Commonwealth v. Morrisroe

245 A.3d 1098 (Table)

COMMONWEALTH of Pennsylvania v. Paul Dismas MORRISROE, Appellant

No. 1265 WDA 2019

Superior Court of Pennsylvania.

Filed December 23, 2020

Reagument Denied March 4, 2021

MEMORANDUM BY DUBOW, J.:

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.

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 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

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.

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

"[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 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

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 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...