J-S96020-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

BRIAN TIMOTHY MCMULLEN

                        Appellant                  No. 645 WDA 2016


                 Appeal from the PCRA Order April 5, 2016
              In the Court of Common Pleas of Potter County
                         Criminal Division at No(s):
                         CP-53-CR-0000097-2013



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                      FILED FEBRUARY 15, 2017

     Brian Timothy McMullen appeals from the April 5, 2016 order denying

him PCRA relief. We affirm.

     On May 16, 2013, Appellant was charged with child endangerment,

corruption of a minor, and two counts of indecent assault.     On May 16,

2013, officials from Oswayo Valley High School contacted Pennsylvania State

Trooper Glenn C. Drake and asked him to come to school to meet with

Appellant's son, I.M. I.M. had located a suicide note in Appellant's dresser

drawer.   Appellant's son spoke with his minister about the note, and the

minister contacted school personnel, who, in turn, called police.   I.M. was

willing to meet with Trooper Drake due to his concern for his father. I.M.
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told Trooper Drake that the note indicated that Appellant was suicidal

because Appellant was in love with his fifteen year old niece, V.K.O., and

had an inappropriate relationship with her. At Trooper Drake’s request, I.M.

retrieved the suicide note. The document confirmed that Appellant was in

love with his niece and, in it, Appellant “gave specific details of events and

touching that constituted Indecent Assault."     Affidavit of Probable Cause,

5/16/13, at 1.

       Trooper Drake met with V.K.O. that day, and she "related that

[Appellant] did touch her inappropriately on several occasions" by touching

her vaginal area over her pants.” Id. In addition, while they were in the

swimming pool, Appellant grabbed her several times and pressed his groin

against her buttocks.     V.K.O. also informed Trooper Drake that Appellant

had told her that he was in love with her and that he wrote her sexually

explicit love letters.    Appellant bought the victim a vibrator, which she

refused to accept.

       Trooper Drake brought Appellant to the police barracks that evening

and administered Miranda warnings to him. Appellant “expressed remorse

and embarrassment.       He indicated that his feeling and behavior with VKO

was inappropriate."      Id.   Appellant also admitted that he committed the

sexual contact described by the victim and that he was sexually aroused by

it.   This conduct occurred when V.K.O. was between thirteen and fifteen

years old and Appellant was aged fifty-two to fifty-four.

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      On February 25, 2014, Appellant pled guilty to child endangerment

graded as a third-degree felony and indecent assault graded as a second-

degree misdemeanor. There was no agreement as to the length of sentence

but there was a binding sentencing recommendation that Appellant would

serve his term in the local county facility. On June 10, 2014, Appellant was

sentenced to eighteen to forty-eight months imprisonment, to be served in

Potter County Jail, followed by two years probation. Appellant filed a timely

motion to modify his sentence, which was denied on August 25, 2014.

Appellant did not file a direct appeal from the judgment of sentence.

      On August 19, 2015, Appellant filed a timely, counseled PCRA petition.

The PCRA court conducted a hearing and denied relief. This appeal followed.

Appellant raises these issues for our review:

      I. Whether the PCRA court erred when it determined that trial
      counsel was not ineffective for failing to litigate a motion to
      suppress physical evidence?

      II. Whether the PCRA court erred when it determined that
      [Appellant’s] guilty plea was not unlawfully induced as a result of
      counsel's ineffectiveness by failing to advise him and pursue a
      motion to suppress?

      III. Whether the PCRA court erred when it determined that
      [Appellant’s] guilty plea was not unlawfully induced by trial
      counsel's ineffectiveness by providing [deficient] advice
      regarding his true sentencing exposure?

Appellant's brief at 4.

      Initially, we note that this Court reviews the “denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

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record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)). “This Court grants great deference to the findings of the PCRA

court, and we will not disturb those findings merely because the record could

support a contrary holding.    We will not disturb the PCRA court's findings

unless the record fails to support those findings.” Commonwealth v.

Patterson, 143 A.3d 394, 397 (Pa.Super. 2016) (citation omitted).

        Appellant’s first two assertions are related.   He asserts that plea

counsel should have filed a motion to suppress and that counsel’s failure in

this respect led to Appellant’s entry of an unknowing and involuntary guilty

plea.    The following uncontested facts are pertinent.   On May 16, 2013,

Appellant’s son, I.M., discovered a suicide note written by Appellant in

Appellant’s sock drawer.      I.M. told his minister who contacted school

officials.   They called the police.    I.M. voluntarily met with the school

personnel and Trooper Drake because he was worried about Appellant’s well

being. When Trooper Drake arrived at the school to interview I.M., the boy

told him what the document said, but the letter was not in I.M.’s possession.

Trooper Drake asked I.M. to obtained the note, and I.M. complied with that

request.

        Appellant avers that plea counsel should have moved to suppress the

note and evidence obtained from its discovery on the ground that I.M. was

acting as an agent or instrument of police when he seized that document

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without a warrant.   Appellant continues that counsel’s failure to file what

would have been a successful suppression motion caused his entry of an

involuntary and unknowing guilty plea. At the PCRA hearing, plea counsel

testified that he did not file a suppression motion because he did not believe

it would have been successful.         The PCRA court concurred in this

assessment.

     In order to obtain relief based upon ineffective assistance of counsel,

the defendant must demonstrate: “(1) the underlying claim is of arguable

merit; (2) that counsel had no reasonable strategic basis for his or her

action or inaction; and (3) but for the errors and omissions of counsel, there

is a reasonable probability that the outcome of the proceedings would have

been different.” Patterson, supra at 397-98. “A defendant is permitted to

withdraw his guilty plea under the PCRA if ineffective assistance of counsel

caused the defendant to enter an involuntary plea of guilty.” Id. at 397

(citation omitted); accord Commonwealth v. Fears, 86 A.3d 795, 806–07

(Pa. 2014) (citation omitted) (“Allegations of ineffectiveness in connection

with the entry of a guilty plea will serve as a basis for relief only if the

ineffectiveness caused appellant to enter an involuntary or unknowing

plea.”). “The voluntariness of the plea depends on whether counsel's advice

was within the range of competence demanded of attorneys in criminal

cases.” Patterson, supra at 397 (citation omitted).




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         We now ascertain whether plea counsel correctly concluded that a

suppression motion would not have been granted. As noted by the United

States Supreme Court in Burdeau v. McDowell, 256 U.S. 465 (1921), the

Fourth Amendment’s protection against unlawful searches and seizures

applies only to actions by the government.          “Its origin and history clearly

show that it was intended as a restraint upon the activities of sovereign

authority[.]” Id. at 475.           If a search is conducted by a private citizen

independently and without police involvement and if the individual offers the

fruits    of   that   search   to   governmental   authorities,   then   the   Fourth

Amendment is inapplicable.              Id.   However, the individual must act

completely of his own accord and without the participation of the prosecuting

authorities; otherwise, Fourth Amendment protections will apply to the

search. See Byars v. United States, 273 U.S. 28, 28–34, 47 S. Ct. 248,

248–50, 71 L. Ed. 520 (1927).            The crucial determination to be made in

ascertaining whether governmental action is involved in a search is whether

the private citizen, “in light of all the circumstances of the case, must be

regarded as having acted as an ‘instrument’ or agent of the state[.]”

Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971).

         Appellant relies upon Commonwealth v. Borecky, 419 A.2d 753

(Pa.Super. 1980).         Therein, police obtained a warrant to search the

defendant’s home based upon information supplied by a confidential

informant (“CI”). We invalidated the warrant as it was issued based upon

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facts derived from a prior, illegal search. The following facts informed our

decision. The CI told police that marijuana could be found in the defendant’s

residence.    The CI’s reliability was established as follows.   Acting at the

direction of police, the CI entered the defendant’s dwelling to search for

marijuana and took a portion of that substance and gave it to authorities.

        The Borecky Court concluded that the CI’s surreptitious entry into the

home and his seizure of marijuana without a warrant was unconstitutional as

it was done “with the prior knowledge and concurrence of the” police. Id. at

754.    We found that the police participated in securing the incriminating

evidence seized by the CI and disapproved of their collusion in what we

characterized as an illegal activity, which was the unauthorized removal of

an item from an individual’s home. This Court held that police “ratified [the

CI’s] unlawful acts and, under well-established principles of the law of

agency, they assumed responsibility for them to the same extent as if they

themselves had made the seizure.” Id. at 756 (citation omitted). The CI’s

search was deemed a governmental search and ruled unconstitutional under

the Fourth Amendment.

        In the present case, the seizure of the letter was conducted by

Appellant’s son rather than a stranger, and a different set of principles are at

play.     I.M. testified at the PCRA hearing, and the court credited his

testimony.    Its factual findings in this regard are supported by the record

and will be accepted by this Court. Specifically, I.M. lived with his parents

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and freely entered and exited his parent’s bedroom.         In addition, the boy

accessed his father’s sock drawer on prior occasions and looked for socks.

I.M. reported that Appellant was aware that I.M. entered the unlocked sock

drawer, and I.M. believed that he had permission to access that drawer.

     Thus, I.M. was not an outsider, such as the CI at issue in Borecky. To

the contrary, I.M. lived with Appellant in the same home, freely entered

Appellant’s bedroom, and accessed the sock drawer with Appellant’s

knowledge. I.M. initially discovered the suicide note on his own and without

any police involvement.     Under these circumstances, we concur with the

PCRA court’s application of Commonwealth v. Rathfon, 705 A.2d 448

(Pa.Super.    1997).   In   that   case,   Rathfon   litigated   an   unsuccessful

suppression motion wherein he asserted that his paramour conducted an

unconstitutional search of their residence while acting as a governmental

instrument or agent. The girlfriend lived with Rathfon, and they had three

children together. Federal authorities met with the paramour, and she told

them that she had observed drugs in their home, which was owned by

Rathfon.     The federal agents obtained a search warrant based upon the

paramour’s information, discovering marijuana, cocaine residue, drug

paraphernalia, and tools used for growing and processing marijuana.

     Rathfon was arrested and released and continued to grow marijuana.

The paramour once again reported his behavior to federal agents, who

obtained another search warrant and found drugs and drug paraphernalia.

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In seeking to suppress the evidence obtained with the search warrants,

Rathfon claimed that his girlfriend acted as a government agent and entered

his residence without permission when she gathered the information that

provided the basis for the search warrants.

      The Rathfon court noted that the Fourth Amendment is inapplicable to

conduct by a private individual when the person acts without the

participation of governmental officials.      We found that the defendant’s

girlfriend had acted as a governmental agent since it was established that

the federal authorities had participated in her search by asking her to look

through the residence and report her observations to them. Nevertheless,

this Court affirmed the denial of Appellant’s suppression motion.

      The Rathfon Court reasoned that, while the paramour “may have

been acting as a government agent, the question still remains whether she

entered Rathfon's premises with his permission.         In order to have a

reasonable expectation of privacy, one must intend to exclude others and

must exhibit that intent.” Id. at 452. This Court concluded that suppression

was unwarranted given the proof that the paramour had free access to the

home, holding “that Rathfon had no legitimate expectation of privacy specific

to [his girlfriend] entering his home.” Id. We relied upon the fact that she

lived with Rathfon and had unfettered access to the home.

      We more recently applied the Rathfon holding in Commonwealth v.

Stafford, 749 A.2d 489 (Pa.Super. 2000).         Joseph Walburn approached

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police and reported that Appellant was importing marijuana seeds from a

foreign county in order to grow that substance.     After meeting with police

several times, Walburn told them that he had observed growing marijuana

plants. Police instructed Walburn to enter the defendant’s home and to look

for growing marijuana.    Walburn complied with that directive, and, after

entering Stafford’s house, reported back that he saw about 160 live plants

on the second floor of the premises.

     The Stafford Court held that, while Walburn was acting as a

governmental agent when he saw the plants, Stafford had no reasonable

expectation of privacy as to Walburn.         We observed that Stafford and

Walburn had known each other for months and that the defendant had

consented to Walburn's presence in his home.         Accordingly, we opined,

Stafford “did not have an expectation of privacy in what the informer

[Walburn] observed.”   Id. at 498.     This Court’s holding was: “There is no

dispute that [the defendant] willingly invited [Walburn] into his home. We

hold that [the defendant] had no reasonable expectation of privacy in those

areas that would be open to Mr. Walburn's plain view during his visits.” Id.

see also Coolidge, supra (suppression of clothing and guns given to police

at police’s request by defendant’s wife not warranted under Fourth

Amendment since wife gave police objects of her own accord).

     We conclude that Rathfon and Stafford apply herein.            I.M. had

unfettered access to Appellant’s bedroom and sock drawer.      He found the

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suicide note independent of any police involvement. When I.M. returned to

retrieve it, he was not acting illegally since he had permission to be on the

premises and enter the drawer.        Thus, under the Rathfon and Stafford

cases, Appellant did not have a reasonable expectation of privacy as to I.M.

with respect to the sock drawer.         Therefore, plea counsel did not act

ineffectively in failing to move to suppress the note and the evidence

recovered as a result of it.     A suppression motion would not have been

successful.   Accordingly, Appellant’s guilty plea was not induced by plea

counsel’s neglect in this respect, and his first two claims fail.

      Appellant’s final position is that he should be permitted to withdraw his

guilty plea since plea counsel did not properly inform him about his

sentencing exposure. The following law is pertinent. A maximum sentence

of less than two years of prison must be served in county jail. 42 Pa.C.S. §

9762(b)(3)(“Maximum terms of less than two years shall be committed to a

county prison without the jurisdiction of the court.”). If the maximum jail

term is more than five years, it must be served in a state penitentiary. 42

Pa.C.S. § 9762(b)(1)(“Maximum terms of five or more years shall be

committed to the Department of Corrections for confinement.”). There is an

option available with respect to a maximum term of imprisonment of

between two and five years:

             (2) Maximum terms of two years or more but less than
      five years shall be committed to the Department of Corrections
      for confinement, except upon a finding of all of the following:

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                    (i) The chief administrator of the county
              prison, or the administrator's designee, has certified
              that the county prison is available for the
              commitment of persons sentenced to maximum
              terms of two or more years but less than five years.

                   (ii) The attorney for the Commonwealth has
              consented to the confinement of the person in the
              county prison.

                    (iii) The sentencing court has approved the
              confinement of the person in the county prison
              within the jurisdiction of the court.

42 Pa.C.S. § 9762(b)(2). Herein, as noted, there was a binding agreement

that Appellant would serve his jail term in county prison, and he was

sentenced to eighteen to forty-eight months in county jail pursuant to §

9762(b)(2).

     We conclude that any improper advice purportedly given by plea

counsel regarding Appellant’s sentencing exposure was dispelled by the

contents of the plea colloquy. The plea court plainly told Appellant that the

child endangerment charge was graded as third-degree felony and that the

"maximum penalty for Felony of the Third Degree is imprisonment up to 7

years and a fine of $15,000 or both." N.T. Plea, 2/25/14, at 5.        Appellant

indicated that he understood.        The plea court then explicitly informed

Appellant that he faced a two-year jail term for the indecent assault and that

"the maximum term of imprisonment which you could be subject [to] under

today's plea . . . would be 9 years[.]" Id. at 6. The court acknowledged that



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it was bound to impose a county term but informed Appellant that it was

within its discretion to impose "such sentence in the Court's discretion within

the range that [a] county sentence could encompass." Id.

      Thus, Appellant knew his maximum sentencing exposure and that he

would serve his sentence in county jail.       His sentence was less than the

maximum sentence that Appellant was told could be imposed, and he was

ordered to serve his term in county prison.      Having been informed of the

pertinent sentencing options and having been sentenced in accordance with

the   plea   agreement,   Appellant   cannot   establish   that   plea   counsel’s

ineffectiveness about his potential sentence caused him to enter an

unknowing and involuntary plea.

      Appellant also notes that his sentence was within the aggravated

range of the guidelines, and avers his plea was involuntary since plea

counsel did not tell him that he faced an aggravated-range sentence. It is

settled that “there is no legal requirement that a defendant be aware of the

guideline ranges in order to enter a valid guilty plea. A defendant must be

informed of the statutory maximum[.]” Commonwealth v. Fowler, 893

A.2d 758, 765 (Pa.Super. 2006). In the present matter, Appellant was told

about the statutory maximum, and his plea is valid despite the fact that he

was not informed about the sentencing guidelines and that he faced a

sentence in the aggravated range.       Hence, Appellant cannot withdraw his

guilty plea based upon plea counsel’s sentencing advice.

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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/15/2017




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