J-S70032-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANK BAILEY, III                          :
                                               :
                       Appellant               :   No. 117 MDA 2017

          Appeal from the Judgment of Sentence November 23, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000296-2016


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 30, 2018

       Frank Bailey, III, appeals from the judgment of sentence imposed

November 23, 2016, in the Lancaster County Court of Common Pleas. On

September 27, 2016, a jury convicted Bailey of possession of a firearm by a

person not to possess.1 The court sentenced Bailey to a term of five to ten

years’ imprisonment for the conviction. On appeal, Bailey raises challenges

with respect to the admissibility of certain evidence, the denial of his motion

to suppress, and the denial of his request for a particular jury instruction. For

the reasons below, we affirm on the basis of the trial court’s opinion.

       The trial court set forth the factual history as follows:

               On November 30, 2015, Officers Michael Neff and Lee
       Billiter, assigned to the Manheim Township Selective Enforcement
____________________________________________


1   18 Pa.C.S. § 6105(a)(1).
J-S70032-17


     Unit, were investigating a stabbing in which [Bailey] was the
     victim. At the time, [Bailey] also had active arrest warrants for
     violating the conditions of his parole, and his whereabouts were
     unknown. In an attempt to uncover more information about the
     crime, the officers went to the residence of [Bailey]’s girlfriend,
     Catherine Villanueva. The officers arrived at Ms. Villanueva’s
     second-floor apartment around nine or ten o’clock at night.
     Officer Neff had visited Ms. Villanueva about a month prior to that
     date to interview her regarding the same investigation. When the
     officers arrived, they knocked on the door, and Ms. Villanueva
     answered it “a few moments later.” She seemed surprised to see
     the two officers. Officer Neff then asked her if she remembered
     him being there previously to talk about [Bailey], and she said
     that she did. He then asked her if she would let the officers come
     in, and she said “yes” or “something to that effect,” and allowed
     the officers to enter the apartment. The door opened directly into
     a living room area, and upon entering, the officers remained “just
     inside the threshold of the door.” The apartment had a living
     room, a kitchen, and one bedroom. The bedroom door was closed
     when the officers arrived.

           After entering the apartment, Officer Neff had a “very brief”
     conversation with Ms. Villanueva, telling her that there were some
     inconsistencies he wanted to clear up based on his previous
     interview with her. Specifically, he asked her if she remembered
     talking to the officers about “Frank,” and whether she had talked
     to him recently or knew where he was. Ms. Villanueva responded
     that she had talked to him to check on his recovery. During this
     exchange, Officer Billiter noticed there were “two dinner plates of
     food sitting out,” and based on this observation, stated
     “something to the effect of, he is here, as in the apartment
     somewhere.” Officer Neff then asked Ms. Villanueva where
     [Bailey] was, and she “kind of hung her head and motioned
     towards the bedroom” by moving her head in that direction. The
     two officers then started moving toward the bedroom door, but
     “before [they] even got to the bedroom, the door opened and Mr.
     Bailey emerged.”2

           [Bailey] was not living, at the apartment at the time of his
     arrest, and was not on the lease.3 According to Ms. Villanueva’s
     testimony at the suppression hearing[, t]he Friday prior to the
     arrest, November 27, 2015, she had no contact at all with
     [Bailey]. However, the following day, Saturday, November 28,
     2015, Ms. Villanueva picked [Bailey] up from Elizabethtown after

                                    -2-
J-S70032-17


     work, and he stayed at the apartment overnight. On Sunday
     night, November 29, 2015, Ms. Villanueva brought [Bailey] back
     to Elizabethtown on her way to work. The Monday after that,
     November 30, 2015, the day of [Bailey]’s arrest, Ms. Villanueva
     went to work, went on a date with a different person, and then
     after a phone call from [Bailey], picked him up again. After
     stopping at a liquor store, she then brought him back to her
     apartment.4 Only she and [Bailey] had access to the bedroom on
     November 29 and 30.
     ______________________

       2  Ms. Villanueva testified that she never consented to the
       officers entering her apartment, that when they arrived she
       stepped outside leaving the door open a crack, and they
       then immediately accused her of lying during their previous
       visit, and stated that they “had” to come in. After the brief
       discussion, they entered the apartment without consent and
       she followed them in. She also stated that the officers were
       not standing “just inside the door,” when they were inside,
       and that when Officer Billiter said [Bailey] was there, she
       only looked down, and never gestured toward the bedroom.
       Ms. Villanueva did not dispute however that [Bailey] then
       came out of the bedroom before the officers reached the
       door.

       3 [Bailey] did previously live[] at the apartment for about
       two and a half months before moving out in August, 2015.

       4 At trial, Ms. Villanueva contradicted this testimony, stating
       that [Bailey] did not stay overnight that Saturday, bu[t] did
       stay overnight the Sunday prior to the day of his arrest. Ms.
       Villanueva also testified at trial that [Bailey] never had
       access to her car, but was then confronted with her prior
       inconsistent statement to police. In that statement, Ms.
       Villanueva stated that [Bailey] did have access to her
       apartment without her present, and that he had her car
       “Sunday night about 8:30 to midnight.”

     ______________________

           After [Bailey] exited the bedroom, the officers handcuffed
     him based on the outstanding warrant. Once handcuffed, [Bailey]
     was searched, and Officer Neff then asked if there was anything
     in the bedroom that [Bailey] needed or if there was anything in

                                    -3-
J-S70032-17


     there the officers should know about. [Bailey] responded that
     there was “nothing in the bedroom” and “yelled that [sic] to Ms.
     Villanueva that this was about him and not about her bedroom
     and not to let [the officers] go in the bedroom.” Officer Neff
     testified that these comments were directed at Ms. Villanueva, not
     the officers, and that [Bailey] was looking at her when the
     statements were made.5 Officer Neff then took [Bailey] outside
     to an awaiting patrol car in which he was transported to the police
     station.6

     ______________________

        5 Oddly, Ms. Villanueva testified that she did not remember
        [Bailey] saying anything, nor did she remember any of the
        officers asking if there was anything in the bedroom they
        should know about.

        6 In contrast, Ms. Villanueva testified that Officer Billiter told
        [Bailey] to get down on the ground before arresting him,
        and that then two additional officers entered the apartment
        to take him away.

     ______________________

           When Officer Neff returned, he asked Ms. Villanueva if there
     was anything in the apartment “that would be trouble for her,
     drugs, guns, [or] contraband.” She responded “not that I know
     of.” Officer Neff was prompted to ask this question because he
     could see a partially burnt marijuana cigar sitting on the kitchen
     counter. Officer Billiter then pointed the marijuana out to Ms.
     Villanueva, and Officer Neff asked for her consent to search the
     apartment. Ms. Villanueva responded by stating “I don’t know
     why you need to. I don't think there’s anything here.” In
     response, Officer Neff again reminded her of the marijuana on the
     counter, and asked again for her consent to search.            Ms.
     Villanueva then asked what would happen if the officers found
     something, to which Officer Neff responded that he couldn’t say
     for sure, and that it would depend on what was found. He then
     asked again for consent, and she said “yes, go ahead, search all
     you want.”7 When Officer Neff made the requests, he was sitting
     on the couch next to Ms. Villanueva, he was exhibiting a calm
     demeanor, and that Ms. Villanueva seemed calm as well. After
     her verbal consent, Officer Neff wrote up a consent form on a
     notepad, handed it to her, and she signed it.8

                                      -4-
J-S70032-17



              After she signed the consent form, the officers searched Ms.
       Villanueva’s bedroom. On top of her five-year-old daughter’s bed,
       they found a Men’s size 10 Converse shoe box.9 Officer Neff
       “flipped the shoebox open and saw a beige whitish towel laying
       inside the shoebox. [He] lifted it up and out fell a pistol,” which
       became the firearm in question in this case.10

       ______________________

          7  Ms. Villanueva initially testified that she never gave
          consent to search, but then admitted that she did consent
          but only after the officers insisted, threatened to call child
          services, and told her they had probable cause. She also
          added that she consented because she had “nothing to
          hide.”

          8 Ms. Villanueva testified that “officer present gave a blank
          piece of paper and I signed saying consent.”

          9   Ms. Villanueva’s shoe size is eight and a half.

          10   The pistol was a loaded revolver stamped 1944.

Trial Court Opinion, 4/18/2017, at 1-5 (record citations omitted).

       Bailey had a prior criminal record and was not permitted to possess a

firearm. The Commonwealth charged him with possession of a firearm by a

person not to possess and possession of marijuana.2 Bailey filed a motion to

suppress evidence on May 23, 2016. A hearing was held on September 26,

2016. The court denied the motion at that time. The case proceeded to a

one-day jury trial on September 27, 2016.             The jury convicted Bailey of


____________________________________________


2  See 35 P.S. § 780-113(a)(31).               The marijuana possession count was
dismissed prior to trial.



                                           -5-
J-S70032-17


possession of firearm prohibited. Subsequently, on November 23, 2016, the

court sentenced Bailey to a term of five to ten years’ incarceration. He did

not file a post-sentence motion but did file this direct appeal.3

       Bailey raises the following issues on appeal:

       1. Did the trial court err in denying Mr. Bailey’s motion for a
       mistrial where the Clerk of Courts, while reading into the record
       Mr. Bailey’s prior felony drug convictions for purposes of proving
       Mr. Bailey was a person[] not to possess a firearm, also read to
       the jury that Mr. Bailey had a prior firearm charge?

       2. Did the trial court err in denying Mr. Bailey’s motion to
       suppress, where police conducted a search of a bedroom in which
       Mr. Bailey was an overnight guest in when Mr. Bailey denied the
       officer’s request for consent to search?

       3. Did the trial court err in denying Mr. Bailey’s request for Jury
       Instruction 16.02(b)(A) to be read to the jury where it would have
       given the jury a more descriptive definition as to what
       “possession” meant, and the charge given by the trial court to the
       jury did not adequately present the law on possession to the jury?

Bailey’s Brief at 5.

       After a thorough review of the record, the parties’ briefs, and the

relevant case law, we find the trial court’s April 18, 2017, opinion

comprehensively discusses and properly disposes of the questions presented

in this appeal. See Trial Court’s Opinion, 4/18/2017, at 6-14 (concluding: (1)

Bailey’s motion for a mistrial was appropriately denied because (a) the


____________________________________________


3  On December 28, 2016, the trial court ordered Bailey to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Following an extension of time, Bailey filed a concise statement on February
1, 2017. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 18, 2017.

                                           -6-
J-S70032-17


Commonwealth did not intentionally elicit or exploit testimony regarding

Bailey’s 2005 possession of a firearm charge which was nolle prosequied, (b)

mitigation efforts were made by both attorneys to correct the mistake, and

(c) the trial court provided two limiting instructions regarding the testimony

at issue; (2) Bailey’s motion to suppress was properly denied because

Villaneuva verbally consented to the search, which gave the officers an

independent lawful position from which to conduct the search, based on the

common authority exception to the warrant requirement, and where (a)

Villaneuva was the leaseholder and only permanent resident of the apartment,

(b) she also signed a form indicating that she consented to the search, and

(c) Bailey did not explicitly refuse the search, but rather, requested Villaneuva

not consent to it; and (3) Bailey’s request for jury instruction 16.02(b)(A) was

appropriately denied because while his requested instruction for what the

term, possession, means was a more detailed and descriptive definition, the

firearm in question was found in a shared space, warranting an instruction on

joint constructive possession, and therefore, Bailey’s requested instruction

would not have been helpful to the jury). Accordingly, we affirm on the basis

of the trial court’s opinion, but add one additional comment.

      With respect to the trial court’s finding that Bailey had no reasonable

expectation of privacy in the apartment because he did not meet the “guest”

criteria as set forth in Commonwealth v. Govens, 632 A.2d 1316 (Pa. Super.




                                      -7-
J-S70032-17


1993), appeal denied, 652 A.2d 1321 (Pa. 1994),4 our research has revealed

that even overnight guests, which Bailey could presumably qualify as, do

possess a legitimate expectation of privacy. See Minnesota v. Olson, 495

U.S. 91, 99 (1990) (holding “that an overnight guest has a legitimate

expectation of privacy in his host’s home,” reasoning, “[f]rom the overnight

guest’s perspective, he seeks shelter in another’s home precisely because it

provides him with privacy, a place where he and his possessions will not be

____________________________________________


4

       Factors to be considered in determining whether a defendant has
       a legitimate expectation of privacy in another person’s home
       include: (1) possession of a key to the premises; (2) having
       unlimited access to the premises; (3) storing of clothing or other
       possessions on the premises; (4) involvement in illegal activities
       conducted on the premises; (5) ability to exclude other persons
       from the premises; and (6) expression of a subjective expectation
       of privacy in the premises.

Govens, 632 A.2d at 1319. In Govens, there was no evidence regarding the
status of the appellant or the reason for his presence in the apartment. Id.
at 1318. Here, the court found:

       At the time of his arrest, [Bailey] had no key to the apartment,
       and only had limited access to it, which was dependent upon
       whether Ms. Villaneuva was willing to pick him up and drive him
       there; [Bailey] stored no clothing or other possessions on the
       premises, other than the illegal firearm; [Bailey] had no ability to
       exclude other persons from the apartment, as he was not a
       resident and was not on the lease; [h]e also expressed no
       subjective expectation of privacy in the apartment or the
       bedroom, as evidenced by him asking only Ms. Villaneuva to not
       let the officers into the bedroom, as opposed to refusing consent
       to the officers themselves.

Trial Court’s Opinion, 4/18/2017, at 11-12.



                                           -8-
J-S70032-17


disturbed by anyone but his host and those his host allows inside.”). See also

Commonwealth v. Santiago, 736 A.2d 624 (Pa. Super. 1999), appeal

denied, 749 A.2d 470 (Pa. 2000); Commonwealth v. Rodriguez, 679 A.2d

1320 (Pa. Super. 1996), appeal denied, 704 A.2d 577 (Pa. 1997);

Commonwealth v. Evans, 410 A.2d 1213 (Pa. 1979). Nevertheless, this

does not affect the outcome because Villaneuva consented to the officers

entering the room,5 thereby negating any expectation of privacy Bailey may

have had regarding the search.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/30/18




____________________________________________


5   Moreover, we reiterate that Bailey asked only Villaneuva to not let the
officers into the bedroom, but did not say anything to them specifically. See
Trial Court’s Opinion, 4/18/2017, at 4.

                                           -9-
                                                                               Circulated 05/03/2018 03:58 PM




 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                        CRIMINAL



COMMONWEALTH OF PENNSYLVANIA

       v.                                               0296-2016

FRANK BAILEY, III


                                       OPINION
BY: WRIGHT, J.                                                  April      ,   2017


        This Opinion is written pursuant to Rule. -1925(a) of the Pennsylvania Rules of

Appellate Procedure. In his Concise Statement of Errors, Defendant Frank Bailey, Ill

alleges three errors related to his Felony conviction for possession of a firearm by a

person not to possess.' A review of the record and applicable law demonstrates that

Defendant's claims are meritless, and his appeal should be dismissed.

                                      BACKGROUND

        On November 30,2015, Officers Michael Neff and Lee Billiter, assigned to the

Manheim Township Selective Enforcement Unit, were investigating a stabbing in which

Defendant was the victim. (N.T. Suppression at 4-5, 22); (N.T. Jury Trial at 127--29). At

the time, Defendant also had active arrest warrants for violating the conditions of his

parole, and his whereabouts were unknown. (N.T. Suppression at 4-5); (Criminal

Complaint, 12/11/15). In an attempt to uncover more information about the crime, the

 officers went to the residence of Defendant's girlfriend, Catherine Villanueva. (N.T.

 Suppression at 4-6). The officers arrived at Ms. Villanueva's second -floor apartment


 118 Pa.C.S.   §   6105(a)(1).



                                          APPENDIX B
around nine or ten o'clock at night. Id. at 23,46. Officer Neff had visited Ms. Villanueva

about a month prior to that date to interview her regarding the same investigation. Id. at

6. When the officers arrived, they knocked on the door, and Ms. Villanueva answered it

"a few moments later." Id. She seemed surprised to see the two officers. Id. at 7. Officer

Neff then asked her if she remembered him being there previously to talk about

Defendant, and she said that she did. Id. He then asked her if she would let the officers

come in, and she said "yes" or "something to that effect," and allowed the officers to

enter the apartment. Id. at 6-7. The door opened directly into a living room area, and

upon entering, the officers remained "just inside the threshold of the door." Id. at   7,26-

27. The apartment had a living room, a kitchen, and one bedroom. Id. at 8. The

bedroom door was closed when the officers arrived. Id.

       After entering the apartment, Officer Neff had   a "very brief"   conversation with Ms.

Villanueva, telling her that there were some inconsistencies he wanted to clear up

based on his previous interview with her. Id. at 7-8. Specifically, he asked her if she

remembered talking to the officers about "Frank," and whether she had talked to him

recently or knew where he was. Id: Ms. Villanueva responded that she had talked to him

to check on his recovery. Id. at 8. During this exchange, Officer Billiter noticed there

were "two dinner plates of food sitting out," and based on this observation, stated

 "something to the effect of, he is here, as in the apartment somewhere." Id. Officer Neff

 then asked Ms. Villanueva where Defendant was, and she "kind of hung her head and

 motioned towards the bedroom" by moving her head in that direction. Id at 9. The two




                                               2
officers then started moving toward the bedroom door, but "before [they] even got to the

bedroom, the door opened and Mr. Bailey emerged." Id. at 9, 49-51.2

            Defendant was not living at the apartment at the time of his arrest, and was not

on the lease.3 According to Ms. Villanueva's testimony at the suppression hearing The

Friday prior to the arrest, November 27, 2015, she had no contact at all with Defendant.

Id. at 44. However, the following day, Saturday, November 28, 2015, Ms. Villanueva

picked Defendant up from Elizabethtown after work, and he stayed at the apartment

overnight. Id. at 44. On Sunday night, November 29, 2015, Ms. Villanueva brought

Defendant back to Elizabethtown on her way to work. The Monday after that, November

30, 2015, the day of Defendant's arrest, Ms. Villanueva went to work, went on a date

with a different person, and then after a phone call from Defendant, picked him up

again. Id. at 44-45. After stopping at a liquor store, she then brought him back to her

apartment. Id.4 Only she and Defendant had access to the bedroom on November 29

and 30. (N.T. Jury Trial at 170).

            After Defendant exited the bedroom, the officers handcuffed him based on the

outstanding warrant. Id. at 9. Once handcuffed, Defendant was searched, and Officer



2  Ms. Villanueva testified that she never consented to the officers entering her apartment, that when they arrived she
 stepped outside leaving the door open a crack, and they then immediately accused her of lying during their previous
 visit, and stated that they "had" to come in. (N.T. Suppression at 46-48). After the brief discussion, they entered the
 apartment without consent and she followed them in. Id. at 47. She also stated that the officers were not standing
 "just inside the door," when they were inside, and that when Officer Billiter said Defendant was there, she only
 looked down, and never gestured toward the bedroom. Id. at 48. Ms. Villanueva did not dispute however that
 Defendant then came out of the bedroom before the officers reached the door. Id. at 51.
 3 Defendant did previously lived at the apartment for about two and a half months
                                                                                          before moving out in August,
 2015. (N.T. Suppression at 45).
 4 At trial, Ms. Villanueva contradicted this testimony, stating that Defendant did not stay overnight that
                                                                                                               Saturday,
 bud did   stay overnight  the Sunday prior to the day of his arrest. (N.T. Jury Trial at  165, 174); (N.T. Suppression at
 44). Ms. Villanueva also testified at trial that Defendant never had access to her car, but was then confronted with
 her prior inconsistent statement to police. In that statement, Ms. Villanueva stated that Defendant did have access to
 her apartment without her present, and that he had her car "Sunday night about 8:30 to midnight." (N.T. Jury Trial at
    169).
                                                             3
Neff then asked if there was anything in the bedroom that Defendant needed or if there

was anything in there the officers should know about. Defendant responded that there

was "nothing in the bedroom" and "yelled that [sic] to Ms. Villanueva that this was about

him and not about her bedroom and not to let [the officers] go in the bedroom." Id at 10-

11. Officer Neff testified that these comments were directed at Ms. Villanueva, not the

officers, and that Defendant was looking at her when the statements were made. Id. at

11.5 Officer Neff then took Defendant outside to an awaiting patrol car in which he was

transported to the police station.          IV
        When Officer Neff returned, he asked Ms. Villanueva if there was anything in the

apartment "that would be trouble for her, drugs, guns, [or] contraband." Id. at 12. She

responded "not that know of." Id. Officer Neff was prompted to ask this question
                           I




because he could see a partially burnt marijuana cigar sitting on the kitchen counter. Id.;

(N.T. Jury Trial at 206). Officer Billiter then pointed the marijuana out to Ms. Villanueva,

and. Officer Neff asked for her consent to search the apartment. (N.T. Suppression at

 13). Ms. Villanueva responded by stating "I don't know why you need to.                          I   don't think

there's anything here." Id. In response, Officer Neff again reminded her of the marijuana

 on the counter, and asked again for her consent to search. Id. Ms. Villanueva then

 asked what would happen if the officers found something, to which Officer Neff

 responded that he couldn't say for sure, and that it would depend on what was found.

 Id. He then asked again          for consent, and she said "yes, go ahead, search all you want."




 5 Oddly, Ms. Villanueva testified that she did not remember Defendant saying anything, nor did she remember any
 of the officers asking if there was anything in the bedroom they should know about. (N.T. Suppression at 51).
 6 In contrast, Ms. Villanueva testified that Officer Billiter told Defendant to get down
                                                                                          on the ground before arresting
 him, and that then two additional officers entered the apartment to take him away. (N.T. Suppression at 51).
                                                            4
Id.' When Officer Neff made the requests, he was sitting on the couch next to Ms.

Villanueva, he was exhibiting a calm demeanor, and that Ms. Villanueva seemed calm

as well. Id at 14. After her verbal consent, Officer Neff wrote up a consent form on a

notepad, handed it to her, and she signed                it. Id.8


        After she signed the consent form, the officers searched Ms. Villanueva's

bedroom. On top of her five -year -old daughter's bed, they found a Men's size 10

Converse shoe box.9 Officer Neff "flipped the shoebox open and saw a beige whitish

towel laying inside the shoebox. [He] lifted it up and out fell a pistol," which became the

firearm in question in this case.19 (N.T. Jury Trial at 134, 164).

        Aside from the instant charge, Defendant has the following criminal history: (1)

Disorderly conduct (4/19/05);11 (2) Six counts relating to driving under the influence of

marijuana while his operating privilege was suspended or revoked, and without required

financial responsibility (2/21/06);12 (3) possession with intent to deliver crack cocaine

and criminal conspiracy to deliver crack cocaine (7/17/06);13 (4) Driving while License

Suspended/Revoked and blood -alcohol level above .02% (02/26/09);14 (5) Disorderly




7  Ms. Villanueva initially testified that she never gave consent to search, but then admitted that she did consent but
only after the officers insisted, threatened to call child services, and told her they had probable cause. She also added
that she consented because she had "nothing to hide." (N.T. Suppression at 53-54).
8 Ms. Villanueva testified that "officer present gave a blank piece of paper and I signed
                                                                                             saying consent." (N.T.
Suppression at 62).
9 Ms. Villanueva's shoe size is eight and a half. (N.T. Jury Trial at 170).

1° The pistol was a loaded revolver stamped 1944. (N.T. Jury Trial at 134, 164, 182).
 11 18 Pa.C.S. § 5503; MJ-02201-CR-0000125-2005 (Misdemeanor 3).

 12 35 Pa.C.S. § 780-1 13(a)(31) (possession of marijuana-small amount for personal
                                                                                         use); 35 Pa.C.S. § 780-
 113(a)(32) (possession of drug paraphernalia    with  intent to use); 75 Pa.C.S. § 3802(d)(1)(i) (driving under the
 influence  of a schedule I controlled  substance); 75 Pa.C.S.   § 3802(d)(2) (driving while impaired  by a controlled
 substance); 75 Pa.C.S. § 1543(a) (driving while operating privileges suspended or revoked); 75 Pa.C.S. § 1786(0
 (operation of a motor vehicle without required financial responsibility); CP-36-CR-0002022-2005.
 13 35 P.S. § 780-113(a)(30); 18 P.S. § 903(a)(1); CP-36-CR-0005295-2005.

 14 75 Pa.C.S. § 1543(b)(i); CP-36-SA-0000290-2008.
                                                            5
Conduct and Possession of Marijuana (10/20/10);15 (6) Harassment (3/17/11);18 (7)

False Identification to Law Enforcement and Open Container (6/14/12);17 (8) Delivery of

Cocaine (10/27/14);18 (9) Possession of Marijuana (5/28/15);19 and shortly after being

convicted on the instant charge, Defendant was also convicted on (10) DUI, 2nd

Offense, and related charges (11/23/16).29

                                                       DISCUSSION

           Defendant's Concise Statement alleges three points of error:

           1.    That should have granted Defendant's motion for a mistrial because the Clerk
                        I




           of Courts, while reading into the record the defendant's prior felony drug

           convictions for purposes of proving Defendant was a persons not to possess a

           firearm, also read that Defendant had a prior firearms charge;

           2. That          I       erred in denying Defendant's Motion to Suppress because Defendant

           did not consent to the search of the bedroom in which he had been an overnight

           guest;

            3.   That erred in denying Defendant's request for Jury Instruction 16.02(b)(A) to
                                I




            be read to the jury, which is the controlled substance possession definition.

                   1.   Defendant's Motion for           a   Mistrial Was Appropriately Denied

            The standard for determining whether to grant a mistrial is well established:

            A mistrial is an "extreme remedy ... [that] ... must be granted only when an
            incident is of such a nature that its unavoidable effect is to deprive
            defendant of a fair trial." Commonwealth v. Vazquez, 617 A.2d 786, 787-88
            (Pa. Super. 1992) (citing Commonwealth v. Chestnut, 511 Pa. 169, 512

 15   18 Pa.C.S. § 5503(a)(4); 35 Pa.C.S. § 780-113(a)(31); CP-36-CR-0005042-2010.
 16   18 Pa.C.S. § 2709 § (a)(1); CP-36-CR-0004042-2010.
 17   18 Pa.C.S. § 4914; LO 88-2; CP-36-CR-0003935-2012.
 18   35 P.S. § 780-113(a)(30); CP-36-CR-0003342-2012 affirmed 2118 MDA 2014 (Pa. Super. 2015).
 19   35 P.S. § 780-113(a)(31); CP-36-CR-0003014-2015.
 20   75 Pa.C.S. § 3802; 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 1543; CP-36-CR-0000672-2016.
                                                                6
      A.2d 603 (Pa.1986), and Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d
      980 (Pa.1984)). A trial court may remove taint caused by improper
      testimony through curative instructions. Commonwealth v. Savage, 529 Pa.
       108, 602 A.2d 309, 312-13 (Pa.1992); Commonwealth v. Richardson, 496
       Pa. 521, 437 A.2d 1162 (Pa.1981). Courts must consider all surrounding
      circumstances before finding that curative instructions were insufficient and
      the extreme remedy of a mistrial is required. Richardson, 496 Pa. at 526-
      527, 437 A.2d at 1165. The circumstances which the court must consider
       include whether the improper remark was intentionally elicited by the
       Commonwealth, whether the answer was responsive to the question posed,
      whether the Commonwealth exploited the reference, and whether the
       curative instruction was appropriate. Id.

Commonwealth v. Manley, 985 A.2d 256, 266-67 (2009).

      Moreover, we have often indicated that in criminal cases, the possible
      prejudicial effect of a witness's reference to the priorcriminal conduct of a
      defendant may, under certain circumstances, be removed by an immediate
      cautionary instruction to the jury. Commonwealth v. Richardson, 496 Pa.
      521, 437 A.2d 1162 (1981); Commonwealth.v. Povish, 479 Pa. 179, 387
      A.2d 1282 (1978). The nature of the reference and whether the remark was
      intentionally elicited by the Commonwealth are considerations relevant to
      the determination of whether .a mistrial is required. Commonwealth v.
      Williams, 470 Pa. 172, 368 A.2d 249 (1977).

Commonwealth v. Pursell, 495 A.2d 183, 192 (1985).

       Finally, "[t]he decision to declare a mistrial is within the sound discretion of the

court and will not be reversed absent a 'flagrant abuse of discretion.'" Commonwealth
                                                                                      v.


Manley, 985 A.2d 256, 266-67 (2009) citing Commonwealth v. Cottam, 616 A.2d 988,

997 (Pa. Super. 1992); Commonwealth v. Gonzales, 609 A.2d 1368, 1370-71 (Pa.

Super. 1992).

       Here, Defendant challenges the elicitation of Defendant's possession of a firearm

charge from docket 5295-05, which was nolle prosequied. (Sentencing Order, 7/17/06);

 (Statement of Errors, 2/1/16). This charge was elicited during Assistant District Attorney

 Julie Slabinski's direct examination of Jacqueline Pfursich, the Lancaster County Clerk

 of Courts:
                                               7
    Q: What is the full caption of the case name?

     A: Defendant Frank Bailey, Ill

     Q: And you stated it was July    -
     A: 7/17/06

     Q: And   what occurred on 7/17/06

     A: It appears that, based upon the sentencing order, that Frank Bailey, Ill
     was sentenced to various counts: Do you want me to read the counts?

     Q: Yes

     A: Count 1, the offense of VCS. That was a felony. He was committed to
     two to four years, assessed fines and costs.

     Q: Was the second count there a conspiracy charge?

     A: That is correct.

      Q: And are there any remaining counts on there?

     A: There are.

      Q: Is it a communication facility?

      A: Yes, a firearms charge and possession.

      Q: And the paperwork that you have there has the certified stamp
                                                                       on it,
      the official seal on it?

      A: Yes.

      (N.T. Jury Trial at 222-23).

      Immediately after that line of questioning, Defendant's attorney, Douglas Conrad,

moved for a mistrial at sidebar and   I   denied the motion. Id. at 223. ADA Sablinski then

                                                                                 only
continued her questioning, but clarified through Ms. Pfursich that Defendant was

convicted of the Violation of Controlled Substance (VCS) charge and a conspiracy

charge, and that the communication facility and firearm, charges were none prosequied:
                                                 8
         Q: What does that mean?

         A: They were effectively dismissed

         Q: So they don't count against the defendant in any way?

         A: That is correct.

Id. at   223-24.

          On cross-examination, Mr. Conrad also clarified with Ms. Pfursich that Defendant

had no firearm convictions:

          Q:    Nol pros means   it was dismissed? That charge was not       pursued?

          A: That is correct.

          Q: And there, in fact, is no conviction on any firearm offense for my client?

          A: Based upon the two sentencing orders that         I   have in front of me, that's
          accurate.

Id. at 225.

          I   then also issued a limiting instruction to the jury regarding the nolle prosequied

charges:

          Ladies and gentlemen, I'm going to instruct you that a judgment of nol pros
          or entry of nol pros means there was no factual basis that the
          Commonwealth had to pursue particular charges. When you heard the
          reference to charges that were nol prossed, that means there was no factual
          basis to pursue it. Therefore, it's completely irrelevant to any consideration
          in this case.

 Id.

              At the end of the trial, also issued a second limiting instruction to the jury:
                                     I




              There was also evidence to the effect that the defendant had a prior criminal
              conviction. By that I mean the reference to convictions for possession with
              intent. This is not evidence of the defendant's guilt in this case. You must
              not infer in this case from this evidence of a prior conviction that the
              defendant is guilty. This evidence may be considered for you for only one
              purpose and that is to determine whether or not the Commonwealth has
                                                     9
       proven its case as a prior conviction for certain offenses is an element of
       the crime. also caution you to the fact that a reference to any charge that
                  I


       was nol prossed means those charges were not prosecuted and there
       lacked a factual basis for ever bringing those charges. You should disregard
       anything mentioned along those lines.

Id. at 258.

       While.Assistant District Attorney Slabinski did elicit the testimony,    I   do not believe

she elicited it intentionally, and she certainly did not exploit the testimony. Instead, after

defense counsel Conrad objected, she took immediate measures to correct the mistake

by having her witness explain that the nolle prosequied charges were not convictions

and were effectively dismissed. Mr. Conrad then clarified this again on cross-

examination, and thereafter issued a limiting instruction, and then issued a second
                      I




                                                                                         both
limiting instruction at the end of the trial. Because of the mitigation efforts taken by

attorneys, and due to both limiting instructions,    I   properly concluded that the "extreme

remedy" of a mistrial was not necessary in this case.

  2. Defendant Was Not Entitled to Suppression Because He Had
                                                              No Reasonable

  Expectation of Privacy in the Apartment, and the Lease -holder Consented to the
                                            Search

         Pennsylvania law confers standing automatically on a defendant when

 possession at the .time of the contested search is an essential element of the
                                                                            However,
 prosecution. Commonwealth v. Bostick, 958 a.2d 543, 552 (Pa. Super. 2008).

 to prevail on a suppression motion, a defendant still must show (1) a subjective
                                                                                 search,
 expectation of privacy in the area searched or effects sized at the time of the

 and (2) that such expectation was "objectively reasonable, i.e., that he had a legitimate

  expectation of privacy." Commonwealth v. Torres, 764 A.2d 532, 542 (Pa. 2001)

                                                10
(holding that defendant failed to show subjective expectation of privacy where he

testified that while he was a co-leaseholder, he "did not own the apartment      .   .   did not

live there," and "someone else lived there."). Stated differently, the objective component

requires that the "subjective expectation of privacy is one that society is willing to

recognize as legitimate." Commonwealth v. Gordon, 683 Pa. 253, 256-57 (Pa. Super.

1996) (man living in abandoned house had no objective expectation of privacy where he

had installed a working television, had a milk crate, a lamp, and a "beer ball").

       "An expectation of privacy is present when an individual, by his conduct, exhibits

an actual expectation of privacy and that the subjective expectation is one that society
                                                                                         is


prepared to recognize as reasonable." Commonwealth v. Brundidqe, 620 A.2d 1115,

1118 (Pa. 1993) (citations and quotations omitted). "This determination is to be
                                                                                  A.2d
accomplished upon a totality of the circumstances." Commonwealth v. Ferretti, 577

 1375, 1378 (Pa. Super. 1990) appeal denied 589 A.2d 688 (Pa. 1991). Pennsylvania

 courts consider six specific factors in determining whether a guest has a reasonable

 expectation of privacy   in   the dwelling of another:

        [A]n occupant other than the owner or lessee of an apartment [must]
        demonstrate a significant and current interest in the searched premises in
        order to establish an expectation of privacy." United States v. Garcia, 7.41
        F.2d 363, 366 (11th Cir.1984). Factors to be considered in determining
        whether a defendant has a legitimate expectation of privacy in another
        person's home include: (1) possession of a key to the premises; (2) having
        unlimited access to the premises; (3) storing of clothing or other
        possessions on the premises; (4) involvement in illegal activities conducted
        on the premises; (5) ability to exclude other persons from the premises; and
        (6) expression of a subjective expectation of privacy in the premises.

 Commonwealth v. Govens, 632 A.2d 1316, 1319 (Pa. Super. 1993).

         Here, Defendant has not met any of these criteria. At the time of his arrest,

  he had no key to the apartment, and only had limited access to it, which was
                                                  11
dependent upon whether Ms. Villanueva was willing to pick him up and drive him

there; Defendant stored no clothing or other possessions on the premises, other

than the illegal firearm; Defendant had no ability to exclude other persons from

the apartment, as he was not a resident and was not on the lease; He also

expressed no subjective expectation of privacy in the apartment or the bedroom,

as evidenced by him asking only Ms. Villanueva to not let the officers into the

bedroom, as opposed to refusing consent to the officers themselves. Defendant

also cannot be said to have had a reasonable expectation of privacy in the

shoebox itself, as it contained no identifying information, was not sealed, and

was left on Ms. Villanueva's five -year-old daughter's bed.

       Notwithstanding Defendant's lack of a reasonable expectation of privacy in'

the apartment, Ms. Villanueva's consent would still have given the officers an

 independently lawful position from which to conduct the search based on

 common authority doctrine:

       The "common authority" exception to the warrant requirement is well established:

        [I]t is firmly established that a warrantless search of property is permitted
        when consent is given by a third party possessing "common authority"
        over the premises or effects sought to be inspected. United States v.
        Matlock, 415 U.S. 164, 171 n. 7,(1974). Commonwealth v. Latshaw, 392
        A.2d 1301 (Pa. 1978), cert. denied, 441 U.S. 931 (1979).

 Commonwealth v. Davis, 743 A.2d 946,951 (Pa. Super. 1999). Such a warrantless

 search is only invalid over the express refusal of a physically present co -occupant.

 Commonwealth v. Yancoski, 915 A.2d 111, 113 (Pa. Super. 2006).

        Ms. Villanueva, as the leaseholder and only permanent residence of the

 apartment (aside from her daughter) had common authority over the apartment. The

                                               12
testimony at the Suppression Hearing and the signed consent form also indicated that

she consented to the search. Defendant never expressly refused the search, but rather,

requested that Ms. Villanueva not consent to it:

             Accordingly, the search was lawful as to Defendant both because he had no

objective or subjective expectation of privacy in the apartment, and because Ms.

Villanueva independently consented to the search.

3.    Defendant's Request for Jury Instruction 16.02(b)(A) Was Appropriately Denied

             Defendant argues in his Concise Statement that my instruction on possession at
                                                                               of Errors,
trial did not adequately present the law of possession to the jury. (Statement
                                                                        to present
2/1/17). Instead, Defendant argues that should have granted his request
                                                   I




                                                                            definition
Jury Instruction 16.02(b)(A), which is the "controlled substance possession
                                                                       term possession
 and is a more detailed and more descriptive definition as to what the

 means." Id. Defendant's assertion is meritless.
                                                                                       a trial
              "[lit is an unquestionable maxim of law in this Commonwealth that
                                                                             may  choose    its
              court has broad discretion in phrasing its instructions, and
              own wording so long as the law is clearly, adequately, and
                                                                                  accurately
              presented to the jury for its consideration. Only  where  there is an  abuse of
                                                      of the law is there reversible error."
              discretion or an inaccurate statement

 Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2013).
                                                                                     an
               Here, the firearm in question was found in a shared space, warranting
                                                                          of both power to
 instruction on "joint constructive possession," which requires a finding

 control the weapon, as well as intent to exercise that control.21             I   therefore instructed the

 jury as follows, reading the instruction twice:
                                                                             control, and
               For a person to possess the firearm, he must have the intent,
               power to control the firearm.

     21   Commonwealth v. Boatwright, 453 A.2d 1058, 1059 (Pa. Super. 1982).
                                                        13
       (N.T. Jury Trial at 262, 263).

       In   explicitly reading the elements of joint-constructive possession of a firearm,              I




                                                                                  to the
submit that the instruction clearly, adequately, and accurately presented the law

jury. By extension, notwithstanding Defendant's contention that Standard
                                                                         Jury

                                                                               would have
Instruction 16.02(b)(A) (instruction for possession of a controlled substance)
                                                                       broad
been "more detailed, and more descriptive," appropriately exercised my
                                                      I




discretion in determining it would not be helpful to the jury to include            it.22


                                             CONCLUSION

        Defendant was not entitled to a mistrial, his suppression motion was
                                                                 sufficient. Accordingly,
appropriately denied, and the jury instruction on possession was

Defendant's appeal is meritless and should be dismissed.




                                                                      Court presented a similar instruction to
  22 Indeed, our Superior Court addressed this issue where the Trial
                                                                  Super. 1988) (where trial court instructed
  the jury. Commonwealth v. Maqwood, 538 A.2d 908, 910 (Pa.
                                                      of   firearm case, it was not also required to read
  jury on joint-constructive possession in possession    a
  Standard Jury Instruction 16.02(b)(A)).
                                                          14
 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
                                          CRIMINAL



COMMONWEALTH OF PENNSYLVANIA                     :




       v.                                                    0296-2016

FRANK BAILEY, III


                                            ORDER

BY: WRIGHT, J.                                                     April        ,   2017


       AND NOW, this to          day of April, 2017, the Court hereby submits this Opinion

pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.

       The Clerk of Courts is directed to forward the record to the Superior Court.


                                                     BY THE COURT:



                                                     E1FE                IGHT
                                                     Ullok   E



 Copies to:

 District Attorney's Office
 Diana Kelleher, APD


                    CTIF138
Cr    OD      AG     vItA
                      dcr!ci A
      'TO           rrvk 4f4i3
                y

                                                15
