Com. v. Mullen, C.

J-A22042-21

2021 PA Super 239

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER S. MULLEN :
:
Appellant : No. 571 MDA 2021

Appeal from the PCRA Order Entered April 20, 2021
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001030-2017

BEFORE: BOWES, J., OLSON, J., and KING, J.

OPINION BY KING, J.: FILED: DECEMBER 8, 2021

Appellant, Christopher S. Mullen, appeals from the order entered in the

Lycoming County Court of Common Pleas, which denied his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

The relevant facts and procedural history of this case are as follows. In

2017, Appellant was under the supervision of the Pennsylvania Board of

Probation and Parole. While under supervision, Appellant absconded, which

resulted in an arrest warrant for Appellant. On June 7, 2017, Parole Agent

Michael Barvitskie received an anonymous tip regarding Appellant’s

whereabouts. Specifically, the caller said Appellant was residing at 408

Anthony Street in Williamsport, which was the residence of Appellant’s former

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1 42 Pa.C.S.A. §§ 9541-9546.
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paramour.2 The caller indicated there might be drugs and guns in the home,

and that Appellant was present at that location the night before. Following

some investigation, Agent Barvitskie learned that 408 Anthony Street was half

a double home; Appellant’s mother lived on one side of the home at 406

Anthony Street. Shortly after receiving the anonymous tip that morning,

parole agents and other law enforcement surrounded the property.3 Agent

Barvitskie observed Appellant through one of the windows of 408 Anthony

Street and ordered him to come to the door. Appellant refused the commands

and closed the blinds to the window. After agents knocked on the door,

another male, Mr. Miller, answered the door. Mr. Miller initially denied that

Appellant was present but eventually admitted that Appellant was inside.

Upon entry, agents observed guns and drugs in the home. Agents ultimately

located Appellant in the crawl space/attic of the property. A Special Response

Team had to pull Appellant out through the ceiling on Appellant’s mother’s

side of the home. After Appellant’s apprehension, police secured a search

warrant for the property.

The Commonwealth charged Appellant with various drug and gun

related offenses. Attorney Joshua Bower entered his appearance as

Appellant’s counsel on July 12, 2017. Appellant filed a suppression motion on

____________________________________________

2 Appellant’s approved parole residence was 412 Anthony Street in
Williamsport.

3 The agents were assisted by U.S. Marshals.

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August 10, 2017. Appellant argued the anonymous tip was unreliable, and

the agents lacked reasonable suspicion or probable cause to enter the

residence based on the tip. Based on the law at the time, Appellant conceded:

“Where authorities have a reasonable belief that the subject of an arrest

warrant lives within a given premises, they can enter the home and arrest the

suspect without a search warrant,” citing this Court’s decision in

Commonwealth v. Romero, 138 A.3d 21, 25 (Pa.Super. 2016), rev’d, 646

Pa. 47, 183 A.3d 364 (2018). (Suppression Motion, filed 8/10/17, at ¶13).

Appellant claimed the anonymous tip was insufficient on its own to provide a

reasonable belief that Appellant was in the home, such that all evidence

recovered should be suppressed. Because the search warrant was based on

observations made during the allegedly illegal entry, Appellant argued that

any evidence recovered must also be suppressed as fruit of the poisonous

tree.

The court held a suppression hearing on October 12, 2017, at which

Agent Barvitskie testified about the events leading up to Appellant’s

apprehension. Appellant argued that the anonymous tip was an insufficient

basis for a reasonable belief that Appellant was inside the home. Appellant

conceded that if the court found the agent’s testimony credible regarding his

observation of Appellant through the window, that would be enough to create

a reasonable belief that Appellant was in the home. The next day, the court

denied Appellant’s suppression motion.

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In December 2017, Attorney Bower left the Public Defender’s Office.

Attorney Matthew Welickovitch subsequently entered an appearance on

Appellant’s behalf. On January 22, 2019, Appellant filed a motion in limine

seeking to suppress the evidence, citing the Supreme Court’s decision in

Romero, which was filed on April 26, 2018. Appellant claimed he just became

aware of the Supreme Court’s ruling in Romero, which Appellant said stood

for the proposition that the agents were required to obtain a search warrant

prior to entering 408 Anthony Street. (Motion in Limine, filed 1/22/19, at

¶¶16-17). The next day, the court denied Appellant’s motion in limine as

untimely and waived, stating defense counsel was informed of the Supreme

Court’s Romero decision on September 30, 2018.

On February 15, 2019, the court convicted Appellant of two counts of

persons not to possess firearms, and one count each of possession of a

controlled substance, and possession of drug paraphernalia. The court

sentenced Appellant on April 2, 2019, to an aggregate term of 6 to 13 years’

imprisonment. On April 17, 2019, Appellant filed a post-sentence motion,

which the court denied as untimely on June 12, 2019. Appellant did not file a

direct appeal.

Following submission of a pro se PCRA petition, the court appointed

Attorney Jeana Longo to represent Appellant. Counsel filed an amended PCRA

petition on August 5, 2019, seeking reinstatement of Appellant’s direct appeal

rights nunc pro tunc. The PCRA court granted relief on October 3, 2019, and

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Appellant timely filed a nunc pro tunc appeal on October 14, 2019.

On appeal, Appellant argued the trial court erred in failing to suppress

evidence obtained pursuant to a warrantless search of a third-party residence,

in the absence of exigent circumstances. On May 22, 2020, this Court affirmed

Appellant’s judgment of sentence, deciding Appellant’s issue was waived. See

Commonwealth v. Mullen, 237 A.3d 479 (Pa.Super. 2020) (unpublished

memorandum). Specifically, this Court said Appellant’s complaint in his

suppression motion and at the suppression hearing was that the agents lacked

a sufficient belief that Appellant was inside the residence prior to their entry;

whereas, on appeal, Appellant claimed the agents lacked a search warrant

authorizing entry into the residence or exigent circumstances. See id.

On June 8, 2020, Appellant filed a pro se PCRA petition alleging

ineffective assistance of trial and appellate counsel, where counsels’ errors

waived Appellant’s suppression issue. The court subsequently appointed PCRA

counsel. The court held a PCRA hearing on February 5, 2021, at which Agent

Barvitskie, Attorney Bower, and Attorney Longo testified. Following the

submission of post-hearing briefs, the court denied PCRA relief on April 20,

2021.

Appellant timely filed a notice of appeal on April 29, 2021. On May 3,

2021, the court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely filed

his Rule 1925(b) statement the next day.

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Appellant raises one issue for our review:

Trial counsel and appellate counsel were ineffective for
failing to correctly pursue suppression of the evidence
obtained as a result of the warrantless entry of a third party
residence and the [PCRA] court erred in failing to grant
[Appellant’s PCRA] petition requesting suppression of all
items seized as a result of this warrantless entry as well as
by failing to vacate Appellant’s conviction and sentence.

(Appellant’s Brief at 4).

Our standard of review of the denial of a PCRA petition is limited to

examining whether the evidence of record supports the court’s determination

and whether its decision is free of legal error. Commonwealth v. Conway,

14 A.3d 101 (Pa.Super. 2011), appeal denied, 612 Pa. 687, 29 A.3d 795

(2011). This Court grants great deference to the findings of the PCRA court if

the record contains any support for those findings. Commonwealth v. Boyd,

923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74

(2007). We do not give the same deference, however, to the court’s legal

conclusions. Commonwealth v. Ford, 44 A.3d 1190 (Pa.Super. 2012). “A

PCRA court passes on witness credibility at PCRA hearings, and its credibility

determinations should be provided great deference by reviewing courts.”

Commonwealth v. Johnson, 600 Pa. 329, 356, 966 A.2d 523, 539 (2009).

Appellant argues that all prior counsel failed to preserve his claim that

the parole agents’ entry into a third-party residence was unlawful absent a

search warrant or exigent circumstances. Appellant asserts counsels’ waiver

of the issue establishes the arguable merit prong of the ineffectiveness test.

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Appellant claims the only dispute is whether he can establish prejudice.

Appellant insists he can establish prejudice because his suppression claim

would have been successful but for counsels’ errors in waiving it.

Appellant contends that under the Supreme Court’s decision in Romero,

a magistrate must determine that officers have probable cause to believe the

residence in question is the residence of the person sought to be arrested prior

to the officers’ entry into a home. Appellant maintains law enforcement lacked

probable cause to believe Appellant resided at 408 Anthony Street. Although

the agents had an arrest warrant for Appellant, Appellant avers the arrest

warrant did not list 408 Anthony Street as Appellant’s residence. Appellant

emphasizes Agent Barvitskie’s testimony that he did not obtain a search

warrant based solely on the anonymous tip because the agent did not believe

the tip, alone, was sufficient to establish probable cause to enter the

residence.4 Appellant suggests exigent circumstances were not present in this

case, distinguishing these facts from those where police are in hot pursuit of

a fugitive. To the extent exigent circumstances ensued, Appellant insists

those circumstances were created by the agents when they knocked on the

door and demanded that Appellant exit the premises. Appellant submits the

____________________________________________

4 At the PCRA hearing, Agent Barvitskie testified that the agents went to 408
Anthony Street shortly after receiving the tip to investigate the credibility of
the tip. It was during their investigation of the home that Agent Barvitskie
saw Appellant through the window. (See N.T. PCRA Hearing, 2/5/21, at 12-
13).

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Commonwealth could have kept the residence under surveillance even after

making an initial determination that Appellant might be inside, keeping

officers in relative safety until obtaining a search warrant. Appellant

emphasizes that the Commonwealth offered no evidence to suggest that Mr.

Miller, who answered the door, gave consent for the officers to search the

premises or that law enforcement even asked Mr. Miller for permission. Under

these circumstances, Appellant concludes counsel rendered ineffective

assistance in waiving his suppression claim, and this Court must vacate

Appellant’s convictions and sentence, and remand for further proceedings. We

disagree.

Pennsylvania law presumes counsel has rendered effective assistance.

Commonwealth v. Williams, 597 Pa. 109, 950 A.2d 294 (2008). When

asserting a claim of ineffective assistance of counsel, the petitioner is required

to demonstrate: (1) the underlying claim has arguable merit; (2) counsel had

no reasonable strategic basis for his action or inaction; and, (3) but for the

errors and omissions of counsel, there is a reasonable probability that the

outcome of the proceedings would have been different. Commonwealth v.

Kimball, 555 Pa. 299, 724 A.2d 326 (1999). The failure to satisfy any prong

of the test for ineffectiveness will cause the claim to fail. Williams, supra.

“The threshold inquiry in ineffectiveness claims is whether the

issue/argument/tactic which counsel has foregone and which forms the basis

for the assertion of ineffectiveness is of arguable merit….” Commonwealth

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v. Pierce, 537 Pa. 514, 524, 645 A.2d 189, 194 (1994). “Counsel cannot be

found ineffective for failing to pursue a baseless or meritless claim.”

Commonwealth v. Poplawski, 852 A.2d 323, 327 (Pa.Super. 2004).

Once this threshold is met we apply the ‘reasonable basis’
test to determine whether counsel’s chosen course was
designed to effectuate his client’s interests. If we conclude
that the particular course chosen by counsel had some
reasonable basis, our inquiry ceases and counsel’s
assistance is deemed effective.

Pierce, supra at 524, 645 A.2d at 194-95 (internal citations omitted).

Prejudice is established when [an appellant] demonstrates
that counsel’s chosen course of action had an adverse effect
on the outcome of the proceedings. The [appellant] must
show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome. In [Kimball, supra], we held that a “criminal
[appellant] alleging prejudice must show that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.”

Commonwealth v. Chambers, 570 Pa. 3, 21-22, 807 A.2d 872, 883 (2002)

(some internal citations and quotation marks omitted).

In Romero, Earnest Moreno had absconded from a halfway house while

on state parole. A warrant was issued for Moreno’s arrest, and Parole Agent

Sean Finnegan undertook an investigation to locate Moreno. Ultimately, Agent

Finnegan and other law enforcement attempted to execute the arrest warrant

at the home of Moreno’s half-brother, Angel Romero, and Romero’s wife,

Wendy Castro; Agent Finnegan believed this address was Moreno’s most likely

place of residence. The agents did not find Moreno in the residence but

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observed suspected marijuana plants in the basement. Based on these

observations, police obtained a search warrant which they executed on the

premises. A search revealed drugs, a gun, and other contraband. The

Commonwealth later charged Romero and Castro with drug-related offenses.

See Commonwealth v. Romero, 646 Pa. 47, 60-61, 183 A.3d 364, 372

(2018) (plurality).

Romero and Castro subsequently filed suppression motions, which the

trial court granted. The suppression court considered the law under Payton

v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that “an

arrest warrant founded on probable cause implicitly carries with it the limited

authority to enter a dwelling in which the suspect lives when there is reason

to believe the suspect is within.”5 Id. at 603, 100 S.Ct. at 1388. Based on

the evidence presented at the suppression hearing, the court decided that “a

reasonable belief could not have been formed to suggest Moreno lived in the

Romero residence.” Id. at 64, 183 A.3d at 374. Further, relying on Steagald

v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981)

____________________________________________

5 As this proposition of law was not the holding in Payton, the Romero Court
referred to these remarks as “Payton’s dictum.” See Romero, supra at 58
n.1, 80, 183 A.3d at 371 n.1, 383 (stating: “Given that Payton’s ruling
addressed the absence of any warrant, its discussion concerning the derivative
authority of arrest warrants was dictum). The sole question at issue in Payton
was the constitutionality of warrantless entries into a suspect’s home to
effectuate his arrest; the Court held that the Fourth Amendment prohibits
police from making a warrantless and nonconsensual entry into a suspect’s
home to make a felony arrest. See Payton, supra at 576, 100 S.Ct. at 1375.

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(holding that warrant for individual’s arrest does not authorize entry into home

of third party not named in arrest warrant), the suppression court ruled that

the authorities’ entry into Romero and Castro’s home was unlawful. The

suppression court also decided that the defendants did not give the agents

express permission to search the property. Romero, supra at 64, 183 A.3d

at 374.

On appeal, this Court reversed and remanded for trial. In so doing, this

Court held that where law enforcement has a reasonable belief that the subject

of an arrest warrant lives at a certain location, they can enter the home and

arrest the suspect without a search warrant. Because Agent Finnegan

reasonably believed that Moreno’s last place of address was Romero and

Castro’s home, and because the authorities possessed a valid arrest warrant

for Moreno, this Court decided there was a legal basis to enter Romero and

Castro’s home without a search warrant. See id. at 67, 183 A.3d at 376.

The Supreme Court granted allowance of appeal. Justice Wecht

delivered the Opinion Announcing the Judgment of the Court (“OAJC”),6

analyzing “the interaction between Payton and Steagald in determining the

scope of the authority provided by an arrest warrant to enter a private

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6 Justices Todd and Donohue joined the Opinion in full; Justice Mundy joined
Part II(A) (regarding Romero and Castro’s lack of express consent for law
enforcement to search the home) and authored a separate concurrence.
Justice Dougherty issued a concurring and dissenting opinion, joined by (then)
Chief Justice Saylor and (now Chief) Justice Baer.

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residence.” Romero, supra at 69, 183 A.3d at 377. Prior to applying these

decisions to the facts of Romero, the OAJC explained in a footnote:

This Court has considered Payton and Steagald on one
prior occasion. In Commonwealth v. Stanley, 498 Pa.
326, 446 A.2d 583 (1982), we addressed an arrestee’s
challenge to an entry into a third party’s home. We
concluded that Steagald was inapplicable because that
decision “involved the Fourth Amendment rights of the third
party owner ... and expressly did not adjudicate the rights
of the suspect.” Id. at 586 n.4. Because the third party’s
interest was not at issue in Stanley, and could not be
asserted vicariously by the arrestee, we held that Steagald
did not control. In the instant cases, by contrast, we are
presented with third-party challenges—a circumstance that
squarely implicates the Steagald decision.

Romero, supra at 73 n.6, 183 A.3d at 379 n.6 (emphasis in original).

Throughout its disposition, the OAJC reiterated the distinction between

cases involving the Fourth Amendment rights of the subject of an arrest

warrant versus those of the third-party owner of a home where police attempt

to locate the subject of the arrest warrant. See id. at 97, 183 A.3d at 395

(stating: “[T]he dispositive distinction in Steagald was between the liberty

interest of the arrestee and the privacy interest of a third party, and the

Court’s holding was compelled by the arrest warrant’s satisfaction of the

warrant requirement with regard to the former interest, but not the latter”).

See also Steagald, supra at 221, 101 S.Ct. at 1652 (stating “an arrest

warrant alone will suffice to enter a suspect’s own residence to effect his

arrest”).

By contrast, the OAJC explained: “With regard to any third party’s

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privacy interest in the targeted space, the arrest warrant, standing alone,

fails to satisfy the mandate of the warrant requirement.” Romero, supra at

102, 183 A.3d at 397 (emphasis added). Thus, in evaluating the rights of the

third-party owners Romero and Castro, the OAJC held:

The Fourth Amendment protects the privacy interests in all
homes. To overcome that privacy interest, a warrant used
to enter a home must reflect a magisterial determination of
probable cause to believe that the legitimate object of a
search is contained therein. The form of the warrant is
significant only in that it ordinarily signifies “what the
warrant authorize[s] the agents to do.” Steagald, 451 U.S.
at 213, 101 S.Ct. 1642. That is, the central distinction
between an “arrest warrant” and a “search warrant” is the
identification of the particular person or place that the
magistrate has found probable cause to seize or to search.
If an arrest warrant is based solely upon probable cause to
seize an individual, then it authorizes precisely that seizure.
If entry into a residence is necessary to search for that
individual, then the warrant must reflect a magisterial
determination of probable cause to search that residence,
regardless of whether the warrant is styled as an “arrest
warrant” or a “search warrant.” The critical inquiry is
whether the warrant adequately addresses all of the
Fourth Amendment interests that are implicated by
the contemplated action.

Romero, supra at 111-12, 183 A.3d at 403-04 (internal footnotes omitted)

(emphasis added). “Absent such a warrant, an entry into a residence is

excused only by a recognized exception to the warrant requirement.” Id. at

114, 183 A.3d at 406. In so holding, the OAJC essentially rejected the Payton

dictum, deciding it must yield to Steagald. Id. at 107, 183 A.3d at 400.

Because the Commonwealth did not introduce the arrest warrant into evidence

at the suppression hearing under the then-prevailing law, the OAJC remanded

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to allow the Commonwealth the opportunity to introduce the arrest warrant

into evidence. Upon remand, the suppression court could decide whether the

contents of that warrant reflected the magistrate’s determination of probable

cause to search Romero and Castro’s home. Id. at 115, 183 A.3d at 406.

Justice Mundy authored a concurrence joining the OAJC’s “resolution of

the factual consent issue in full” and agreeing “with a significant portion of the

lead opinion’s reasoning as well as its mandate to remand to the trial court to

give the Commonwealth the opportunity to introduce the arrest warrant to

ascertain whether it provided a basis for the search of [Romero and Castro’s]

home.” Id. at 116, 183 A.3d at 406. Justice Mundy’s primary disagreement

with the OAJC concerned its rejection of the Payton dictum. Instead, Justice

Mundy viewed “Payton as its own constitutional rule requiring: (1) a valid

arrest warrant; (2) probable cause that the home in question is the arrestee’s

residence; and (3) probable cause that the arrestee will be found at that home

in the moment the search is effectuated.” Id. at 118, 183 A.3d at 407.

Justice Dougherty authored a concurring and dissenting opinion,

distancing himself from (1) the OAJC’s reference to the relevant language from

Payton as the “Payton dictum” and its subsequent treatment of that

language; and (2) the OAJC’s conclusion that the Fourth Amendment requires

police to obtain a search warrant every time they wish to search a residence

for the subject of an arrest warrant. Justice Dougherty also dissented from

the OAJC’s remand for further proceedings, stating he would simply reverse

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and reinstate the suppression court’s order granting Romero and Castro relief.

Id. at 120-21, 183 A.3d at 409.

In Stanley, supra, which our Supreme Court distinguished in footnote

six of Romero, police obtained an arrest warrant for the appellant following

his escape from prison. After seeing the appellant’s picture in the paper,

Carmen Sperduto called police and stated that he might know the appellant’s

whereabouts. Mr. Sperduto took police to Jacqueline Keim’s apartment, where

Mr. Sperduto believed the appellant was staying. Police called for

reinforcements but did not obtain a search warrant. After no one answered

their “knock and announce,” police forced open the door. Police ultimately

apprehended the appellant from the apartment and seized a revolver that was

within the appellant’s reach. The appellant filed a suppression motion, which

the court denied. This Court affirmed, and our Supreme Court granted

allowance of appeal. See id. at 331-32, 446 A.2d at 585-86.

Our Supreme Court explained:

A valid arrest warrant and mere “reason to believe” that
appellant was within was all that the police needed to enter.
More stringent requirements—a search warrant or probable
cause—were wholly unnecessary. See [Payton, supra]
(police armed with an arrest warrant and “reason to believe”
that a suspect is within can enter a suspect’s own home and
seize evidence in plain view);[7] Commonwealth v.
Williams, 483 Pa. 293, 396 A.2d 1177 (1978), cert. den.,
446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980).4 The
police, relying on Mr. Sperduto’s information, had “reason
____________________________________________

7To repeat, this portion of Payton is what the OAJC in Romero refers to as
“Payton’s dictum.”

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to believe” that appellant was in Ms. Keim’s apartment. The
Payton v. New York and Commonwealth v. Williams
cases, which apply to searches of a suspect’s own home,
also govern appellant’s case. Fourth Amendment claims
involve the accused’s “legitimate expectation of privacy” in
the areas searched. See Rakas v. Illinois, 439 U.S. 128,
99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Commonwealth v.
Wagner, 486 Pa. 548, 406 A.2d 1026 (1979). If an arrest
warrant and “reason to believe” that a suspect can be found
on the premises are sufficient for police to invade a
suspect’s own home, then these facts are sufficient to
invade a third party’s premises, where a suspect’s
expectation of privacy is necessarily less.

4 Commonwealth v. Shaw, 476 Pa. 543, 383 A.2d
496 (1978), which held that absent exigent
circumstances, police must have probable cause to
enter a suspect’s own home to effect a warrantless
arrest, is inapplicable to this case. Appellant was the
subject of a valid arrest warrant. Moreover, appellant
mistakenly relies on [Steagald, supra], which
determined that absent exigent circumstances, police
need a search warrant to enter premises belonging to
a third party, even though police had a valid warrant
to arrest a suspect. The Steagald case involved the
Fourth Amendment rights of the third party owner
(whose cocaine was seized) and expressly did not
adjudicate the rights of the suspect (who was not even
found.) Id. at 219–220, 101 S.Ct. at 1651. At any
rate, it would be anomalous to interpret Steagald v.
United States to afford appellant more rights in Ms.
Keim’s apartment than he would have in his own
home under Payton v. New York.

Stanley, supra at 333-34, 446 A.2d at 586-87.

Instantly, Appellant’s reliance on Romero affords him no relief because

that case is factually distinguishable. There, the Court addressed the rights

of third parties who were not the subject of an arrest warrant. The OAJC made

clear throughout its disposition that the facts of Romero were distinguishable

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from those scenarios involving an arrestee’s rights. See Romero, supra at

73 n.6, 97, 102, 183 A.3d at 379 n.6, 395, 397.

Rather, the facts of this case are governed by Stanley.8 See Stanley,

supra. Here, as in Stanley, police had a valid arrest warrant for Appellant.

Agent Barvitskie testified that he received an anonymous tip that Appellant

was at 408 Anthony Street in Williamsport the night before. When agents

arrived at 408 Anthony Street shortly after receiving the tip, Agent Barvitskie

personally observed Appellant through the window. Under Stanley, a valid

arrest warrant and Agent Barvitskie’s reasonable belief that Appellant was

inside were all that the agents needed to enter the third-party residence for

purposes of protecting Appellant’s Fourth Amendment rights.9 See Stanley,

supra.

Further, as the PCRA court noted: “Here, unlike Romero, [Appellant]

was the subject of the warrant and law enforcement had probable cause to

believe that [Appellant] was inside the residence based on the tip, Agent

____________________________________________

8 We reiterate that the Romero Court did not overrule the Court’s prior
decision in Stanley but distinguished it from the facts of Romero.

9 Although the OAJC in Romero rejected the “reasonable belief” + “arrest
warrant” standard discussed in Payton’s dictum, it is clear the Court did so
with respect to analyzing the Fourth Amendment rights of third parties, not
those of the subject of the arrest warrant. In any event, the OAJC’s rejection
of Payton’s dictum did not garner the support of a majority of the Justices,
so it is not binding on us. See Commonwealth v. Davis, 17 A.3d 390
(Pa.Super. 2011), appeal denied, 611 Pa. 678, 29 A.3d 371 (2011) (stating
general rule that decision lacks precedential value if it does not garner support
of majority of sitting judges).

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Barvitskie’s observations and the confirmation by the individual who answered

the door.” (See PCRA Order and Opinion, filed 4/20/21, at 8). We agree with

the PCRA court that law enforcement had probable cause under these facts,

which was more than the “reasonable belief” + “arrest warrant” held lawful in

Stanley. See Stanley, supra. As the Stanley Court indicated, it would be

anomalous to provide Appellant more rights in a third-party residence than he

would have in his own home. See id. Based upon the foregoing, we agree

with the PCRA court that Appellant cannot establish prejudice to succeed on

his ineffectiveness claims.10 (See PCRA Order and Opinion at 8). See also

Chambers, supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/08/2021

____________________________________________

10 Based on our disposition that the entry into the third-party residence was
lawful, we need not address whether there were also exigent circumstances
to excuse an otherwise unlawful entry.

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