ARGUED: May 16, 2019
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,
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
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,
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
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
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
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
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.
in later segments of his argument, counsel made some broader
statements relative to the physical evidence. For example, he
[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.
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.
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
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
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
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)).
submitted a petition for allowance of appeal to this Court,
in which he framed the question presented in the following
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).
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. 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.
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."
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.
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
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.
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. Accordingly, Appellant's
contention that waiver considerations outside the four
corners of an order allowing a discretionary appeal may not
be considered is meritless.
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). 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.
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
[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.
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).
former instance, i.e., when there is controlling
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
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 ...