J-A28002-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

CORDELL ANTHONY LIVINGSTON

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2540 EDA 2022

Appeal from the Order Entered August 31, 2022

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0001995-2021

BEFORE: OLSON, J., STABILE, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 13, 2024

The Commonwealth of Pennsylvania appeals from the order entered on 

August 31, 2022, which granted the suppression motion filed by the 

defendant, Cordell Anthony Livingston (“the Defendant”). We vacate and 

remand.

On May 13, 2020, the Defendant was arrested and charged with a 

number of crimes, including possessing a controlled substance with the intent 

to deliver (“PWID”) and criminal conspiracy.1 The Defendant then filed a 

pre-trial motion, where he sought to suppress certain evidence against him. 

See The Defendant’s Pre-Trial Motion, 7/8/21, at 1-3.

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* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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On July 22, 2022, the trial court held a suppression hearing. The trial 

court ably summarized the evidence it heard during the hearing:

On May 13, 2020 at approximately 8:30 a.m. Trooper James 

Nolan of the Pennsylvania State Police was in his fully marked 

patrol vehicle observing southbound traffic on Interstate 95 

in Tinicum Township, Pennsylvania. At the time and place in 

question, the trooper observed a black Infinity G35 with

heavily tinted windows bearing a Virginia license plate and 

began to follow same. The trooper clocked the vehicle in 

question at 70 m.p.h. for [0.3] miles with his calibrated police 

vehicle which was also equipped with a motor vehicle 

recorder [(“MVR”)]. The speed limit in this area on Interstate 

95 is 55 [miles per hour.]

The trooper testified that although through training and 

experience it was his belief that a lot of people from out of 

state come to Philadelphia to obtain large quantities of drugs 

and take them back to their respective cities he did not know 

whether this vehicle had actually stopped in Philadelphia or 

not. After the vehicle in question was stopped Trooper Nolan 

exited his patrol car and approached [the Defendant’s]

vehicle from the passenger side during which time he 

observed “[a] lot of movement within the vehicle. It looked 

like people were moving around of [sic] the vehicle and the 

car was bouncing back and forth as if they switched seats.”

The [trooper] testified that such movement was unusual in 

his experience.

During the suppression hearing, the tape of the [MVR] in 

Trooper Nolan's vehicle was placed into evidence without 

objection. All counsel agreed that the court could review the 

MVR in its entirety at a later date in chambers. The court did, 

in fact, conduct such review in chambers.

The review revealed that as the Trooper approached [the 

Defendant’s] vehicle after it [had] been pulled over there was 

some perceptible movement [in] the vehicle consistent with 

a person or persons moving around within the interior of said 

vehicle.
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When asked about the movement inside the car, [the 

Defendant, who was then in the passenger’s seat,] told 

Trooper Nolan that [he and his co-defendant, Jonathan Moore 

(“Mr. Moore”)] had switched seats. Upon his initial approach 

the passenger window was cracked about [four] inches and 

the trooper immediately smelled a very large odor of 

marijuana and air fresheners such as cologne along with little 

trees hanging on the floorboard which Trooper Nolan felt was 

indicative of a criminal element within the vehicle.

[The Defendant and Mr. Moore] produced their driver's 

licenses upon request. [The Defendant’s] license was 

suspended, however, Mr. Moore’s license was valid. The 

vehicle's registration came back to Sharon Horton. Neither 

occupant provided any information about Ms. Horton and the 

vehicle had not been reported stolen. The trooper [did not]

recall ever asking the occupants what their relationship may

have been to the owner [of the vehicle]. When asked why 

that issue was not raised, the trooper stated that he made 

the decision to conduct a probable cause search of the vehicle 

as soon as he smelled the marijuana.

Although Trooper Nolan told the court he smelled the odor of 

burnt marijuana he had earlier told defense counsel that he 

could not recall if the smell was from fresh marijuana or not. 

Trooper Nolan was told that the occupants had changed seats 

in the vehicle, although there is no indication in the record 

that the trooper interrogated the passengers as to the reason 

for the switch or that either occupant volunteered such 

information.

Neither of the occupants of the vehicle consented to a search 

of the car and Trooper Nolan conceded that there was nothing 

precluding him or his fellow officer from obtaining a search 

warrant for the vehicle in question.

. . .

When asked by the [trial court] why the ownership issue was 

not pursued, Trooper Nolan [testified]:
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I think at that point, again, pre-Alexander,

[2]

I knew that 

I was going to search the vehicle anyway ... I kind of was 

just trying to get straight to the point.

[As Trooper Nolan testified: “in the rear seat of the vehicle, 

I noticed the armrest was down, which then has a little lever 

door that you can gain entry to the trunk. I opened that 

[little lever] door, and there were two pounds of marijuana 

vacuum-sealed sitting right there.”]

Trial Court Opinion, 1/5/23, at 3-5 (citations omitted).

On August 31, 2022, the trial court granted the Defendant’s motion and 

suppressed all evidence against the Defendant. See Trial Court Order, 

8/31/22, at 1-6. Regarding the Commonwealth’s claim that the Defendant 

failed to demonstrate an expectation of privacy in the vehicle, the trial court 

declared: “[i]n the instant matter the Commonwealth failed to establish [the 

Defendant’s] lack of privacy interest. Accordingly, the burden never shifted 

to the [Defendant] and the Commonwealth’s argument must fail.” Trial Court 

Statement of Facts, 8/31/22, at 5.

The Commonwealth filed a timely notice of appeal and, within its notice, 

the Commonwealth properly certified that the trial court’s order “will terminate 

or substantially handicap the prosecution.” Commonwealth’s Notice of Appeal, 

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2 The Pennsylvania Supreme Court decided Commonwealth v. Alexander

in December 2020. In Alexander, the Supreme Court overruled prior 

precedent and held that, under Article I, Section 8 of the Pennsylvania 

Constitution, “warrantless vehicle searches require both probable cause and 

exigent circumstances; one without the other is insufficient.”

Commonwealth v. Alexander, 243 A.3d 177, 207 (Pa. 2020) (quotation 

marks and citations omitted).
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9/29/22, at 1; see also Pa.R.Crim.P. 311(d). The Commonwealth raises one 

claim to this Court:

Did the lower court err in granting [the Defendant’s] motion 

to suppress where: (1) the evidence that [the Defendant] 

had been driving an out-of-state car registered to someone 

else was sufficient to meet the Commonwealth’s initial 

burden of production; and (2) [the Defendant] did not even 

attempt to establish a reasonable expectation of privacy in 

the car?

Commonwealth’s Brief at 4.

“Once a motion to suppress evidence has been filed, it is the 

Commonwealth's burden to prove, by a preponderance of the evidence, that 

the challenged evidence was not obtained in violation of the defendant's 

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. Super.

2012) (en banc); see also Pa.R.Crim.P. 581(H). If the defendant prevails in 

the underlying proceeding, “[w]e review a trial court's order suppressing 

evidence for an abuse of discretion and our scope of review consists of only 

the evidence from the defendant's witnesses [during the suppression hearing,] 

along with the Commonwealth's evidence that remains uncontroverted.”

Commonwealth v. Miller, 186 A.3d 448, 450 (Pa. Super. 2018) (quotation 

marks and citations omitted). “Where the [trial] court's factual findings are 

supported by the record, we are bound by these findings and may reverse 

only if the [trial] court's legal conclusions are erroneous.” Commonwealth 

v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (quotation marks and 

citations omitted). Relatedly, “[i]t is within the suppression court's sole 
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province as factfinder to pass on the credibility of witnesses and the weight to 

be given their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 

585 (Pa. Super. 2006) (quotation marks and citations omitted). However, 

“we maintain de novo review over the suppression court's legal conclusions.”

Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016) (quotation 

marks and citations omitted).

“Generally, to have standing to pursue a suppression motion under 

Pa.R.Crim.P. 581, the defendant's own constitutional rights must have been 

infringed.” Commonwealth v. Enimpah, 106 A.3d 695, 698 (Pa. 2014).

“However, it is well settled that a defendant charged with a possessory offense 

in this Commonwealth has ‘automatic standing’ because the charge itself 

alleges an interest sufficient to support a claim under Article I, § 8.” Id.

(brackets and some quotation marks and citations omitted). “This rule entitles 

a defendant to a review of the merits of his suppression motion without a 

preliminary showing of ownership or possession in the premises or items 

seized.” Id.

In order to prevail on a suppression motion, however, “a defendant must 

show that he had a privacy interest in the place invaded or thing seized that 

society is prepared to recognize as reasonable.” Id. at 699. “The expectation 

of privacy is an inquiry into the validity of the search or seizure itself; if the 

defendant has no protected privacy interest, neither the Fourth Amendment 

nor Article I, § 8 is implicated.” Id.
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Although “the defendant bears the burden of persuasion with respect to 

his privacy interest,” the Commonwealth bears the initial burden of production 

“to present evidence that the defendant’s constitutional rights were not 

infringed.” Id. at 701. Thus, in cases where the Commonwealth contests the 

defendant’s expectation of privacy, the Commonwealth bears the initial 

burden of coming forward with sufficient evidence “show[ing that] the 

defendant lacked such a privacy interest.” Id. If the Commonwealth satisfies 

this initial burden, “it need do no more, absent proof to the contrary from the 

accused himself.” Id. at 703. At this point, the burden is shifted to the 

defendant, to “show[ that] such an expectation [of privacy] did exist.” Id. at 

701. Where “the Commonwealth's evidence show[s] the defendant lacked 

any protected privacy interest,” and the evidence favorable to the defendant 

does not effectively rebut the Commonwealth’s evidence, the defendant’s 

suppression motion must be denied, as “a defendant cannot prevail upon a 

suppression motion unless he demonstrates that the challenged police conduct 

violated his own, personal privacy interests.”3 Id. at 700 and 701 (quotation 

marks omitted).

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3

In Enimpah, our Supreme Court clarified:

Although the defendant will typically present his own 

evidence to satisfy this burden, he is not required to do so. 

Indeed, he may succeed without presenting any evidence at 

all. See 6 Wayne R. LaFave, Search & Seizure § 11.2(b), at 

50 (5th ed. 2012) (noting “even if the burden of proof is on 

(Footnote Continued Next Page)
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“An expectation of privacy is present when the individual, by his 

conduct, exhibits an actual (subjective) expectation of privacy and [] the 

subjective expectation is one that society is prepared to recognize as 

reasonable.” Commonwealth v. Brundidge, 620 A.2d 1115, 1118 (Pa. 

1993). “In determining whether a person's expectation of privacy is legitimate 

or reasonable, the totality of the circumstances must be considered and the 

determination will ultimately rest upon a balancing of the societal interests 

involved.” Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super. 2005). 

“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.” 

Id. (quotation marks and citations omitted).

On appeal, the Commonwealth claims the trial court erred when it 

determined the Commonwealth failed to carry its initial burden of

demonstrating that the Defendant lacked a reasonable expectation of privacy 

in the vehicle. The Commonwealth further argues that, since the trial court 

found, as a fact, that the vehicle was registered to a third-party named Sharon 

Horton, the burden shifted to the Defendant and required the Defendant to 

prove he had a privacy interest in the vehicle. According to the 

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one party, it may happen that the burden is actually met in a 

particular case by evidence given by the other party”).

Enimpah, 106 A.3d at 702 n.6.
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Commonwealth, since there was no evidence presented at the suppression 

hearing tending to show that the Defendant had an expectation of privacy in 

the vehicle, the trial court erred when it granted the Defendant’s motion to 

suppress. See Commonwealth’s Brief at 10-11. We agree with the 

Commonwealth.

Following the suppression hearing, the trial court found, as a fact, that: 

the Defendant was driving the vehicle in Pennsylvania, without a license; the 

vehicle had a Virginia license plate; the vehicle was registered to a third-party 

named Sharon Horton; and, “[n]either [the Defendant nor Mr. Moore] 

provided any information about Ms. Horton” during the traffic stop or the 

suppression hearing. See Trial Court’s Statement of Facts, 8/31/22, at 1-4. 

Under our precedent, the trial court’s factual findings prove that the 

Commonwealth carried its initial burden of coming forward with sufficient 

evidence “show[ing that] the [D]efendant lacked [] a privacy interest” in the 

vehicle. See Commonwealth v. Jones, 874 A.2d 108, 120 (Pa. Super. 

2005) (holding: the appellant did not possess a reasonable expectation of 

privacy in a vehicle where: “he was the operator of a rental car but not the 

named lessee, was not an authorized driver, the named lessee was not present 

in the vehicle, [a]ppellant offered no explanation of his connection to the

named lessee, and the return date for the rental car had passed”);4

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4 Compare with Byrd v. United States, 584 U.S. 395 (2018) (holding that 

“someone in otherwise lawful possession and control of a rental car

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

(holding that the defendant did not have an expectation of privacy in a vehicle, 

where he did not own the vehicle and where he “offered no evidence to explain 

his connection to the vehicle or his connection to the registered owner of the 

vehicle”); Commonwealth v. Cruz, 21 A.3d 1247, 1251–1252 (Pa. Super. 

2011) (holding that the defendant did not demonstrate he had an expectation 

of privacy in the vehicle he was driving at the time of the stop because the 

defendant “presented no evidence that he owned the vehicle, that it was 

registered in his name, or that he was using it with the permission of the 

registered owner”); Commonwealth v. Maldonado, 14 A.3d 907 (Pa. Super. 

2011) (holding: where the Commonwealth presented evidence at the 

suppression hearing establishing that the vehicle the defendant was driving 

was owned by his girlfriend, the burden then shifted to the defendant to 

establish an expectation of privacy in the vehicle; however, since there was 

“no evidence that [the defendant] had permission from [his girlfriend] to drive 

the car,” the defendant “failed to establish an expectation of privacy in the 

vehicle he was driving”); see also Commonwealth v. Peak, 230 A.3d 1220, 

1224 (Pa. Super. 2020) (“a driver who does not own a vehicle may still 

establish an expectation of privacy in the vehicle if he can prove he has 

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has a reasonable expectation of privacy in it even if the rental agreement does 

not list him or her as an authorized driver”) (emphasis added).
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permission or authority from the owner to drive the vehicle”)

(emphasis added).

Since the Commonwealth came forward with evidence tending to show 

that neither the Defendant nor Mr. Moore were the registered owners of the 

vehicle, the burden shifted to the Defendant to prove that he had a privacy 

interest in the vehicle. However, neither the Defendant nor Mr. Moore 

presented any evidence during the suppression hearing. Further, no evidence 

was presented during the hearing that would support a conclusion that the

Defendant had an expectation of privacy in the vehicle, which “he did not own, 

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

operate.” Burton, 973 A.2d at 436. Therefore, we must vacate the trial 

court’s order granting the Defendant’s motion to suppress. See Enimpah, 

106 A.3d 699 (“if the defendant has no protected privacy interest, neither the 

Fourth Amendment nor Article I, § 8 is implicated”).

Order vacated. Case remanded. Jurisdiction relinquished.

Date: 2/13/2024