Com. v. Ford, J. ( 2021 )

J-S44017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSHUA EUGENE FORD : No. 569 MDA 2020
Appeal from the Suppression Order Entered March 10, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002698-2019
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
DISSENTING MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 13, 2021
I agree with the Majority in concluding that the trial court erred in
granting Appellee’s motion to suppress. However, because I disagree with
the Majority’s decision to remand the matter for reconsideration solely based
on Commonwealth v. Alexander, 243 A.3d 177, 181 (Pa. 2020), I
respectfully dissent.
It is well settled that when a new rule of law is announced that
[the] rule applies to all criminal cases still pending on direct
review. Case law is clear, however, that in order for a new rule of
law to apply retroactively to a case pending on direct appeal, the
issue had to be preserved at all stages of adjudication up to and
including the direct appeal.
Commonwealth v. Grooms, 247 A.3d 31, 37 n.8 (Pa. Super. 2021) (citing,
inter alia, Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) and
Commonwealth v. Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc))
(some formatting altered).
J-S44017-20
Grooms, like the instant case, was pending direct review with this Court
when our Supreme Court decided Alexander. In Grooms, the appellant
challenged the trial court’s denial of his motion to suppress evidence obtained
from a warrantless vehicle search. Id. at 36. Ultimately, this Court issued a
decision acknowledging the new rule announced by our Supreme Court in
Alexander, but concluding that the appellant did not preserve an exigency
issue, as he “simply dispute[d] the existence of probable cause itself.” Id. at
37. The Grooms Court acknowledged that “[b]ecause [the a]ppellant did not
contest the application of the automobile exception announced in Gary, which
now has been overruled by Alexander, he logically had no occasion to
address whether exigent circumstances existed to justify the officers’
judgment that obtaining a warrant was not reasonably practicable.” Id. at 37
n.9. Nonetheless, the Court concluded that, because the appellant did not
specifically challenge the exigency requirement before the trial court or in his
Rule 1925(b) statement, the issue had not been preserved for review. Id.
Here, as in Grooms, Appellee did not raise an exigency claim before the
trial court. Nonetheless, the Majority reasons that “[t]he fact that Appellee
did not specifically challenge the exigency requirement is of no moment, since
at the time he filed his suppression motion, there was no exigency
requirement under Gary.” See Majority Op. at 10. The Majority then
concludes that “Appellee properly asserted ‘the search of the vehicle was
illegal,’ and argued ‘there was no probable cause . . . to search the trunk of
-2-
J-S44017-20
the vehicle.’ Indeed, Appellee noted that under Gary, probable cause was all
that was required.” Id. (citation omitted).
However, as our case law makes clear, a defendant is not entitled to the
benefit of a new rule of law unless he properly preserves the issue before the
trial court. See Tilley, 780 A.2d at 652; Newman, 99 A.3d at 90; Grooms,
247 A.3d at 37 n.9. Here, unlike the defendant in Alexander, Appellee did
not challenge the officer’s failure to obtain a search warrant.1 See Alexander
243 A.3d at 193 n.8. Instead, as in Grooms, Appellee challenged only the
existence of probable cause. Under these circumstances, I would conclude
that, because Appellee did not challenge the exigency requirement, or even
the officer’s failure to obtain a warrant for the search generally, he is not
entitled to relief based on the new rule announced in Alexander. See
Grooms, 247 A.3d at 37 n.8.
Moreover, because the present record is sufficient for this Court to rule
on Appellee’s preserved suppression claims (i.e. whether police had probable
cause to conduct the search), I see no purpose in remanding the matter for
the trial court to re-open the record and conduct further suppression
proceedings. Cf. Commonwealth v. Barr, 240 A.3d 1263, 1288 (Pa. Super.
2020) (remanding a case for further development because the suppression
____________________________________________
1 With respect to issue preservation, the Alexander Court noted that although
the defendant did not explicitly claim that Gary should be overruled, he
preserved the exigency issue by referencing the officer’s failure to obtain a
search warrant in his suppression motion and reiterating at the suppression
hearing that the police “could have gotten a search warrant[]” for the vehicle.
See id. at 193 n.8.
-3-
J-S44017-20
record was “inadequate to conclude whether police possessed probable cause
to search [the a]ppellee’s vehicle”). Therefore, because it is unnecessary to
reopen the record to resolve the claims preserved in this appeal,2 I would
decline to remand the matter for reconsideration solely based on Alexander.
For these reasons, I respectfully dissent.
____________________________________________
2 This Court’s case law emphasizes that it not necessary to reopen the
suppression record in all cases. Compare Grooms, 247 A.3d at 37
(remanding for the suppression court to “determine on the existing record
. . . whether the police officers relied on, or were influenced by, any additional
factors beyond the smell of marijuana” based on the factors discussed in Barr
(emphasis added)) with Commonwealth v. Shaw, 246 A.3d 879, 887 (Pa.
Super. 2021) (stating that further development of the record was necessary
because, like in Barr, the suppression court “failed to provide us with discrete
credibility assessments relevant to the other potential factors affecting
probable cause” and concluding that, because the suppression ruling was
inconsistent with both Alexander and Barr, the court should apply both
decisions on remand (formatting altered)).
-4-