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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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* 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 

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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: 

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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 

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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”).