J-A10040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

KASAN ROBERT SANDERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1244 MDA 2021

Appeal from the Judgment of Sentence Entered January 23, 2020

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0002139-2017

BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED: AUGUST 23, 2022

Appellant, Kasan Robert Sanders, appeals nunc pro tunc from the 

judgment of sentence entered in the Lycoming County Court of Common 

Pleas, following his bench trial convictions for four counts of persons not to 

possess firearms.1 We affirm.

The relevant facts and procedural history of this case are as follows. 

Detective Cassandra McCormack, an officer with the Lycoming County District 

Attorney’s Office Narcotics Enforcement Unit, conducted four controlled buys 

of heroin using a confidential informant (CI). The buys occurred on October 

18, 23, 25, and November 7, 2017. Prior to each buy, Detective McCormack

searched the CI to eliminate the presence of contraband or money and

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1 18 Pa.C.S.A. § 6105(a)(1).
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provided the CI with pre-recorded police funds. The CI then proceeded to 513 

High Street where the CI purchased heroin. After the four controlled buys, 

detectives presented a photo line-up to the CI, who immediately identified 

Appellant as the individual who sold the heroin to the CI during all four of the 

controlled buys.

On November 9, 2017, officers obtained and executed a search warrant 

for 513 High Street, during which they recovered heroin and firearms. On 

December 12, 2017, the Commonwealth charged Appellant at the current 

docket No. CP-41-CR-0002139-2017 (“No. 2139-2017”), with four counts of 

persons not to possess firearms, two counts of possession with the intent to 

deliver a controlled substance, and two counts of possession of a controlled

substance. On December 27, 2017, Appellant waived formal arraignment. 

On April 17, 2018, the trial court consolidated for trial the charges at 

the current docket with other drug charges arising at a different docket No.

CP-41-CR-0001972-2017 (“No. 1972-2017”). At Appellant’s request, 

however, the court severed for trial the four counts of persons not to possess 

a firearm at No. 2139-2017.

On October 1, 2018, Appellant filed a motion to suppress the evidence 

recovered from the search, asserting that the search warrant failed to include 

sufficient information or facts to support the reliability of the CI. The court 

held a suppression hearing on October 8, 2018, and the court denied relief

the next day. In denying the motion, the court found that the affidavit 
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contained information regarding the CI’s four controlled buys and provided

that both the CI and another confidential source stated that Appellant had 

been seen with a firearm in his possession. Therefore, the court concluded

the affidavit established sufficient probable cause to search 513 High Street. 

The court further noted that Appellant was not entitled to the remedy of 

suppression in any event, because he did not have a reasonable expectation 

of privacy at that address. The court elaborated:

In [his motion to suppress, Appellant] asserts that he was 

not listed on the lease for 513 High Street; in fact, there 

were no leased or rent paying tenants at that address 

according to the property management. Defense counsel

verified ... that the statements contained in the motion were 

true.... Furthermore, during the proceedings [Appellant] 

made statements to the effect that everybody just went to 

that address to get high; if that made the place his house, 

it was the [CI]’s and numerous other individuals’ house as 

well. Since [Appellant] has not shown an objectively 

reasonable privacy interest in the premises searched, he is 

not entitled to the remedy of suppression.

(Trial Court Opinion, 10/9/18, at 4-5).

On October 11, 2018, one day before trial was scheduled, Appellant 

sought a continuance to investigate the CI’s prior crimen falsi conviction. If 

granted the continuance, Appellant said he would file a motion for formal 

discovery, followed by a request for a hearing/suppression under Franks v. 

Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).2 (See N.T. 

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2 Our Supreme Court has explained:

(Footnote Continued Next Page)
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Hearing, 10/11/18, at 11). The court characterized Appellant’s request for a 

continuance to conduct discovery as a “fishing expedition,” and denied the 

motion for continuance. The court also denied counsel’s oral motion for a 

Franks hearing.3 (Id. at 22).

On October 12, 2018, Appellant proceeded to a bench trial for only the 

firearms offenses at the current docket No. 2139-2017. At the conclusion of 

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[Franks] addressed whether a defendant has the right, 

under the Fourth and Fourteenth Amendments, to challenge 

the truthfulness of factual averments in an affidavit of 

probable cause. The Court held where the defendant makes 

a substantial preliminary showing the affiant knowingly and 

intentionally, or with reckless disregard for the truth, 

included a false statement in the affidavit, the Fourth 

Amendment requires a hearing be held at the defendant’s 

request. The Court emphasized the defendant’s attack on 

the affidavit must be “more than conclusory and must be 

supported by more than a mere desire to cross-examine”; 

the defendant must allege deliberate falsehood or reckless 

disregard for the truth, accompanied by an offer of proof. If 

the defendant meets these requirements, but the remainder 

of the affidavit’s content is still sufficient to establish 

probable cause, no hearing is required. If the affidavit’s 

remaining content is insufficient, a hearing is held, at which 

the defendant must establish, by a preponderance of the 

evidence, the allegation of perjury or reckless disregard. If 

he meets this burden, the affidavit’s false material is 

disregarded; if its remaining content is insufficient to 

establish probable cause, the search warrant is voided, and 

the fruits thereof are excluded.

Commonwealth v. James, 620 Pa. 465, 478, 69 A.3d 180, 188 (2013). 

3 Based on our review of the record, it appears that counsel stated his intent 

to file a Franks motion after conducting more discovery. (N.T. Hearing, 

10/11/18, at 11). Because the trial court characterizes counsel’s statement 

as an oral Franks motion, however, we will do the same. 
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trial, the court convicted him of the four firearms offenses.

On August 14, 2019, Appellant filed a Pa.R.Crim.P. 600 motion to 

dismiss the drug charges remaining at No. 2139-2017, and to dismiss the 

charges at No. 1972-2017. The court denied the motion on September 5,

2019. On September 6, 2019, Appellant entered a negotiated guilty plea at 

No. 1972-2017. As part of the plea agreement, the Commonwealth withdrew 

the remaining drug charges in the instant case, No. 2139-2017. On December 

11, 2019, the court sentenced Appellant to two consecutive terms of five to 

ten years’ incarceration and two concurrent terms of five to ten years’ 

incarceration for his firearms convictions. 

Thereafter:

On December 23, 2019, Appellant filed a post sentence 

motion in which he asserted that the evidence was 

insufficient to support his firearms convictions, the court 

erred in denying his Franks motion to suppress, and the 

court should have imposed a lesser sentence.

On January 23, 2020, the court reconsidered Appellant’s 

sentence and imposed concurrent sentences of five to ten 

years’ incarceration on all of Appellant’s firearms 

convictions. In all other respects, the court denied 

Appellant’s post sentence motion. [With respect to the 

Franks issue, the court found that Appellant did not have a 

reasonable expectation of privacy in the residence that 

would entitle him to suppression. Moreover, it noted that 

even if Appellant had such an expectation of privacy, the 

affidavit would have established probable cause to search.] 

Appellant did not file a direct appeal.

On November 19, 2020, Appellant filed a PCRA petition in 

both cases. The court appointed counsel to represent 

Appellant and gave counsel the opportunity to file an

amended PCRA petition. After obtaining the transcripts of 
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various proceedings, PCRA counsel filed, on April 7, 2021, 

an amended PCRA petition alleging various claims of

ineffective assistance of trial counsel. The court held 

hearings on Appellant’s amended PCRA petition on July 6, 

2021 and July 22, 2021. During the hearings, an additional 

issue was raised and accepted for determination, namely 

whether counsel was ineffective for failing to appeal the 

court’s denial of his post sentence motion. By Opinion and 

Order entered on September 16, 2021, the court reinstated 

Appellant’s direct appeal rights nunc pro tunc, but otherwise 

rejected Appellant’s ineffective assistance of counsel claims.

(Trial Court Opinion, 10/28/21, at 2-3) (footnote omitted).

On September 24, 2021, Appellant timely filed a notice of appeal nunc 

pro tunc at only No. 2139-2017. On September 29, 2021, Appellant filed a 

voluntary concise statement of errors complained of on appeal per Pa.R.A.P. 

1925(b). 

Appellant raises the following issue on appeal:4

Whether the trial court erred in denying [Appellant’s] 

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4

In addition to his issue on appeal concerning the denial of his suppression 

motion, Appellant appears to challenge the court’s denial of his Rule 600 

motion. (Appellant’s Brief at 7, 13-15). Nevertheless, counsel concedes this 

issue is frivolous in light of Appellant’s guilty plea at No. 1972-2017. (Id. at 

15). We repeat that the Commonwealth withdrew the drug charges at the 

current docket in exchange for Appellant’s plea at No. 1972-2017. Ordinarily, 

we would remand for counsel to file either a proper advocate’s brief, or a 

petition to withdraw and brief compliant with Anders v. California, 386 U.S. 

738, 87 S.Ct. 1396 (1967), and Commonwealth v. Santiago, 602 Pa. 159, 

978 A.2d 349 (2009). See Commonwealth v. Anderson, 307 A.2d 387, 

392 (Pa.Super. 1973) (stating that following Anders, “counsel on appeal has 

one of two choices: he may file a brief and argue that case, or counsel may 

request to withdraw from the case if he finds the appeal to be frivolous”). 

Because of the unique circumstances of this case, however, where Appellant’s 

challenge to the denial of the Rule 600 motion relates only to No. 1972-2017, 

which is not before us on appeal, we decline to remand and will not give this 

issue any further attention. 
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Franks suppression motion[?]

(Appellant’s Brief at 7) (unnecessary capitalization omitted).

Appellant argues that the affidavit of probable cause to obtain the search 

warrant was based on unreliable evidence. Appellant asserts the CI had a 

prior theft conviction which, if investigated and presented to the court, would 

have convinced the court the CI was unreliable, and would have precluded 

issuance of the warrant. Appellant concludes the court erred in denying his 

motion for continuance and request for relief under Franks, and this Court

must grant relief. We disagree.

Our standard and scope of review are as follows:

An appellate court’s standard of review in addressing a 

challenge to the denial of a suppression motion is limited to 

determining whether the suppression court’s factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. Because 

the Commonwealth prevailed before the suppression court, 

we may consider only the evidence of the Commonwealth 

and so much of the evidence for the defense as remains 

uncontradicted when read in the context of the record as a 

whole. Where the suppression court’s factual findings are 

supported by the record, the appellate court is bound by 

[those] findings and may reverse only if the court’s legal 

conclusions are erroneous. Where the appeal of the 

determination of the suppression court turns on allegations 

of legal error, the suppression court’s legal conclusions are 

not binding on an appellate court, whose duty it is to 

determine if the suppression court properly applied the law 

to the facts. Thus, the conclusions of law of the courts below 

are subject to plenary review.

Commonwealth v. Ford, 175 A.3d 985, 989 (Pa.Super. 2017), appeal 

denied, 647 Pa. 522, 190 A.3d 580 (2018) (citation omitted). 
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Under Pennsylvania Rule of Criminal Procedure 578, unless 

otherwise required in the interests of justice, all pretrial 

requests, including a request for suppression of evidence, 

must be included in one omnibus pretrial motion. See

Pa.R.Crim.P. 578, Comment. Rule 579 states that an 

omnibus pre-trial motion must be filed within 30 days of 

arraignment. The only exceptions to this rule are: (1) the 

opportunity to do so did not exist, (2) the defendant or 

defense counsel was unaware of the grounds for the motion, 

or (3) the time for filing was extended by the court for good 

cause shown. See Pa.R.Crim.P. 579(A).

Commonwealth v. Borovichka, 18 A.3d 1242, 1248 (Pa.Super. 2011). Rule 

of Criminal Procedure 581 provides that the time for filing pretrial motions, 

including suppression motions may be extended in the interest of justice. 

Pa.R.Crim.P. 581(B).

Further, regarding continuance requests:

Appellate review of a trial court’s continuance decision is 

deferential. The grant or denial of a motion for a 

continuance is within the sound discretion of the trial court 

and will be reversed only upon a showing of an abuse of 

discretion. As we have consistently stated, an abuse of 

discretion is not merely an error of judgment. Rather, 

discretion is abused when the law is overridden or 

misapplied, or the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias, or 

ill-will, as shown by the evidence or the record[.]

Commonwealth v. Norton, 144 A.3d 139, 143 (Pa.Super. 2016). 

Instantly, Appellant filed his suppression motion on October 1, 2018, 

nearly ten months after the December 2017 filing of the criminal information 

in this matter and Appellant’s waiver of formal arraignment. Despite the 

untimeliness of this motion, the trial court conducted a hearing on October 8, 

2018, and denied relief the next day. Notably, Appellant did not request relief 
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under Franks in this motion. Instead, on October 11, 2018, one day before 

trial was scheduled, Appellant requested a continuance to conduct additional 

discovery regarding the CI’s crimen falsi conviction, and explained that if 

granted the continuance, he would file a motion for formal discovery and 

subsequently file another suppression motion and request for a hearing under 

Franks. (See N.T. Hearing, 10/11/18, at 11). Counsel admitted that he had 

the CI’s prior record since the inception of the charges but had not 

investigated it. (Id. at 4-5). The court denied Appellant’s requests for relief

as untimely.

Here, Appellant was provided the information about the CI’s criminal 

history months before asserting a potential Franks issue—but had failed to 

investigate it. Appellant’s failure to act resulted in a “eve of trial” request that 

could have been advanced much sooner. We see no reason to disrupt the trial 

court’s denial of such a tardy request. See Ford, supra; Borovichka, supra.

See also Norton, supra. 

Moreover, Appellant would not have been entitled to suppression relief 

in any event. It is well-settled that “a defendant must show that he had a 

privacy interest in the place invaded or thing seized that society is prepared 

to recognize as reasonable.” Commonwealth v. Enimpah, 630 Pa. 357, 

364, 106 A.3d 695, 698 (2014). “[I]f the defendant has no protected privacy 

interest, neither the Fourth Amendment nor Article I, § 8 is implicated.” Id.

at 364, 106 A.3d at 699.
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An expectation of privacy will be found to exist when the 

individual exhibits an actual or subjective expectation of 

privacy and that expectation is one that society is prepared 

to recognize as reasonable. Commonwealth v. Jones, 

874 A.2d 108, 118 (Pa.Super. 2005). In determining 

whether a person’s expectation of privacy is legitimate or 

reasonable, the totality of the circumstances must be 

considered and the determination will ultimately rest upon 

a balancing of the societal interests involved.

[Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d 615, 

619 (1993)]. “The constitutional legitimacy of an 

expectation of privacy is not dependent on the subjective 

intent of the individual asserting the right but on whether 

the expectation is reasonable in light of all the surrounding 

circumstances.” Jones, [supra] at 118.

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

Here, the trial court explained:

Appellant did not have a reasonable expectation of privacy 

in the residence that entitled him to suppression. Appellant 

was not residing at the property; he resided next door. He 

went to the property to conduct drug transactions and to 

hang out and watch the property if need be. There was no 

testimony whatsoever that Appellant owned or leased the 

property; in fact, the testimony was to the contrary. 

Instead, the “trap house” was a structure that Appellant and 

others were utilizing to conduct drug transactions and to use 

controlled substances. Appellant did not have a reasonable 

expectation of privacy in these premises; therefore, he was 

not entitled to the remedy of suppression. 

(Trial Court Opinion at 7-8) (citations omitted). 

We agree with the trial court that it would have been unreasonable for 

Appellant to have expected to maintain a privacy interest in objects left in the 

“trap house.” See Enimpah, supra. Therefore, even if Appellant had 

uncovered more information in discovery regarding the CI’s crimen falsi 

conviction and timely filed a Franks suppression motion/request for a 
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hearing, he would not have been entitled to relief because he did not have a 

reasonable expectation of privacy in the premises searched. Accordingly, we 

affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/23/2022