*1 made, however, mail Pozso- of the notice certified was not The notices sent signature could be obtained. nyi’s Pozsonyi attorney mail to both and his were never regular they thus we must assume were received. returned and on notice for months that he many had been Appellant pay danger having for failure his rent and default against brought Appellant’s him. claims that legal action do simply ring he no notice true. had Krause has raised the identical issues Appellant to.those reach the same conclu- by appellant Pozsonyi raised we to his respect arguments. Accordingly, sions both the with 13, 1987 Order April denying appellant Pozsonyi’s petition May and/or strike confessed and the open judgment denying request stay pending appeal 1987 Order for a are affirmed.
Orders affirmed.
Argued Dec. 1986. July Filed 1987. *4 Boas, D. for Pittsburgh, appellant. Paul Duvall, Attorney, J. District Couders- Martha Assistant Com., port, appellee. for CIRILLO, Judge, President BROSKY and
Before POPOVICH, JJ.
CIRILLO, Judge: President Lemanski, Appellant, Richard appeals from a judgment sentence entered the Court of Common Pleas of Potter County, following his of possession conviction of a con- trolled substance and manufacture of marijuana. We re- verse and remand.
In Trooper October Dale Cogley of the Pennsyl- vania State Police tip received a from an informant that plants, suspected being marijuana, were growing appellant’s greenhouse. The informant private was a citi- and, zen according Trooper Cogley’s affidavit, was “fa- miliar” with marijuana identification. Based on this infor- mation, Trooper Cogley past drove the Lemanski residence. From the he greenhouse, road saw a room, or sun connected to Lemanski’s home. He plants also growing saw through greenhouse roof, but, distance, due to the he was unable Thereafter, them. identify Trooper Cogley Officer Weidner of police the local department went to the road adjacent to the Lemanski home. With the aid of binoculars lens, and a zoom they plants identified the as marijuana. Later, Trooper Cogley and Officer spoke Weidner with another informant, citizen gave who them essentially the same information as the first informant. Trooper Cogley and Officer Weidner went back to the Lemanski home to investigate, whereupon they saw two marijuana plants in greenhouse at close range.
After obtaining warrant, a search the police returned. Mrs.. Lemanski answered the door and consented to a search of her home. Approximately one and one-half pounds of marijuana seized, were Mr. both and Mrs. Lemanski were arrested.1
Appellant filed a motion suppress the marijuana, alleg- ing that the visual intrusion and physical trespass by Cog- ley and Weidner and, constituted an illegal thus, search marijuana seized was inadmissible as “fruit of the poison- ous tree.” This motion was denied.
1. Mrs. Lemanski guilty. was tried and found not the trial disqualify motions to also filed two
Appellant *6 The first of Harold B. Fink. these the Honorable judge, against alleged on an bias personal motions was based alleged the that litigants. Specifically, appellant marijuana practices history improper sentencing a of Fink had Judge upon was The second recusal motion based drug in cases. Fink had heard allegation Judge prejudicial that appellant’s plea (guilty inadmissible at trial that would be information Both these motions were plea). of of guilty and withdrawal denied. motion, appellant also to the first recusal respect
With to hear that judge for of another appointment filed motion denied. motion. This also behalf, stating his that trial, testified on own appellant At for his use. He solely personal grew marijuana he he did not want to grew marijuana he because testified that drugs. trial people of who sold type associate with character testi- witnesses prohibited appellant’s court addition, honesty. for In reputation as fying to appellant’s cross-examining the co-de- prevented from appellant .was her fendant, Lemanski, by own represented who was Mrs. trial. counsel at of a controlled possession jury appellant
A convicted Post-trial mo- marijuana. manufacture of substance and denied, following issues appellant and raises tions were our for review: granting erred in not recusal
I the trial court Whether against of a upon appellant’s personal claim bias based charged drug offenses? persons with granting in not recusal II court erred Whether the trial agreement, rejection plea after its withdrawal hearing prejudicial plea, highly of a and the guilty at not be admissible trial? information that would denying appellant’s court erred in III Whether the trial in the pre-warrant evidence that suppress motion appellant’s physical police intrusions visual a search and seizure without residence constituted probable cause? appellant permitted
IV Whether should have been introduce character witnesses as to his reputation for he his honesty placed at credibility issue his testifying on own behalf? the trial court in denying
V Whether erred appellant right question co-defendant? court VI Whether the trial erred in advising the jury not they accept need the stipulation regarding the being for marijuana personal use, and whether the court erred not granting a mistrial after the Com- told the jury monwealth its closing that need they accept the same stipulation suggested they it? reject *7 any
VII Whether further in proceedings this matter should remanded to be a judge different of because appellant’s involvement in proceedings against Judge Fink before the Judicial Inquiry and Review Board? trial, Because we remand for a new questions where these are to likely reappear, we address each issue.
I required Recusal is whenever there is a substantial as to a jurist’s doubt to ability preside impartially. The Code of Judicial Conduct calls for disqualification where a judge’s impartiality “might questioned, be in reasonably cluding but not limited to instances where he ... has a personal prejudice bias or concerning party____” a Code of Conduct, 3, C(l)(a). Judicial Canon subd.
Appellant argues that the trial court in granting erred recusal2 Judge because Fink personal had a against bias defendants in marijuana Appellant cases. has cited a num- above, appellant requested 2. As noted judge appointed that another be Although to hear this request granted, motion. this was not the issue longer dispute. is no in The Commonwealth concedes that it was error for the court to decide the recusal motion under the facts of this Pleas, Municipal case. See Publications v. Court Common 507 Pa. of 194, (1985) (where A.2d judge brings credibility the trial his by having facts, into issue deny to admit or certain he is not in the position objective to posture proceedings maintain an over the himself). disqualify should Common Pleas Court of drug offense cases ber of by Judge sentences imposed County, of Potter which Superior Court due to failure Fink were vacated on Sentencing Guidelines and reliance properly apply addition, appellant In refers us com- improper factors.3 and in a local newspaper the bench ments made from his Judge candidly expressed Fink both where interview his Sentencing opinion Guidelines and displeasure with the penalty maximum should all cases the drug imposed. a trial must be judge who asserts party producing evidence estab bears the burden
disqualified necessitating recusal. bias, or unfairness lishing prejudice Darush, 15, 727, v. Commonwealth 501 Pa. 459 A.2d Further, judge against a (1983). the decision whom an is made will not be disturbed absent plea prejudice Id. A not limited to his own party abuse discretion. bias, may “tempera show establishing personal case in litigation particular on class mental prejudice Commonwealth allegations. his support volved” Kane, 406-07 184 A.2d Pa.Super. “believes judge has held that when Supreme
Our Court he should reasonably questioned,” his can be impartiality if as himself, as he himself has doubt just he should recuse *8 v. Commonwealth preside impartially. to to ability his Goodman, 454 Pa. 652, (1973) 358, 361, 311 654 A.2d the Function of the Relating A.B.A. to (quoting Standards Draft, 1972). 1.7, in the Approved We share Judge Trial § of bias or Supreme appearance that “the Court’s awareness in the damaging public as to confidence can be prejudice of presence as be the actual justice administration would Id. these elements.” decisions, by appellant memorandum which
3. The cases cited
are
Major
parties
any purpose.
v.
by
to
action
cannot be cited
an
for
356,
1267,
(1986) (emphasis
Major,
Pa.Super.
A.2d
1274
518
Kelliher,
added);
Pa.Super.
This Court previously expressed has its concern with the drug faces, problem country our we recognize and its debilitating every society. effects at level of our We recog- nize user,” despite also that the “weekend his fatuous rationalizations, cannot disassociate from the himself source drug or effects of illegal aligned use. He is with the kingpin of drug ring, major with street dealer who invades our grade schools and schools. high There is and, no middle ground, despite the temptation, we can have greater no for one compassion We, than for the other. as jurists, are committed But if impartiality. we allow our personal opinions goals to manipulate cause us law, our credible, commitment is no longer no matter how righteous our purpose. Under the circumstances of this case, it is clear trial judge’s impartiality could reasonably questioned. We therefore find that Judge Fink abused his recusing discretion not himself.
II Appellant’s second issue presented for review is whether court erred granting recusal after its *9 agreed by appellant to and agreement, of a plea, rejection guilty plea. of a Commonwealth, and the withdrawal to precludes necessity I Although discussion Part our issue, of this motion was an find that denial address this we Evans, Commonwealth of discretion. See 434 Pa. abuse * (1969) (“if judge a n. *, n. 252 A.2d 691-692 agreed to the defense bargain to accept plea a refuses is Commonwealth, guilty plea or if a of ... with- and original decides that his judge the trial drawn because the trial should be held then agreement inappropriate, knowledge has no another who practical judge before where prior bargaining”). plea of the
Ill is officers’ presented whether law question Thé next special- greenhouse a means of binoculars of observation appellant's Fourth a zoom lens violated ly equipped with against unreasonable searches protection Amendment seizures. the last residences on Reese house is one of
Appellant’s Road, dead-end, road in a rural area. The dirt Hollow Based in 200 feet from the house. approximately road made the road with the aid part on observations lens, issued. a search warrant was binoculars and zoom in denying his contends the trial court erred Appellant this pursuant seized to war- suppress marijuana motion lens, zoom He and a rant. claims that use binoculars warrant, a search constituted prior issuance Amendment, thus evidence violation the Fourth sup- have been pursuant to the warrant should seized Sun v. Wong poisonous “fruit tree.” pressed as States, 417, 9 United 83 S.Ct. U.S. Whitaker, 461 Pa. Commonwealth v. (1963); L.Ed.2d 407, 336 A.2d determine reviewing suppress,
In a motion we must findings of the supports the factual whether the record court, as determine the reasonableness as well suppression legal therefrom. of the inferences and conclusions drawn *10 record determining supports In whether the court’s fact, findings accept must Commonwealth’s evi- we as, fairly- dence and so much of the evidence for the defense whole, record in the context of the as a remains read Weik, 360 Pa.Super. uncontradicted. Commonwealth v. (1987); 44, 45 521 A.2d Commonwealth v. Eliff, 423, 428-29, Pa.Super. A.2d 929-30 Appellant excepted suppression has not to the court’s Therefore, findings only of fact. we need determine the legal court’s inferences and conclu- reasonableness sions. suppression hearing, Trooper Cogley
At the testified on direct examination as follows: Now,
Q. can recall you any particular dates when this first your came to attention? particular
A. This incident first my came to attention sometime around the first of October. And,
Q. did that occur? how An A. informant advised me something that other than appeared to vegetation what be normal was growing at a property on Reese Hollow which turned out to be Lemanski’s home.
Q. you When received the information something other vegetation,
than normal bring did that anything your mind? I questioned
A. person this had a they feeling it might be marijuana.
Q. Now, your knowledge, did person this any have
experience expertise or in determining marijuana what is?
A. No.
Q. information, As a result this did you anything do
specifically related to you upon that? Did act information? Yes,
A. I home, several trips past made the Lemanski driving while on duty seeing Iwhat could view. It reported had been growing this was in a green- I see home. could of their to the front attached house me. that looked unusual something see, you can estimate could Now, you said you when Q. you us where were tell you and can distance what could see this? you when positioned up time I first talking still about A. We’re there, right? Yes, initial time. first
Q. your of their house which in front from the road It was A. the road sever- I 200 feet. viewed approximately *11 marijuana. I felt it was times. al kind of any had you have Now, Trooper Cogley, Q. detecting specific in the areas of training schooling or marijuana? growing growing or drugs —the had, call guess I we would schooling, I’ve had no A. I’ve dealing with training experience on-the-job it marijuana arrests making through marijuana marijuana I what force. know the strike dealing with like. it looks is, I what know information, you initial this So, received Q. you after observations, is that correct? own your made then Yes, A. ma’am. of October? early part in the And, this occurred
Q. Yes. A. you attempted come a time when Now, did there
Q. you the home that to search search warrant obtain observing? were I was informed of October Yes, on the 16th
A. marijuana allegedly that there was person another residence. the Lemanski at greenhouse in the growing that informa- did receive day you Q. part What recall, noon? tion, if can before you noon. around A. It was way? in any information upon act that
Q. you- Did Yes, I did. A. do? you did
Q. What up. Mohler drove Myself A. and Officer up We drove in my police unmarked car and made another on viewing this from the property road I mentioned before.
Q. And that— A. using We were binoculars, plants grown had
substantially my visit, since earlier they were sticking out the top greenhouse, there was no question my mind that this was marijuana.
Q. Can you estimate tall greenhouse how is itself? A. Eight to ten feet. And,
Q. you’re saying you could see plant this growing out of the roof of that? Yes,
A. you could view it through glass and it was coming out through a panel that was removed from the top of the greenhouse.
Q. you Could describe the home that you’ve referred to
in terms of physical characteristics? A. It’s a two-story home, fairly new it has wood siding
on it with a greenhouse attached to the front nearest the road and from the house he get would into the greenhouse from a sliding probably six-foot sliding — *12 door____ glass cross-examination, On Trooper Cogley testified as fol- lows:
Q. Wouldn’t it fair sir, to say, that these were not
just regular binoculars, these were binoculars with zoom lens used particularly law enforcement? Yes, A. sir.
The Fourth protects Amendment right of the “[t]he people to be secure in their persons, houses, papers, and against effects unreasonable searches and seizures.” U.S. Const, IV; amend. 1, Pa. Const. art. 8. A search within § of meaning the Fourth Amendment “occurs when ‘an expectation of that privacy society is prepared to consider ” reasonable is infringed.’ Maryland Macon, v. 472 U.S. 463, 469, 2778, 2782, 105 S.Ct. 86 (1985) L.Ed.2d 370 (quot-
346
Jacobsen, 466 U.S.
113,
109,
States v.
104
United
S.Ct.
ing
(1984)).
person
or not a
1656,
L.Ed.2d 85
Whether
1652,
80
may
Fourth Amendment
protection
who invokes
is determined
privacy”
of
expectation
claim “reasonable
conduct,
(1) whether, by
person
his
inquiries:
two
expectation
priva-
of
(subjective)
an actual
has “exhibited
of
is “one that
privacy
(2)
expectation
cy;” and
whether
v.
Smith
as reasonable.”
recognize
prepared
is
society
2577, 2580,
Maryland,
99 S.Ct.
U.S.
States, v. United
Katz
U.S.
(1979) (citing
L.Ed.2d
(Harlan, J.,
(1967)
concur-
347,
507,
It is
privacy
of
expectation
or justifiable
have a reasonable
from some
generally
are
visible
things or activities which
Ciraolo, U.S.
public vantage point. California
(1986). The
1809, 1812,
Legitimation expectations Amendment, either outside of the Fourth a source or personal property of real or law concepts reference to permitted by are understandings recognized attaching to rights property of the main society. One see W. Commen- Blackstone, others, to exclude right taries, lawfully and one who owns or Book ch. in all likelihood have a property or controls will possesses of this privacy by right virtue legitimate expectation exclude. *13 see also 12; n. 99 at 431 n.
439
at 143
S.Ct.
U.S.
v. Lowery,
Commonwealth
305
Appellant’s greenhouse was
dining
glass
through
sliding
the
room
was accessible from
above,
house is situated 200
appellant’s
door.4 As noted
dead-end,
rural area.
feet from the end of a
dirt road
greenhouse
inside Lemanski’s
from the
Little could be seen
intrusion;
casual
the
setting
road. This
does
invite
clear indica-
greenhouse
location of the home and the
is a
expectation
to us of
of
appellant’s
privacy.
tion
is one that
expectation
We next determine whether
In pursuing
as
society
prepared
recognize
is
reasonable.
the
is not
the individual
inquiry,
this second
test
whether
assertedly “private activity,”
chooses to conceal
but wheth-
personal
the
government’s
infringes upon
er the
intrusion
the Fourth Amendment.
protected by
values
societal
Ciraolo,
207, —, 106
1812. Protection
476 U.S.
S.Ct.
home
the heart of the Fourth Amend-
privacy
recognition
ment.
“The Amendment
reflects
should
free from arbi-
Founders
that certain enclaves
be
interference
...
States
trary government
[T]he [United
Amend-
Supreme]
since the enactment of the Fourth
Court
overriding respect
sanctity
ment has stressed ‘the
for the
has
in our traditions since the
home that
been embedded
”
States, Oliver v. United
origins
Republic.’
170, 178,
1735, 1741,
(1984)
L.Ed.2d 214
U.S.
104 S.Ct.
York, 445 U.S.
Payton v. New
573, 601,
(citing
100 S.Ct.
1371, 1388,
(1980)).
4.
room,
dining
risking
possibility
intruding
intimate
on the
—
—,
Dunn,
everyday
details of
life.
United States v.
U.S.
Cf.
S.Ct.
The court stated that by postman, could have viewed the greenhouse the ... been or non-offi- delivery newspaper boy any the other boy, the to the of ordinarily come front door party cial would who obvious; This dwelling.” is the defendants’ residential officer’s however, justify police it not a use of binoc- does from distance of 200 The ulars and zoom lens a feet. a protect not intended to citizens Fourth Amendment was of or mere eyes delivery boys passersby. from the curious Fourth Amendment teaches us other- history of the Rights the Bill of were wrote determined wise.5 Those who free intru- that citizens forever from unbridled official sion: in the memory newly independent of Americans
Vivid assist- general warrants known as writs of were those had ance under officers of the Crown so bedeviled which given The hated of assistance had colonists. writs they to search authority customs officials blanket where of the imported for in violation British tax pleased goods Otis “the worst They laws. were denounced James as arbitrary power, instrument of the most destructive law, and the fundamental English liberty, principles book,” English that ever found an law because placed liberty every “the man the hands of they every petty officer.”
Stanford, Texas, 13 379 U.S. S.Ct. (1965). L.Ed.2d 431 Ciraolo,
In certiorari to de- Supreme granted Court the Fourth Amendment is termine whether violated 1,000 observations from an altitude of warrantless aerial backyard curtilage feet of a fenced-in within that, although home. A sharply divided Court determined clearly subjective expectation defendant had exhibited mere fact had taken privacy, that he measures of his illegal agricultural pursuits restrict some views did public from a preclude vantage an officer’s observations history of the is 5. The familiar Fourth Amendment recounted 573, 583-85, 1378-79, York, Payton v. U.S. S.Ct. New L.Ed.2d renders the and which right to be he has point where —, at 1812. 106 S.Ct. 476 U.S. at clearly visible. activities concluded that: The majority in the flight and commercial age private where an
[i]n respon- for routine, is unreasonable it airways public were constitu- plants expect marijuana that his dent the naked with being observed protected tionally *15 require does not simply The Fourth Amendment eye____ at this altitude public airways in the traveling police the is to what visible in order to observe to obtain a warrant the naked eye. added).6 —, (emphasis at 106 S.Ct. at
476 U.S.
It
is
distinguishable.
clearly
case is
The instant
the
is within
question
greenhouse
that
undisputed
private
surrounding
curtilage
area
“curtilage” area.7
the Fourth Amendment
under
protection
house is entitled to
expecta
have a reasonable
occupants
where the
place
as a
Dow
accept.
to
society
prepared
that
privacy
tion of
States,
227, —,
106 S.Ct.
Co. v. United
476 U.S.
Chemical
Ciraolo,
1827,
(1986). Unlike
To maintain we our effectively enforce requires that we society, which Thus, applied are to the strictures that laws. inadvertent- freedom must never be allowed preserve our undermining equal for it. Of the vehicle ly provide fear, surrendering in against is that guard concern we *16 era, that are protections lawless fundamental perceived of our free the and maintenance preservation essential to society. 118, 127-128, A.2d Miller, 513 Pa. 518 v.
Commonwealth (1986). 1187, 1192 Trooper Cogley taken by conclude that the actions
We so as to sufficiently were intrusive Officer Weidner ex- upon appellant’s legitimate infringement constitute an pectation privacy. of addition, subsequent onto Leman- entry
In the officers’ greenhouse the observing for the property purpose ski’s police also unconstitutional. When range at close was the scene contraband “justifiably officers who are at [see] view,” not a the in the “is search within plain observation Fourth Amendment ... no warrant is meaning the [and] 469, 472, Getz, 236 required.” Pa.Super. Commonwealth v. omitted). 686, (1978) (citations The Common- 344 A.2d 687 held, trial court that the search argues, and the wealth
351 on were Lemanski’s legitimately officers lawful because plants “plain view.” marijuana and saw property distinct encompasses types view doctrine two plain first is that in which the “view” takes type cases. The protected constitutionally after an intrusion into a place such as original justified, intrusion is area. “[I]f other, consent, sighted or pursuit, objects hot warrant admissible, long so as the view was plain view will be Weik, 560, Pa.Super. 360 inadvertent.” Commonwealth (1987). is that type 521 A.2d 46 The second of case intrusion into a place any the view takes before where protected area.8 constitutionally finding greenhouse Based on our that Lemanski’s above area, instant case falls constitutionally protected is a into the The officers entered onto Leman- category. first property, approached greenhouse, peered ski’s into warrant, consent, it. All of this was done without a without Their exigent and without circumstances. intrusion was Weik, justified, nor was their inadvertent. See “view” Adams, 234 supra; Pa.Super. Commonwealth v. A.2d 206 We therefore conclude that the “plain here, is inapplicable view” doctrine and the warrantless search was in rights. violation Lemanski’s constitutional are, searches “subject specifi
Warrantless
to a few
only
cally
exceptions,” per
established and well-delineated
se
unreasonable and are therefore
prohibited by
Fourth
Katz,
514;
Amendment.
Affiant received reliable, Affiant to mant, a known to the be person green- in a growing seen this informant was marijuana to the residence of the above house or sun room attached This is familiar with occupants. person or named owners that infor- plants. upon of such Based the identification at the public roadway on the past mation Affiant drove plant growing to be searched and observed premises Thereafter, Affi- greenhouse. the roof of the through [ ] spoke with another reliable ant and Officer Weidner to the Affiant and Officer citizen informant who is known source, that he had who advised Weidner be reliable growing at the marijuana what he believed observed The information herein described premises described. [ ] first informant first received from the described was (2) the date of this approximately two weeks before proba- of the application for search warrant. balance hereof. cause was received on the date Both ble mature, respected, informants herein are em- described dissented, stating Judge Montgomery physical that "the unnatural 9. sight occupied by penetration person” line into the normal should Pa.Super. be disallowed. 216 263 A.2d 908. We note Hertiley occurred and the also that the observations court Katz, given wholly pro- which was decided in found spective application.
353
long standing
community,
within this
citizens of
ployed,
record and thus are believed
criminal
prior
with no known
as Officer Weidner
be reliable.
Affiant as well
evaluating
probable
for
whether
cause
The standard
search
is the “totality
issuance of a
warrant
exists for the
Gates,
test set forth
Illinois v.
462
of circumstances”
2317,
(1983).
213,
from which the informants had concluded that the
merely “suspected”
were
The informants
marijuana.10
record,
reading
particular
testimony
Trooper
10. Our
Cogley
hearing,
suppression
Trooper
at the
reveals a contradiction of
Cogley’s allegation in the affidavit
that the informant was "familiar
plants.”
emphasize
possi-
with the identification of such
We
that the
bility
drafting
of official misconduct
in the
is a serious
an affidavit
consideration,
Miller,
see
Commonwealth v.
513 Pa.
An
report
informant’s
“which itself fails to establish
probable cause may be sufficiently
by indepen
corroborated
tends
dent
conduct,
observation' of a suspect’s
if the latter
in the report or otherwise to
confirm
information
support a conclusion that the suspect
engaged
in commit
Corleto,
Commonwealth v.
ting a crime.”
328 Pa.Super.
863,
(quoting United
477
(1984)
A.2d
865-66
Acarino,
States v.
512,
(2d
408 F.2d
Cir.1979)).
515
We are
unwilling to
significance
attribute
to Trooper Cogley’s ini
tial
greenhouse
observation of the
from the public road with
naked
his
eye.
time,
At that
Trooper
Cogley
“plant
saw
growing through the roof of the greenhouse.”
This is
insufficient
to confirm the informant’s
report and
are
we
thus unable to uphold a finding of probable cause. Cf.
Baker,
Commonwealth v.
23,
513 Pa.
(1986);
Appellant several 505, 416 A.2d Pa.Super. In Stafford, Commonwealth v. trial, (1970), of theft. At the defendant was convicted police officers the Commonwealth introduced evidence *20 and, upon called to the scene of a furniture store were arrival, large a door. The officers saw glass by saw broken moving someone inside the store and the about observed defendant out of the store. carrying portable television The defendant testified that he inside the store because was through glass he had the pushed plate been window during fight. store He denied the television. carrying the defendant’s contradicted the Clearly, testimony directly Commonwealth’s evidence and therefore the defendant’s credibility directly was at issue. Scott,
Appellant also cites Commonwealth v. 496 Pa. Scott, In appellant A.2d 607 the was convicted third-degree presented murder. The Commonwealth tes- and, timony appellant’s provocation, rebut claim of this, appellant rebut claimed self-defense. appellant’s Since reputation defense, for honesty was essential to his the court properly admitted the character evidence. us, however,
The case before is unlike appel those lant cites. Mr. Lemanski’s in testimony was not direct conflict that presented with the by Appel- Commonwealth. to growing possessing
lant admitted
and
marijuana. Conse-
appellant’s
quently,
credibility
directly
was not
at issue.
The appellant’s good character for the trait of honesty was
determined
the
by
trial court to be irrelevant to the crimes
he
charged.
for which was
agree
We
with
trial court
that “honesty is not inherent or relevant on the
charge
manufacturing
possessing drugs.”
... or
See Common-
wealth v.
Stefanowicz,
Pa.Super.
V Appellant argues that the trial court erred him denying right to cross-examine the Appellant co-defendant. trial, his wife were co-defendants at represented were by separate Appellant counsel. testified on his own behalf. Thereafter, Mrs. Lemanski testified on her own behalf and cross-examined Appellant’s Commonwealth. trial counsel then attempted her, to cross-examine but the precluded trial court him from doing Appellant so. claims this anwas abuse of the trial court’s discretion. provides Sixth Amendment that an accused all “[i]n prosecutions criminal shall enjoy right ... ... to be confronted with the against witnesses him.” U.S. Const. *21 VI; 1, amend. Pa. Const. art. 9. The right of confronta § tion imports the accused’s constitutional privilege to cross- examine against witnesses him. The purpose of the con frontation clause is to provide an accused with effective means of challenging against evidence him by testing recol probing lection and the conscience of an adverse witness. Robinson, Commonwealth v. 522, 525, 507 Pa. 491 A.2d 107, (1985). 109
357 in his own be testifies party if a Undoubtedly, should be co-defendant, the latter his incriminates half See Common of cross-examination. right the extended 872, 874-75 474, 478, A.2d McDowell, 460 Pa. v. wealth A. 33 A.L.R. Crooker, 123 Me. (1975); v. State of the co-defend However, testimony (1923). here the if contrary, the On appellant. incriminate did not ant appel corroborated testimony believed, Mrs. Lemanski’s delivery him insofar as and exonerated testimony lant’s opinion that are of the We charge was concerned. than any was more favorable testimony co-defendant’s Com produced. have See possibly could cross-examination 397 A.2d 263 Pa.Super. Harvey, monwealth v. argument Hence, appellant’s find no merit to we confront right his constitutional that he was denied him. against witnesses
VI refusing court erred claims that the trial Appellant jury told the attorney after the district grant a mistrial accept stipulation they need closing argument her Appel- personal use. appellant’s that the was for marijuana in its instructions to lant also claims that the court erred respect stipulation. to this jury with agreed upon the fact A is a statement that stipulation 198 Pa. proven. McMurray, Commonwealth trial, (1901). Prior to the Commonwealth A. stated, stipulation defense counsel entered into a which “personal for alia, marijuana question that the was inter trial, stipulation stated: “This is a prosecution use.” At the Common- fact that’s entered into between been defendants____ wealth, me, for each of the and the counsel However, in grown personal for use.” marijuana stated: mere fact that closing, prosecution “[T]he at other preclude you looking exists doesn’t stipulation facts____ know, guess, personal or that a We we would marijua- amount of require use would na____ a much smaller *22 358
Thereafter, the the as jury court instructed follows: by ‘personal must is meant alone determine what “[Y]ou circumstances____I I guess use' under the would that could to others if I wanted to still deliver it would be for personal objected use.” counsel to afore- Appellant’s mentioned statements.
A according valid is to enforced to stipulation parties its are to facts accept terms. bound to they stipulated, remedy which have and the for violation of Mathis, is reversal. Commonwealth v. stipulation 317 also see Pa. (1983); A.2d Pa.Super. Instructions, Suggested Jury Standard Criminal 3.17 § (November 20, 1971). We question trial court’s inter use,” pretation “personal the term and the prosecutor’s However, disregard of the stipulation. emphasize we appellant was found guilty possession of a controlled Appellant substance11 manufacture12 of marijuana. was found not guilty possession with intent deliver.13 We therefore find the court’s error to be harmless.
VII Appellant contends that further any proceedings this matter should judge, be remanded to a different re- 11. 780-113(a)(1), (16). distinguish 35 P.S. § We are careful to be- simple possession possession tween of a controlled substance and with Davis, Pa.Super. intent to deliver. See Commonwealth v. A.2d 1035 12. Manufacturing 780-102(b): is defined 35 P.S. § production, preparation, propagation, compounding, conversion substance, processing drug or of a controlled other device or or the article, packaging repackaging or of such substance or or the labeling relabeling or of the commercial of such container sub- article, or practitioner stance but does include the activities of a who, an dispensing as incident his administration or such sub- or professional stance article in course practice, prepares, of his compounds, packages or labels such substance or article. The term person “manufacturer” a means who manufactures controlled substance, drug other or device. 13. 780-102(b): actual, Deliver defined P.S. § “the construc- tive, substance____” attempted person or transfer one another of controlled appeal. in this other issues of the outcome gardless agree. We upon the fact centers *23 argument original appellant’s
The the testified before already has counsel appellant’s that incidents regarding two Board Review Inquiry and Judicial Fink. This testi- involving Judge proceeding this related to Fink. negative Judge construed as toward mony only can be 3, memorandum, filed December Also, post-submission in a to developments presented several new 1986, appellant the temporarily sus- (1) Fink has been Judge considered: be subpoenaed Fink cases; (2) Judge has hearing pended trial (co-defendant at wife appellant’s and the appellant the and Inquiry at the Judicial testify acquitted) who was (3) Fink has also Judge and proceedings; Review Board County, of Potter attorney district the assistant subpoenaed this argued trial and before the case at prosecuted who court. a “dis- requires judge that
The of Judicial Conduct Code impartiality his proceeding in a which qualify himself of Con- Code Judicial might questioned.” reasonably also enumerates duct, 3, (C)(1)(a). The Code Canon subd. him- disqualify should specific judge situations which self, prejudice bias or including personal “he has a when Conduct, of Canon Code Judicial concerning party____” above, clearly facts 3, (C)(1)(a). the As we stated subd. im- concerning Judge Fink’s question present a reasonable pro- is entitled to further appellant and thus the partiality Reilly Reilly by See ceedings judge. another before Auth., Transp. Pa. Southeastern Pa. 489 A.2d Darush, Commonwealth v. (1985); 501 Pa. (1983). A.2d 727 and remanded for a new trial. Jurisdiction
Reversed relinquished.
POPOVICH, J., dissenting concurring files a and opinion.
POPOVICH, Judge, concurring dissenting: Opinion I portion Majority would dissent to that to view the holding police’s the use binoculars greenhouse appellant’s marijuana plants growing out of his prohibition of the Fourth Amendment’s violative legitimate against priva- into one’s expectation intrusion cy. the police recounts how officer Majority initially past residence, as he
spied plants appellant’s drove growth on their patrol, routine observed without the aid artificial enhancement his vision to make any sighting. forget
One
not
must
Fourth Amendment is
places.
U.S.,
intended to
and not
protect people
Katz v.
U.S.
88 S.Ct.
Like an pane glass undrawn the clear of enclos- ing greenhouse prohibited the no seeing one from what occurred inside. The fact that one had to use artificial means to secure a of confirmation what the officer at first a growing believed to controlled substance out of be the greenhouse roof of the not does brand the conduct “intru- Therefore, I sive”. by cannot endorse a the finding Majori- ty appellant the expectation had a “reasonable” of privacy greenhouse. the contents of his case, If such were the in no then instance where the police used, e.g., an infra-red tape camera to video conduct of criminals carried out under the cover darkness would be admissible in a I court law. do not believe the Fourth Amendment preclude was intended to the use of information obtained with artificial (i.e., binoculars, means etc.), infra-red anyone cameras for what does for all to see is not a matter which invokes the shield of the Fourth Amendment.
It as if would be an individual viewed the commission of a crime, it through telescope, law, and the under the Constitution, would insulate the reading of the Majority’s the information/evi- party prosecution because guilty by artificial means. its securement by was tainted dence parchment upon This stretch fibers truly would those giving refuge is written the Constitution which such a afforded protection the mantle not entitled to document. conclusion that
Further, I join Majority’s cannot warrant defec- section of the search was probable cause tive. its with compliance of the warrant discloses
My reading
our Su-
test enunciated
“totality
of circumstances”
Gates, 462 U.S.
103 S.Ct.
Court in
preme
Illinois
I
find the
Accordingly,
For the reasons stated dissent respectfully part. *25 A.2d Pennsylvania, Appellee,
COMMONWEALTH RIVERA, Sr., Appellant. Daniel Superior Pennsylvania. Court of 4,May
Submitted 1987. Aug. 6, Filed 1987.