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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
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 Super. 2013) (unpublished memorandum).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
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