J-S10001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                              Appellee

                        v.

ROMEL ANTHONY,

                              Appellant                   No. 1381 EDA 2013


              Appeal from the Judgment of Sentence April 15, 2013
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0013889-2012


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED MARCH 31, 2015

        Appellant, Romel Anthony, appeals from the judgment of sentence

imposed following his bench conviction of person not to possess a firearm,

carrying a firearm without a license, and carrying a firearm in public in

Philadelphia.1 Appellant challenges the trial court’s denial of his motion to

suppress evidence. We affirm.

        The   trial   court   aptly   summarized   the   testimony   and   evidence

presented in this case as follows:

              On September 16, 2012, at approximately 1:20 a.m.,
        Police Officer Charles Waters observed Appellant driving a 2012
        Nissan Altima traveling southbound on the 3600 block of North
        Broad Street going in and out of traffic without signaling. After
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 6108, respectively.
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        Appellant sped past several vehicles while in the parking lane at
        Broad and Tioga Streets, Waters activated his lights and sirens
        and pulled Appellant’s vehicle over at 3300 North Broad Street.
        Waters had been a police officer for 15 years, participating in
        several narcotics, gun and robbery arrests in that immediate
        area.

               Upon approaching the vehicle, Waters observed a female
        sitting in the passenger seat.      She was later identified as
        Appellant’s girlfriend, Valerie Brown.[2] Waters asked Appellant
        for license, registration, and insurance, to which Appellant
        responded that he did not have identification on him. Brown told
        Waters that the vehicle was a rental and provided the rental
        agreement from the glove compartment. The rental agreement
        did not authorize Appellant as the renter of the car. Waters
        asked Appellant if he had a driver’s license and at that point
        Appellant began to delay before answering the officer’s
        questions.     Because Waters was working alone and was
        concerned for his safety, he opened the car door to frisk
        Appellant for weapons.

              However, before Waters touched Appellant or ordered
        Appellant out of the vehicle, Waters saw the handle of a
        handgun pointed upwards in between the driver’s seat and the
        center console.     Waters placed Appellant in handcuffs and
        recovered the gun, which was identified as a Ruger .9 millimeter
        semi-automatic with one round in the chamber and nine rounds
        in the magazine.       After recovering the gun, Waters ran
        Appellant’s name through the computer and determined that he
        did not own a valid driver’s license. Consequently, Waters
        conducted “Live Stop” procedures, wherein the vehicle was
        inventoried and towed.[3] Appellant also received tickets for
        careless driving and for not having a license.

              Ivory Robinson testified that she had rented the vehicle
        Appellant was operating. Robinson had given permission to her
____________________________________________


2
  At the time of the stop, Appellant lived with Ms. Brown and her sister,
Ivory Robinson.       (See N.T. Suppression Motion, 2/19/13, at 34-36;
Appellant’s Brief, at 8, 10).
3
    See 75 Pa.C.S.A. § 6309.2(a).



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       sister, Valerie Brown, to operate the vehicle but had not given
       permission to Appellant. Robinson testified that Brown had just
       had a miscarriage and that Appellant and Brown were on their
       way to the hospital.[4]

(Trial Court Opinion, 10/10/13, at 1-2) (record citations omitted).

       On December 20, 2012, Appellant filed a motion to suppress evidence

of the firearm.     On February 19, 2013, the trial court held a suppression

hearing and denied the motion, finding, inter alia, that Appellant lacked a

reasonable expectation of privacy in the vehicle.5 Appellant elected to waive

a jury trial and he proceeded immediately to a bench trial. At the conclusion

of trial, the court found him guilty of the above-mentioned charges. On April

15, 2013, the court sentenced Appellant to a term of not less than five nor

more than ten years’ incarceration, followed by two years’ probation. This

timely appeal followed.6

       Appellant raises two issues for our review:
____________________________________________


4
  Officer Waters testified that Appellant did not advise him that he and Ms.
Brown were on the way to the hospital, and Appellant provided him with no
explanation as to why they were in the vehicle. (See N.T. Suppression
Motion, 2/19/13, at 28-29, 33). The trial court stated that it accepted as
credible Ms. Robinson’s testimony, with the exception of her testimony
regarding the miscarriage, which did not “ring true[.]” (Id. at 54; see also
Trial Ct. Op., at 4 n.4 (“the [c]ourt did not find credible Ivory Robinson’s
testimony about the timing of the miscarriage”) (record citation omitted).
5
  The court also found that Officer Waters would have inevitably discovered
the gun during the “Live Stop.” (N.T. Suppression Motion, 2/19/13, at 60).
6
   Pursuant to the trial court’s order, Appellant timely filed a concise
statement of errors complained of on appeal on May 31, 2013. See
Pa.R.A.P. 1925(b). The trial court entered a Rule 1925(a) opinion on
October 10, 2013. See Pa.R.A.P. 1925(a).



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      1.    Did the [t]rial [c]ourt err by finding that Appellant did not
      have a legitimate expectation of privacy in the vehicle which was
      searched?

      2.    Did the [t]rial [c]ourt err by holding that the firearm which
      was recovered would have been recovered pursuant to the
      “inevitable discovery” doctrine[]?

(Appellant’s Brief, at 3).

      Appellant’s issues on appeal challenge the trial court’s denial of his

motion to suppress.

                  Our standard of review in addressing a
            challenge to a trial court’s denial of a suppression
            motion is limited to determining whether the factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are
            correct.

                  [W]e may consider only the evidence of the
            prosecution and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole. Where the record
            supports the findings of the suppression court, we
            are bound by those facts and may reverse only if the
            court erred in reaching its legal conclusions based
            upon the facts.

            Further, [i]t is within the suppression court’s sole province
      as fact finder to pass on the credibility of witnesses and the
      weight to be given their testimony.

Commonwealth v. Gillespie, 103 A.3d 115, 118 (Pa. Super. 2014)

(citations and internal quotation marks omitted).

      In his first issue, Appellant argues that the trial court erred in

determining that he had no legitimate expectation of privacy in the rental

vehicle he was driving. (See Appellant’s Brief, at 9-12). Appellant asserts

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that he had a connection to the vehicle because he lived with the person

who rented the vehicle, Ms. Robinson, and because Ms. Brown, who did have

permission to operate the vehicle, was his passenger. (See id. at 10). He

maintains that because he was driving the vehicle with its keys, it can be

inferred that Ms. Brown gave him permission to drive. (See id.). This issue

does not merit relief.

      “To prevail on a motion to suppress, the defendant must show that he

or   she   has   a   privacy   interest   which   has   been   infringed   upon.”

Commonwealth v. Arthur, 62 A.3d 424, 428 (Pa. Super. 2013), appeal

denied, 78 A.3d 1089 (Pa. 2013) (citation and footnote omitted).             Our

Supreme Court has recently explained:

            To be sure, under our jurisprudence, the defendant bears
      the burden of persuasion with respect to his privacy interest. . . .
      The Commonwealth may concede the privacy interest, choosing
      to contest only the legality of police conduct; if it does so, the
      defendant’s “reasonable expectation of privacy” need not be
      established. However, if the evidence of the Commonwealth, the
      party with the burden of production, shows the defendant lacked
      such a privacy interest, the burden of establishing the contrary is
      on the defendant.

            . . . [I]t is worth noting that in analyzing the merits of a
      suppression motion, the trial court may, indeed, treat the
      defendant’s privacy interest as a “threshold” or “preliminary”
      matter. That is to say, if the evidence shows there was no
      privacy interest, the Commonwealth need prove no more; in
      terms of the court’s review, it need go no further if it finds the
      defendant has not proven a reasonable expectation of privacy. .
      . . [A]s it relates to the parties’ presentation of evidence, our
      cases and the Rules of Criminal Procedure make clear that the
      Commonwealth has the burden of production, to give the court
      evidence allowing that conclusion. Once it places the issue


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      before the court, as a basis for denying suppression, the
      defendant may prove the contrary. . . .

Commonwealth v. Enimpah, 106 A.3d 695, 701-02 (Pa. 2014) (citations

and footnotes omitted).

            Whether a defendant has a legitimate expectation of
      privacy in an area subjected to a search by police is a composite
      test of the defendant’s subjective expectation and the objective
      reasonableness of that expectation:

                      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. Newman, 84 A.3d 1072, 1076-77 (Pa. Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014) (citation omitted).

      Here, relying on Commonwealth v. Burton, 973 A.2d 428 (Pa.

Super. 2009) (en banc), the trial court determined that Appellant lacked a

reasonable expectation of privacy in the rental vehicle. (See Trial Ct. Op.,

at 3-4). Upon review of the record and relevant caselaw, we agree with the

trial court.

      In Burton, supra, a police officer stopped the defendant for a routine

traffic violation. See id. at 434. When the officer asked the defendant for

license, registration and insurance information, the defendant produced only

a non-driver’s identification card. See id. A computer check disclosed that



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the defendant was not a licensed driver, and police ultimately determined

that he was not the owner of the vehicle. See id. An en banc panel of this

Court determined:

               In the instant case, the vehicle was not owned by
         Appellant. The vehicle was not registered in Appellant’s name.
         Appellant offered no evidence that he was using the vehicle with
         the authorization or permission of the registered owner.
         Appellant offered no evidence to explain his connection to the
         vehicle or his connection to the registered owner of the vehicle.
         Appellant failed to demonstrate that he had a reasonably
         cognizable expectation of privacy in a vehicle that he did not
         own, that was not registered to him, and for which he has not
         shown authority to operate.

Id. at 436 (citing Commonwealth v. Jones, 874 A.2d 108, 119-20 (Pa.

Super. 2005) (holding that driver of rental car did not have privacy interest

sufficient to challenge constitutionality of search where he was not named

lessee on rental agreement, named lessee was not in vehicle, and he was

not authorized to drive vehicle)).

         Here, Appellant attempts to      distinguish   Burton   by relying on

Newman, supra, in which this Court affirmed the trial court’s grant of the

defendant’s motion to suppress. (See Appellant’s Brief, at 10-11); see also

Newman, supra at 1074. However, we agree with the Commonwealth that

Appellant’s reliance on Newman is misplaced. (See Commonwealth’s Brief,

at 9).    In Newman, a police officer stopped the defendant’s vehicle after

observing his involvement in a suspected drug transaction. See Newman,

supra, at 1074. The defendant vigorously objected to the stop by police.



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See id. at 1077. He was alone in the vehicle and did not attempt to flee.

See id.    The Commonwealth presented no evidence tending to prove that

Appellant did not own the vehicle or that another party owned it. See id.

Under these circumstances, this Court declined to disturb the trial court’s

finding that the defendant had a reasonable expectation of privacy in the

vehicle “where no evidence to the contrary exists.”                Id. at 1078

(emphasis in original). However, the Newman Court observed that Burton

and related cases “dictate [that] the mere fact that a defendant is operating

a motor vehicle will not, without more, sustain a finding that the operator

had a reasonable expectation of privacy in the operated vehicle where

other     evidence   suggests   he   or    she   had   no   such   reasonable

expectation of privacy.” Id. (emphasis added).

     In the instant case, unlike in Newman, there was ample evidence

suggesting that Appellant had no privacy interest in the vehicle. The record

reflects that Appellant was driving a vehicle owned by a rental car company,

and that he was not an authorized driver named on the rental agreement.

(See N.T. Suppression Motion, 2/19/13, at 12, 36). Appellant did not have

a drivers’ license. (See id. 14, 18). Ms. Robinson testified that she rented

the vehicle from the rental company and that Ms. Brown had her permission

to use it. (See id. at 36-37, 40-41). However, she testified that Appellant

did not have permission to drive the vehicle because he does not have a

license. (See id. at 37, 41).


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       Upon review, we conclude that “Appellant failed to demonstrate that

he had a reasonably cognizable expectation of privacy in a vehicle that he

did not own, that was not registered to him, and for which he has not shown

authority to operate.” Burton, supra, at 436; see also Commonwealth

v. Maldonado, 14 A.3d 907, 911-12 (Pa. Super. 2011) (reversing trial

court’s grant of motion to suppress where defendant failed to offer any

evidence to demonstrate that he was authorized to use vehicle belonging to

his girlfriend on day in question). Although Appellant argues that permission

to drive the vehicle can be inferred from the facts that he drove with keys

and Ms. Brown was his passenger, (see Appellant’s Brief, at 10), this

assertion contradicts Ms. Robinson’s clear testimony that he did not have

permission to drive the vehicle. (See N.T. Suppression Motion, 2/19/13, at

37, 41). Further, the evidence demonstrated that he lacked any connection

to the owner of the vehicle, the rental car company.

       Accordingly, because Appellant failed to “show that he [had] a privacy

interest which has been infringed upon,” Arthur, supra at 428, in the face

of ample evidence to the contrary, see Enimpah, supra at 701-02, we

conclude that the trial court properly denied his motion to suppress.      See

Gillespie, supra at 118. Appellant’s first issue does not merit relief.7

____________________________________________


7
  Because of our disposition of Appellant’s first issue, it is unnecessary to
address his remaining issue on appeal. See Enimpah, supra at 702 (“[I]f
the evidence shows there was no privacy interest, the Commonwealth need
(Footnote Continued Next Page)


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      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/31/2015




                       _______________________
(Footnote Continued)

prove no more; in terms of the court’s review, it need go no further if it finds
the defendant has not proven a reasonable expectation of privacy”).



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