J-S55025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM EARL SMITH,

                            Appellant                 No. 373 WDA 2015


             Appeal from the PCRA Order Entered February 4, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000917-2012


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 16, 2015

        Appellant, William Earl Smith, appeals pro se from the order

dismissing his petition for relief filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

        On August 7, 2012, a jury convicted Appellant of two counts of

aggravated assault, two counts of simple assault, possession of a firearm

prohibited, firearms not to be carried without a license, terroristic threats,

and two counts of reckless endangerment. The jury acquitted Appellant of

robbery, two counts of attempted aggravated assault, and impersonating a

public servant. On August 17, 2012, the trial court sentenced Appellant to

an aggregate term of 7-20 years’ incarceration.       Appellant filed a timely

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*
    Retired Senior Judge assigned to the Superior Court.
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appeal, raising three sufficiency-of-the-evidence claims. On March 12, 2013,

this Court affirmed the judgment of sentence. Commonwealth v. Smith,

69 A.3d 1290 (Pa. Super. 2013) (unpublished memorandum). Appellant did

not petition our Supreme Court for further review.

        Appellant filed a timely, pro se PCRA petition on March 10, 2014.1 The

lower court appointed Attorney James V. Natale as PCRA counsel. However,

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), Attorney

Natale filed a no-merit letter and petition to withdraw on July 16, 2014, and

an amended no-merit letter and petition to withdraw on September 29,

2014.    The PCRA Court granted Attorney Natale’s petition to withdraw on

October 9, 2014.

        The PCRA court issued notice of its intent to deny Appellant’s PCRA

petition pursuant to Pa.R.Crim.P. 907, to which Appellant filed a timely

response, prompting the court to hold an in-court PCRA hearing on

December 4, 2014, as well as a by-video PCRA hearing on January 29, 2015.

On February 4, 2015, the PCRA court issued an Opinion and Order




____________________________________________


1
  In order to be deemed timely, a petition for post-conviction relief, including
a second or subsequent one, must “be filed within one year of the date the
judgment of sentence becomes final[.]” 42 Pa.C.S. § 9545(b)(1). Because
Appellant filed his petition within one year of our March 12, 2013 decision
affirming his judgment of sentence, his PCRA was patently timely.



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dismissing Appellant’s PCRA petition.   Appellant filed a timely appeal, and

now presents the following questions for our review, verbatim:

     I. APPELLANT CLAIMED THAT HIS ATTORNEY AT TRIAL,
     MICHALE GAROFOLO, WAS INEFFECTIVE AND DID NOT HAVE
     HIS CLIENT’S BEST INTEREST.

     II. APPELLANT ALSO BELIEVES HIS ATTORNEY PREJUDICED HIM
     BY FAILING TO CALL CHANTAL RANDOLPH BEFORE TRIAL AND
     AT TRIAL TO PROVE CONSENT WAS NEVER GIVEN FREELY.

     III. WHETHER POLICE HAD PROBABLE CAUSE TO ARREST
     APPELLANT BEFORE HE COULD BE IDENTIFIED AND BEFORE
     ANY ALLEGED EVIDENCE WAS DISCOVERED.

Appellant’s Brief, at 2 (unnumbered pages).

     Initially, we note that “[o]ur standard of review is limited to examining

whether the PCRA court's findings of fact are supported by the record, and

whether its conclusions of law are free from legal error.” Commonwealth

v. Busanet, 54 A.3d 35, 45 (Pa. Super. 2015).       “Our scope of review is

limited to the findings of the PCRA court and the evidence of record, viewed

in the light most favorable to the party who prevailed in the PCRA court

proceeding.” Id.

     Although Appellant presents three questions for our review, they all

ultimately address the same issue: whether trial counsel was ineffective for

failing to litigate a hypothetical suppression motion, where Chantal Randolph

would be called as a witness for the purpose of demonstrating that she did

not consent to a search of her home on January 16, 2012.            Appellant

believes such testimony could have resulted in the suppression of the

evidence found during that search.      According to the facts adduced at


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Appellant’s trial, the search in question unveiled a firearm used during the

assault on the victims in this case, as well as clothing identified by those

victims as having been worn by Appellant during that assault.                See

Commonwealth v. Smith, No. 1393 WDA 2012, unpublished memorandum

at 1-2 (Pa. Super. filed March 12, 2013) (quoting Trial Court Opinion,

10/3/12, at 1-3).

      To support his claim, Appellant provided a notarized statement,

purportedly written by Randolph in 2013, “wherein [Randolph] denied

voluntarily giving the police consent to search her residence on January 16,

2012, claiming instead that Uniontown and Pennsylvania state police officers

violated her constitutional rights and obtained her consent to search under

duress, threats and coercion.”     PCRA Court Opinion, 2/4/15, at 2 (citing

N.T., 12/4/14, at 5-6).

      Our standard of review for claims of ineffective assistance of counsel is

as follows:

             It is well-settled that counsel 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, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This
      Court has described the Strickland standard as tripartite by
      dividing the performance element into two distinct components.
      Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
      (1987).      Accordingly, to prove trial 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



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       denied if the petitioner's evidence fails to satisfy any one of
       these prongs.

Busanet, 54 A.3d at 45.

       Here, Appellant’s claim fails the first prong of the Pierce test.

Appellant would not have been entitled to suppression of the fruits of the

search of Randolph’s home, even if Appellant’s trial counsel had called her to

testify at a suppression hearing seeking such relief.

       “[T]he Fourth Amendment does not shield only those who have title to

the searched premises.” Commonwealth v. Ferretti, 577 A.2d 1375, 1377

(Pa. Super. 1990). However, a “defendant must establish more than just a

subjective expectation of freedom from intrusion[.]”        Commonwealth v.

Gordon, 683 A.2d 253, 256 (Pa. 1996).            Thus, to prevail on a motion to

suppress, a defendant must demonstrate a legitimate privacy interest in the

area searched. See Commonwealth v. Burton, 973 A.2d 428, 434 (Pa.

Super. 2009).2        To determine “whether a defendant has a legitimate

expectation of privacy in another person's home[,]” a court should consider,

at a minimum, the following factors:

       (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
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2
  This is a distinct question from whether a defendant has standing to file a
suppression motion. In Pennsylvania, a defendant “charged with possessory
crimes … ha[s] automatic standing to litigate his suppression motion.”
Commonwealth v. Bostick, 958 A.2d 543, 552 (Pa. Super. 2008). Thus,
Appellant at least had standing to file a suppression motion seeking to
exclude the firearm he was convicted of possessing.



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       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).

       In his brief, Appellant fails to assert any basis on which the trial court

could have concluded that he had a legitimate expectation of privacy in

Randolph’s home.         Generally speaking, “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.” Id. Here,

Appellant has not presented any argument that he was more than a casual

visitor in Randoph’s residence.          Randolph’s notarized statement indicates

that she did not voluntarily consent to the search of her residence, but

nothing in that statement tends to demonstrate or suggest that Appellant

was anything more than a casual visitor in her home.3 Consequently,

Appellant has not demonstrated a legitimate privacy interest in the area he

claims is protected by either his rights under the Fourth Amendment to the

United States Constitution or Article I, Section 8 of the Pennsylvania

Constitution.

       Thus, we are constrained to conclude that Appellant has not

established that he could have prevailed in a motion to suppress evidence
____________________________________________


3
  Randolph’s statement does not even indicate the nature of her relationship
with Appellant or similar facts from which an expectation of privacy might
legitimately arise.




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seized from Randolph’s home. Appellant has neither identified in the record,

nor provided any argument, that he possessed a legitimate expectation of

privacy in Randolph’s home.     Therefore, Appellant’s trial counsel did not

provide ineffective assistance of counsel by failing to file a suppression

motion on his behalf, because Appellant’s suppression claim would have

been meritless. See Commonwealth v. Luster, 71 A.3d 1029, 1052 (Pa.

Super. 2013) (holding counsel “cannot be found ineffective for failing to

pursue [a] baseless suppression claim”). For the same reason, Appellant’s

trial counsel could not have been ineffective for failing to call Randolph as a

witness, as Appellant would not have been entitled to suppression of the

seized evidence even if Randolph credibly testified at a suppression hearing

that she had not legally consented to the search. As such, we conclude that

the PCRA court’s dismissal of Appellant’s PCRA petition was supported by the

record and free from legal error.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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