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2021 PA Super 116
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAYLOR JEFFERSON :
:
Appellant : No. 1119 WDA 2018
Appeal from the Judgment of Sentence Entered June 12, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007306-2017
BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
CONCURRING OPINION BY BOWES, J.: FILED: JUNE 7, 2021
It is axiomatic that issues not raised in the trial court are waived and
may not be raised for the first time on appeal. See Pa.R.A.P. 302(a).
Appellant first asserted his claim that Article I, § 8 of the Pennsylvania
Constitution provides greater protection than the Fourth Amendment in his
supplemental appellate brief filed after en banc reconsideration of his appeal
was granted and briefed. Nonetheless, the Majority declines to find waiver
because it concludes that Appellant’s newly-raised claim is based upon
“arguments that were not conceivable before [Kansas v. Glover, 140 S.Ct.
1183 (2020),] was decided.” Majority Opinion at 17. Respectfully, I could not
disagree more. Appellant’s arguments under the Pennsylvania constitution
were not only fully imaginable at the time he filed his suppression motion, but
were required to have been presented at that time in the first instance.
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Therefore, although I agree with my esteemed colleagues that Appellant’s
judgment of sentence should be affirmed, and I join the Majority Opinion to
the extent that it examines Appellant’s Fourth Amendment claim and
concludes that it affords Appellant no relief, I cannot join its rationale in full.
It is well-settled that when a defendant invokes provisions of both the
United States and Pennsylvania constitutions in seeking to suppress evidence,
Pennsylvania courts treat the protections of the two constitutions as
coextensive unless the defendant contends otherwise. See Commonwealth
v. Lagenella, 83 A.3d 94, 99 n.3 (Pa. 2013); Commonwealth v. Laney,
729 A.2d 598, 601 (Pa.Super. 1999) (conducting only a federal analysis where
the defendant offered only “nominal invocation of the state constitution” and
provided “neither caselaw nor reason to hold that provision offers protection
different from the federal constitution”). Likewise, it has long been true that
failure to raise an issue in the trial court, even one of constitutional dimension,
results in waiver of the issue on appeal. See, e.g., Commonwealth v. Cline,
177 A.3d 922, 927 (Pa.Super. 2017) (“The law is clear that issues, even those
of constitutional dimension, are waived if not raised in the trial court. A new
and different theory of relief may not be successfully advanced for the first
time on appeal.”).
Accordingly, it was the law of this Commonwealth at the time Appellant
filed his suppression motion that, in order to preserve for appellate review a
claim that Article I, § 8 provides protection beyond that of the Fourth
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Amendment, he was required to both (1) refer to the state constitution as a
basis for suppression, and (2) offer “some discussion or argument concerning
the scope of its protections” in order to “alert the trial court to the issue of a
possible difference between the rights afforded by the state constitution and
those provided by the federal charter.” Commonwealth v. Bishop, 217 A.3d
833, 840-41 (Pa. 2019) (cleaned up).1 In other words, Appellant had full
notice from the outset of the instant case that making a mere reference to the
Pennsylvania constitution, without giving any indication that he was
advocating that it provides distinct, independent grounds for suppression,
would preclude him from arguing on appeal that he should prevail under state
law even though his claim failed under the U.S. Constitution. See
Commonwealth v. Chamberlain,
30 A.3d 381, 405 (Pa. 2011) (finding state
constitution due process challenge waived because the defendant “did not
claim before the trial court that the Pennsylvania Constitution provided an
independent basis for relief”); Commonwealth v. Santiago,
980 A.2d 659,
666 (Pa.Super. 2009) (finding claim that state constitution offers greater
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1 Although our Supreme Court in Commonwealth v. Bishop,
217 A.3d 833
(Pa. 2019), established a more specific paradigm than had previously existed
for preserving “a claim that an analogue provision of the state constitution
operates differently than its federal counterpart[,]” it deemed its decision
immediately applicable, as it amounted merely to “a refinement of our
jurisprudence” such that “no aspect of its application should come as a
surprise to the counseled appellant.”
Id. at 841 n.8 (citing, inter alia,
Commonwealth v. Lagenella,
83 A.3d 94, 99 n.3 (Pa. 2013)).
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protection than the Fifth Amendment was waived because it was not raised in
the trial court).2
The Majority declines to enforce the above well-established waiver
principles because it deems the procedural posture of this case to be
“somewhat unique.” Majority Opinion at 15. The Majority distinguishes
Santiago on the basis that Appellant included a reference to Article I, § 8 in
his suppression motion, while there is no indication that the Santiago
defendant included the parallel state provision in his trial court filings. See
Majority Opinion at 16. The Majority finds Laney’s waiver holding inapplicable
here because the defendant in that case failed to develop his state law
argument in his appellate brief, while Appellant’s supplemental brief contains
analysis and supporting case law for his claim for broader state protection.
Id. at 16-17. Finally, as noted above, the Majority concludes that waiver is
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2 This principle has been reaffirmed by our Supreme Court several times
during the pendency of this appeal. Compare Commonwealth v.
Alexander, 243 A.3d 177, 193 n.8 (Pa. 2020) (declining to find waiver where
the defendant indicated in the trial court that his suppression motion was
“based on the United States Constitution, 4th, 5th and 14th Amendments and
the broader protections of Pennsylvania Constitution, Article One
Section Eight.” (emphasis in case cited)); with Commonwealth v. Bishop,
217 A.3d 833, 841 (Pa. 2019) (“[B]ecause Appellant did not distinguish
between the Fifth Amendment and Article I, Section 9 before the suppression
court, his claim favoring departure is waived.”), and Commonwealth v. Bell,
211 A.3d 761, 768–69 (Pa. 2019) (“Although appellant includes a brief and
cursory [Commonwealth v. Edmunds,
586 A.2d 887, 895 (Pa. 1991),]
analysis in his brief to this Court, it is the first time he has suggested that
Article I, Section 8 provides an independent basis for relief. As appellant failed
to preserve his Article I, Section 8 claim we decline to consider it.”).
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inappropriate here because his newly-raised arguments “were not conceivable
before Glover was decided.” Id. at 17.
I am unpersuaded by the Majority’s efforts to distinguish the precedent
that calls for a waiver finding here. Merely typing a citation to Article I, § 8
into his suppression motion, with no argument whatsoever that it called for a
different analysis of reasonable suspicion than did the Fourth Amendment, did
not alert the trial court to the claim that Appellant now proffers in this Court.
The fact that Appellant is not subject to a waiver finding under Pa.R.A.P. 2101
for failure to develop his argument in his appellate brief, as was the Laney
defendant, has no bearing on the fact that he waived the issue for failure to
raise it in the trial court under Pa.R.A.P. 302(a), as did the defendants in
Bishop and Bell.
Moreover, it was always foreseeable to Appellant that his claim that the
traffic stop violated the Fourth Amendment would fail, whether it was rejected
by the trial court, this Court, our Supreme Court, or the U.S. Supreme Court,
and whether the ruling was handed down in this case or in another. Indeed,
it could well have been Appellant who went to the nation’s highest court to
settle the question of whether possession of information about the registered
owner of a vehicle gave rise to reasonable suspicion to conduct an
investigative detention when the vehicle was observed by police. I think it is
beyond cavil that if federal law as to the propriety of such a stop had been
established in Pennsylvania v. Jefferson rather than Kansas v. Glover,
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Appellant would not have been permitted to argue for the first time after the
fact that he should nonetheless prevail under Article I, § 8. Conceptually,
there is no difference between that situation and the one before us.
Appellant did not need the Glover decision to fashion his state law
contentions, which he supports by analyzing Pennsylvania decisions that pre-
date both the filing of his suppression motion and Glover, most of them by
decades. See Appellant’s supplemental brief at 25-41. Appellant was fully
capable of offering from the outset the argument that he now presents to this
Court: that even if federal law allows an investigative detention based upon
the assumption that a car is being driven by its registered owner, Article I, § 8
“should provide an independent basis for relief” because such a ruling is
inconsistent with Pennsylvania’s “strong notion of safeguarding individual
privacy[.]” Id. at 23.
Rather, Appellant is using Glover as a means to reframe the issue and
make it look like a new one, in an effort to avoid the natural consequences of
having unwisely put all of his proverbial eggs in the Fourth Amendment
basket. Although Glover created a more critical motivation for Appellant to
argue his Article I, § 8 claim, the law was clear all along that to preserve an
independent claim pursuant to Pennsylvania constitution in the event that his
federal claim was unavailing, he had to argue a distinct Pennsylvania claim
from the start. Appellant’s supplemental brief in this Court shows he had the
legal ammunition to do so at the time he filed his suppression motion. Yet he
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failed to do so. Unlike my esteemed colleagues, I would not allow him to
present a brand new issue on appeal just because his Fourth Amendment
gamble failed more obviously and pointedly than those of most defendants
who have been precluded from advancing a new basis for relief only after their
primary issue did not succeed.
Stated plainly, Appellant waited until it was clear that he could not
prevail under federal law to present an argument that Pennsylvania law is
more favorable. By doing so, Appellant waived the claim. Therefore, I would
affirm Appellant’s judgment of sentence on the basis of the Majority’s Fourth
Amendment analysis without considering the merits of Appellant’s untimely,
alternative Article I, § 8 arguments.
Judges Shogan, Olson and Kunselman join the concurring opinion.
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