, where four more marijuana plants were found growing. All thirteen plants were dusted with a yellowish substance and surrounded by chicken wire. Mr. Loy arrived, and denied the officers' request for consent to search further.

Deputy Sheriff Smith decided to seek a search warrant; the only District Justice on duty at the time was Elizabeth Frownfelter, wife of Sheriff Frownfelter. Deputy Smith presented an affidavit of probable cause, and District Justice Frownfelter issued a warrant for the search of the residence, vehicles, outbuildings, and any persons present.

The officers executed the warrant at approximately 4:30 p.m. on May 31, 1994, and in the course of their search discovered a small amount of marijuana and marijuana seeds in appellant's bedroom. In an outbuilding on the property, they discovered twelve packets of heroin, $45 in cash and a handwritten note signed "J" located nearby.

District Justice Frownfelter issued a second warrant, again upon application of Deputy Smith, for appellant's school records and documents containing his handwriting. The sheriff's office seized several of appellant's school homework assignments and test papers. Sheriff Frownfelter petitioned for and obtained an order from the Court of Common Pleas directing appellant to provide handwriting exemplars. Comparison of these exemplars indicated that the note signed by "J" was in appellant's handwriting. On January 3, 1995, appellant was charged with possession of a small amount of marijuana ¹ and possession with intent to deliver heroin. ²

On April 6, 1995, appellant filed an omnibus pretrial motion contending that the warrant to search the premises was not supported by probable cause, that a conflict of interest existed fatal to the issuance of the warrant as the district justice was married to an investigating officer in this case, and that the affidavit for the second search warrant was based on allegations tainted by the earlier constitutionally defective warrant. By order of July 18, 1995, the trial court denied appellant's pretrial motions. After a non-jury trial on that same date, the court found appellant guilty of possession with intent to deliver heroin. On August 10, 1995, following preparation of a pre-sentence investigation, appellant was sentenced to eight to twenty-three and one-half months imprisonment, plus costs of prosecution. This timely appeal followed.

In requesting that this court vacate judgment of sentence and grant him a new trial, appellant raises the following issues:

A. Whether the searches of appellant's residence, outbuildings and school records violated the state and federal constitutions where the respective warrants were issued by the district justice whose husband, the county sheriff, actively participated in and directly supervised the drug investigation leading to the execution of the probable cause affidavit, which constitutes an actual conflict and/or appearance of a conflict of interest in violation of the Pennsylvania standards of conduct on district justices?

B. Whether the search warrant for the residence and out buildings was not supported by probable cause in that the sole basis for its application was the prior observation of marijuana plants by the police, only four of which were found on the leased premises within the curtilage of the residence?

C. Whether search warrant for appellant's school records and the court's order directing him to provide handwriting samples were not supported by probable cause because there was insufficient evidence to link heroin found in a cup along with a handwritten note signed with the letter "J" to appellant?

Our scope of review of a suppression court's ruling is confined primarily to questions of law. Commonwealth v. Gommer, 445 Pa.Super. 571, 573, 665 A.2d 1269, 1270 (1995). We are bound by findings of fact which are supported by the record; we may reverse only if the court's legal conclusions are in error. Id. As the parties herein agree on the facts, we are asked to determine only the legal implications of those facts.

Appellant contends that evidence from the search should have been suppressed because an actual conflict or an appearance of a conflict of interest existed when District Justice Frownfelter issued a warrant in an investigation in which her husband was involved. Rule 8 of the Standards of Conduct for District Justices provides in relevant part:

A. A district justice shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(4) he or his spouse ...:

(a) is a party to the proceeding, or an officer, director or trustee of a party;

(c) is known by the district justice to have an interest that could be substantially affected by the outcome of the proceeding;

(d) is to the knowledge of the district justice likely to be a material witness in the proceeding.

42 Pa.C.S. The Fourth Amendment requires that warrants be issued by a "neutral and detached magistrate" upon an "independent determination of probable cause." Commonwealth v. Edmunds, 526 Pa. 374, 409, 586 A.2d 887, 905 (1991). The integrity of the judiciary must not be compromised by the appearance of impropriety, and the conduct at issue need not rise to the level of actual prejudice. In Interest of McFall, 533 Pa. 24, 34, 617 A.2d 707, 712 (1992). Recusal may be required where there are circumstances that reasonably cast doubt on a jurist's impartiality, as even the appearance of bias must be avoided. Id. at 35, 617 A.2d at 713.

Appellant contends that District Justice Frownfelter was not neutral and disinterested because her husband not only was active in the investigation, but had total supervisory control over, was a party to and a likely witness in the proceedings. The trial court disagreed and determined that the existence of probable cause could be ascertained from the four corners of the search warrant application; as such, any partiality would be subject to discovery and remedy. Moreover, the court concluded that Sheriff Frownfelter's role was more administrative than investigative since it was his deputy who applied for the warrant.

The trial court also noted that the rural nature of Perry County often presents geographic difficulties in reaching an on-duty magistrate. "Forcing Officers to travel all the way to the other end of the County for a search warrant may present police officers with a substantial burden." Trial Court Memorandum, 10/9/95, at 5-6. We agree with the validity of this assessment. Rural or sparsely populated counties are not amenable to the convenient solutions afforded by a more densely developed environment. In smaller jurisdictions with few magistrates, the reality is that only one District Justice may be present within the county, let alone on call; and where simple alternatives are not always available. We decline to create a rule that would on occasion leave the people of Perry County without justice.

We agree there was no actual conflict of interest here, as the Sheriff was not the affiant. The appearance of a conflict is not so easily dealt with. ³ Nevertheless, we decline to hold that an inappropriate "appearance" was so clear as to cause negation of the warrant's validity. The better practice would be to institute procedures in magisterial districts where such relationships exist to avoid even an arguable appearance of impropriety; however, the absence of such procedures does not justify automatic negation of the District Justice's actions.

In retrospect District Justice Frownfelter should have recused herself from involvement in issuing the instant warrants; however we find no per se harm in this case, particularly as the district justice's issuance of the warrants is subject to at least two levels of objective review. Both the trial court and this court may review the probable cause affidavit and objectively determine its sufficiency. Moreover, any judicial impropriety may be subject to scrutiny in a disciplinary action. For the foregoing reasons, the search warrants issued by District Justice Frownfelter are not deemed defective by reason of an actual or apparent conflict of interest.

The viability of this proposition is manifest from our review and disposition. In determining whether the warrant is supported by probable cause, the magistrate may not consider any evidence outside the four corners of the affidavit. Pa.R.Crim.P. 2003(a); Commonwealth v. Singleton, 412 Pa.Super. 550, 553, 603 A.2d 1072, 1073 (1992). Probable cause either exists or it does not, and its existence must be evident solely from the affidavit itself.

In determining whether probable cause exists to issue a search warrant, Pennsylvania applies the "totality of the circumstances" test as set out in Illinois v. Gates, 462...