# Commonwealth v. Sharp > Superior Court of Pennsylvania · September 20, 1996 · 453 Pa. Super. 349 URL: https://www.frixlaw.com/law-library/cases/9767388 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Jason Robert SHARP, Appellant - **Court:** Superior Court of Pennsylvania - **Decided:** September 20, 1996 - **Citations:** 453 Pa. Super. 349; 683 A.2d 1219; 1996 Pa. Super. LEXIS 3212 - **Precedential status:** Published - **Opinion:** Concurring in part by Popovich - **Judges:** Popovich, Saylor, Eakin - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9767388 ## Opinion text POPOVICH, Judge, concurring and dissenting. Presently, I agree with the majority’s conclusion that “the affidavit [of probable cause for the initial search warrant] simply [did] not contain facts from which the district justice, or this reviewing court, could determine that a substantial basis existed to find probable cause”, and, therefore, the warrants were not valid. However, I strongly disagree with the majority’s conclusion that the search warrants issued by District Justice Frownfelter were not defective by reason of an actual or apparent conflict of interest. The record reveals that on May 31, 1994, Sheriff George Frownfelter of Perry County and his Deputy Sheriff Donald *362 Smith observed numerous marijuana plants growing on the property leased by appellant’s parents where appellant and his parents resided. Deputy Sheriff Smith later sought a search warrant for the property, and prepared the warrant application (including the affidavit of probable cause) for submission to District Justice Elizabeth Frownfelter, the wife of Sheriff Frownfelter. Although Deputy Sheriff Smith was the affiant and actually appeared before District Justice Frownfelter, it is important to note that the affidavit of probable cause cited Sheriff Frownfelter as the person who located the marijuana plants after a visual search. The warrant application was approved by District Justice Frownfelter, and the search resulted in the seizure of marijuana and heroin. Unlike the majority, I am convinced that District Justice Frownfelter’s failure to disqualify herself in the case sub judice, resulted in a clear violation of Rule 8 of the Standards of Conduct for District Justices. The rule expressly states: “A district justice shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where ... he or his spouse ... is a party to the proceeding, or an officer, director or trustee of a party ... [or] is known by the district justice to have an interest that could be substantially affected by the outcome of the proceeding ... [or] is to the knowledge of the district justice likely to be a material witness in the proceeding.” I cannot think of a clearer situation where a district justice’s “impartiality might reasonably be questioned” than the present. Here, Sheriff Frownfelter has an obvious interest in obtaining a search warrant for appellant’s residence, regardless of whether he is the actual affiant or merely named as a witness in the affidavit of probable cause. The appearance of impropriety or bias must be avoided, and, in my view, District Justice Frownfelter’s adjudication of the warrant application raised, at least, the appearance of impropriety (if not an actual conflict of interest) and compromised the “integrity of the judiciary.” See, In Interest of McFall, 533 Pa. 24, 34-35 , 617 A.2d 707, 712-713 (1992). *363 The fact that Perry County is a rural county with few district justices does not affect my decision. It is of no importance that only one district justice may be present within a county, let alone on call; rather, what is singularly important is the avoidance of situations where a district justice’s impartiality might reasonably be questioned. While the majority declines “to create a rule that would, on occasion leave the people of Perry County without justice”, I believe the voters of Magisterial District 41-3-05 who elected District Justice Frownfelter must accept the consequences of their election. Moreover, the majority has failed to consider that there are five district justices in the Forty-first Judicial District which includes Juniata and Perry Counties. Certainly, one of the other district justices could have been located on the day in question to review the search warrant application, and a drive across one county (or even two) to find an impartial magistrate is not an undue hardship on the authorities. Finally, the fact that District Justice Frownfelter approved this search warrant highlights her actual bias in this action. As noted by the majority, “[t]he affidavit on its face lacks the essential facts to support a finding of probable cause.” I must question how such a gravely deficient affidavit of probable cause could support the issuance of a search warrant absent bias toward the Sheriffs Office on the part of the issuing authority. In sum, I find that the warrants should be suppress not only because the affidavit of probable cause was lacking, but also because District Justice Frownfelter failed to disqualify herself in a situation where her impartiality was most obviously in question. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767388. Public record. Not legal advice.