Com. v. McMullen, B., Com. v. McMullen, B. No. 645 WDA 2016

Appellant Brian McMullen was charged with child endangerment, corruption of a minor, and indecent assault after his son found a suicide note in Appellant’s sock drawer and reported its sexual-content allegations; the victim corroborated inappropriate touching.
Trooper Drake interviewed the son (I.M.), who retrieved the suicide note from Appellant’s unlocked sock drawer at the trooper’s request; Trooper then interviewed the victim and later Miranda‑warned Appellant, who admitted the conduct.
McMullen pled guilty to third‑degree felony child endangerment and a misdemeanor indecent assault on February 25, 2014, with a binding recommendation that any term be served in the county jail; he was later sentenced to 18–48 months in county prison plus probation.
He filed a timely, counseled PCRA petition alleging trial counsel was ineffective for not moving to suppress the suicide note (as the son allegedly acted as a police agent) and for failing to advise accurately about sentencing exposure, which he claimed rendered his plea involuntary.
The PCRA court held an evidentiary hearing, credited the son’s testimony that he had unfettered access to the sock drawer and acted with permission, denied relief, and the Superior Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to move to suppress the suicide note as the son acted as a police agent	Counsel should have litigated suppression because I.M. seized the note at police direction, making it a governmental search	I.M. was a household member with permission to access the drawer; suppression would not have succeeded, so counsel had reasonable basis to decline the motion	Denied — counsel not ineffective; suppression motion would have failed
Whether counsel’s alleged failure to litigate suppression rendered the guilty plea involuntary/unknowing	The guilty plea was induced by counsel’s failure to suppress key evidence	Because suppression lacked arguable merit, counsel’s inaction did not make the plea involuntary	Denied — plea was knowing and voluntary
Whether counsel failed to advise McMullen of true sentencing exposure (including aggravated‑range concerns) so as to invalidate the plea	Counsel misadvised about exposure and guidelines, leading to an uninformed plea	The plea colloquy accurately advised statutory maximums and that the sentence would be in county custody per the agreement; no requirement to state guideline ranges	Denied — plea valid; statutory maximums were communicated and sentence conformed to the plea agreement

Burdeau v. McDowell, 256 U.S. 465 (Fourth Amendment limits apply only to governmental action)
Byars v. United States, 273 U.S. 28 (private searches are not Fourth Amendment searches unless government participation turns actor into agent)
Coolidge v. New Hampshire, 403 U.S. 443 (test for whether a private person acted as state agent)
Commonwealth v. Borecky, 419 A.2d 753 (Pa. Super. 1980) (CI who searched at police direction rendered search governmental)
Commonwealth v. Rathfon, 705 A.2d 448 (Pa. Super. 1997) (no expectation of privacy against cohabitant’s observations/access even if cohabitant had government contact)
Commonwealth v. Stafford, 749 A.2d 489 (Pa. Super. 2000) (informant who was permitted into home removed defendant’s expectation of privacy in what was in plain view)