Com. v. Morrisroe, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL DISMAS MORRISROE :
:
Appellant : No. 1265 WDA 2019
Appeal from the Judgment of Sentence Entered February 22, 2017
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000451-2015
BEFORE: LAZARUS, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 23, 2020
Appellant, Paul Dismas Morrisroe, appeals from the Judgment of
Sentence entered on February 22, 2017, after a jury convicted him of
Homicide by Vehicle while Driving Under the Influence (DUI) and numerous
related offenses.1 Appellant asserts that the trial judge should have recused
from this case and claims that the suppression court judge erred in denying
Appellant’s Motions to Suppress. After careful review, we affirm.
Factual and Procedural Background
On June 2, 2015, after consuming alcohol for an extended period,
Appellant left a local bar to travel home. While driving his truck, Appellant
struck and killed Dakota Heinaman (the “Victim”), who was driving his
motorcycle. Appellant fled the scene.
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1 75 Pa.C.S. § 3735(a).
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The collision caused significant damage to Appellant’s truck, which left
a trail of deep gouges in the road as Appellant continued to drive. Smethport
Police Officer Kyle Day, responding to the accident, followed this trail to a
garage owned by Appellant.2 Peering inside a window of the garage, the
officer observed the truck and its extensive damage. Based on the officer’s
observations, as well as additional evidence from the accident scene,
Pennsylvania State Police secured a search warrant for the garage.
Police investigating the accident made contact with Appellant at his
nearby home. After observing signs of his impairment, the police arrested
Appellant for suspicion of DUI. Police also secured a warrant to draw blood
from Appellant. Following further investigation, the police secured additional
warrants to search the contents of Appellant’s truck, a cellphone discovered
in the back seat of the truck, the mechanical operation and equipment of the
truck, and Appellant’s cellphone records.
On September 28, 2015, the Commonwealth charged Appellant with
numerous crimes related to the accident: Homicide by Vehicle while DUI,
Accidents Involving Death or Personal Injury, Homicide by Vehicle, four counts
of DUI, Accident Involving Damage to Attended Vehicle, Driving on Right Side
of Roadway, Driving on Roadway Laned for Traffic, Following Too Closely,
Driving Vehicle at Safe Speed, Limitations on Overtaking on the Left, Careless
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2The garage was located adjacent to a rental property owned by Appellant.
See N.T. Suppression, 3/9/16, at 41.
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Driving, Reckless Driving, Duty to Give Information and Render Aid, and
Immediate Notice of Accident to Police.3
On February 17, 2016, Appellant filed an Omnibus Pretrial Motion, which
included several Motions to Suppress. According to Appellant, police illegally
entered onto his property, and the evidence gleaned from this initial violation
poisoned his arrest and each of the search warrants later secured by police.
On April 29, 2016, following extensive hearing, argument, and briefing by
Appellant and the Commonwealth, the Honorable William F. Morgan denied
Appellant’s Motions to Suppress.
The matter proceeded to trial. On May 16, 2016, prior to the
commencement of jury selection, Appellant moved for recusal by the trial
judge, the Honorable John H. Pavlock. According to Appellant, social media
activity by his secretary created the appearance that Judge Pavlock was
sympathetic to the Commonwealth’s case. Judge Pavlock declined to recuse
but noted that potential jurors’ awareness of all social media activity
concerning the case was relevant to the voir dire process.4
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3 75 Pa.C.S. §§ 3735(a), 3742(a), 3732(a), 3802(a)(1),(d)(1)(i),(iii), (3),
3743(a), 3301(a), 3309(1), 3310(a), 3361, 3305, 3714(a), 3736(a), 3744(a),
and 3746(a)(1), respectively.
4 Appellant had moved previously for Judge Pavlock’s recusal on several
grounds. Motion to Recuse, 1/4/16 (asserting, e.g., that Judge Pavlock had
prosecuted Appellant some years before in an unrelated case and that Judge
Pavlock maintained personal friendships with current and former members of
the district attorney’s office). The court denied the Motion. Order, 1/14/16;
see also Trial Ct. Supplemental Op., 1/14/16 (concluding that Appellant’s
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On May 18, 2016, during jury selection, the trial court determined that
it could not seat a fair and impartial jury in McKean County. The court
therefore granted Appellant’s request to change venue. On January 18, 2017,
a trial commenced in Venango County with Judge Pavlock presiding. After
trial, the jury convicted Appellant of all counts.5
On February 22, 2017, the trial court sentenced Appellant to an
aggregate term of seven and one-half to fifteen years of incarceration.
Appellant timely appealed, but this Court dismissed the appeal for failure to
file an appellate brief. Commonwealth v. Morrisroe, 460 WDA 2017 (Per
Curiam Order filed March 19, 2018).
Following collateral proceedings, the trial court reinstated Appellant’s
right to direct appeal. Appellant timely appealed, but newly appointed counsel
sought leave to withdraw.6 On May 21, 2020, this Court denied counsel leave
to withdraw and directed counsel to submit an advocate’s brief on Appellant’s
behalf. Counsel complied, and we now address Appellant’s claims.
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Motion was both untimely and without merit). Since Appellant did not raise
before us this basis for recusal, he has waived the issue, and we are without
jurisdiction to consider whether Judge Pavlock erred in not recusing on the
grounds that he had prosecuted Appellant when he was an attorney in the
District Attorney’s Office.
5 The trial court addressed the summary offenses and found Appellant guilty
of each summary offense except Driving Vehicle at Safe Speed and Limitations
on Overtaking on the Left. See N.T. Trial, 01/26/17, at 114-115.
6 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
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Appellant raises the following issues:
1. [Whether] the Honorable John H. Pavlock err[ed] in failing to
recuse himself from the case, in particular in regard to the
request made May 16, 2016[,] due to the actions of Judge
Pavlock’s secretary/assistant Ms. Trask[; and]
2. [Whether] the Honorable William F. Morgan err[ed] in denying
Appellant’s [p]re-trial Motion[s] to Suppress[:]
a. The entry on the premises by [Officer] Kyle Day was illegal.
b. The search warrant for the garage of Appellant was illegal.
c. The arrest of Appellant was illegal.
d. The search warrant for Appellant’s blood was illegal.
e. Other warrants obtained based on the fruits of the illegal
warrants and arrest above[] were illegal.
Appellant’s Br. at 15-16.
Motion for Recusal
In his first issue, Appellant asserts that statements allegedly made by
Judge Pavlock’s secretary via social media created the appearance that Judge
Pavlock could not fairly or impartially preside over his trial. See id. at 43-48.
According to Appellant, her statements imply that the court was sympathetic
to the Victim and, therefore, biased against Appellant. Id. at 47. There is no
evidentiary support for this claim.7
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7In passing, Appellant “also believes” that the trial court erred in denying his
other recusal requests. Appellant’s Br. at 48. We deem this further claim
waived for lack of development. See Commonwealth v. B.D.G., 959 A.2d
362, 371-72 (Pa. Super. 2008); Commonwealth v. Luktisch, 680 A.2d 877,
879 n.1 (Pa. Super. 1996); Pa.R.A.P. 2119(a)-(e).
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“[W]e recognize that our judges are honorable, fair and competent.”
Commonwealth v. Abu-Jamal, 720 A.2d 79, 89 (Pa. 1998) (citation
omitted). Thus, “[o]ur standard of review of a trial court’s determination not
to recuse from hearing a case is exceptionally deferential.” Commonwealth
v. Harris, 979 A.2d 387, 391 (Pa. Super. 2009) (citation omitted). “Where a
jurist rules that he or she can hear and dispose of a case fairly and without
prejudice, that decision will not be overruled on appeal but for an abuse of
discretion.” Commonwealth v. Dip, 221 A.3d 201, 206 (Pa. Super. 2019)
(citation omitted).
The party requesting recusal must “produce evidence establishing bias,
prejudice or unfairness [that] raises a substantial doubt as to the jurist’s
ability to preside impartially.” Commonwealth v. Tedford, 960 A.2d 1, 55-
56 (Pa. 2008) (citation omitted). Absent evidence of record, we will not
disturb the decision of the trial court to deny a motion to recuse. See, e.g.,
Dip, 221 A.3d at 214-15 (declining to consider allegations that trial judge had
financial stake in potential litigation against the district attorney’s office or
that judge’s ex parte communications established bias where the
Commonwealth failed to support allegations with evidence of record).
Upon our review of the record, we discern no evidentiary basis upon
which to disturb the decision of Judge Pavlock to deny Appellant’s motion to
recuse based on his allegations that Judge Pavlock’s secretary made biased or
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prejudicial statements on social media.8 Prior to the commencement of jury
selection in McKean County, Appellant asserted that these alleged statements
“would potentially influence people [in the jury pool] who know she’s your
secretary[.]” N.T. Jury Selection, 5/16/16, at 13. In response, Judge Pavlock
permitted counsel for Appellant and the Commonwealth to question his
secretary. Id. at 14. Their questioning occurred off the record. See id. at
16. At no point thereafter did Appellant seek to introduce evidence of these
alleged statements into the record. See id. at 16-20. Thus, Appellant did not
meet his burden to demonstrate bias, prejudice, or partiality, and no relief is
due on appeal.9, 10
Motions to Suppress
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8The trial court did not address this specific claim for recusal in its Opinion.
See Trial Ct. Pa.R.A.P. 1925(a) Op., 3/12/19, at 5 (addressing solely
Appellant’s prior request for recusal).
9 In addition, we note that Judge Pavlock permitted counsel to pursue the
matter further during voir dire and determined that if a potential juror had
seen the alleged statements, “it would have bearing on whether that juror
would be excused for cause or not.” Id. at 19.
10 The Code of Judicial Conduct prohibits judges and their staffs from
discussing pending cases, and judges have the responsibility to ensure that
staff members are aware of the provisions of the Code of Judicial Conduct.
See Code of Judicial Conduct, Canon 2, Rule 2.10(C) (“A judge shall require
court staff, court officials, and others subject to the judge's direction and
control to refrain from making statements that the judge would be prohibited
from making[.]”). We trust that the trial court in this case has ensured that
its staff members are aware of the limitations that the Code of Judicial Conduct
places on the staff members, especially when using social media.
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In his second issue, Appellant contends that the trial court erred when
it denied his several Motions to Suppress. See Appellant’s Br. at 40-42, 48-
59. According to Appellant, (1) Officer Day’s entry onto his property was
illegal; (2) probable cause did not support the warrant to search Appellant’s
garage; (3) probable cause did not support his warrantless arrest for suspicion
of DUI; (4) the warrant to search Appellant’s blood was illegal because it listed
the wrong criminal statute; and (5) additional warrants secured by police
during their investigation lacked probable cause or were otherwise defective.
See id.
We review the suppression court’s decision to deny a motion to suppress
to determine “whether [its] factual findings are supported by the record and
whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Milburn, 191 A.3d 891, 897 (Pa. Super. 2018) (citation
omitted). “Because the Commonwealth prevailed before the suppression
court, we may consider only the evidence of the Commonwealth and so much
of the evidence for the defense as remains uncontradicted when read in the
context of the [suppression] record as a whole.” Commonwealth v.
Freeman, 150 A.3d 32, 34 (Pa. Super. 2016) (citation omitted). We are
bound by the suppression court’s factual findings where they are supported
by the record, and we may reverse only if the court’s legal conclusions are
erroneous. Id. at 35.
“Where . . . the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal conclusions
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are not binding on an appellate court, ‘whose duty it is to determine if the
suppression court properly applied the law to the facts.’” Commonwealth v.
Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted). “Thus, the
conclusions of law of the courts below are subject to our plenary review.” Id.(citations omitted).
The Honorable William F. Morgan, who presided over Appellant’s
suppression Hearing, has authored a comprehensive, thorough, and well-
reasoned Opinion addressing each of Appellant’s suppression claims. After a
careful review of the parties’ arguments and the certified record, we adopt the
Opinion as our own and affirm the suppression court’s denial of relief. See
Suppression Ct. Op., 5/19/16, at 9-10 (concluding that Officer Day’s entry
onto Appellant’s property was legal; Appellant had no reasonable expectation
of privacy in the garage because it was not curtilage, nor were there signs,
fencing, or window coverings to conceal its contents);11 10-11 (concluding
that probable cause supported the search warrant issued for garage because,
as indicated within the four corners of the affidavit, police had followed a trail
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11 Judge Morgan’s decision addresses Appellant’s claim as preserved. See
Appellant’s Pa.R.A.P. 1925(b) Statement, 3/14/2019; Omnibus Pretrial
Motion, 2/17/16; Specificity Supplement to Omnibus Pretrial Motion, 3/8/16;
Brief in Support of Motions to Suppress; 4/11/16. In his Argument to this
Court, Appellant further avers that Officer Day’s entry onto his property
constituted a trespass because his garage is located a significant distance from
the public road. Appellant’s Br. at 48-49. Appellant did not preserve this
specific claim below; thus, it is waived. Pa.R.A.P. 302(a). Moreover, even if
it had been preserved, we would conclude that it its meritless. See
Commonwealth v. Simmen, 58 A.3d 811, 816 (Pa. Super. 2012) (holding
that an individual does not have a reasonable expectation of privacy in a
driveway “accessible to the general public”).
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of damaged road from the accident site to garage and observed significant
damage to Appellant’s truck parked within); 11-13 (concluding that probable
cause supported the warrantless arrest of Appellant for suspicion of DUI after
police officers observed signs of Appellant’s intoxication and Appellant made
inconsistent statements regarding the location of his truck and the location of
keys to his garage); 13-14 (concluding that technical violation—listing
incorrect criminal statute—in affidavit of probable cause for search warrant of
Appellant’s blood did not necessitate suppression because affidavit contained
all relevant facts to establish probable cause); and 14-18 (concluding that
probable cause supported issuance of the other search warrants; affiants had
reasonably trustworthy information).
Conclusion
Appellant did not support his claim for recusal with evidence of record.
We discern no error in the suppression court’s decision to deny Appellant’s
Motions to Suppress. For these reasons, we affirm Appellant’s Judgment of
Sentence.
We direct the parties to annex the suppression court’s May 19, 2016
Opinion to any future filings.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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Circulated 12/17/2020 12:04 PM
MAY 19, 2016 OPINION - SUPPRESSION
COMMONWEALTH OF PENNSYLVANIA 1N THE COURT OF COMMON PLEAS OF
vs. McICEAN COUNTY, PENN SYLVAN IA
a
PAUL D, NIORRISROE, CRIMINAL DIVFSION 5,,
2
,-..
Defendant. No, 451 CR 2015 -
p.,.
L.Cr
OPINION AND.ORPER
E). vii
G7
Before the Court is Defendant Paul D. Morrisroe's Motion to Suppress which was ii]
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on February 17, 2016_ The Commonwealth filed its Answer to Defendant's Motion to Suppress
on March 4, 2016 and in response the Defendant fiEed a speciriuity supplement to the Motion to
Suppress on March e, 2016. AACT four days oxteEurivE 1-Law4ng ae d aqw.rimitt, 1.13z CU U1 t
directed both parties to file briefs by April I t r 2016. The Court received briefs from both parties
and the matter is now ready for decision.
I. JIACKGROUND
On June 2,2015, Officer Kyle Day of the Smell-Tort Police Department was working
the evening shift when a call came into the MeKon 91 t Center about a serious -arsa] on Route
646 near the town of Cyclone in McKean County, PA_ when officers arrived at the scene;
Dakota I-Icinainan (hereinafter "Victinfl was found on the ground nearby his orange motorcycle,
The Victim perished at the scene due to injuries sustained from the collision. A vehicle,
deribed as a white or silver Dodge truck with a /24cleir rack, had reportedly fled the scene
heading towards Smethporl. As Officer Dv was travelling on Route 59 kreard the accident
scene, he encountered Pennsylvania State Police ("PSP") Trooper Alex Wikssman- Trooper
Wuggirmin %Tilt to the accident scene and Officer Day co
involVed in the at-ash. Officer Day travelled on Route 59
4n10 Bingham Road.
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Go Ring ham Road, Officer Day observed a gouge mark in the roadway and he continued
to follow the gouge mark. The gouge was traced onto Route 59 in a westerly direction and then
turned north Oa° Sunny Lane, At the tarn, the mark was more distinct, Officer Day traveled on
Sunny Lane to a cleared area which contained a house, a garage, and a parking area. Officer Day
&flowed the gouge mark up and onto the apron of the garage to the overhead garage door, The
gouge mark appeared to be -V" shaped and was comistent with the mark Officer Day had traced
from the accident scene.
Officer Day then looked into the windows of the garage with his flashlight and saw what
appeared to be a heavier silver Ford tyre truck, The right front tire was off the rim and there wtis
dunage to the passenger side front area of the vehicle. The damage to the front passenger tire
and rim was significant Afier bolting into the garage,. Officer Day contacted PSP Trooper Mar"
Gausrnain and he remained outside the garage, While outside the garage, Officer Day ran the
plate on a trailer parked nearby which came back as being registered ro Morrisroe Consiruction,
When Fsp Trooper Ryan 1'. Marcinko and PSP Trooper Danielle Marshall met Officer
Day at the Morrisroe property to investigate the crash they reported that the crash involved a
fatality, Trooper Maniac observed a nick in the cement apron of the garage and saw a tire
about twenty (20) yards from the garage with AlnAhes in it. Trooper Tvlareinke and Trooper
Maedial [ locked into the window of the garage with flashlights and observed damage to a silver
Ford truck, the damage being to the truck's right rim and front passenger side tire and bumper.
Trooper Gausman was advised by Officer Day, Trooper Mareinko, and Trooper Marshall of the
damage they observed to the truck in the garage, the gouge mark seen on the roads Leading to the
Defendant's property, and statements made by the tenants of the house on the property as to the
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owner of the garage. From this information, Trooper Gausman applied for e search warrant of
the garage.
PSI' Corporal Lulu Schimp and Trooper eau_srnan arrived at the property around 3;00
tun, on June 3, 2015 to execute the search warrant of the garage. Corporal Schitnp, Trooper
Gausrnan, Trooper Marcinko, and Officer Day walked from the garage to the Defendant's house
in the hopes that the owner would have a key to the garage, Corporal Schimp repeatedly
knocked on the front door and could see someone through the front porch window who appeared
to be sleeping on the couch. After the Defendant awoke and came to the door, Corporal Sohimp
advised him that they were there to investigate a erash and that they bad a search warrant for the
garage, The Defendant stated that his keys were in the truck, which was in the garage.. Corporal
Schimp smelled an odor of alcohol emanating from the. Defendant's person and saw that he
appeared slow and sluggish. The Defendant did not permit the officers to enter when he went
beck into the house to change clothes. He then walked down his driveway with the officers and
down Sunny 1..ane to the garage. The Defendant stated again that the keys to the garage were in
the tru.ck.
Corporal Schimp went to get his breaching equipment but first returned to the
Defendant's house to see if the Defendant's paramour, Beth Each, would know where the keys
were. Ms. Eseh stated that the Defendant would he the one who had the keys and that were no
spare keys, Ms. Esoh claimed that she had not seen the Defendant Moe the morning. After
speaking with her, Corporal Sehhop ruled out Ms, Eseh as a possible driver of the vehicle.
Meanwhile at the garage, the Defendant stated that the last time he saw his track it was parked in
front of his house. At this point, Trooper Marshall was able to enter the garage by climbing
through an unlocked window. She went around and opened the man -door to the garage from
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inside. Corporal Selling entered the garage. and observed the gouge mark leading to the Ford
truck and the damage to the body of the truck and the rim of the wheel.
Based on his observations of the Defendant throughout the early morning, Corporal
Schirnp ordered Trooper Marcinko to arrest the Defendant for suspicion of DUI. The Defendant
was then plated into a patrol car and was transported to Bradford Regional Medical Center for a
blood draw. At the. hospital, the Defendant refused the blood draw. Defendant was then
transported to the State Police Barracks in Kane for the purpose of undergoing an evaluation of
impairment by PSP Corporal Theodore Race. The Defendant refused to participate in the
evaluation. However, Corporal Race was able to observe the Defendant, which led Corporal
Race to conclude that the Defendant showed signs of impairment.
In the early lours of the morning, crash re-conarmtio,im PSP Corporal Ktutis Rtuumel
Teti the scene of the accident and arrived at the Defendant's property at approximately 1237 a,rn.
Corporal Rurnind compared damage to the Defendant's silver Ford truck with debris found at
the crash scene. Furthers Corporal Rununel detected an orange paint transfer onto the
Defendant's silver Ford truck. This paint transfer was believed to be from the victim's orange
motorcycle during the collision. He also found a connection between the path that the truck took
at the Scent (determined by marks and debris) and the location of the damage on the rack.
During the morning hours, Trooper Gausatan applied for three (3) additional search
warrants to search the. contents of the Defendant's Ford Truck, the Defendant's blood, and the
Black LG flip phone that was in the hack seat of the truck belonging to someone other than the
Deferodant, Trooper Craig Needham and Corporal Rummel applied for warrants for the
mechanics of the truck and the cell phone records of the Defendant
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The Defendant was arrested on the following charges1
1. Homicide by Vehicle While Under the Influence of Alcohol or Controlled Substance
75 Pa_C.S, § 3735(a) - Felony 2 Degree
2. Accidents Involving Death or Personal Injury
75 Pa.C.S. § 3742(a) - Felony e
Degree
3. Homicide by Vehicle
75 Pa.C.S, § 3732(a) - Felony 314 Degree
4. Driving Under the Influence of Alcohol or Controlled Substance
-
75 P&C.S. §3802(d)(1Xi) Nasdernennor
5. Driving Under the Influence ofAlcolrol or Controlled Substance
-
75 Pa.C,S, § 3802(dXI)(iii) Misdemeanor
6. Accident Involving Damage to Attended Vehicle/Property
75 Pa.C,S, § 3743(a) - Summiu-y
7. Driving on Right Side of Roadway
75 Fa..C.S, § 3301(0 - Summary
S. Driving on Roadways Lamed for Traffic
75 Pa.C,S, § 33090) - Summary
9. Following Too Closely
75 Pa.C,S. § 3310(a) - Summary
10. Driving Vehicle at Safe Speed
75 Fa.C.S. § 3361 -
Summary
11 Limiiations on Overtaking on the Left.
75 Pa.C,S. § 3305 - Summary
12. Careless Driving
75 Pa.C.S. 1714(a)- Summary
13. Reolde$s Driving
75 Pa,C.S. 3736(a) - Summary
14, Duty to Clive Information and Render Care
75 Fa -C..5, 3 744() - Summary
15. Immediate Notice of Accident to Police Department
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75 Fa.C.S. 3 746(aX1) Sum/nary
16. Driving Under the influence of Alcohol or Controlled Substance
75 Pa. C.S. § 3802(0)(3) -Misdemeanor
17, Driving Under the. Influence t) f Alcohol GT Controlled Substance
75 Pa, § 3102(a)(1) - Misdemeanor
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AUTHORITY
"Where a motion to suppress hat been filed, the burden is on the Commonwealth to
establish by a preponderance ate eviEienae that the challenged evidence is admissible."
CsaaaruppeolAb v. Lindblom, 854 A.2d 604, 605 (Pa. Super. 2004). The preponderance of
evidence standard is defined as the greater weight of the evidence, Le.. to tip a scale slightly is
the criteria or requirement for preponderance of the evidenee.' Ferri v. Ferri, 854 A -2d 600,
603 [Pa, Super, 2004) quoting commonwealth v. Brown, 786 A.2d 961, 968 (Pa. 2001)-
The Pennsylvania Supreme Court has held that 'a defendant at a suppress-6)n hearing has the
right to test the veracity of the facts recited in the affidavit in support of probable cause.
Clocitiweldth v, James, 69 A -3d I SO, TS?. (Pa 2013); Citing ConunonweAttLy, Hal 302 A2r1
342.344 (Pa. 1973).
Further in Jame4,. the Pennsylvania Supreme Court explained:
iw]e begin by examining Rule 203, which provides;
(B) No search warrant shall issue but upon probable
cause supported by one or more affidavits sworn to
before the issuing authority in person or using
advanced communication technology_ The issuing
authority, in determining whether probable cause
has been established ewy not consider ony
evidence outside the affidavits,
0 0 rt
(D) At any hearing on a motionfio the return or
suppression of evidence, or for suppression of the
fruits of evidence, obtained pursuant to a search
warrant, no evidence shall be aebnisAble to
establish probable ctiawe odur than the qffidervits
providedfar in paragraph (29,
PaRerim.P. 20r3(B), (1)) (emphasis added). The rule phrin/y states
the issuing authority may not consider evidence outside the
affidavit in making the probable cause determination, and the
suppression court, in reviewing this determination, may only
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consider the affidavit. Id ; see Commonwealth v. Ethunds. 586
A.2d 887, 891 (Pa 1991) (noting, under Rule 203's predecessor,
courts shall not consider oral testimony outside four comers of
written affidavit to supplement finding of probable -cause for
search warrant)." James, 69 at 187. "Probable cause to support
issuance of a search warrant is present Vitae facts and
circumstances within the affianrs knowledge, of which he has
reasonable trustworthy information, are sufficient hi themselves to
warrant a man of reasonable caution in belief that a search should
be conducted." Conunormralth vrilruner, 564 Aid 1277, 1282
(Pa. Super. 1989); Citing Commonwealth v, aonasorte, 486 Aid
3361 (Pa Super. 1984).
It is well established that "[a]bsent probable cause and exigent circumstances, warrantless
searches and seizures in a private home violate both the Fourth Amendment and Article I,
[Section] 8 of the Pennsylvania Constitution," Commonwealth. vauutnen, 58 A.34 811,815
(Pa. Super. 2012); Citing Commonwealth v. Gibbs, 981 Aid 274, 279 (Pa. Super. 2009). As
stated in Simmen, the courts have extended the constitutional protection to the curtilage of a
person's home by analyzing "factors that determine whether an individual reasonably may expect
that an area immediately adjacent to the home will remain private." Simi:nen. 58 at 815.
"Curfilage is entitled to constitutional protection from unreasonable searches and seizures as a
place where the occupants have a reasonable expectation of privacy that society is prepared to
accept." akgneg, 58 at 815; Citing Commonwertitllv, Fickes, 969 Aid 1251, 1256 (Pa_ Super.
2019)- In Commonwealth v. Cihvlik, 486 A.2d 987, 992 (Pa. Super. 1985), the Pennsylvania
Superior Court addressed curd lap in explaining the distinction between dwelling houses and
business offices:
Curtilage, di, pissed above, means a small piece of land, not
necessarily enclosed, around a dwelling house and generally
includes buildings used for domestic purposes in the conduct of
family affairs; the term has no application to any building not used
as a dwelling_
Whereas, the term "house" within the Fourth Amendment may
include a business office or store, ... the concept of curtilage does
not apply to buildings other than dwellings.... Thus, the backyard
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of the defendant's business premises would not be afforded the
same protection as part of the curtilage of a dwelling.
Id.; Citing United States v. Wolfe, 375 F.Supp. 949, 958 (E.D.Pa, 1974). The term 'open fields"
has been defined as "privately owned grounds or outbuildings which are not located in close
proximity to the owner's dwelling?' C.ihylik, 486 at 991
In Commonweal& v. Ruey, 892 A.2d 802, 815 (Pa. 2006), the Pennsylvania Supreme
Court explained how technical violations in an affidavit of probable cause do not always equate
to suppression. The Pennsylvania Supreme Court stated:
We take the opportunity that the instant case presents to accord legal significance to the
common-sense distinction between the absence of probable cause and the mere lack of a
full and complete articulation of the same. The failure of Trooper Bryan to comply fully
with the requirements of Pennsylvania Rule of Criminal Procedure 206 in no way
negated the fact that the district justice who issued the first warrant had a substantial basis
for concluding that probable cause existed to suspect Appellant of having committed the
various DUI-related offenses with which he was ultimately charged, However
procedurally imperfect the Bryan Affidavit may have been, there is simply no reason why
the district justice should not be permitted to draw the substantive conclusion that the
facts and circurnstances included in that Affidavit so strongly compelled.
Defendant of the arrest warrant on the charge of driving
under the influence, enumerated at 75 Pa.C.S. §3802(a)(1). Pursuant to 75 Pa.C.S. § 3802(a)(1),
lain individual may not drive, operate or be in actual physical control of the movement of*
vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered
incapable of safely driving, operating or being in actual physical control of the movement of the
vehicle. 75 Pa.C.S. § 380700(1).
In commonwealth v_ Segida, 985 A.2d 871, 879 (Pa_ 2009), the Pennsylvania Supreme
Court stated:
"{The types of evidence that the Commonwealth may
proffer in a subsection 380240(l) prosecution include but are not
limited to, the following: the offender's actions and behavior,
including manner of driving and ability to pass field sobriety tests;
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demeanor, including toward the investigating officer; physical
appearance, particularly bloodshot eyes and other physical signs of
intoxication; odor of alcohol, and slurred speech."
Id,
III, DISCUSSION
A. Officer Day's Entry cote the Morrisroe Property was Leeel
Defendant asserts that Officer Day's entry onto the Morrisroe property without a warrant
was illegal. The issue is whether Officer Day's entry onto the Morrisroe property was legal or
illegal. As stated in Sim= above., "Talbsent probable cause and exigent circumstances,
warrantless searches and seizures in a private home violate both the Fourth Amendment and
Article 1, [Section] 8 of the Pennsylvania Constitution." Sirnmen, 58 at 815. Additionally, the
courts have extended the constitutional protection to the cartilage of a person's home by
analyzing "factors that determine whether an individual reasonably may expect that an area
immediately adjacent to the home will remain private Simi/ten, 58 at 815. "Cartilage is entitled
to constitutional protection from unreasonable searches and seizures as a place where the
occupants have a reasonable expectation of privacy that society is prepared to accept." $immnen,
58 at 815. The question would be whether the curtilage extends to the garage,
As stated in Cihylik, cartilage is defined as:
a small piece of land, not necessarily enclosed, around a
dwelling house and generally includes buildings used for domestic
purposes in the conduct of family affairs; the term has no
application to any building not used as a dwell ing....Whereas, the
term "house" within the Fourth Amendment may include a
business office or store, ... the concept of cartilage does not apply
to buildings other than dwellings__ Thus, the backyard of the
defendant's business premises would not be afforded the same
protection as part of the cartilage of a dwelling."
486 at 992.
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Here, the garage in question was near the Defendant's rental property and not his actual
dwelling house, which was located several hundred yards away. Thus, the Defendant's rental
property would not be afforded the same protection as would be accorded to the curdlage of his
dwelling house.
Further, there were no signs or fences near the garage or surrounding area such as "No
Trespassing' or "Private Property". The garage Yeitglows were not oovered and there were no
attempts to conceal the contents of the garage, which would indicate an expectation of privacy,
The area directly next to the garage window in question was a parking area for the tenants at the
house, for which there was no expectation of privacy. Also, a dumpster for the tenants' use is
located next to the garage and in the area of the window through which Officer Day observed the
damaged truck. For the reasons stated above, Officer Day's entry onto the property was legal
and not restricted.
B, Thug was 5_'ufficienj. Probable Cause for the Search Warrant for the Garate
Dcfc..ndant assorts that the search warrant of the Defendant's garage is defective, as it
does not indicate, within its four corners, probable cause to believe that the vehide in the garage
on Sunny Lane was involved in the accident in question, lie also argues that the veracity of the
allegations made by the officers did not survive the scrutiny of examination at the hearing. As
staled above in James, Pa. Rule of Criminal Procedure 203(b) states "[t]ho issuing authority, in
determining whether probable cause has been established, may not consider any evidence outside
the affidavits," James, 69 at 187. "Probable cause to support issuance of a search warrant is
present where facts and circumstances within the affisaifs knowledge, of which he has reasonable
trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in
belief that a search should be conducted_" Bruner. .564 at 1282.
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"Trooper Clansman filled out the application for the search warrant to search the
Defendant's garage (Commonwealth's Exhibit No. 16). The Court must determine whether she
was reasonable in accepting the information from other officers upon which she relied. The
affidavit of probable tam for the search warrant contains information about the investigation
and what steps Officer Day took, which led him to the Defendant's property and ultimately to the
Defendant's garage. This Court cannot imagine a clearer case than this where. a visible track ran
directly from the accident site to the garage and right up to the tire1css track rim which had
caused the. track. Additionally, the affidavit of probable cause included the observations of
Trooper Marcinko and Officer Day about the silver Ford truck inside the Defendant's garage
which they had observed from outside any eurtilage. The truck was completely missing a tire,
had a damaged rim, and there was damage to the passenger side front area of the vehicle, The
information from Officer Day and Trooper Marcinko that Trooper Gausinan received and relied
upon did not contain any obvious unreasonable, inconsistent, or untrustworthy information.
Therefore, Trooper Gausman listed those amnions in the affidavit. Here, the Magisterial
District Judge ("MDJ") had to find probable cause within the four corners of the affidavit which
included information about what the officers saw in the garage window, the trail from the crash
scene leading to the Defendant's garage, and the damaged vehicle inside the garage that was
missing the the. The Court finds that the MDJ correctly found that the affidavit contained
sufficient probable cause for the search warrant to be issued.
C. The Arrest of the Defendant was Legal
Defendant also challenges the issuance of the arrest warrant on the charge on the charge
of driving under the influence, 75 Pa,C.S. 3802(aX I). Defendant asserts that there was no
evidence presented to support that Trooper Marcinko himself had probable cause to arrest the
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Defendant. In a recent opinion by the Pennsylvania Superior Court, Commonwealth v. Yong,
120 A.34 299, 307 (Pa. Super. 2015), the Court discussed the legal history of what is called the
"collective knowledge doctrine which is sometimes called the fellow -officer rule.
"When a police officer instructs or requests another officer to make
an arrest, the arresting officer stands in the shoes of the instructing
officer and shares in his or her knowledge. In Commonwealth v
K.0,04),,ex.. 297 A.2c1794 (Pa. 1972), the Penrisylvania Supreme
Court adopted the rationale of Whiteley, and upheld a warrantless
arrest made by a detective who lacked probable cause, where he
acted at the direction of his superior who had specific knowledge
of facts and circumstances sufficient to constitute probable cause."
Yong, 120 at 307.
Here, the Court heard testimony from Corporal Schimp and irooper Marcinko that
Corporal Schimp ordered Trooper Mareinko to arrest the Defendant for suspicion of DUI. In
Cerinnoiresalthy,.Segill, 985 A.24 871, 879 (Pa. 2009), the Perimylvania Supreme Court
stared:
-the types of evidence that the Commonwealth may proffer in a
subsection 3802(aX1) prosecution include but are not limited to,
the following: the offender's actions and behavior, including
manner of driving and ability to pass field sobriety tests;
demeanor, including toward the investigating officer; physical
appearance, particularly bloodshot eyes and other physical signs of
intoxication; odor of alcohol, and slurred speech."
Corporal Schimp interacted with the Defendant over several times on the early morning
of fune 3,2015. When the Defendant came to the front door of his residence initially, Corporal
Selling> smelled an alcoholic beverage emanating from the Defendant's person. Corporal
Schimp also testified that the Defendant's eyes were bloodshot and glossy and that the Defendant
made several statements that Corporal Schimp found to be inconsistent such as the fact that the
last time the Defendant saw his car it vas parked in front of his house as against the fact that the
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keys to the garage were in his truck in the garage. In this case, the collective knowledge doctrine
would apply to the arrest of the Defendant for suspicion of DUI as the arresting officer, Trooper
Marcinko, stands in the shoes of his instructing officer, Corporal Sthimp. Therefore, Trooper
Marcinko shares in Corporal Schimp's observations of the Defendant and had sufficient probable
cause to arrest the Defendant. In addition, Trooper Marcinko had observed much of the same
signs of intoxication, himself: In sum, the anent oilhe Defendant for suspicion of DUI was
legal.
D. Search Warrant for the Defenclan t's Blood Was Lam]
Defendant challenges the legality of the search warrant for the Defendant's blood,
Commonwealth Exhibit No. 17, and believes it to be illegal. The warrant for the Defendant's
blood includes the contents of the affidavit for the search warrant of the Defendant's garage and
Corporal Race's statements of his observations of the Defendant but adds that the Defendant
refused to submit to a blood draw. furthermore, Defendant cites as error that the warrant for the
Defendant's blood states that the crime or conduct is in violation of 75 Pa.C.S, 3732(a) --
Homicide by Vehicle, In fact, this specific section of the Motor Vehicle Code excludes DUI as
there is a separate section of the Code for DUI related Homicide by Vehicle at 75 Pa_C.S. §
3735(a) - Homicide by Vehicle White Under the Influence of Alcohol or Controlled Substance.
in Commonwealth. v. Runt/ 892 A.2d 802, 815 (Pa. 2006), the Pennsylvania Supreme
Court explained how technical violations in an affidavit of probable cause do not always equate
to suppression. The Pennsylvania Supreme Court stated;
We take the opportunity that the instant case presents to
accord legal significance to the common-sense distinction between
the absence of probable cause and the mere lack of a full and
complete articulation of the same. The failure of Trooper Bryan to
comply fully with the requirements of Pennsylvania Rule of
Criminal Procedure 206 in no way negated the fact that the district
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justice who issued the first warrant had a substantial basis for
concluding that probable cause existed to suspect Appellant of
having committed the various DUI -related offenses with which he
was ultimately charged. However procedurally imperfect the. Bryan
Affidavit may have been, there is simply no reason maw the district
justice should not be permitted to draw the substantive conclusion
that the facts and circumstances included in that Affidavit so
strongly compelled_
Id.Similar to the analysis of the search warrant for the Defendant's garage in Section B and
the analysis above in Section C, the affidavit of cause contained all the relevant facts of
the investigation of the crash and the interactions and observations of the Defendant by the
police. Additionally, the affidavit of probable cause for the search warrant of the Defendant's
blood includes information about the fact that the Defendant did not submit to blood testing after
being arrested for suspicion of DUI and included Trooper Race's observations of the. Defendant
On all the affidavits for Commonwealth Exhibits Nos. 16, 17, 18, and 19, the crime stated on the
first page of each is "Title 75, C.S. 3732(a) - Homicide by Vehicle". However, the crime of
Driving wider the Influence is referred to and detailed on a later page in the narrative on
Commonwealth Exhibits Nos. 17 and 13. The fact that the code section for Homicide by Vehicle
was placed on the affidavit of probable cause for the search warrant of the Defendant's blood and
not the code section for Homicide by Vehicle While Under the Influence of Alcohol or
Controlled Substance is a technical violation and does not in itself make the warrant defective.
E. The Additional Search !Narrows Were Leas/
Defendant asserts that the following additional search warrants did not contain sufficient
probable cause and were defective: 1) the search warrant to obtain evidence from Defendant's
vehicle. issued at 10:50 a.m. on June 5, 2015, referred to as Commonwealth Exhibit No. 18; 2)
the search warrant to seize and view the contents of the Black LO Flip Phone, issued at 2:00 p.m.
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on June 5, 2015 referred to as Commonwealth Exhibit No. 19; 3) the search warrant to obtain
evidence from the Defendant's vehicle related to its mechanical operation and equipment, issued
at 9;30 a.m. on June 10, 2015, referred to as Commonwealth Exhibit No. 15; and, 4) cell phone
records including content, two warrants issued at 3:2g p.m. on June 3, 2015 and at 9:11 a.m. on
June 4, 2015, referred to Conunonweahh Exhibits Nos. 13 and l4.
1. Defendant's Vehicle
Trooper Gausman tilled out the application fot the search -warrant to search the
Defendant's vehicle, Commonwealth's Exhibit No. lg. The affidavit of probable cause for the
search warrant containS information about the investigation and what steps Officer Day took,
which led him. to the Defendant's property and ultimately to the Defendant's garage.
Additionally, the affidavit of probable cause included the observations of Trooper !Varela° and
Officer Day about what they had seen inside the Defendant's garage and what Trooper Gausman
had seen inside of the Defendant's vehicle, which included several bottles of Budweiser. The
truck was completely had a damaged tint and there was damage to the passenger
side front area of the vehicle. As stated in James., the Court can only consider what is in the four
corners of the affidavit of probable cause. jams, 69 at 1117. 11ere, the Court holds that there
was sufficient probable cause for the search warrant of the Defendant's vehicle to attempt to
locate any evidence of the victim, evidence of the identity of the operator, and the evidence of
any alcoholic beverages or drugs_
2. Black LG Flio near
Trooper Clansman obtained a warrant for a search of the contents of an LG flip phone that
was found in the Defendant's truck. While searching the truck, the Troopers present kept
hearing a cell phone go off. The cell phone was eventually found in a came. cooler bag on the
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right rear passenger floorboards. The Court has reviewed Commonwealth Exhibit No. 19 and
finds that there was sufficient probable cause for the search warrant of the Black LG Flip Phone
and its contents to attempt to obtain evidence of information concerning the criminal
investigation of the crash including the identity of occupants of the vehicle and the belief that
persons involved in criminal conduct often use cell phone text messages to share information
regarding criminal activity. For the above reasons, the Court finds that the search warrant was
not defective.
3. Evidence from Defendant's Vehicle Reladng to Mechanical Qrarration sad
Eu ailment
Corporal 'Curtis P. Rummel alleges in his affidavit of probable cause (Exhibit 15-)
information involving his background in the investigation along with his employment as a
Collision Analysis and Reconstruction Specialist for the PSI'. Corporal Rummers affidavit of
probable cause contained information about the investigation and included his comparison and
analysis of the crash evidence noting similarities between debris found at the crash scene and the
Defendant's vehicle. The Court finds that Corporal Rummel's affidavit of probable cause for the
search warrant of Defendant's vehicle relating to mechanical operation would provide evidence
as to the operation of the vehicle before, during, or after the collision took place. Therefore. the
Court finds that the affidavit contained sufficient probable cause and thus the search warrant was
not defective.
4. Cell Phone Records
In his affidavit for Commonwealth Exhibit 14, Trooper Craig Needham recites the
information he received from Trooper Gausrnan about the investigation of the crash allegedly
involving the Defendant. Trooper Needham, in his affidavit of probable cause, stares that the
search warrant authorizing detailed text message and cell phone data of the Defendant's cell
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phone could contain evidence relating to cell phone locution at the time of the collision based the
cell tower data collected. This could place the phone as being at the scene of -the crash at the
time it occurred. Trooper Needham also testified. that Trooper Gausmen provided him with
information about the ongoing investigation of the crash involving the Defendant and such
information showed up in his affidavit of probable cause. Therefore, the Court finds that the
search wan -ant for the Defendant's cell phone data and or text messages contained sufficient
probable cause and thus the search warrant was not defective.
In all the above instances, the Magisterial District Judges and The Honorable John H.
Pavlock had before them affidavits with sufficient allegations of facts providing probable eRliCP
for the searches. Although I3efense Counsel spent considerable time questioning the truthfulness
of the officers' information given to the officers obtaining the warrants, this Court cannot base its
decision on such officers' credibility. Instead the Court must only look to see whether the officer
obtaining the warrant or the judicial officer granting the warrant had any reason to question the
honesty and accuracy of the information received. "Probable cause to support issuance of a
search warrant is present where facts and circumstances within the affianes knowledge, of which
he has reasonable trustworthy information, are sufficient in themselves to warrant a man of
reasonable caution in belief that a search should be conducted." Bruner, 564 at 1282. In none of
the above 'warrants was there any information provided which carried any obvious-unreasonable,
inconsistent or untrustworthy information which could have alerted the obtainer of the warrant of
any unreliability. The information was received from officers of the law for whom there was no
indicia of unreliability.
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CV. CONCLUSION
For the above reasons, this Court filed its Order of April 2932016 in which the
Defendant's Moon to Suppress was DENIED.
BY THE COURT:
zom
MAY
J it F. MORGAN,
Specially Prtsidin
S./1
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