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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                      v.               :
                                       :
WILLIAM MASON IBBETSON,                :         No. 4072 EDA 2017
                                       :
                           Appellant   :


               Appeal from the PCRA Order, November 15, 2017,
                in the Court of Common Pleas of Bucks County
               Criminal Division at No. CP-09-CR-0007814-2014


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED DECEMBER 24, 2018

      Appellant appeals from the November 15, 2017 order entered by the

Court of Common Pleas of Bucks County denying his petition filed pursuant

to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

After careful review, we affirm.

      A previous panel of this court provided the following synopsis of the

facts of this case:

            In 2008, [a]ppellant was convicted of a felony
            offense under the Controlled Substance, Drug,
            Device, and Cosmetic Act.[Footnote 2] Following his
            release from custody he was, thus, under the
            supervision of the Board of Probation and Parole. On
            November 7, 2011, he was declared delinquent from
            parole supervision. Agent Justin Kennett, of the
            Board of Probation and Parole, was assigned to
            Appellant’s case and led the investigation into
            [a]ppellant’s whereabouts.
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               [Footnote   2]   35   P.S.   §§   780-101,
               et seq.

          On August 4, 2014, Sergeant George Volpe
          [(“Sergeant Volpe”)] of the Northampton County
          Sheriff’s Department received information that
          [a]ppellant was staying at 717 Bushkill Street in
          Easton, and that [a]ppellant might have been in
          possession of a firearm. Accompanied by Parole
          Agent     Timothy    Budgeon,    [Sergeant]     Volpe
          responded to that address.      Appellant’s mother,
          Ms. Debbie Ibbetson, allowed officers in and directed
          them to a third-floor bedroom, where they observed
          in plain view men’s clothing, including a denim
          motorcycle vest, mail bearing [a]ppellant’s name,
          and a Glock handgun, serial number HWN466, in a
          partially opened drawer.    Officers did not seize
          evidence at that time.

          On September 3, 2014, Agent Kennett organized a
          multi-agency search for [a]ppellant that led to
          2410 Emerald Lane in Trumbauersville, Bucks
          County. Trooper John Cargan of the Pennsylvania
          State Police knocked and announced his presence
          but received no response. He kicked the door, at
          which time [a]ppellant’s daughter opened it, and
          officers entered the residence.

          Trooper    Cargan   met     with   the  homeowner,
          Ms. Judith Soldo, who signed a consent form
          authorizing a search of the residence. In the second
          floor master bedroom, Trooper Cargan observed in
          plain view a black .9mm handgun, serial number
          HWN466, and loaded magazine in an open cigar box.
          Trooper Cargan also observed in plain view a black
          North Face backpack, partially open and containing
          men’s clothing, documents and ID bearing
          [a]ppellant’s name, and a denim motorcycle vest.
          Ms. Soldo confirmed [a]ppellant had stayed in the
          second floor master bedroom with her the night of
          September 2, 2014, and no other men stayed in that
          room on a regular basis. She did not recognize the
          gun or backpack.



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           Trooper Andrew Watkins, preparing to leave the
           residence following the search, heard a motorcycle.
           Trooper Watkins approached the road and observed
           [a]ppellant, sans helmet, on the motorcycle.
           Trooper Watkins identified himself as a police officer
           and ordered [a]ppellant to pull over.        Instead,
           [a]ppellant drove away, off road across a grassy field
           and around a retention basin. On October 28, 2014,
           he was arrested at another location by Pennsylvania
           State Police Officers.

           Trial commenced June 9, 2015, and concluded
           June 10, 2015. Based on the evidence introduced at
           trial,  a  jury   convicted    [a]ppellant of   the
           above-enumerated offenses. On June 17, 2015, the
           court sentenced [a]ppellant to four and one-half to
           ten years’ incarceration, followed by three years’
           probation.

Commonwealth v. Ibbetson, 159 A.3d 37 (Pa.Super. 2016) (unpublished

memorandum) (footnote 3 omitted).          This court affirmed appellant’s

judgment of sentence. Id.

     Appellant filed the instant PCRA petition on June 8, 2017. The PCRA

court denied appellant’s petition for relief on November 15, 2017. Appellant

filed a timely notice of appeal to this court on December 15, 2017.     The

PCRA court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on December 28,

2017. Appellant timely complied on January 9, 2018.

     Appellant raises the following issue for our review:

           Did the [PCRA] court err in denying [] appellant’s
           PCRA petition because trial counsel was ineffective
           for failing to raise at suppression the fact that
           Deputy Sergeant Volpe did not have probable cause
           or a search warrant when he lifted a gun in plain


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            view to check the identification number in a room
            previously occupied by [] appellant?

Appellant’s brief at 3 (full capitalization omitted).

      PCRA petitions are subject to the following standard of review:

            “[A]s a general proposition, we review a denial of
            PCRA relief to determine whether the findings of the
            PCRA court are supported by the record and free of
            legal error.” Commonwealth v. Dennis, [], 17
            A.3d 297, 301 ([Pa. ]2011) (citation omitted). A
            PCRA court’s credibility findings are to be accorded
            great deference, and where supported by the record,
            such determinations are binding on a reviewing
            court. Id. at 305 (citations omitted). To obtain
            PCRA relief, appellant must plead and prove by a
            preponderance of the evidence: (1) his conviction or
            sentence resulted from one or more of the errors
            enumerated in 42 Pa.C.S.[A.] § 9543(a)(2); (2) his
            claims have not been previously litigated or waived,
            id. § 9543(a)(3); and (3) “the failure to litigate the
            issue prior to or during trial . . . or on direct appeal
            could not have been the result of any rational,
            strategic or tactical decision by counsel[,]” id.
            § 9543(a)(4). An issue is previously litigated if “the
            highest appellate court in which [a]ppellant could
            have had review as a matter of right has ruled on
            the merits of the issue[.]” Id. § 9544(a)(2). “[A]n
            issue is waived if [a]ppellant could have raised it but
            failed to do so before trial, at trial, . . . on appeal or
            in a prior state postconviction proceeding.”          Id.
            § 9544(b).

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015).

      Under the PCRA, an individual is eligible for post-conviction relief if the

conviction was the result of “[i]neffective assistance of counsel which, in the

circumstances of the particular case, so undermined the truth-determining

process that no reliable adjudication of guilt or innocence could have taken



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place.”   42 Pa.C.S.A. § 9543(a)(2)(ii).   When considering whether counsel

was ineffective, we are governed by the following standard:

                  [C]ounsel is presumed effective, and to
                  rebut that presumption, the PCRA
                  petitioner    must    demonstrate      that
                  counsel’s performance was deficient and
                  that such deficiency prejudiced him.
                  Strickland v. Washington, 466 U.S.
                  668 [] (1984). This Court has described
                  the Strickland standard as tripartite by
                  dividing the performance element into
                  two          distinct         components.
                  Commonwealth v. Pierce, [] 527 A.2d
                  973, 975 ([Pa. ]1987). Accordingly, to
                  prove counsel ineffective, the petitioner
                  must     demonstrate     that   (1)     the
                  underlying legal issue has arguable
                  merit; (2) counsel’s actions lacked an
                  objective reasonable basis; and (3) the
                  petitioner was prejudiced by counsel’s
                  act or omission.       Id.    A claim of
                  ineffectiveness will be denied if the
                  petitioner’s evidence fails to satisfy any
                  one of these prongs.

             Commonwealth v. Busanet, [] 54 A.3d 34, 45
             ([Pa. ]2012) (citations formatted).     Furthermore,
             “[i]n accord with these well-established criteria for
             review, [an appellant] must set forth and individually
             discuss substantively each prong of the Pierce test.”
             Commonwealth v. Fitzgerald, 979 A.2d 908, 910
             (Pa.Super. 2009).

Commonwealth v. Perzel, 116 A.3d 670, 671-672 (Pa.Super. 2015),

order vacated on other grounds, 166 A.3d 1213 (Pa. 2017).

      We must first determine whether appellant’s claim has any arguable

merit.    In order to do so, we must determine whether Sergeant Volpe

violated the plain view doctrine when he lifted a gun in plain view to check


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the identification number. Appellant argues that because Sergeant Volpe’s

sole purpose in checking the gun’s serial number was for the purpose of a

criminal investigation, he was required to have probable cause or a search

warrant.    (Appellant’s brief at 13-14.)   The Commonwealth contends that

appellant failed to meet his burden of proof to establish that Sergeant Volpe

lacked probable cause. (Commonwealth’s brief at 23.)

      During a pre-trial suppression hearing, the Commonwealth bears the

burden of convincing the court that the evidence at issue was legally

obtained.   Commonwealth v. Enimpah, 62 A.3d 1028, 1031 (Pa.Super.

2013), affirmed, 106 A.3d 695 (Pa. 2014).        In the context of the PCRA,

however, the burden shifts to the petitioner, who is required to establish,

inter alia, that his or her claim of ineffective assistance of counsel is of

arguable merit. Commonwealth v. Spotz, 84 A.3d 294, 307 (Pa. 2014).

We find that appellant failed to meet his burden of establishing that his claim

has arguable merit.

      A search and seizure of an item under the plain view doctrine is

permissible under the following circumstances:

             (1) the [government officials] have not violated the
             Fourth Amendment in arriving at the location from
             which the item could be viewed; (2) the item is in
             plain view; (3) the incriminating character of the
             item is immediately apparent; and (4) the
             [government officials] have a lawful right of access
             to the item itself.




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Commonwealth v. Smith, 85 A.3d 530, 537 (Pa.Super. 2014), quoting

Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010) (citation

omitted).

      Here, Sergeant Volpe was dispatched to assist in locating appellant in

response to a parole violation warrant issued by the Board of Probation and

Parole. Upon observing the gun in plain view, Sergeant Volpe had developed

the requisite reasonable suspicion to pick up the gun and check its serial

number, as his presence in the third-floor bedroom of Ms. Ibbetson’s house

did not violate the Fourth Amendment. Moreover, the gun was in plain view,

as it was found in a partially open drawer, the gun’s incriminating character

was immediately apparent as appellant’s possession of the gun was a

violation of his parole, and Sergeant Volpe had a lawful right of access to the

gun itself. Accordingly, we find that appellant failed to satisfy his burden of

establishing that the underlying legal issue to his ineffective assistance of

counsel is of arguable merit.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/24/18




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