J-S52016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: F.S., A MINOR               IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA

APPEAL OF: F.S., A MINOR

                                                    No. 1901 WDA 2014


                 Appeal from the Order of October 21, 2014
             In the Court of Common Pleas of Allegheny County
      Family Court at No(s): JID 37650E, Case T180259, Docket 292-11


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                        FILED DECEMBER 14, 2015

       Appellant, F.S., a minor, appeals from the dispositional order entered

on October 21, 2014. Upon careful review, we affirm.

       We quote relevant portions of the suppression court’s recitation of the

facts as follows.1, 2

       On February 8, 2014, Jeannette Geisey rented a hotel room at
       the Holiday Inn Express located at 8400 Route 30, North
       Huntingdon, Pennsylvania.    Virginia Morris, a Holiday Inn
____________________________________________


1
  We include only the evidence of record established during the March 10,
2014 hearing on Appellant’s motion to suppress. See In re L.J., 79 A.3d
1073, 1088-1089 (Pa. 2013) (announcing prospective application of rule
precluding appellate courts from considering evidence outside the record of
the suppression hearing in reviewing a suppression ruling).
2
   This case was originally filed in the Court of Common Pleas of
Westmoreland County and Appellant’s motion to suppress was filed in that
court and decided by the Honorable Michele G. Bononi. As Appellant resided
in Allegheny County, the delinquency adjudication hearing for Appellant was
held in the Court of Common Pleas of Allegheny County before the
Honorable Dwayne D. Woodruff.
J-S52016-15


     Express Night Auditor, checked Ms. Geisey into Room 223 for
     two (2) nights. At the time[,] Ms. Geisey did not indicate that
     others would be staying with her. Ms. Morris further stated that
     her registration card indicated one guest would be staying there.
     Ms. Morris confirmed that the person who rent[s a] room can
     take anybody they want to the room. [Patricia] Niemiec, Ms.
     Morris’s boss, testified that once an adult rents a hotel room,
     they can give a key to whomever they like, including a minor.
     Ms. Niemiec further stated that room renters give room keys to
     family and friends. The hotel does not rent to minors.

     Room 223 had a king size bed. Ms. Morris testified that once
     Ms. Geisey rented room 223, she observed Ms. Geisey and two
     or three males and two females go up to the room. A few
     minutes after Ms. Geisey rented the room and the group went up
     to the room, one of the black males came down to the front desk
     and requested a room change because they needed two separate
     beds instead of a king size bed. Ms. Morris exchanged the room
     and the group was moved from Room 223 to Room 315. She
     gave the black male the new keys but never asked his name
     because he was in possession of the old room keys. Ms. Morris
     testified that she did not see Ms. Geisey go up to the room after
     the exchange of the keys but she did see everyone but Ms.
     Geisey walking in the next day. Ms. Morris also confirmed that
     she was aware that there was a group of individuals going up to
     Room 315.

     Ms. Morris could not identify the juveniles as any of the
     individuals with Ms. Geisey.

     Richard Priestly, another Holiday Inn Express Night Auditor,
     testified that he called the police on the night of February 10,
     2014. Mr. Priestly noticed a lot of continuous foot traffic in and
     out of the hotel which was pretty odd for that time of night. He
     testified that the two juveniles and an unknown female went in
     and out of the hotel close to a half dozen times between the
     hours of 11:00 p.m. and 2:00 a.m. He stated that the two
     juveniles and the unknown female would go into Room 315 when
     they were in the hotel. Mr. Priestly never saw the males or the
     unknown female actually do anything illegal but he had a feeling
     that something wasn’t right. He stated that the males and the
     female would exit the hotel and go to a dark colored SUV,
     Chevrolet Blazer, in the parking lot. He indicated that the males
     and the female went to the dark colored SUV maybe twice out of

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       the half dozen times the group exited the hotel. He did not see
       them go to any other vehicle.3 Mr. Priestly decided to call the
       police around 2:00 a.m. At the time Sgt. Arendas arrived at the
       Holiday Inn Express, one male and one female had left the hotel
       in the Chevrolet Blazer.4 Two other officers arrived at the hotel
       while Mr. Priestly was talking with Sgt. Arendas. Mr. Priestly
       never observed any money or drugs and did not see the two
       black males or the female approach anyone or make any
       transactions.    Mr. Priestly was unable to provide a vehicle
       description to Sgt. Arendas. Sgt. Arendas informed Mr. Priestly
       that because he had not observed any illegal activity, the police
       lacked probable cause and the best they could do was keep an
       eye on the parking lot. The police told Mr. Priestly that they
       would make their presence known and try to discourage any
       illegal behavior that they were doing even if “they couldn’t get
       anything.” The police then left the hotel.

       Within five minutes of the police leaving the hotel, a black male
       and female entered the hotel. Mr. Priestly was unable to identify
       which male and female entered the hotel but said he knew that
       they were registered as staying in Room 315. Mr. Priestly was
       unable to identify the driver of the vehicle because he never saw
       the black male and female get out of the vehicle. Approximately
       five minutes after they entered the hotel, Mr. Priestly observed a
       North Huntingdon Police cruiser pull[] up behind a dark SUV,
       Chevrolet Blazer, in the hotel parking lot. Sgt. Arendas testified
       that once he left the hotel, he parked on the Turnpike access
       road which overlooks the hotel parking lot, he ran the license
       plate information and the vehicle came back as stolen from the
____________________________________________


3
   Mr. Priestly’s testimony differs from that of Sgt. [Gregory] Arendas. Sgt.
Arendas testified that Mr. Priestly told him that he had observed the
juveniles go to several different vehicles. However, Mr. Priestly testified that
he only observed the juveniles go to one vehicle, a dark SUV, approximately
two times. Sgt. Arendas’ version of the facts is further contradicted by the
testimony that he told Mr. Priestly that because he hadn’t observed anything
illegal and could not provide a vehicle description, there was nothing the
police could do. This testimony is further complicated by the fact that Mr.
Priestly was also never asked to provide the police with a written statement.
4
  This was one of the two instances Mr. Priestly testified that he observed
part of the group go to the vehicle in the hotel parking lot.



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       city of Jeannette. Sgt. Arendas then went into the hotel and told
       Mr. Priestly that the Chevrolet Blazer was stolen. Mr. Priestly
       stated, “They were out there for, like, a minute. And then, not
       long after that, Sgt. Arendas came in, said, you know we’re
       going to need to get into that, you know—we’re going to need to
       go up there. I got other officer[s] arriving, you know; that
       vehicle come up stolen.” Sgt. Arendas asked which hotel room
       they were staying in and was provided a room key by Mr.
       Priestly. Sgt. Arendas called for back-up once he determined the
       vehicle was stolen. Once the other officers arrived, they covered
       the stairwells and elevator and went up to the third floor. Sgt.
       Arendas and Officer [Nicholas] Dreistadt testified that at the time
       they arrived at the hotel room door, they had no knowledge or
       indication if anyone was in the room or who specifically was in
       the room.

       Sgt. Arendas testified that once they arrived at Room 315, he
       knocked on the hotel room door. He heard noise in the room,
       people talking and then heard someone ask “who is it?” Sgt.
       Arendas said that it was the police and they were there about
       the noise. When no one came to the door, Officer [William H.]
       Sombo knocked harder on the door and when he knocked, the
       door swung open.5 Sgt. Arendas testified that when the door
       swung open he observed a black male standing right in front of
       the bathroom door and two females in the far corner of the
       room. Sgt. Arendas stepped inside the hotel room door and
       asked who was driving the vehicle. The male standing in front of
       the bathroom door said that he was the driver. Sgt. Arendas
       ordered the male out of the hotel room and he complied. Once
       the male exited the hotel room, Officer Dreistadt entered the
       room to clear the bathroom area for officer safety. Officer
       Dreistadt located a handgun sitting on the back of the commode
       that was partially covered by a towel.6 At that point, Officer
       Dreistadt continued to check the hotel room while Sgt. Arendas
       ordered the two females out of the room. Officer Dreistadt
       testified that after he cleared the bathroom, he followed Sgt.
____________________________________________


5
 Th[is testimony was confirmed by a video recording that was later viewed
by the trial court].
6
 Officer Dreistadt testified that once he located the firearm in the bathroom,
he notified the other officers and then unloaded it to make it safe.



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      Arendas into the hotel room where he was securing the female
      occupants. [Sgt. Arendas testified that he observed a digital
      scale with a white powdery residue in the area around the sink.]
      After the officers entered the room further, they observed a
      black male standing up in the Jacuzzi tub. The occupants of the
      room were all handcuffed and the first male and two females
      were placed in the hallway and the male from the Jacuzzi, later
      identified as [Appellant], was seated on the bed. . . . Once the
      occupants of the hotel room were detained, Officer Sombo
      entered the room and secured it. . . .
                                 .     .     .

      Sgt. Arendas testified that he did not obtain [] a search warrant
      for the hotel room because the[ officers] were effectuating a
      warrantless arrest for a felony. He also stated that he did not
      seek a warrant because he did not want to jeopardize officer
      safety. He further testified that he did not seek to obtain a
      search warrant because it was 2:30 a.m. and there are no courts
      open. He stated that night court closes before 10:00 p.m.
      Officer Dreistadt testified that they did not seek a warrant
      because it was 2:00 a.m. and they did not have a judge on call
      or one readily available. Officer Dreistadt further testified that
      they did not obtain a warrant because they were investigating a
      felony stolen vehicle. Officer [] Sombo testified that they did not
      obtain a search warrant because they were dealing with a felony
      but that a warrant can be obtained at night.

Suppression Court Opinion, 4/23/15, at 1-11 (footnotes in original; record

citations omitted).

      The Commonwealth charged Appellant with possession of a controlled

substance with intent to deliver (35 P.S. § 780-113(a)(30)), possession of a

controlled substance (35 P.S. § 780-113(a)(16)), receiving stolen property

(18 Pa.C.S.A. § 3925(a)), possession of drug paraphernalia (35 P.S.

§ 780-113(32)), and, possession of a small amount of marijuana (35 P.S.

§ 780-113(a)(31)). Thereafter, the Commonwealth filed additional charges

against Appellant, including:      criminal conspiracy – possession of a

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controlled substance with intent to deliver (18 Pa.C.S.A. § 903(a)(1) and 35

P.S. § 780-113(a)(30)), criminal conspiracy – firearms not to be carried

without a license (18 Pa.C.S.A. § 903(a)(1) and 18 Pa.C.S.A. § 6106),

criminal conspiracy – receiving stolen property (18 Pa.C.S.A. § 903(a)(1) and

18 Pa.C.S.A. § 3925(a)), criminal conspiracy – possession of a controlled

substance (18 Pa.C.S.A. § 903(a)(1) and 35 P.S. § 780-113(a)(16)), and

criminal conspiracy – possession of drug paraphernalia (18 Pa.C.S.A.

§ 903(a)(1) and 35 P.S. § 780-113(32)).

     On March 4, 2014, Appellant and his co-actor moved to suppress the

evidence recovered from the hotel room, as well as a statement given by the

juvenile co-actor, under the Fourth and Fourteenth Amendments of the U.S.

Constitution and Article 1, Section 8 of the Pennsylvania Constitution. The

suppression court convened a suppression hearing on March 10, 2014 and,

after reviewing briefs submitted by the parties, denied the suppression

motions on March 28, 2014.     The court concluded that Appellant lacked a

legitimate expectation of privacy in room 315 since he did not rent the room

and since he was not Ms. Geisey’s guest. This latter determination rested

upon the court’s finding that none of the witnesses at Appellant’s

suppression hearing testified that Appellant was Ms. Geisey’s guest or that

they saw Appellant in her presence. Following argument, the court denied

Appellant’s motion for reconsideration on June 26, 2014.




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      Because Appellant resides in Allegheny County, the Court of Common

Pleas of Westmoreland County held a finding of fact hearing on May 9, 2014.

After the hearing, the court dismissed the receiving stolen property charge

and a criminal conspiracy charge lodged against Appellant.          The court,

however, found that Appellant committed the remaining delinquent acts filed

against him.

      The case was subsequently transferred to the Court of Common Pleas

of Allegheny County for adjudication and disposition.      On September 30,

2014, the court in Allegheny County adjudicated Appellant delinquent on the

charges and set the matter for disposition. On October 21, 2014, the trial

court entered a dispositional order placing Appellant at the Glen Mills School.

      Thereafter, on November 20, 2014, Appellant’s trial counsel filed a

notice of appeal but then moved to withdraw as counsel on December 10,

2014. On January 15, 2015, the trial court in Allegheny County issued an

opinion finding that Appellant waived all issues on appeal by failing to file a

concise statement pursuant to Pa.R.A.P. 1925(b). On January 30, 2015, this

Court remanded the matter and directed the prompt filing of a concise

statement. New counsel was appointed on March 5, 2015 and, on March 13,

2015, counsel filed a concise statement. The concise statement challenged

the denial of Appellant’s motion to suppress. On April 23, 2015, the court in

Westmoreland County that heard and disposed of Appellant’s motion to

suppress issued its opinion.


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      On    appeal,    Appellant   raises   the   following   questions   for    our

consideration:


      I.    Whether the [suppression] court erred in denying the
            Appellant’s [m]otion to [s]uppress based on its conclusion
            that Appellant lacked a reasonable expectation of privacy
            in the hotel room illegally searched by police?

      II.   Whether the Commonwealth failed to prove the existence
            of probable cause or exigent circumstances necessary to
            justify a warrantless search of a property?

Appellant’s Brief at 3.

      Appellant’s claims in this appeal challenge the denial of his motion to

suppress.     Our     well-established   standard   of   review   governing     such

challenges is as follows.

      We may consider only the Commonwealth's evidence and so
      much of the evidence for the defense as remains uncontradicted
      when read in the context of the record as a whole. Where the
      record supports the factual findings of the trial court, we are
      bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error. An appellate court, of
      course, is not bound by the suppression court's conclusions of
      law.

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted);

Commonwealth v. Williams, 2015 WL 5810631, *5 (Pa. Super. 2015).

      In his first claim, Appellant asserts that the suppression court erred in

denying his suppression motion on grounds that he lacked a legitimate

expectation of privacy in room 315 at the Holiday Inn Express.                  Here,

Appellant contends that he was a visitor of a registered hotel guest (Ms.

Geisey) and that, pursuant to hotel policy, he was free to come and go from


                                         -8-
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room 315 without interference from the hotel staff. Appellant also points out

that Ms. Geisey, the individual who originally rented the room, never

reported her room key lost or stolen and never reported the presence of an

unwelcome person in her hotel room.              Appellant reasons that since “Ms.

Geisey was unequivocally permitted to allow Appellant on to the premises

and to provide him with a key[,]” the absence of testimony identifying him

as the individual who requested a room change or the one who extended the

reservation does not mean that he was an uninvited visitor or unauthorized

guest of Ms. Geisey. Appellant’s Brief at 16. In Appellant’s view, the fact

that hotel staff did not witness him with Ms. Geisey is insufficient to defeat

his claim that he was a welcomed guest who enjoyed a legitimate

expectation of privacy in room 315. For these reasons, Appellant concludes

that the trial court erred in finding that he lacked a cognizable privacy

interest in room 315.7

       Although Appellant was charged with a possessory offense and
       as such has automatic standing to challenge the suppression of
____________________________________________


7
  As noted above, the suppression court cited two reasons for its conclusion
that Appellant lacked a legitimate expectation of privacy in room 315. In
addition to its determination that Appellant was not Ms. Geisey’s guest, the
suppression court found that Appellant did not rent the hotel room. At the
suppression hearing, hotel personnel testified that it was against hotel policy
to rent rooms to minors. Appellant does not contest this policy (or offer any
argument or point to any evidence adduced at the suppression hearing) to
establish that he originally rented room 223, changed Ms. Geisey’s
registration to room 315, or extended her stay in room 315. Hence, we shall
confine our analysis to Appellant’s contention that he possessed a legitimate
expectation of privacy in room 315 as Ms. Geisey’s guest.



                                           -9-
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     the items seized, it was appropriate for the [suppression] court
     to first examine the question of Appellant's privacy interest in
     the place searched. See Commonwealth v. Peterson, 636
     A.2d 615, 617 (Pa. 1993)[; see also Commonwealth v.
     Enimpah, 106 A.3d 695, 701-702 (Pa. 2014) (“it is worth noting
     that in analyzing the merits of a suppression motion, the
     [suppression] court may, indeed, treat the defendant's privacy
     interest as a “threshold” or “preliminary” matter. That is to say,
     if the evidence shows there was no privacy interest, the
     Commonwealth need prove no more; in terms of the court's
     review, it need go no further if it finds the defendant has not
     proven a reasonable expectation of privacy.”)]. Both Article 1,
     Section 8 of the Pennsylvania Constitution and the Fourth
     Amendment of the United States Constitution have been
     interpreted as protecting zones where an individual enjoys a
     reasonable expectation of privacy. Commonwealth v. Parker,
     619 A.2d 735, 737 (Pa. Super. 1993). While the Pennsylvania
     Constitution may be employed to guard individual privacy rights
     against unreasonable searches and seizures more zealously than
     the federal law, an individual's expectation of privacy in the
     place searched must be established to invoke constitutional
     protection. Commonwealth v. Melilli, 555 A.2d 1254, 1258
     (Pa. 1989). “[I]n order for a defendant accused of a possessory
     crime to prevail in a challenge to the search and seizure which
     provided the evidence used against him, he must, as a threshold
     matter, establish that he has a legally cognizable expectation of
     privacy in the premises which were searched.” Commonwealth
     v. Strickland, 707 A.2d 531, 534 (Pa. Super. 1998), quoting
     Commonwealth v. Carlton, 701 A.2d 143, 145-146 (Pa.
     1997).

     An expectation of privacy will be found to exist when the
     individual exhibits an actual or subjective expectation of privacy
     and that expectation is one that society is prepared to recognize
     as reasonable. Commonwealth v. Jones, 874 A.2d 108, 118
     (Pa. Super. 2005). In determining whether a person's
     expectation of privacy is legitimate or reasonable, the totality of
     the circumstances must be considered and the determination will
     ultimately rest upon a balancing of the societal interests
     involved. Peterson, 636 A.2d at 619. “The constitutional
     legitimacy of an expectation of privacy is not dependent on the
     subjective intent of the individual asserting the right but on
     whether the expectation is reasonable in light of all the
     surrounding circumstances.” Jones, 874 A.2d at 118.

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Commonwealth v. Viall, 890 A.2d 419, 421-422 (Pa. Super. 2005)

(parallel citations omitted).

      Our inquiry into the propriety of the suppression court’s ruling involves

a two-tiered analysis.   First, we consider whether the record developed at

Appellant’s suppression hearing supports the suppression court’s finding that

Appellant was not Ms. Geisey’s guest. Next, if we determine that Appellant

was a visitor of the registered guest in room 315, we then must examine

whether an individual occupying such a status has a legitimate expectation

of privacy in the hotel room under the circumstances presented before us.

This latter inquiry involves a question of law over which our review is

plenary. Commonwealth v. Duncan, 817 A.2d 455, 459 (Pa. 2003).

      Although the suppression court is correct that none of the hotel staff

testified that they saw Appellant in Ms. Geisey’s presence or stated on the

record that he was her guest, our review of the transcript of testimony

reveals compelling evidence that Appellant was an invited visitor to room

315. Mr. Priestly, a night auditor at the Holiday Inn Express, testified that

on February 10, 2014, Appellant, his co-actor, and an unknown female

frequently entered and exited the hotel between 11:00 p.m. and 2:00 a.m.,

and that they returned each time to room 315, the room registered to Ms.




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Geisey.8     On direct examination by the Commonwealth, the following

exchange with Mr. Priestly occurred:

       Q:     Now, did you observe anything that caused you concern
              when you were working there in the early morning hours
              of February 10?

       A:     Um, just a lot of continuous traffic in and out of the hotel,
              which, you know, at that time of night is a pretty odd
              thing.

       Q:     Okay.     Now, continuous traffic by certain people or
              different people?

       A:     Yes.

       Q:     And what people were those?

       A:     The two defendants sitting there as well as one that I know
              of – one female that I don’t know the name of. And from
              the hours of 11 to 2, they probably went in and out of the
              hotel about half a dozen times.

       Q:     From 11 to 2?

       A:     Uh-huh.

       Q:     And did you notice what room they went to when they
              were in the hotel?

       A:     Yes.

       Q:     What room was it?

____________________________________________


8
  Ms. Morris testified that while Ms. Geisey had no registered guests, she
brought in two females and two males. See N.T., 3/10/14, at 25. At no
time did Ms. Morris testify that Appellant was one of the males that came in
with Ms. Geisey or that Appellant ever possessed a key to room 315. Id. at
29. Moreover, Ms. Niemiec never identified Appellant as being with Ms.
Geisey or having a key to the room.



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      A:      It was Room 315.

N.T., 3/10/14, at 37-38.

      The     foregoing   testimony    demonstrates   that   Appellant   made

approximately six visits to room 315 during a three-hour span in the early

morning hours of February 10, 2014. Despite the frequency of these visits

and the late hour during which they occurred, there is no evidence in the

record that Ms. Geisey, who had the right to admit visitors freely,

complained of unwanted or uninvited visitors in room 315. In view of this

evidence, we conclude that, while no witness specifically testified that

Appellant was Ms. Geisey’s guest or that they saw Appellant in her presence,

the record refutes the trial court’s finding that Appellant was not an invited

visitor to room 315.

      Having concluded that Appellant was the visitor of a registered hotel

guest, our task now is to determine whether, under the circumstances

present in this case, such an individual enjoys a legitimate expectation of

privacy in a hotel room. Pennsylvania law recognizes that, “[a] hotel room

can [] be the object of Fourth Amendment protection as much as a home or

an office.”    Commonwealth v. Dean, 940 A.2d 514, 519 (Pa. Super.

2008), quoting Hoffa v. United States, 385 U.S. 293, 301 (1966).

Pennsylvania jurisprudence further establishes that a registered hotel guest

enjoys a legitimate expectation of privacy during the period of time in which

the room rental remains valid.    See Commonwealth v. Brundidge, 533


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A.2d 1115, 1118 (Pa. 1993); see generally, Dean, supra.             Appellant’s

position in this case asks us to extend the recognized privacy interest of a

registered hotel guest to the casual visitor of a hotel patron.

      We have been unsuccessful in our efforts to locate Pennsylvania

precedent that rests on all fours with the facts in the instant case.

Nevertheless, this Court has previously recognized that, “a casual visitor

who is merely present in another[] person's home does not have a

legitimate expectation of privacy to contest an illegal entry by police into

that home and in order for such an individual to establish an expectation of

privacy that individual must demonstrate a significant and current interest in

the searched premises.” Viall, 890 A.2d at 423, quoting Commonwealth

v. Govens, 632 A.2d 1316, 1319 (Pa. Super. 1993).            Like a visitor who

lacks a legitimate privacy interest in the entire area of another's home, a

casual visitor of a registered hotel guest does not, by his mere presence,

have a legitimate expectation of privacy in the areas of the hotel room

commonly accessible to all who were present and as to objects that are left

in plain view.   See Viall, 890 A.2d at 423 (“it would be unreasonable to

maintain a subjective expectation of privacy in locations of common access

to all occupants”).

      In this case, the evidence recovered from room 315 was not concealed

and was located in common areas accessible to all who were present.

Appellant, his co-actor, and two unidentified females were present in the


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room.      Apart from the permitted nature of his presence in room 315,

Appellant points to no other factors that establish a legitimate expectation of

privacy.    Appellant failed to demonstrate that he had a significant and

current    interest   in   Room   315.      See   Viall,   supra.   Under   these

circumstances, we conclude that it is unreasonable for Appellant to assert a

legitimate expectation of privacy in the common areas of room 315 or in the

contraband objects that were open to the view of the many occupants of the

same small space.

        Here, Appellant presented no evidence at the suppression hearing;

thus, we must look to the Commonwealth’s evidence to determine whether

Appellant had a legitimate expectation of privacy in room 315. Although the

Commonwealth’s evidence demonstrated that Appellant may have been a

visitor of a registered guest at the Holiday Inn Express, that evidence, apart

from Appellant’s permitted presence, failed to show a possessory interest or

any other factor from which a reasonable and justifiable expectation of

privacy could be deduced. There is no evidence that Appellant had a key to

room 315, that he enjoyed the right to admit or exclude individuals from the

hotel room, that he paid for Ms. Geisey’s rental, that he requested the

change in her room reservation, or that he extended her stay at the Holiday

Inn Express.     Moreover, standing alone, Appellant’s permitted presence is

insufficient to establish a legitimate expectation of privacy in places equally

accessible to others, Viall, supra, or as to effects that were left in the open


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and not maintained as private. See Commonwealth v. Sell, 470 A.2d 457,

486 (Pa. 1983) (“[s]o long as a person seeks to preserve his effects as

private, even if they are accessible to others, they are constitutionally

protected”).9

          For the foregoing reasons, we conclude that Appellant is not entitled to

relief.     Additionally, in light of our determination that Appellant lacked a

legitimate expectation of privacy, we need not address his second contention

which asserts that the Commonwealth failed to establish probable cause and

exigent circumstances to support the officers’ warrantless intrusion into

room 315. Enimpah, 106 A.3d at 701-702. Accordingly, we affirm.

          Order of disposition affirmed.



____________________________________________


9
   This case likely would have a different outcome if certain evidence
introduced at Appellant’s May 9, 2014 finding of fact hearing had been
introduced during the suppression proceedings. Among other things, it was
revealed at the finding of fact hearing that officers recovered a key to room
315 from Appellant’s trousers as well as personal identification papers,
including his social security card and birth certificate. N.T., 5/9/14, at 31,
37, 78, and 84. Such evidence might show a possessory interest or
legitimate expectation of privacy akin to that enjoyed by a registered hotel
guest. See Brundidge, 533 A.2d at 1118; see also Commonwealth v.
Davis, 743 A.2d 946, 950 (Pa. Super. 1999) (defendant who was not a
named lessee had a legitimate expectation of privacy in premises where he
carried a key to the apartment and maintained clothes, identification tag,
and prescription medicine within the apartment). However, in the aftermath
of In re L.J., supra, we are no longer permitted to consider evidence
developed outside of the suppression proceedings unless that evidence was
unavailable. Appellant makes no claim that he was unaware of the items
recovered from his trousers or elsewhere from room 315.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




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