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Commonwealth v. Bishop

Supreme Court of Pennsylvania

September 26, 2019

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
SCOTT BISHOP, Appellant

          ARGUED: May 16, 2019

          Appeal from the Judgment of Superior Court entered on 6/18/18 at No. 1193 EDA 2016 affirming the judgment of sentence entered on 4/15/16 in the Court of Common Pleas, Criminal Division, Philadelphia County at No. CP-51-CR-0003894-2015

          SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

          OPINION

          SAYLOR CHIEF JUSTICE.

         Appellant argues that this Court should interpret the provision of the Pennsylvania Constitution conferring upon individuals a right against self-incrimination to provide greater protection than the Fifth Amendment to the United States Constitution, as interpreted by the Supreme Court of the United States. The Commonwealth counters that this claim has not been properly preserved.

         As a preliminary matter, under the Fifth Amendment to the United States Constitution, as construed in United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620 (2004) (plurality), a statement made by a criminal defendant during a custodial interrogation who has not been apprised of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), generally must be suppressed. See Patane, 542 U.S. at 641-42, 124 S.Ct. at 2629 (citing Chavez v. Martinez, 538 U.S. 760, 790, 123 S.Ct. 1994, 2013 (2003) (Kennedy, J., concurring in part and dissenting in part, joined by Stevens, J.)). However, the violation does not justify the exclusion of physical evidence recovered as a result of the statement. See id. at 634, 124 S.Ct. at 2624; id. at 644-45, 124 S.Ct. at 2630-31 (Kennedy, J., concurring, joined by O'Connor, J.).

         The Pennsylvania Constitution's analogue to the Fifth Amendment is contained in Article I, Section 9 of the state charter. See Pa. Const. art. I, §9. To date, Article I, Section 9 has not been interpreted by this Court to provide any greater protection than does the Fifth Amendment in the relevant regard. Cf. Commonwealth v. Cooley, 632 Pa. 119, 129 n.8, 118 A.3d 370, 375 n.8 (2015) ("We have held that Article I, §9 of the Pennsylvania Constitution affords no greater protections against self-incrimination than the Fifth Amendment to the United States Constitution." (citing Commonwealth v. Knoble, 615 Pa. 285, 290 n.2, 42 A.3d 976, 979 n.2 (2012))).[1]

         Appellant was a parolee. During a home visit in March 2015, a parole agent performed a drug test, which indicated that methamphetamine was present in Appellant's urine. Appellant was handcuffed and asked whether the agent would find anything in the residence that would violate parole conditions. Appellant then admitted that he had a firearm in a hallway closet. The agent proceeded to the closet, where he found a revolver, marijuana, electronic scales, and packaging materials.

         Subsequently, another parole agent asked Appellant where his car was located, and Appellant indicated that the vehicle was in front of the residence. Inside the vehicle's console, the agent found bullets and prescription bottles. Throughout the encounter, neither agent apprised Appellant of his constitutional rights as is generally required by Miranda when a defendant is interrogated while in custody.

         Appellant was charged with multiple criminal offenses, and he filed a suppression motion. In relevant part, the motion indicated, in broad terms, that both the statements and physical evidence had been obtained in violation of Appellant's "U.S. Constitutional rights or independently protected rights secured by the Pennsylvania Constitution[.]" Omnibus Motion dated June 9, 2015, in Commonwealth v. Bishop, CP-51-CR-0003894-2015 (C.P. Phila.), at 1. The motion also alleged that "the questioning of the defendant was not preceded by adequate warnings as to the right to counsel, the right to remain silent and be free from self-incrimination." Id.

         In the ensuing hearings, Appellant's counsel initially argued that all physical evidence should be suppressed under "Amendments 4 and 14 of the U.S. Constitution, as well as Article I, Section 8 of the Pennsylvania Constitution" and that his statements should be suppressed "under Amendments 5 and 6 and 14 of the Federal Constitution and Article I, Section 9 of the Pennsylvania Constitution." N.T., Nov. 19, 2015, at 3-4. Notably, he did not initially seek suppression of the physical evidence under Article I, Section 9.

         Nevertheless, in later segments of his argument, counsel made some broader statements relative to the physical evidence. For example, he argued:

[T]he search of the house, Your Honor, I'd ask you suppress any fruits of that. Granted there is a [sic] testimony of record that my client is subject to conditions that make him searchable upon a finding of reasonable suspicion or even suspicion of a parole violation. The officer testified to the drug test violation. I would still just ask the Court to consider, despite the current state of the law that maybe the statute allowing that, it should be unconstitutional under both federal and state laws.

N.T., Nov. 19, 2015, at 26-27. In another passage from his argument, counsel alluded to Patane while addressing the search of Appellant's vehicle:

I know the case law probably doesn't support me on this but in the event that something changes, they did ultimately find out that this was Mr. Bishop's car after interrogating him and eliciting statements that I believe should be suppressed. I know that under cases in the U.S. Supreme Court and in our courts, we don't apply the exclusion of physical evidence to potential Miranda violations[, ] but I would nonetheless make the argument that they only found out this was Mr. Bishop's car after, A, unlawfully interrogating him or, B, a plate search after everything's already been found.

N.T., Nov. 23, 2015, at 16.

         Significantly, at no time during the argument did counsel suggest that the protections provided by the state and federal constitutions differed in any way. The suppression court did not require briefs, but rather, tendered its findings and rulings on the record at the hearings.

         The court held that Appellant should have received Miranda warnings and that his statement relating to the firearm was subject to exclusion. See N.T., Nov. 19, 2015, at 37-40. It determined however, that the parole agent's inquiry about the location of Appellant's vehicle did not rise to the level of interrogation, and therefore, suppression was not required. See N.T., Nov. 23, 2015, at 20-21. Regarding the physical evidence obtained from the residence, the court concluded that the inevitable discovery exception to the warrant requirement pertained, and accordingly, there was no constitutional violation.

         Appellant was convicted of the charged offenses, and he lodged an appeal in the Superior Court. As in the trial court, Appellant made no attempt to distinguish between the federal and state charters in the proceedings before the intermediate court.

         The Superior Court affirmed in a non-precedential opinion, reasoning, in relevant part, that physical evidence is not subject to suppression under Patane. Additionally, the court quoted its own prior decision as follows:

Currently, there is no precedent in this Commonwealth indicating that the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination in the context of physical evidence obtained as a result of or during the course of an unwarned statement. We find Patane instructive here. Accordingly, until our Supreme Court has the occasion to conduct an independent analysis, we are persuaded by the reasoning in Patane.

Commonwealth v. Bishop, No. 1193 EDA 2016, slip op. at 9 (quoting Commonwealth v. Abbas, 862 A.2d 606, 609-10 (Pa. Super. 2004) (footnotes omitted)).

         Appellant submitted a petition for allowance of appeal to this Court, in which he framed the question presented in the following fashion:

Should not this Court conduct an independent analysis of whether the Pennsylvania Constitution extends greater protection than its federal counterpart with respect to the Fifth Amendment right against self-incrimination in the context of physical evidence recovered as a result of or during the course of an unwarned statement?

Commonwealth v. Bishop, ___ Pa. ___, 196 A.3d 129 (2018) (per curiam).

         The Commonwealth contends that the Court should not conduct an independent analysis, because Appellant never asked the common pleas court or the Superior Court to do so in the first instance.[2] In this regard, the Commonwealth stresses that, prior to the filing of his brief in this Court, Appellant did nothing to distinguish between the federal and state constitutions. In such instances, the Commonwealth observes, this Court treats parallel federal and state constitutional provisions as coterminous. See, e.g., Commonwealth v. Lagenella, 623 Pa. 434, 441 n.3, 83 A.3d 94, 99 n.3 (Pa. 2013). The Commonwealth urges that the intermediate and common pleas courts should be permitted to do the same for good reason.

         Appellant, on the other hand, criticizes the Commonwealth for failing to submit an answer to his petition for allowance of appeal advancing waiver. He explains that, before the Supreme Court of the United States, when a party fails to raise a waiver claim in a response to a petition for a writ of certiorari, the Court proceeds to decide the merits of the question presented. See Reply Brief for Appellant at 7 n.7; cf. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 2432 (1985) ("Nonjurisdictional defects [such as waiver] should be brought to our attention no later than in respondent's brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived." (emphasis adjusted)).

         This Court has announced no similar rule, however. And certainly we would not apply such a precept to the detriment of a litigant who has had no previous notice of it, particularly since the filing of a brief in opposition to a petition for allowance of appeal is optional. See Pa.R.A.P. 1116(a).[3]

         Next, Appellant observes that this Court has declined, in various instances, to entertain arguments that were not encompassed in the grant of allocatur. See Reply Brief for Appellant at 7 n.7 (citing Commonwealth v. Shabezz, 641 Pa. 92, 104, 166 A.3d 278, 284 (2017), Pocono Mountain Sch. Dist. v. Pa. Dep't of Educ., 637 Pa. 507, 517 n.8, 151 A.3d 129, 135 n.8 (2016) (Opinion Announcing the Judgment of the Court), and Commonwealth v. Revere, 585 Pa. 262, 271 n.8, 888 A.2d 694, 700 n.8 (2005)).

         Shabezz, however, merely offers a recitation of the range of substantive matters that were in and outside the scope of the allocatur grant in that particular case. See Shabezz, 641 Pa. at 104, 166 A.3d at 284 ("It is critical first to underscore what is not at issue in this case."). The Opinion Announcing the Judgment of the Court in Pocono Mountain Sch. Dist. is non-precedential and, in any event, does not present any exposition of law concerning whether, and in what circumstances, the Court will consider matters raised by an appellee outside the four corners of an allocatur grant. See Pocono Mountain Sch. Dist. 637 Pa. at 517 n.8, 151 A.3d at 135 n.8 (stating, without further explanation, that "[w]e do not address this argument [by an appellee], as it is beyond the scope of our allocatur grant"). And it is beyond question that this Court can -- and does on occasion -- review matters that are outside the scope of an order granting a discretionary appeal. For example, in Commonwealth v. Metz, 534 Pa. 341, 633 A.2d 125 (1993), the Court explained:

We granted allocatur in this case to address the issue of whether the police had adequate reason to stop Appellant's vehicle based upon his avoidance of a systematic roadblock. However, because we find that Appellant waived this issue, we do not reach it.

Id. at 343, 633 A.2d at 126.

         In this regard, this Court, in its discretion, may sustain a valid judgment for any reason appearing of as of record. See, e.g., Ario v. Ingram Micro, Inc., 600 Pa. 305, 315-16, 965 A.2d 1194, 1200 (2009); Heim v. Med. Care Availability & Reduction of Error Fund, 611 Pa. 1, 10, 23 A.3d 506, 511 (2011) (explaining that an appellee does not bear the burden of issue preservation). This right-for-any-reason principle aligns with the recognition that it is the petitioner/appellant who has the greatest control over the framing of the issues presented in appeals, including discretionary ones. It is only fair, then, that an appellee should be permitted to present the Court with other reasons why a judgment should be sustained after the matter is accepted for review. See supra note 3. And certainly such reasons may include waiver concerns. See, e.g., Metz, 534 Pa. at 343, 633 A.2d at 126.[4] Accordingly, Appellant's contention that waiver considerations outside the four corners of an order allowing a discretionary appeal may not be considered is meritless.

         Appellant additionally argues that his "state constitutional claim was broadly preserved below." Reply Brief for Appellant at 2. Appellant asserts, incorrectly, that his counsel alluded to Article I, Section 9 as a basis for suppression of physical evidence in the opening passages of his arguments during the suppression hearings. See id. (citing N.T., Nov. 19, 2015, at 3-4).[5] Appellant also relies on counsel's entreaty that the search of his residence, "despite the current state of the law . . . should be unconstitutional under both federal and state laws." Id. at 26-27.

         Proper issue preservation facilitates an orderly system of justice. See, e.g., Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Markets, Inc., 617 Pa. 265, 286, 52 A.3d 1233, 1246 (2012) ("[W]e have a strong interest in the preservation of consistency and predictability in the operation of our appellate process, and issue preservation rules play an important role in that process." (citation omitted)). It enables the courts of original jurisdiction, in particular, to correct mistakes and affords opposing parties a fair opportunity to respond. See Schmidt v. Boardman Co., 608 Pa. 327, 357, 11 A.3d 924, 942 (2011) (Majority Opinion, in the relevant respects) (enforcing issue preservation, even where the effort is necessarily futile in a court of original jurisdiction bound by a contrary ruling of an appellate court). In Schmidt, the Court explained:

[T]here are . . . very good reasons supporting a requirement that potential challenges be identified early in litigation, not the least of which are to channel the appellate review and afford fair notice to opposing parties of what may be to come at later stages. Indeed, knowledge of the matters which will be available to be raised on appeal may affect decisions which shape litigation, including tactical and settlement choices. For example, in a case in which the plaintiff has the option of proceeding against the defendant on strict liability and/or negligence theories, the plaintiff may choose to proceed in negligence if she knows whether or not the foundation of the strict-liability case may be susceptible to disruption on appeal.

Id. at 355-56, 11 A.3d at 941.[6]

         In terms of efforts by criminal defendants to raise claims for departure from federal constitutional jurisprudence on independent state grounds, the Commonwealth is correct that the precedent of this Court requires that some analysis explaining the grounds for departure is required. In this regard, our position comports with the approach of the New Mexico Supreme Court, which distinguishes between instances in which established state court precedent construes a provision of the state constitution to provide more protection than its federal counterpart and scenarios in which there is no such precedent. See State v. Gomez, 932 P.2d 1, 8-9 (N.M. 1997).

         In the former instance, i.e., when there is controlling precedent:

the claim may be preserved by (1) asserting the constitutional principle that provides the protection sought under the [state] Constitution, and (2) showing the factual basis needed for the trial court to rule on the issue.

Id. at 8. Where there is no precedent supporting departure,

a party also must assert in the trial court that the state constitutional provision at issue should be interpreted more expansively than the federal counterpart and provide reasons for interpreting the state provision differently from the federal provision. This will enable the trial court to ...

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