Com. v. Derry, D.

J-S22002-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID DERRY :
:
Appellant : No. 79 MDA 2019

Appeal from the PCRA Order Entered October 25, 2018
In the Court of Common Pleas of Union County Criminal Division at
No(s): CP-60-CR-0000078-2016

BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.: FILED AUGUST 14, 2019

Appellant, David Derry, appeals from the order denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

We affirm.

On direct appeal, a panel of this Court set forth the history of this case

as follows:

Briefly, on January 11, 2016, Appellant and two co-
conspirators stole merchandise from Walmart on two separate
occasions during the same day and used a stolen vehicle to leave
the store with the merchandise. Based on these incidents,
Appellant was charged with the following: (1) receiving stolen
property, (2) conspiracy to receive stolen property, (3) retail theft
(amount of $1,935.21), (4) retail theft (amount of $186.48), (5)
conspiracy to commit retail theft (amount of $1,935.21), (6)
conspiracy to commit retail theft (amount of $186.48), 7) theft by
unlawful taking, and (8) conspiracy to commit theft by unlawful
taking. See Amended Criminal Information, 3/8/2016.

On March 9, 2016, the Commonwealth filed notice of its
intent to consolidate the trials of Appellant and his co-conspirators
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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pursuant to Pa.R.Crim.P. 582(B)(1). After one continuance was
granted at Appellant’s request, the trial court ordered that jury
selection occur on July 25, 2016. Jury selection only for
Appellant’s case occurred that day. Also on that day, the trial
court ordered that trial would begin on September 20, 2016.

On September 20, 2016, 31 minutes prior to trial’s
commencement, Appellant filed a motion in limine arguing, inter
alia, that because he was not being tried together with his co-
conspirators, the “conspiracy charges [should] be dismissed.”
N.T., 9/20/2016, at 4; see also Motion in Limine, 9/20/2016. The
Commonwealth responded that it was the prerogative of the
prosecutor to decide whether to try co-conspirators together, and
despite its prior notice, the Commonwealth had chosen not to do
so in this situation. The Commonwealth also suggested it was too
late to raise this issue, as Appellant was aware he was being tried
separately at jury selection in July. The trial court denied
Appellant’s motion in limine, and Appellant proceeded to his jury
trial. At the conclusion of the jury trial, the trial court granted
Appellant’s motion for judgment of acquittal as to counts 7 and 8.
N.T., 9/20/2016, at 188. The jury found Appellant guilty of the
first six counts in the information. The trial court did not schedule
sentencing.

On January 4, 2017, Appellant filed a motion to dismiss this
case because he was not sentenced within 90 days of his
conviction pursuant to Pa.R.Crim.P. 704. On the following day,
the Commonwealth filed a motion to request expedited sentencing
in this matter. On January 9, 2017, Appellant was sentenced [to
serve an aggregate term of incarceration of forty-two months to
ten years]. Appellant timely filed a post-sentence motion. The
motion was denied by order docketed on March 3, 2017. Appellant
timely filed a notice of appeal.

Commonwealth v. Derry, 181 A.3d 1264, 614 MDA 2017 (Pa. Super. filed

December 22, 2017) (unpublished memorandum at 1-3). This Court affirmed

Appellant’s judgment of sentence. Id. at 11.

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On January 22, 2018, Appellant filed a petition for allowance of appeal

with our Supreme Court. On February 8, 2018, Appellant discontinued his

appeal.

On February 15, 2018, Appellant filed, pro se, the instant PCRA petition.

On February 21, 2018, the PCRA court appointed counsel, who then filed an

amended PCRA petition. The Commonwealth filed a response on July 16,

2018. The PCRA court held hearings on August 21, 2018, and October 25,

2018. On October 25, 2018, the PCRA court entered an order denying relief.

This timely appeal followed. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

I. Whether the PCRA court erred by finding that trial counsel did
not provide ineffective assistance by failing to file a suppression
motion to challenge the police’s warrantless entry into the hotel
room where Appellant/Defendant and his codefendants were
found and arrested?

II. Whether the PCRA court erred by refusing to continue the
proceedings to allow counsel to investigate a witness who
Appellant/Defendant has reason to believe had recently returned
to the area and had information pertaining to the suppression
issue, to wit, the owner of the motel where the
Appellant/Defendant was found and arrested following a
warrantless entry into his motel room?

Appellant’s Brief at 4.

When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

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2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)

(en banc)). This Court is limited to determining whether the evidence of

record supports the conclusions of the PCRA court and whether the ruling is

free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that are

supported in the record and will not disturb them unless they have no support

in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014).

Appellant first argues that trial counsel rendered ineffective assistance

by failing to file a suppression motion. Appellant’s Brief at 11-14. Appellant

contends that counsel should have filed the suppression motion to challenge

the warrantless entry by police into the hotel room where Appellant was

discovered and arrested. Id. at 11. Appellant asserts that none of the

exceptions to the warrant requirement were present. Id. at 12. However,

Appellant concedes that, if the police were in a common area when they

knocked on Appellant’s door, there is merit to the Commonwealth’s claim that

the police entry was constitutional. Specifically, Appellant states the

following:

Admittedly, there is an unresolved wrinkle within the
suppression issue presented in this case. The troopers testified
that the [common] kitchenette area was not secured by a
locked door (N.T. Dolney Suppression Hearing, 01/19/17, p. 77
(herein after “Dolney”)), while Appellate [sic] testified that he
was given a key to access that area and believed it to be
part of the area he rented, (PCRA II at 29-30). “The crucial
distinction between protected and unprotected areas ... is whether

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an unrelated person had unfettered access to the area. If even
one unrelated person has an unfettered right to access an area,
the area is not protected ....” Commonwealth v. Reed, 851 A.2d
958, 962 (Pa. Super. 2004).

In other words, if the troopers’ version is credited, their
entry into the first room is constitutional. However, if
Appellant’s version is credited, their entry into the first
room is unconstitutional and all evidence obtained after
that point should have been suppressed. Notably, the
Commonwealth has the burden to establish that the search was
constitutional. See, Pa.R.Crim.Pro. 581(H). The Commonwealth
put on no evidence regarding the layout of the Valley Lodge;
therefore, the decision to deny Appellant relief as to this issue is
based solely upon a negative assessment of [Appellant’s]
credibility.

Appellant’s Brief at 12-13 (emphases added).

Appellant essentially admits that, if the area in front of the door to the

room that he occupied was a common area, the state troopers had a

constitutional right to be in the space. Conversely, Appellant posits that, if

the area was not a common space, the police entry into that area was

unconstitutional, and trial counsel was ineffective for failing to file a motion to

suppress.

Appellant’s issue challenges the effective assistance of his trial counsel.

Our Supreme Court has long stated that, in order to succeed on a claim of

ineffective assistance of counsel, an appellant must demonstrate that (1) the

underlying claim is of arguable merit; (2) counsel’s performance lacked a

reasonable basis; and (3) the ineffectiveness of counsel caused the appellant

prejudice. Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001).

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We observe that claims of ineffective assistance of counsel are not self-

proving. Commonwealth v. Wharton, 811 A.2d 978, 986 (Pa. 2002). In

addition, we note that where an appellant is not entitled to relief with regard

to the underlying claim upon which his ineffectiveness issue is premised, he

is not entitled to relief with regard to his ineffectiveness challenge.

Commonwealth v. Ousley, 21 A.3d 1238, 1246 (Pa. Super. 2011). Thus,

trial counsel cannot be deemed ineffective for failing to pursue a meritless

claim. Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en

banc).

Moreover, with regard to the second prong, we have reiterated that trial

counsel’s approach must be “so unreasonable that no competent lawyer would

have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863 (Pa.

Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa. 1981)).

Our Supreme Court has discussed “reasonableness” as follows:

Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial counsel’s
decision had any reasonable basis.

Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting

Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.

1967)) (emphasis in original).

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In addition, we are mindful that prejudice requires proof that there is a

reasonable probability that, but for counsel’s error, the outcome of the

proceeding would have been different. Pierce, 786 A.2d at 213. “A failure

to satisfy any prong of the ineffectiveness test requires rejection of the claim

of ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.

2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). Thus,

when it is clear that a petitioner has failed to meet the prejudice prong of an

ineffective-assistance-of-counsel claim, the claim may be disposed of on that

basis alone, without a determination of whether the first two prongs have been

met. Commonwealth v. Baker, 880 A.2d 654, 656 (Pa. Super. 2005).

Further, it is presumed that the petitioner’s counsel was effective unless

the petitioner proves otherwise. Commonwealth v. Williams, 732 A.2d

1167, 1177 (Pa. 1999). Moreover, we are bound by the PCRA court’s

credibility determinations where there is support for them in the record.

Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005) (citing

Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).

We note that questions of the admission and exclusion of evidence are

within the sound discretion of the trial court and will not be reversed on appeal

absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d 638, 641

(Pa. Super. 2003). “It is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

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their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006).

We are aware that when presented with a challenge to the admission of

evidence, Pa.R.Crim.P. 581, which addresses the suppression of evidence,

provides in relevant part as follows:

(H) The Commonwealth shall have the burden . . . of
establishing that the challenged evidence was not obtained in
violation of the defendant’s rights.

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

The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures, thereby
ensuring the “right of each individual to be let alone.”
Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

Our Supreme Court has long held that a defendant seeking suppression

of seized evidence has the initial burden of establishing standing and a

legitimate expectation of privacy in the area searched or the items seized.

Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998). “There is no

question that under Pennsylvania law, a defendant charged with a possessory

offense has automatic standing to challenge a search.” Commonwealth v.

Perea, 791 A.2d 427, 429 (Pa. Super. 2002). “However, in order to prevail,

the defendant, as a preliminary matter, must show that he had a privacy

interest in the area searched.” Id. (citing Commonwealth v. Sell, 470 A.2d

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457 (Pa. 1983)). “[A] defendant cannot prevail upon a suppression motion

unless he demonstrates that the challenged police conduct violated his own,

personal privacy interests.” Commonwealth v. Hunter, 963 A.2d 545, 553

(Pa. Super. 2008) (quoting Commonwealth v. Millner, 888 A.2d 680 (Pa.

2005)).

An expectation of privacy is present when the individual, by his
conduct, exhibits an actual (subjective) expectation of privacy and
that the subjective expectation is one that society is prepared to
recognize as reasonable. 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.

Commonwealth v. Brundidge, 620 A.2d 1115, 1118 (Pa. 1993) (internal

citations and quotation marks omitted). As our Supreme Court has noted, “a

guest in a motel or hotel room has a legitimate expectation of privacy during

the period of time it is rented.” Commonwealth v. Brundidge, 620 A.2d

1115, 1118 (Pa. 1993).

However, as this Court has explained regarding common areas, a tenant

does not have a legitimate expectation of privacy in the common hallway and

stairs of a multiunit apartment building. Commonwealth v. Reed, 851 A.2d

958, 962 (Pa. Super. 2004). The holding in Reed was based upon the fact

that a tenant does not have the right to exclude residents or other authorized

individuals from accessing the shared areas in an apartment building. The

Reed Court held: “The crucial distinction between protected and unprotected

areas … is whether an unrelated person has unfettered access to the area. If

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even one unrelated person has access to an area, the area is not protected in

Pennsylvania from government searches and seizures.” Id. (footnotes

omitted). See also Commonwealth v. Murphy, 795 A.2d 997, 1004 (Pa.

Super. 2002) (finding no expectation of privacy in an apartment building’s

common storage room to which numerous residents, employees, and the

utility company all had keys).

At the conclusion of the PCRA hearing, the court offered the following

thoughts with respect to this claim of ineffective assistance lacking merit:

[Appellant] testified he was asleep, and the first thing he
remembered was the police yelling at him and shining flashlights
at him to get up and get out, that it was the police. But then he
wants to backtrack and testify as to events that occurred while he
was asleep. There’s no credibility there once again. Even looking
at the drawing [of the motel], I don’t find [Appellant’s] testimony
credible as to the entry of the first door. The [c]ourt would note
that to get in to the office of this [establishment], you have to go
through the first door, and the office accesses this [same
common] area prior to going in to room two that’s marked there.
Room two has a separate door, with the bed and bathroom in it
that’s separate from the [common] area with the kitchenette,
table, and couch. Whoever’s going in and out of that office, has
to get in to that [common] area. Of course [Appellant] would
have received a key if that door is locked, as would anyone that’s
going in to that [common] area.

The [c]ourt does not find that [Appellant’s] testimony of the
information in the drawing would have changed the outcome of
the suppression motion that was addressed by President Judge
Hudock in the companion case of Commonwealth versus Dolney,[1]
where Judge Hudock denied [Dolney’s] Motion To Suppress the
Evidence, which [Appellant] in this case, is claiming his trial
counsel was ineffective in [not] raising it. [Dolney’s motion] was
____________________________________________

1 Jerome Dolney was also discovered in the motel room with Appellant and
was charged with various crimes.

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decided subsequent … to this case, by Judge Hudock. The
additional facts provided by [Appellant] do not persuade the
[c]ourt that the error – or that Judge Hudock’s decision was in
error. …

So that issue [of ineffective assistance], [Appellant] has
failed to meet his burden.

N.T., 10/25/18, at 80-81. We are constrained to agree with the PCRA court.

Our review of the record reflects that, at the PCRA hearing held on

October 25, 2018, the transcript from the suppression hearing held in the

matter of Commonwealth v. Jerome Dolney, CP-60-CR-0000124-2016, on

January 19, 2017, was made part of the record. N.T., 10/25/18, at 9-11. At

the suppression hearing, both state troopers, who were present for the arrest

of Appellant, testified regarding the circumstances surrounding their discovery

of Appellant in a motel room. N.T., 1/19/17, at 49-70, 72-80.

Trooper Mark Evans testified that he and Trooper Anthony Bickhart were

dispatched to the Valley Lodge Motel in Shamokin Dam, Pennsylvania, to

investigate a stolen vehicle and “the subjects [who] were wanted in connection

with a theft [at a Walmart store].” N.T., 1/19/17, at 50. Upon arriving at the

motel parking lot, the officers discovered the vehicle in question, the interior

of which contained items matching the list of products stolen from the Walmart

store. Id. at 51-52. The officers then entered the motel in an effort to find

the people associated with the vehicle. Id. at 52. The officers proceeded to

the front desk, which was unoccupied. Id. However, there was a note on the

front desk asking the “Occupants of Room 2” to “leave the key at the desk.”

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Id. Because room two was close to the front desk, the two officers

approached the door to the room, and Trooper Bickhart knocked on the door.

Id. When Trooper Bickhart knocked on the door, the door opened. Id. at 52-

53. The officers then noticed two people on a bed, one of whom resembled a

picture of the perpetrators of the theft, which Trooper Evans had in his

possession. Id. at 53. The officers then asked the two occupants to “come

out into the common area.” Id.

Likewise, Trooper Bickhart testified that when he knocked on the door

to room two, “[t]he door wasn’t even secured. It just opened.” N.T., 1/19/17,

at 73. The officer further stated that when the male on the bed appeared to

match the person in the photograph, the officers “requested that the

occupants of the room step out into a communal area.” Id. at 74. When

asked to describe the common area, Trooper Bickhart offered the following:

Well, initially when you walk in the front door [of the motel], I
believe you go up -- you have a choice to go up or down. You're
kind of on a level surface when you first walk in. At the top of the
steps, I’m going to say that's where the [front] desk was with the
note on it. And then we went through to the right, I believe it was
kind of a double door archway. There was more like a living room
area, couch, chairs, and just a large -- larger communal area.

Id. at 76-77. Trooper Bickhart further observed that the common area is

“open clearly to the public when they first walk in.” Id. at 77.

In light of the above testimony offered at Dolney’s suppression hearing,

and incorporated into the record at Appellant’s PCRA hearing, we conclude

that the troopers were in a communal area when they approached the door to

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the motel room occupied by Appellant and knocked. Accordingly, Appellant

did not have a privacy interest in this common space, and the police were not

prevented from entering that area lawfully. Thus, there is no merit to the

underlying claim that would support Appellant’s allegation that trial counsel

was ineffective for failing to file a suppression motion based upon the police

activity. Hence, Appellant’s claim of ineffective assistance of counsel fails.

Appellant next argues that the PCRA court erred in refusing to grant a

continuance in the PCRA proceedings. Appellant’s Brief at 15-17. Appellant

claims that the PCRA court should have granted a continuance in order “to

allow [PCRA] counsel to investigate the whereabouts and potential testimony

of a witness that Appellant had reason to believe had recently returned to the

country.” Id. at 15. Appellant claims that the owner of the motel recently

returned to the United States and could offer “dispositive testimony” regarding

the suppression claim. Id. Appellant asserts that the “denial of this

opportunity constitutes an abuse of discretion.” Id.

The decision of whether to grant or deny a request for a
continuance is within the sound discretion of the trial judge.
Commonwealth v. Chambers, 546 Pa. 370, 387, 685 A.2d 96,
104 (1996). In this context, our Supreme Court has defined
“abuse of discretion” as follows:

An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion 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, discretion is abused.

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Id. The refusal to grant a continuance constitutes reversible error
only if “prejudice or a palpable and manifest abuse of discretion is
demonstrated.” Commonwealth v. Griffin, 804 A.2d 1, 12 (Pa.
Super. 2002).

Commonwealth v. Pries, 861 A.2d 951, 953 (Pa. Super. 2004). “As we

have consistently stated, an abuse of discretion is not merely an error (sic)

judgment.” Commonwealth v. Prysock, 972 A.2d 539, 541 (Pa. Super.

2009).

Our review of the record reflects that at the second PCRA hearing, which

was held on October 25, 2018, PCRA counsel alerted the court that counsel

had recently become aware of a potential witness. The following transpired

when PCRA counsel initially suggested that the record be left open in order to

investigate the additional witness:

THE COURT: Do you need additional time to prepare?

[APPELLANT]: I do.

[PCRA COUNSEL]: Well, we would – I believe it’s appropriate to
leave the record open … . [Appellant] also did recently, as in
this morning, let me know of another potential witness as to
the suppression issue. But I didn’t want to delay things any
further as far as getting [Appellant’s] testimony on record today.

THE COURT: Well, if he’s just letting you know about a new
witness, I’m not leaving it open for that. We’re – otherwise, we
will continue this . . . forever.

[PCRA COUNSEL]: We had no way of communicating beforehand
as far as that witness goes. It’s a witness who we understand
recently returned to the country. And again, I can’t even – I can’t
even verify that because I just learned about it this morning,
Judge.

N.T., 10/25/18, at 62-63 (emphases added).

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At the conclusion of the PCRA hearing, the following transpired, in which

PCRA counsel again suggested that the matter be continued in order to

investigate the potential witness:

[PCRA COUNSEL]: As discussed earlier, I would ask that the
record be kept open that I could investigate the witness that
[Appellant] was only able to inform me about today due to
communication difficulties we have had with the state prison
system.

THE COURT: How many times have you … . How many times have
you spoke [sic] with [Appellant] about this case prior to this
proceeding, including the last time we were in court, [PCRA
counsel]?

[PCRA COUNSEL]: I visited [Appellant] at SCI Benner in June. At
that time, we – I remember specifically talking to him about the
hotel owner. He informed me, at that point, [the hotel owner]
was out of the country. And that was kind of a dead end at that
point. I believe there was a letter exchanged prior to the first
hearing. And then that’s about when the difficulties with the state
prison system started with the mail. It’s not just been [Appellant],
Your Honor. I’ve had other clients in state prison.

THE COURT: Oh, no. I’m not questioning the communication
issues at the state prison. But you were here on August 21st. So
you had the ability, and I am assuming, did talk face-to-face with
[Appellant].

[PCRA COUNSEL]: Absolutely.

THE COURT: Because that was continued. And [Appellant] didn’t
mention that other witness to you at that point?

[PCRA COUNSEL]: I don’t know that he was aware of it at that
point.

THE COURT: Okay.

[PCRA COUNSEL]: What [Appellant] is telling me is he’s hearing
about this guy being back in the area from conversations he had
in jail after his hearing.

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THE COURT: But he would have been aware of the witness at the
time of the trial. If he wasn’t aware of the witness in August of
this year, long after the trial, how could [Defense Counsel] be
ineffective for not having a witness here? Would you agree with
me?

[PCRA COUNSEL]: I’m sorry, Your Honor. I’m not – I don’t know
if that witness was discussed with [Defense Counsel]. I didn’t
know to ask [Defense Counsel] about it until this morning.

THE COURT: Okay. I’m not continuing it. This is the second day
of these proceedings. I’m making a decision today.

N.T., 10/25/18, at 75-77.

We conclude that Appellant has failed to establish an abuse of discretion

by the PCRA court in declining to grant his motion for continuance. Appellant

has failed to demonstrate that in reaching a conclusion, the PCRA court has

overridden or misapplied the law. Further, Appellant has not established that

the judgment exercised by the PCRA court was manifestly unreasonable, or

the result of partiality, prejudice, bias, or ill-will. Accordingly, Appellant has

not shown that the PCRA court’s decision refusing to continue this matter

constituted an abuse of discretion. Consequently, Appellant’s claim lacks

merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/14/2019

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