J-S55025-15 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA 

 Appellee 

v. 

WILLIAM EARL SMITH, 

 Appellant No. 373 WDA 2015 

Appeal from the PCRA Order Entered February 4, 2015

In the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-CR-0000917-2012 

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

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

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

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

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

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

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

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

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

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

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

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

____________________________________________ 

*

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

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

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 Super. 2013) (unpublished memorandum).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

not petition our Supreme Court for further review. 

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

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

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

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

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

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

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

October 9, 2014. 

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

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

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

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

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

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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 one year of the date the 

judgment of sentence becomes final[.]” 42 Pa.C.S. § 9545(b)(1). Because 

Appellant filed his petition within one year of our March 12, 2013 decision 

affirming his judgment of sentence, his PCRA was patently timely. 
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dismissing Appellant’s PCRA petition. Appellant filed a timely appeal, and 

now presents the following questions for our review, verbatim: 

I. APPELLANT CLAIMED THAT HIS ATTORNEY AT TRIAL, 

MICHALE GAROFOLO, WAS INEFFECTIVE AND DID NOT HAVE 

HIS CLIENT’S BEST INTEREST. 

II. APPELLANT ALSO BELIEVES HIS ATTORNEY PREJUDICED HIM 

BY FAILING TO CALL CHANTAL RANDOLPH BEFORE TRIAL AND 

AT TRIAL TO PROVE CONSENT WAS NEVER GIVEN FREELY. 

III. WHETHER POLICE HAD PROBABLE CAUSE TO ARREST 

APPELLANT BEFORE HE COULD BE IDENTIFIED AND BEFORE 

ANY ALLEGED EVIDENCE WAS DISCOVERED. 

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

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

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

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

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

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

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

proceeding.” Id. 

 Although Appellant presents three questions for our review, they all 

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

failing to litigate a hypothetical suppression motion, where Chantal Randolph 

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

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

believes such testimony could have resulted in the suppression of the 

evidence found during that search. According to the facts adduced at 
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Appellant’s trial, the search in question unveiled a firearm used during the 

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

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

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

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

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

 To support his claim, Appellant provided a notarized statement, 

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

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

2012, claiming instead that Uniontown and Pennsylvania state police officers 

violated her constitutional rights and obtained her consent to search under 

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

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

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

as follows: 

 It is well-settled that counsel is presumed effective, and to 

rebut that presumption, the PCRA petitioner must demonstrate 

that counsel's performance was deficient and that such 

deficiency prejudiced him. Strickland v. Washington, 466 

U.S. 668, 687–91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This 

Court has described the Strickland standard as tripartite by 

dividing the performance element into two distinct components. 

Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 

(1987). Accordingly, to prove trial counsel ineffective, the 

petitioner must demonstrate that: (1) the underlying legal issue 

has arguable merit; (2) counsel's actions lacked an objective 

reasonable basis; and (3) the petitioner was prejudiced by 

counsel's act or omission. Id. A claim of ineffectiveness will be 
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denied if the petitioner's evidence fails to satisfy any one of 

these prongs. 

Busanet, 54 A.3d at 45. 

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

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

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

testify at a suppression hearing seeking such relief. 

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

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

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

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

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

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

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

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

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

at a minimum, the following factors: 

(1) possession of a key to the premises; (2) having unlimited 

access to the premises; (3) storing of clothing or other 

possessions on the premises; (4) involvement in illegal activities 

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2

 This is a distinct question from whether a defendant has standing to file a 

suppression motion. In Pennsylvania, a defendant “charged with possessory 

crimes ... ha[s] automatic standing to litigate his suppression motion.” 

Commonwealth v. Bostick, 958 A.2d 543, 552 (Pa. Super. 2008). Thus, 

Appellant at least had standing to file a suppression motion seeking to 

exclude the firearm he was convicted of possessing. 
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conducted on the premises; (5) ability to exclude other persons 

from the premises; and (6) expression of a subjective 

expectation of privacy in the premises. 

Commonwealth v. Govens, 632 A.2d 1316, 1319 (Pa. Super. 1993). 

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

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

Randolph’s home. Generally speaking, “a casual visitor who is merely 

present in another[] person's home does not have a legitimate expectation 

of privacy to contest an illegal entry by police into that home.” Id. Here, 

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

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

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

nothing in that statement tends to demonstrate or suggest that Appellant 

was anything more than a casual visitor in her home.

3

 Consequently, 

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

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

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

Constitution. 

 Thus, we are constrained to conclude that Appellant has not 

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

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3

 Randolph’s statement does not even indicate the nature of her relationship 

with Appellant or similar facts from which an expectation of privacy might 

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

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

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

provide ineffective assistance of counsel by failing to file a suppression 

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

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

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

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

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

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

seized evidence even if Randolph credibly testified at a suppression hearing 

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

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

record and free from legal error. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 10/16/2015