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filed: August 15, 1988.


Appeal from the PCHA Order of the Court of Common Pleas, Washington County, Criminal Division, at No. 465 of 1984.


William R. Miller, Washington, for appellant.

John C. Petit, District Attorney, Washington, for Com., appellee.

Brosky, Kelly and Watkins, JJ. Brosky, J., files dissenting opinion.

Author: Kelly

[ 377 Pa. Super. Page 121]

Appellant, Ronald M. Carelli, appeals from an order denying his petition for post-conviction relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. § 9541 et seq. Appellant contends that prior counsel was ineffective in failing to seek suppression of all the evidence against him based upon an alleged illegal search and in failing to challenge the admissibility of certain statements alleged to be hearsay. We find no merit in the contentions, and accordingly affirm the order denying post-conviction relief.


At 8:30 p.m. on March 2, 1984, Mr. Gerald Shriver reported that his recently purchased, used Ford pickup truck had been stolen from the Washington County Mall sometime between 8:00 p.m. and 8:20 p.m. on March 2, 1984. Mr. Shriver gave a description to the police indicating that the stolen vehicle was a 1979 blue Ford, 150F, four wheel drive pickup with a white cap, fog lights, and a blue bug visor on the front. (N.T. 6/14/84 at 19, 23-24).

At approximately 10:15 p.m. a report was transmitted to Officer Dean Casciola from the police control center that an anonymous caller reported following the stolen truck from the Washington Mall to a garage located at a residence in Hickory, Pennsylvania approximately one half hour (driving) from the Washington Mall. (N.T. 6/14/84 at 30; see also Affidavit of Probable Cause attached to the March 19, 1984 Arrest Warrant). Officer Casciola went to the address indicated to investigate; he discovered appellant in the garage with the stolen truck. Appellant was arrested and charged with theft, conspiracy and receiving stolen property.

Appellant was tried, on June 14, 1984, before the Honorable Thomas D. Gladden, President Judge of the Washington County Court of Common Pleas, and a jury on a charge of receiving stolen property. At trial, appellant acknowledged that the stolen truck was in his garage and that he was in the garage when it was discovered by the police. His

[ 377 Pa. Super. Page 122]

    defense was that he had been helping his brother and sister-in-law move all day, he had returned home to get some tools from the garage only minutes before the police arrived, and, he had no idea that the truck in his garage had been stolen. He explained further that he often let others use his garage to work on their cars and when he arrived home on the evening in question his wife told him that his friend, Mr. Frank Mullaney, had left a vehicle in the garage and indicated that he would be back for it the next day. (N.T. 6/14/84 at 52-71). Significantly, appellant testified (contrary to Officer Casciola's testimony) that he had left the garage door open approximately two feet when he entered the garage and when he came out to speak to the police officer, the officer was able to see almost the whole truck. (N.T. 6/14/84 at 64, 69). The clear import of appellant's testimony was that he had nothing to hide and that he made no attempt to do so.

Appellant presented corroborative testimony from Mr. James Allen and his sister-in-law, Mrs. Kathleen Carelli. Mr. Allen testified that appellant permitted him, and others including Mr. Mullaney, to use appellant's tools and to work on their vehicles in appellant's garage. (N.T. 6/14/84 at 41-44). Mrs. Carelli testified that appellant had been helping her and appellant's brother Larry move and that appellant left at about 9:30 p.m. to go to his garage for some tools so that he could reassemble some beds. (N.T. 6/14/84 at 47-48). Appellant's wife did not testify at trial. Mr. Mullaney's whereabouts were alleged to be unknown. (N.T. 6/14/84 at 46, 66-68).

The jury found appellant guilty of receiving stolen property. In post-verdict motions, appellant contended: the evidence was insufficient to sustain the verdict; the prosecution improperly and prejudicially stated that appellant was operating a "chop shop;" and two jurors were unduly influenced by the jury foreman. Post-verdict motions were denied. Appellant was sentenced to a term of imprisonment in a county facility of ten to twenty months; this court affirmed judgment of sentence by Per Curiam Order

[ 377 Pa. Super. Page 123]

    and Memorandum. See Commonwealth v. Carelli, 353 Pa. Super. 642, 506 A.2d 1334 (1985) (Per Curiam; Brosky, and Watkins, JJ., join; Cavanaugh, J., concurring).

Subsequently, appellant filed a pro se PCHA petition, and an amended pro se PCHA petition. Counsel was appointed for appellant and an amended counseled PCHA petition was filed. The counseled PCHA petition was later amended.

On October 8, 1986, a motion to set a date for an evidentiary hearing was filed on behalf of appellant; on that same date, the trial court entered an order scheduling an evidentiary hearing on the petitions for December 10, 1986. However, on December 10, 1986, appellant through counsel declined to present any evidence in support of the petition, electing instead to submit his case to the trial court based upon the record (which was stipulated to by the parties) and the arguments in the briefs submitted by the parties. The court noted on the record its receipt of appellant's brief and directed the Commonwealth to file a response brief within ten days. The court also indicated its intent to review the briefs, the record, and the applicable law, and then to render a decision. (N.T. 12/10/86 at 1-2). On January 6, 1987, the trial court entered the following order:

AND NOW, this 6 day of January, 1987, upon consideration of the record, the Briefs and Arguments of counsel we find that defendant was at all times represented by competent counsel during the pre-trial and trial stages of this litigation. The search by Officer Casciola was made in plain view and the failure to make objections to alleged hearsay statements is without merit as it relates to competency of counsel. Defendant's petition for Post Conviction Relief is denied.

Timely notice of appeal was filed, and this case is now properly before this Court for disposition.


Initially, we note that in PCHA proceedings, the trial court sits as finder of fact. It is, therefore, the province of

[ 377 Pa. Super. Page 124]

    the trial court as finder of fact to weigh the credibility of the witnesses and to resolve all conflicts in the evidence; it is the prerogative of a finder of fact to believe all, part, or none of the evidence presented. See Commonwealth v. Dickerson, 449 Pa. 70, 73-74, 295 A.2d 282, 284 (1972); Commonwealth v. Johnson, 355 Pa. Super. 123, 131-32, 512 A.2d 1242, 1246 (1986). On review, we are bound by findings of fact which have support in the record, but not by the trial court's conclusions of law. See Commonwealth v. Carrillo, 319 Pa. Super. 115, 124-25, 465 A.2d 1256, 1261 (1983); citing Commonwealth v. May, 485 Pa. 371, 402 A.2d 1008 (1979); cf. Commonwealth v. White, 358 Pa. Super. 120, 123, 516 A.2d 1211, 1212-13 (1986) (review of findings of a suppression hearing).

Although appellant was granted an evidentiary hearing, he declined to present any witnesses, electing instead to submit the case to the trial court on the basis of the record and the briefs. Appellant contended, essentially, that prior counsel had been ineffective as a matter of law. Our review of some, but not all, of the claims raised in this case is substantially hindered by the failure of the trial court to comply with the dictate of Pa.R.Crim.P. 1506(5) which provides:

When a court grants a post-conviction hearing, it shall:

(5) Cause all evidence adduced at the hearing to be recorded, file a statement of record setting forth its findings of fact and conclusions of law ; . . . .

(Emphasis added). The order of January 6, 1987, contains conclusions of law but no findings of fact. Consequently, an order directing the trial court to file an opinion or memorandum setting forth the findings of fact upon which the January 6, 1987 order is based would ordinarily be appropriate. See Commonwealth v. Rohde, 485 Pa. 404, 402 A.2d 1025 (1979); Commonwealth v. Elliott, 319 Pa. Super. 521, 466 A.2d 666 (1983). It is not for this Court to review the record and substitute its assessment of the weight of the evidence and the credibility of the witnesses for that of the finder of fact below. A reviewing court is

[ 377 Pa. Super. Page 125]

    bound to honor the right and obligation of the finder of fact to believe all, part, or none of the evidence presented; and, is likewise constrained from speculating upon matters not in evidence. See Commonwealth v. Griscavage, 512 Pa. 540, 546, 517 A.2d 1256, 1259 (1986). However, for the reasons which follow we find remand unnecessary in the instant case.


In order to prevail upon a claim of ineffective assistance of counsel, appellant has the burden to establish: 1) by act or omission counsel was arguably ineffective; 2) the act or omission challenged could not have had an objectively reasonable basis designed to effectuate appellant's interest; and 3) appellant was prejudiced by the act or omission in that but for the challenged act or omission there is a reasonable probability that the result of the trial would have been more favorable to appellant. See Commonwealth v. Petras, 368 Pa. Super. 372, 374-78, 534 A.2d 483, 484-85 (1987) (collecting cases). If an appellant makes a sufficiently specific proffer to establish an arguable claim of ineffective assistance of counsel, then such an appellant will be entitled to an evidentiary hearing in which appellant will have the opportunity to support its claims and the Commonwealth will have the opportunity to rebut the claims. Id. At such a hearing, however, the burden remains upon appellant to translate arguable claims into actual proof of ineffective assistance of counsel. Id.

When, as in this case, an assertion of ineffective assistance of counsel is based upon the failure to pursue a suppression motion, proof of the merit of the underlying suppression claim is necessary to establish the merit of the ineffective assistance of counsel claim. Kitrell v. Dakota, 373 Pa. Super. 66, 74-75, 540 A.2d 301, 305 (1988), citing Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In Kimmelman, the United States Supreme Court, per Justice Brennan, explained:

The essence of an ineffective assistance claim is that counsel's unprofessional errors so upset the adversarial

[ 377 Pa. Super. Page 126]

    balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. See e.g., Strickland v. Washington, 466 U.S. 668, 80 L Ed 2d 674, 104 S Ct 2052; United States v. Cronic, 466 U.S. 648, 655-657, 80 L Ed 2d 657, 104 S Ct 2039 [2044-2046], (1984). In order to prevail, the defendant must show both that counsel's representation fell below an objective standard of reasonableness, Strickland, 466 U.S., at 688, 80 L Ed 2d 674, 104 S Ct 2052 [at 2065], and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., at 694, 80 L Ed 2d 674, 104 S Ct 2052 [at 2068]. Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. Thus, while respondent's defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values.

477 U.S. at 374-75, 106 S.Ct. at 2583, 91 L.Ed.2d at 318-19. (Emphasis added). Cf. Commonwealth v. Kay, 330 Pa. Super. 89, 95, 478 A.2d 1366, 1369 (1984) (ineffectiveness claim based on failure to pursue suppression motion was without merit because the underlying suppression claim was without merit; counsel's failure to pursue the meritless claim was deemed reasonable).

Thus, while presentation of an arguable omitted suppression claim may have entitled appellant to an evidentiary hearing, appellant was not entitled to relief unless he established at the evidentiary hearing that: his suppression claim would have prevailed at a suppression hearing; there was no objectively reasonable basis designed to effectuate appellant's interests for counsel's failure to pursue a suppression motion; and, there was a reasonable probability that, if the

[ 377 Pa. Super. Page 127]

    evidence had been suppressed, the result of the trial would have been more favorable to appellant.

Appellant contends that trial counsel was ineffective in failing to seek suppression of all evidence derived as the result of Officer Casciola's allegedly unconstitutional search of appellee's garage. Despite the absence of findings of fact resolving certain conflicts in the evidence, we find that there is no merit in appellant's underlying suppression claim. Moreover, an objectively reasonable tactical basis for not pursuing the suppression claim appears on the face of the record. Accordingly, we find no merit in appellant's first ineffective assistance of counsel claim. Appellant's second and third ineffectiveness claims lack underlying merit; moreover, there is no reasonable probability that had the challenged evidence been excluded the result of the trial would have been more favorable to appellee. Consequently, we affirm the order denying post-conviction relief.


Appellant argues that the constitutional prohibition against unreasonable searches and seizures is violated when a police officer investigating an anonymous tip that a stolen truck was located in a garage on a particular residential property: proceeds to the address; enters the property; knocks on the front door of the house located on the property; speaks to the wife; asks to speak to the husband; is informed that the husband is in the garage; follows the wife to the garage; and, while standing outside the garage looks over the husband's shoulder through the open garage door and sees the stolen truck. Appellant argues that the visual observation of the interior of the garage was a search of a protected area and that the plain view exception could not apply because: 1) the interior of the garage could not be seen by a passerby; and 2) the view was not inadvertent because the anonymous tip provided Officer Casciola with probable cause for a search and Officer Casciola knew that the evidence he sought was in the garage. We cannot agree.

[ 377 Pa. Super. Page 128]


We note, initially, that the record does in fact contain evidence that: Officer Casciola was able to see the stolen truck inside the garage by looking over appellant's shoulder as appellant opened, then quickly closed, the garage door (N.T. 6/14/84 at 32) (testimony of Officer Casciola); the only way into the garage was through a sliding garage door (N.T. 6/14/84 at 54); the garage windows were boarded up (N.T. 6/14/84 at 64); and, the property in question was zoned residential, was leased to appellant, and contained a small ranch house and a two to three car garage "adjacent" to the house. (N.T. 6/14/84 at 30, 36, 38, 42, and 53). From these isolated excerpts of the record, the dissent finds that the garage was part of the protected curtilage of appellant's residence, and further finds that appellant took security measures and exposed the interior of his garage only when it became unavoidable to shield it from view, i.e. upon opening the garage in order to exit and respond to police questioning. The dissent concludes that these "facts" establish an unreasonable search.

While the transcript excerpts above could certainly support inferences that the garage was within the curtilage and that appellant took security measures to protect the privacy of the interior of the garage, we find those isolated excerpts to be inconclusive and misleading in material respects. We note that the following excerpt from appellant's testimony clearly contradicts the testimony of Officer Casciola relied upon by the dissent:

Q. Your garage has windows, is that correct?

A. But they're boarded up.

Q. And the garage door was open?

A. About two foot.

Q. And you opened it whenever you greeted him?

A. Chief Casciola, no. When I went in I opened them up and turned the lights on and walked over to my box and got my stuff and I was right where I was getting my stuff and my wife said, 'Ron, there is a

[ 377 Pa. Super. Page 129]

    police officer out there who would like to see you.' And I said, 'Alright, I'll be right out.'

Q. How long did you talk to him?

A. About three minutes, I guess, about that. He just shook my hand and he said there was a disturbance of noise and he was standing there and he shook my hand and he said there had been a disturbance of noise [sic] and I said, 'It couldn't be me, I just got here.'

(N.T. 6/14/84 at 64) (testimony of appellant). (Emphasis added). We also note appellant's testimony that: he left the garage doors open about two feet when he went in to get his tools (N.T. 6/14/84 at 55, 64); while he was in the garage his wife called in and told him a police officer wanted to talk to him (N.T. 6/14/84 at 57-58, 64, 69); he did not have to move the garage doors to exit the garage (N.T. 6/14/84 at 55); he spoke with Officer Casciola for about three minutes (N.T. 6/14/84 at 64); and, Officer Casciola "saw almost like the whole truck. . . ." (N.T. 6/14/84 at 69). Officer Casciola's assertion that appellant opened and then quickly closed the door behind him is explicitly contradicted by appellant's testimony.

Appellant contended, essentially, that he had no reason to think the truck was stolen and made no attempt to hide it from Officer Casciola's view. Thus, the record contains conflicting evidence as to whether appellant in fact took security measures to preserve the privacy of the interior of the garage. It was for the fact finder, not this Court, to resolve that conflict.*fn1

[ 377 Pa. Super. Page 130]

Moreover, the record is inconclusive as to whether the garage was within the curtilage of the house. From this record it is unclear how far the house was from the garage, or how far the garage was from the road. Similarly, the record is silent as to where Officer Casciola stood in relation to the road, the drive, the garage and the house. We are unable, therefore, to determine from the present record whether Officer Casciola was standing inside or outside the curtilage when he looked into appellant's garage. Although there is evidence of record indicating that the lot was zoned residential, there is no indication of the size of the lot. The characterization of the garage as "adjacent" to the house only vaguely indicates proximity to the house.*fn2 While the fact finder could have inferred from the present record that Officer Casciola and the garage were located within the curtilage, we do not believe it is appropriate for this Court

[ 377 Pa. Super. Page 131]

    to draw such inferences for itself on appeal, especially when, as here, the inference drawn goes against the party who prevailed in the court below. If these factual issues were dispositive of the instant appeal, we would be compelled to remand.


As indicated above, we find that the stipulated record contains sparce, vague, and contradictory evidence as to the precise circumstances of Officer Casciola's view of the interior of appellant's garage. Despite the lingering uncertainties, however, we find that the present record nonetheless establishes the absence of an unconstitutional search.


The officer's view of the interior of appellant's garage could only be found to violate appellant's Fourth Amendment rights if appellant exhibited an actual expectation of privacy which society is willing to accept as objectively reasonable under the circumstances. See California v. Greenwood, U.S. , , 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30, 35 (1988) (citing cases). While it is axiomatic that the Fourth Amendment protects people, not places (Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967)), the determination of whether an actual and objectively reasonable expectation of privacy existed requires some reference to place. Id., 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

Generally, a subjective expectation of privacy as to that which is located in an area of common access will be deemed to be unreasonable; and therefore, visual observation of evidence located in open view in an unprotected area does not constitute a search so as to trigger Fourth Amendment protections. See United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) (no search occurred when police standing outside the curtilage of a house looked into a barn which was also located outside the curtilage of the house); Commonwealth v. Chiesa, 329 Pa. Super. 401, 406-07,

[ 377 Pa. Super. Page 132478]

A.2d 850, 853 (1984) (no search when police officer shined flashlight and looked into car which was parked unattended in a driveway shared with visitors and fellow tenants); see also I LaFave, Search and Seizure, § 2.2(a) at 322-23 (2nd Ed.1987); Moylan, The Plain View Doctrine, 26 Mercer L.Rev. 1047, 1097-98 (1975).

Likewise, mere observation of evidence located in a protected area, from a lawful vantage point outside the protected area, is generally deemed not to be a search. See United States v. Dunn, supra; California v. Ciraolo, 476 U.S. 207, 211-15, 106 S.Ct. 1809, 1812-13, 90 L.Ed.2d 210, 216-17 (1986) (aerial observation of evidence located within the curtilage of a home from a vantage point within the public airspace was not a search); Commonwealth v. Milyak, 508 Pa. 2, 6, 493 A.2d 1346, 1348-49 (1985) (dicta); Commonwealth v. Weik, 360 Pa. Super. 560, 563-65, 521 A.2d 44, 46-47 (1987) (dicta); Commonwealth v. Busfield, 242 Pa. Super. 194, 198-99, 363 A.2d 1227, 1228-29 (1976) (observations of evidence inside a residence, viewed from adjacent property through a sheer curtain was not a search); Commonwealth v. Hernley, 216 Pa. Super. 177, 263 A.2d 904 (1970), cert. denied 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971) (observation of evidence inside print shop, viewed with binoculars from ladder on adjacent property through an open second floor window was not a search).*fn3

As noted above, absent mechanical assistance, the mere observation of evidence from a lawful vantage point is generally deemed not to ...

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