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filed: July 20, 1987.




Paul D. Boas, Pittsburgh, for appellant.

Martha J. Duvall, Assistant District Attorney, Coudersport, for Com., appellee.

Cirillo, President Judge, and Brosky and Popovich, JJ. Popovich, J., files a concurring and dissenting opinion.

Author: Cirillo

[ 365 Pa. Super. Page 337]

Appellant, Richard Lemanski, appeals from a judgment of sentence entered in the Court of Common Pleas of Potter County, following his conviction of possession of a controlled substance and manufacture of marijuana. We reverse and remand.

In October of 1984, Trooper Dale Cogley of the Pennsylvania State Police received a tip from an informant that plants, suspected of being marijuana, were growing in appellant's greenhouse. The informant was a private citizen and, according to Trooper Cogley's affidavit, was "familiar" with marijuana identification. Based on this information, Trooper Cogley drove past the Lemanski residence. From the road he saw a greenhouse, or sun room, connected to Lemanski's home. He also saw plants growing through the greenhouse roof, but, due to the distance, he was unable to identify them. Thereafter, Trooper Cogley and Officer Weidner of the local police department went to the road adjacent to the Lemanski home. With the aid of binoculars and a zoom lens, they identified the plants as marijuana.

Later, Trooper Cogley and Officer Weidner spoke with another citizen informant, who gave 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 the greenhouse at close range.

After obtaining a search warrant, the police returned. Mrs. Lemanski answered the door and consented to a search of her home. Approximately one and one-half pounds of marijuana were seized, and both Mr. and Mrs. Lemanski were arrested.*fn1

Appellant filed a motion to suppress the marijuana, alleging that the visual intrusion and physical trespass by Cogley and Weidner constituted an illegal search and, thus, the marijuana seized was inadmissible as "fruit of the poisonous tree." This motion was denied.

[ 365 Pa. Super. Page 338]

Appellant also filed two motions to disqualify the trial judge, the Honorable Harold B. Fink. The first of these motions was based on an alleged personal bias against marijuana litigants. Specifically, the appellant alleged that Judge Fink had a history of improper sentencing practices in drug cases. The second recusal motion was based upon appellant's allegation that Judge Fink had heard prejudicial information that would be inadmissible at trial (guilty plea and withdrawal of guilty plea). Both of these motions were denied.

With respect to the first recusal motion, appellant also filed a motion for appointment of another judge to hear that motion. This was also denied.

At trial, appellant testified on his own behalf, stating that he grew the marijuana solely for his personal use. He testified that he grew marijuana because he did not want to associate with the type of people who sold drugs. The trial court prohibited appellant's character witnesses from testifying as to appellant's reputation for honesty. In addition, appellant was prevented from cross-examining the co-defendant, Mrs. Lemanski, who was represented by her own counsel at trial.

A jury convicted appellant of possession of a controlled substance and manufacture of marijuana. Post-trial motions were denied, and appellant raises the following issues for our review:

I Whether the trial court erred in not granting recusal based upon appellant's claim of a personal bias against persons charged with drug offenses?

II Whether the trial court erred in not granting recusal after its rejection of a plea agreement, the withdrawal of a guilty plea, and the hearing of highly prejudicial information that would not be admissible at trial?

III Whether the trial court erred in denying appellant's motion to suppress evidence in that the pre-warrant visual and physical intrusions by police of appellant's residence constituted a search and seizure without probable cause?

[ 365 Pa. Super. Page 339]

IV Whether appellant should have been permitted to introduce character witnesses as to his reputation for honesty in that he placed his credibility at issue by testifying on his own behalf?

V Whether the trial court erred in denying appellant the right to question the co-defendant?

VI Whether the trial court erred in advising the jury that they need not accept the stipulation regarding the marijuana being for personal use, and whether the court erred in not granting a mistrial after the Commonwealth told the jury in its closing that they need not accept the same stipulation and suggested they reject it?

VII Whether any further proceedings in this matter should be remanded to a different judge because of appellant's involvement in proceedings against Judge Fink before the Judicial Inquiry and Review Board?

Because we remand for a new trial, where these questions are likely to reappear, we address each issue.


Recusal is required whenever there is a substantial doubt as to a jurist's ability to preside impartially. The Code of Judicial Conduct calls for disqualification where a judge's impartiality "might reasonably be questioned, including but not limited to instances where . . . he has a personal bias or prejudice concerning a party . . . ." Code of Judicial Conduct, Canon 3, subd. C(1)(a).

Appellant argues that the trial court erred in not granting recusal*fn2 because Judge Fink had a personal bias against defendants in marijuana cases. Appellant has cited a number

[ 365 Pa. Super. Page 340]

    of drug offense cases from the Court of Common Pleas of Potter County, in which sentences imposed by Judge Fink were vacated by the Superior Court due to failure to properly apply the Sentencing Guidelines and reliance on improper factors.*fn3 In addition, appellant refers us to comments made from the bench and in a local newspaper interview where Judge Fink candidly expressed both his displeasure with the Sentencing Guidelines and his opinion that in all drug cases the maximum penalty should be imposed.

The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice or unfairness necessitating recusal. Commonwealth v. Darush, 501 Pa. 15, 23, 459 A.2d 727, 732 (1983). Further, the decision by a judge against whom a plea of prejudice is made will not be disturbed absent an abuse of discretion. Id. A party is not limited to his own case in establishing personal bias, and may show "temperamental prejudice on the particular class of litigation involved" to support his allegations. Commonwealth v. Kane, 199 Pa. Super. 89, 91, 184 A.2d 405, 406-07 (1962).

Our Supreme Court has held that when a judge "believes his impartiality can be reasonably questioned," he should recuse himself, just as he should if he himself has doubt as to his ability to preside impartially. Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (quoting A.B.A. Standards Relating to the Function of the Trial Judge ยง 1.7, Approved Draft, 1972). We share in the Supreme Court's awareness that "the appearance of bias or prejudice can be as damaging to public confidence in the administration of justice as would be the actual presence of these elements." Id.

[ 365 Pa. Super. Page 341]

The record before us indicates a predetermined policy with respect to sentencing drug offenders and we thus find that appellant has adequately supported his allegations of personal bias against a "particular class of litigants." We also are of the opinion that the personal bias alleged was of such nature and intensity so as to prevent Mr. Lemanski, once convicted, from obtaining a sentence uninfluenced by the court's prejudgment of drug offenders generally. We emphasize that a defendant is entitled to a trial before a judge who is not biased against him at any point of the trial, and most importantly, at sentencing. See U.S. v. Thompson, 483 F.2d 527, 529 (3d Cir.1973). See also Commonwealth v. Batterson, 286 Pa. Super. 428, 435, 429 A.2d 13, 17 (1981) (Brosky, J. concurring) (sentencing of convicted persons requires an open, unprejudiced, not predetermined view by the trial judge of each individual defendant).

This Court has previously expressed its concern with the drug problem our country faces, and we recognize its debilitating effects at every level of our society. We recognize also that the "weekend user," despite his fatuous rationalizations, cannot disassociate himself from the source or effects of illegal drug use. He is aligned with the kingpin of a major drug ring, and with the street dealer who invades our grade schools and high schools. There is no middle ground, and, despite the temptation, we can have no greater compassion for one than for the other. We, as jurists, are committed to impartiality. But if we allow our personal opinions and goals to cause us to manipulate the law, our commitment is no longer credible, no matter how righteous our purpose. Under the circumstances of this case, it is clear that the trial judge's impartiality could reasonably be questioned. We therefore find that Judge Fink abused his discretion by not recusing himself.


Appellant's second issue presented for review is whether the court erred in not granting recusal after its

[ 365 Pa. Super. Page 342]

    rejection of a plea agreement, agreed to by appellant and the Commonwealth, and the withdrawal of a guilty plea. Although our discussion in Part I precludes the necessity to address this issue, we find that denial of this motion was an abuse of discretion. See Commonwealth v. Evans, 434 Pa. 52, 56 n. , 252 A.2d 689, 691-692 n. (1969) ("if a judge refuses to accept a plea bargain agreed to by the defense and the Commonwealth, or if a plea of guilty . . . is withdrawn because the trial judge decides that his original agreement was inappropriate, then the trial should be held where practical before another judge who has no knowledge of the prior plea bargaining").


The next question presented is whether law officers' observation of a greenhouse by means of binoculars specially equipped with a zoom lens violated appellant's Fourth Amendment protection against unreasonable searches and seizures.

Appellant's house is one of the last residences on Reese Hollow Road, a dead-end, dirt road in a rural area. The road is approximately 200 feet from the house. Based in part on observations made from the road with the aid of binoculars and a zoom lens, a search warrant was issued. Appellant contends the trial court erred in denying his motion to suppress marijuana seized pursuant to this warrant. He claims that the use of binoculars and a zoom lens, prior to issuance of the warrant, constituted a search in violation of the Fourth Amendment, and thus the evidence seized pursuant to the warrant should have been suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963); Commonwealth v. Whitaker, 461 Pa. 407, 336 A.2d 603 (1975).

In reviewing a motion to suppress, we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonableness of the inferences and legal conclusions drawn therefrom.

[ 365 Pa. Super. Page 343]

In determining whether the record supports the court's findings of fact, we must accept the Commonwealth's evidence and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Weik, 360 Pa. Super. 560, 562, 521 A.2d 44, 45 (1987); Commonwealth v. Eliff, 300 Pa. Super. 423, 428-29, 446 A.2d 927, 929-30 (1982).

Appellant has not excepted to the suppression court's findings of fact. Therefore, we need only determine the reasonableness of the court's inferences and legal conclusions.

At the suppression hearing, Trooper Cogley testified on direct examination as follows:

Q. Now, can you recall any particular dates when this first came to your attention?

A. This particular incident first came to my attention sometime around the first of October.

Q. And, how did that occur?

A. An informant advised me that something other than what appeared to be normal vegetation was growing at a property on Reese Hollow ...

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