J-S70032-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

FRANK BAILEY, III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

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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 
J-S70032-17

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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 
J-S70032-17

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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
J-S70032-17

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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.
J-S70032-17

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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.
J-S70032-17

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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.
J-S70032-17

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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.
J-S70032-17

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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.
Circulated 05/03/2018 03:58 PM 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

COMMONWEALTH OF PENNSYLVANIA 

v. 

FRANK BAILEY, III 

OPINION 

BY: WRIGHT, J. 

0296-2016 

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 I know of." Id. Officer Neff was prompted to ask this question 

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

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

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 

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

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: 

Id. 

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. 

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

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. I also caution you to the fact that a reference to any charge that 

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

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

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 

prosecution. Commonwealth v. Bostick, 958 a.2d 543, 552 (Pa. Super. 2008). However, 

to prevail on a suppression motion, a defendant still must show (1) a subjective 

expectation of privacy in the area searched or effects sized at the time of the search, 

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 

accomplished upon a totality of the circumstances." Commonwealth v. Ferretti, 577 A.2d 

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 

trial did not adequately present the law of possession to the jury. (Statement of Errors, 

2/1/17). Instead, Defendant argues that I should have granted his request to present 

Jury Instruction 16.02(b)(A), which is the "controlled substance possession definition 

and is a more detailed and more descriptive definition as to what the term possession 

means." Id. Defendant's assertion is meritless. 

"[lit is an unquestionable maxim of law in this Commonwealth that a trial 

court has broad discretion in phrasing its instructions, and may choose its 

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 

discretion or an inaccurate statement of the law is there reversible error." 

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2013). 

Here, the firearm in question was found in a shared space, warranting an 

instruction on "joint constructive possession," which requires a finding of both power to 

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

jury as follows, reading the instruction twice: 

For a person to possess the firearm, he must have the intent, control, and 

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

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

Instruction 16.02(b)(A) (instruction for possession of a controlled substance) would have 

been "more detailed, and more descriptive," I appropriately exercised my broad 

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 

appropriately denied, and the jury instruction on possession was sufficient. Accordingly, 

Defendant's appeal is meritless and should be dismissed. 

22 Indeed, our Superior Court addressed this issue where the Trial Court presented a similar instruction to 

the jury. Commonwealth v. Maqwood, 538 A.2d 908, 910 (Pa. Super. 1988) (where trial court instructed 

jury on joint -constructive possession in possession of a firearm case, it was not also required to read 

Standard Jury Instruction 16.02(b)(A)). 

14 
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

COMMONWEALTH OF PENNSYLVANIA : v. 

FRANK BAILEY, III 

0296-2016 

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. 

Copies to: 

District Attorney's Office 

Diana Kelleher, APD 

CTIF138 

Cr OD AG vItA 

dcr!ci A 

'TO rrvk 4f4i3 

y 

15 

BY THE COURT: 

E1FE 

Ullok E 

IGHT