J-A09028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ISAIAH JACKSON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 431 EDA 2021

Appeal from the Order Entered January 22, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0004209-2019

BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 9, 2022

The Commonwealth appeals from the order granting the suppression 

motion of Isaiah Jackson (“Jackson”). We vacate the order and remand for 

further proceedings. 

The factual and procedural history of this appeal is as follows.1 In the 

early morning hours of May 10, 2019, Philadelphia Police Officer Mark 

Brockington conducted a traffic stop after observing Jackson driving a vehicle 

without its headlights activated. Before approaching the vehicle, Officer 

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* Retired Senior Judge assigned to the Superior Court.

1 We summarize the factual background of this appeal from the suppression 

record. We note that the Commonwealth failed to ensure that the certified 

record contained a copy of the suppression hearing transcript. We could find 

this appeal waived. See Commonwealth v. Houck, 102 A.3d 443, 456-57 

(Pa. Super. 2014) (noting that when an appellant fails to ensure the presence 

in the certified record of a transcript necessary for review, this Court can 

dismiss the claim). However, we have obtained a copy upon an informal 

inquiry to the suppression court. We therefore decline to find waiver. 
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Brockington ran a search of the car’s license plate number and obtained 

information that the car belonged to Kevin Erdman (“Erdman”), who lived in 

Delaware County. See N.T., 1/22/21, at 14-16. The officer then approached 

the car and began talking to Jackson. Jackson gave the officer a sales receipt 

and insurance information for the vehicle, but told the officer that he did not 

have his driver’s license with him. Jackson identified himself and initially 

spelled his last name “R-O-A-C-H.”2 Id. at 19. The officer stayed by Jackson’s 

car and twice checked for Jackson’s license information over his radio, but no 

record was found. The officer again asked Jackson for the spelling of his last 

name, and Jackson responded “R-O-A-C-H-E.” Id. at 20. The officer then 

received information that Jackson did not have a driver’s license. When the 

officer asked Jackson who owned the car, Jackson replied, “Uncle Harold,” who 

lived in “Southwest [Philadelphia].” Id. at 18-20.

Officer Brockington then asked Jackson to exit the car. See id. at 20. 

The officer also requested that police contact Erdman. See id. at 20-21. The 

officer then searched the car and recovered a .22 caliber pistol and called for 

the car to be towed. See id. at 22-23. After verifying that Jackson did not 

have a license to carry a firearm, the officer arrested him for carrying a firearm 

without a license and carrying a firearm on the public streets of Philadelphia.3 

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2 Jackson also went by the last name Roache. The Commonwealth does not 

dispute that Roache and Jackson are both proper surnames for Jackson. 

3 18 Pa.C.S.A. §§ 6106(a)(1), 6108.
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After the Commonwealth charged Jackson with the above offenses, 

Jackson moved to suppress the gun, asserting, in relevant part, that Officer 

Brockington conducted an improper, warrantless search of the car. At the 

suppression hearing, the Commonwealth indicated that it was challenging 

Jackson’s expectation of privacy in the car. See N.T., 1/22/21, at 26. Officer 

Brockington was the only witness to testify, and he recounted the 

circumstances surrounding the traffic stop and Jackson’s arrest. On redirect 

examination by the Commonwealth, the officer testified that Erdman had 

arrived at the scene of Jackson’s arrest and told the officer that he knew 

Jackson but did not give him permission to drive the car.4 See id. at 65. 

During arguments to the suppression court, the Commonwealth then referred 

to Erdman’s statement, and the court announced that it would not consider 

the statement for the truth of whether Erdman had given Jackson permission 

to drive the car because it was hearsay. See id. at 96, 105. The 

Commonwealth did not object to this hearsay ruling, nor did it assert that the 

court could consider Erdman’s statement even if it was hearsay. See id. at 

104-09. 

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4 We note that the Commonwealth initially asked Officer Brockington about 

Erdman’s statement during direct examination, but withdrew the question 

after Jackson objected to hearsay. See N.T., 1/22/21, at 24-27. Jackson 

then cross-examined the officer and elicited testimony that the car had not 

been reported as stolen. See id. at 42, 56-57. The suppression court, during

redirect examination, and over Jackson’s objection, allowed the 

Commonwealth to question the officer about Erdman’s statements that 

Jackson did not have permission to drive the car because Jackson’s crossexamination had opened the door. See id. at 64-65.
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At the conclusion of the hearing, the suppression court granted 

Jackson’s motion to suppress the gun reasoning that: (1) the Commonwealth 

failed to establish that Jackson lacked an expectation of privacy in the car; (2) 

the officer lacked exigent circumstances to conduct a warrantless search; and 

(3) the officer conducted an improper inventory search of the car. The 

Commonwealth timely appealed,

5 and both the Commonwealth and the 

suppression court complied with Pa.R.A.P. 1925. 

The Commonwealth raises the following issue on appeal: 

Did the suppression court err by concluding that [Jackson]

established and enjoyed a reasonable expectation of privacy in a 

vehicle and that the police conducted an illegal search of that 

vehicle? 

Commonwealth’s Brief at 4.

The following standard and scope of review govern our review from an 

order suppressing evidence. An appellate court defers to the suppression 

court’s findings of fact that are supported in the record but reviews the court’s 

legal conclusions de novo. Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 

2021). Our scope of review is limited to the evidence presented at the 

suppression hearing. Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. 

Super. 2014). We may consider only the defendant’s evidence and the 

Commonwealth’s evidence that, when read in context of the record at the 

suppression hearing, remains uncontradicted. Id.

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5 See Pa.R.A.P. 311(d) (permitting the Commonwealth to take an 

interlocutory appeal as a matter of right where it certifies in the notice of 

appeal that the order will terminate or substantially handicap the prosecution). 
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To prevail on a motion to suppress challenging a search, the defendant 

must have a privacy interest in the area in which the government intruded. 

See Commonwealth v. Enimpah, 106 A.3d 695, 699 (Pa. 2014). An 

expectation of privacy exists when the defendant exhibits an actual or 

subjective expectation of privacy and that expectation is one that society is 

prepared to recognize as reasonable. See Commonwealth v. Kane, 210 

A.3d 324, 330 (Pa. Super. 2019). “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. Jones, 874 

A.2d 108, 118 (Pa. Super. 2005).

Challenges to a defendant’s expectation of privacy involve shifting 

burdens of proof. See Enimpah, 106 A.3d at 700-01. The Commonwealth 

initially bears the burden of producing evidence that shows the defendant 

lacked a reasonable expectation of privacy in the area searched. See id. at 

702. If the Commonwealth produces evidence placing the defendant’s lack of 

a reasonable expectation of privacy at issue, then the burden shifts to the 

defendant to persuade the suppression court that he has a reasonable 

expectation of privacy in the area searched. See Enimpah, 106 A.3d at 701 

(holding that “[t]o be sure, under our jurisprudence, the defendant bears the 

burden of persuasion with respect to his privacy interest” (internal citation 

omitted)). Where the Commonwealth produces evidence placing the 

defendant’s reasonable expectation of privacy at issue, and the burden of 
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persuasion has shifted, the defendant may, but is not required to, produce his 

own evidence to meet his burden to persuade the court that he had a 

reasonable privacy interest in the area searched. See Enimpah, 106 A.3d at 

702 & n.6. Thereafter, it is incumbent on the suppression court to consider 

all of the evidence to determine whether the Commonwealth met its burden

of production, and, if so, whether the defendant met his burden of persuasion

that he possessed a reasonable expectation of privacy in the car.

6

 

The Commonwealth asserts that it produced evidence placing at issue 

whether Jackson had an expectation of privacy in the vehicle because Officer 

Brockington testified that Jackson: (1) was driving the car without turning on 

the car’s headlights; (2) lied about having a driver’s license; (3) gave an 

incorrect spelling of his last name; and (4) claimed, falsely, that his uncle 

owned the car. See Commonwealth’s Brief at 13. According to the 

Commonwealth, this evidence satisfied its burden of production under 

Enimpah, and the suppression court erred by refusing to then shift the burden 

to Jackson to persuade the court that he had an expectation of privacy in the

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6

If the Commonwealth’s evidence conclusively establishes that the defendant 

had no expectation of privacy in the area searched, then the Commonwealth 

has met its burden of proving that the evidence was properly obtained, and 

the suppression motion challenging the search must be denied. See 

Enimpah, 106 A.3d at 702 (noting that the Commonwealth’s burden is “to 

give the [suppression] court evidence allowing” the court to conclude a 

defendant lacked a reasonable expectation of privacy); see also Pa.R.Crim.P. 

581(H) (providing that “[t]he Commonwealth shall have the burden of going 

forward with the evidence and of establishing that the challenged evidence 

was not obtained in violation of the defendant’s rights”).
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vehicle. See id. at 13-18. The Commonwealth concludes that Jackson 

presented no evidence that he had a reasonable expectation of privacy in the 

vehicle, and that the suppression order should be reversed.7 See id. at 16-

18.8 

The suppression court concluded that the Commonwealth “did not 

present any evidence to demonstrate that [Jackson] was not an authorized 

user of the vehicle.” Suppression Court Opinion, 9/8/21, at 5. The court

explained that the evidence that Jackson did not have a driver’s license, was 

not the registered owner, and gave a wrong spelling of his last name was only 

probative of whether Officer Brockington had probable cause to search the 

car, not whether Jackson had permission to use the car. Id. The court 

emphasizes that it considered Erdman’s statement to Officer Brockington, 

namely, that Jackson did not have permission to use the car, to be hearsay, 

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7 To the extent the Commonwealth argues that its evidence triggered 

Jackson’s burden to produce evidence, we disagree. See Enimpah, 106 A.3d 

at 702 n.6 (noting that although a defendant “will typically present his own 

evidence to satisfy this burden, he is not required to do so” and “may succeed 

without presenting any evidence at all” (citation omitted)). 

8 The Commonwealth also argues the suppression court erred in refusing to 

consider Erdman’s statement that he did not give Jackson permission to use 

the car for the truth of the matter asserted. However, this issue is waived 

because the Commonwealth did not object to the court’s hearsay ruling at the 

suppression hearing, and, further, its Rule 1925(b) statement did not 

specifically identify the suppression court’s evidentiary ruling as an error 

complained of on appeal. See Pa.R.A.P. 302(a), 1925(b)(4)(ii), (vii). 
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which it did not consider the statement for the truth of the matter asserted. 

Id. 

Following our review, we conclude that the suppression court erred in 

declining to consider any of the Commonwealth’s circumstantial evidence that 

Jackson lacked a reasonable expectation of privacy in the car. The court was 

required to evaluate the subjective and objective reasonableness of Jackson’s 

expectation of privacy based on all circumstances from the evidence presented 

at the suppression hearing. See Enimpah, 106 A.3d at 700-01 (requiring 

that the Commonwealth produce evidence that the defendant lacked a 

reasonable expectation of privacy in the area searched); Jones, 874 A.2d at 

118 (requiring that a court evaluate the reasonableness of an expectation of 

privacy based on the totality of the circumstances). The suppression court 

refused to do so, concluding that the Commonwealth’s evidence was only 

probative of whether Officer Brockington had probable cause to search the 

vehicle. However, our courts have rejected similar attempts to 

compartmentalize the probative value of evidence when considering the 

totality of the circumstances. Cf. In Interest of A.A., 195 A.3d 896, 910 

(Pa. 2018) (holding that it is error to ignore facts gleaned during an initial 

traffic stop when determining whether an officer had reasonable suspicion to 

conduct a second detention), abrogated on other grounds by Commonwealth 

v. Barr, 266 A.3d 25 (Pa. 2021); Commonwealth v. Carter, 105 A.3d 765, 

772 (Pa. Super. 2014) (disapproving of a “divide-and-conquer” approach of 

considering individual factors in isolation). 
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In the case sub judice, the Commonwealth presented uncontradicted 

evidence that Jackson was driving in the early morning hours without turning 

on the headlights of his vehicle, did not have a license, misspelled his name 

to Officer Brockington, and claimed that the car belonged to his “Uncle Harold”

in Southwest Philadelphia, when Erdman, a resident of Delaware County, was 

the actual registered owner of the car. In our view, the totality of the 

circumstances could sustain a finding that Jackson’s lack of a driver’s license 

and inability to correctly identify the registered owner of the vehicle, as well 

as his evasiveness, placed at issue whether he had a reasonable expectation 

of privacy in the car.

9

 We therefore conclude that the suppression court erred 

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9 This Court has found that a defendant lacked a reasonable expectation of 

privacy in circumstances similar to this case. See Commonwealth v. 

Maldonado, 14 A.3d 907, 911 (Pa. Super. 2011) (holding that Maldonado 

failed to establish a reasonable expectation of privacy when he presented no 

evidence that he had permission to drive his girlfriend’s car, where Maldonado 

did not have a license and the vehicle’s registration was expired); 

Commonwealth v. Burton, 973 A.2d 428, 436 (Pa. Super. 2009) (en banc) 

(holding that Burton failed to demonstrate a reasonable expectation of privacy 

in a car that he did not own and was not registered to him); but see

Commonwealth v. Peak, 230 A.3d 1220, 1224-25 (Pa. Super. 2020) (noting 

that although the Commonwealth waived a challenge to Peak’s privacy interest 

in a car, Peak’s own testimony that he had permission to use a car from the 

registered owner could establish a reasonable expectation of privacy), appeal 

denied, 239 A.3d 1096 (Pa. 2020), cert. denied sub nom. Peak v. 

Pennsylvania, 141 S. Ct. 1426 (2021). We emphasize that the 

Commonwealth, in meeting its burden of production under Enimpah, cannot 

rely solely on the fact that an individual is driving a car he does not own to 

establish the lack of a privacy interest. See Commonwealth v. Newman, 

84 A.3d 1072, 1078 (Pa. Super. 2014). The mere fact that the individual does 

not have a property interest in the car will not establish the individual’s lack 

of a privacy interest in the car. See Byrd v. United States, 138 S. Ct. 1518, 

1531 (2018) (holding that the fact that a driver is not listed on a rental 

(Footnote Continued Next Page)
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in declining to consider any of the Commonwealth’s uncontradicted 

circumstantial evidence in relation to Jackson’s expectation of privacy.

For these reasons, we vacate the order and remand for the court to 

render findings of fact and conclusions of law on whether the evidence 

produced by the Commonwealth at the suppression hearing placed Jackson’s 

lack of a reasonable expectation of privacy in the car at issue, shifted the 

burden to Jackson to persuade the court that he enjoyed a privacy interest in 

the car, and whether Jackson met his burden of persuasion that he had a 

reasonable expectation of privacy in the car. See Commonwealth v. 

Grundza, 819 A.2d 66, 68 (Pa. Super. 2003) (holding an appellate court does 

not make findings of fact and conclusions of law in the first instance and that 

the suppression court’s failure to do so precludes appellate review).

Order vacated. Case remanded for further proceedings consistent with 

this memorandum. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2022

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agreement for a car will not defeat a driver’s reasonable expectation of privacy 

in the car).