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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 S TRASSBURGER, 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 rev iew, we affirm. On August 7, 2012, a jury convicted Appellant of t wo counts of aggravated assault, two counts of simple assault, p ossession of a firearm prohibited, firearms not to be carried without a li cense, 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 cour t sentenced Appellant to an aggregate term of 7-20 years’ incarceration. Ap pellant filed a timely

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* Retired Senior Judge assigned to the Superior Cour t.J-S55025-15

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appeal, raising three sufficiency-of-the-evidence c laims. On March 12, 2013, this Court affirmed the judgment of sentence. Commonwealth v. Smith , 69 A.3d 1290 (Pa. Super. 2013) (unpublished memoran dum). 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 P CRA 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 with draw 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 pet ition 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 App ellant filed a timely response, prompting the court to hold an in-court P CRA hearing on December 4, 2014, as well as a by-video PCRA hearin g on January 29, 2015. On February 4, 2015, the PCRA court issued an Opini on and Order

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1 In order to be deemed timely, a petition for post- conviction relief, including a second or subsequent one, must “be filed within o ne 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 pa tently timely.J-S55025-15

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dismissing Appellant’s PCRA petition. Appellant fi led 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 AN D 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 suppo rted 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 e vidence of record, viewed in the light most favorable to the party who prevai led in the PCRA court proceeding.” Id. Although Appellant presents three questions for ou r review, they all ultimately address the same issue: whether trial co unsel was ineffective for failing to litigate a hypothetical suppression moti on, where Chantal Randolph would be called as a witness for the purpose of dem onstrating 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 th e facts adduced atJ-S55025-15

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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 clo thing identified by those victims as having been worn by Appellant during tha t assault. See Commonwealth v. Smith , No. 1393 WDA 2012, unpublished memorandum at 1-2 (Pa. Super. filed March 12, 2013) (quoting T rial Court Opinion, 10/3/12, at 1-3). To support his claim, Appellant provided a notariz ed 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 Pennsylva nia 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 a ssistance of counsel is as follows: It is well-settled that counsel is presumed effect ive, and to rebut that presumption, the PCRA petitioner must de monstrate that counsel's performance was deficient and that s uch deficiency prejudiced him. Strickland v. Washington , 466 U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1 984). 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 ineffe ctive, the petitioner must demonstrate that: (1) the underlyin g legal issue has arguable merit; (2) counsel's actions lacked an objective reasonable basis; and (3) the petitioner was prejud iced by counsel's act or omission. Id. A claim of ineffectiveness will beJ-S55025-15

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denied if the petitioner's evidence fails to satisf y any one of these prongs. Busanet , 54 A.3d at 45. Here, Appellant’s claim fails the first prong of t he Pierce test. Appellant would not have been entitled to suppressi on of the fruits of the search of Randolph’s home, even if Appellant’s tria l counsel had called her to testify at a suppression hearing seeking such relie f. “[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 esta blish more than just a subjective expectation of freedom from intrusion[.] ” Commonwealth v. Gordon , 683 A.2d 253, 256 (Pa. 1996). Thus, to prevail o n 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 legitimat e 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 ill egal activities

____________________________________________ 2 This is a distinct question from whether a defenda nt has standing to file a suppression motion. In Pennsylvania, a defendant “ charged with possessory crimes ... ha[s] automatic standing to litigate his s uppression motion.” Commonwealth v. Bostick , 958 A.2d 543, 552 (Pa. Super. 2008). Thus, Appellant at least had standing to file a suppressi on motion seeking to exclude the firearm he was convicted of possessing.J-S55025-15

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conducted on the premises; (5) ability to exclude o ther persons from the premises; and (6) expression of a subjecti ve 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 expec tation of privacy in Randolph’s home. Generally speaking, “a casual vis itor who is merely present in another[] person's home does not have a legitimate expectation of privacy to contest an illegal entry by police in to that home.” Id. Here, Appellant has not presented any argument that he wa s more than a casual visitor in Randoph’s residence. Randolph’s notariz ed statement indicates that she did not voluntarily consent to the search of her residence, but nothing in that statement tends to demonstrate or s uggest 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 Appellan t has not established that he could have prevailed in a motio n to suppress evidence

____________________________________________ 3 Randolph’s statement does not even indicate the n ature of her relationship with Appellant or similar facts from which an expec tation of privacy might legitimately arise.J-S55025-15

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seized from Randolph’s home. Appellant has neither identified in the record, nor provided any argument, that he possessed a legi timate expectation of privacy in Randolph’s home. Therefore, Appellant’s trial counsel did not provide ineffective assistance of counsel by failin g to file a suppression motion on his behalf, because Appellant’s suppressi on claim would have been meritless. See Commonwealth v. Luster , 71 A.3d 1029, 1052 (Pa. Super. 2013) (holding counsel “cannot be found inef fective for failing to pursue [a] baseless suppression claim”). For the s ame reason, Appellant’s trial counsel could not have been ineffective for f ailing 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 peti tion was supported by the record and free from legal error. Order affirmed

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/16/2015