Com. v. Smith, A.

J-S26009-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ADANTE L. SMITH :
:
Appellant : No. 1505 MDA 2021
Appeal from the Judgment of Sentence Entered October 19, 2021,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0005147-2019.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 19, 2022
Adante L. Smith appeals from the judgment of sentence of life in prison
without parole, after a jury convicted him of murder of the first degree,
robbery, and conspiracy to commit robbery.1 We affirm.
On the evening of August 30, 2019, Smith and two other men met Kyler
Wiawada on the streets of Harrisburg to purchase cannabis. The deal went
awry. Smith shot Wiawada “multiple times at close range.” N.T., 10/11/12,
at 22. Wiawada died.
Ten days later, law enforcement arrested Smith. A detective told Smith,
“you have the right to remain silent, anything that you say can or may be
used against you . . . You have the right to an attorney. If you can’t afford
one, one will be appointed to you by Dauphin County.” N.T., 10/11/12, at 18.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2502(a), 903, and 3701(a)(1)(l).
J-S26009-22
The detective then interrogated Smith. After about 90 minutes, Smith
confessed to being at the scene of the murder and that “his gun accidentally
went off during a struggle.” Id. at 22. The Commonwealth charged Smith
with homicide, stealing the murder weapon from a previous victim, and other
offenses not at issue here.
The COVID-19 pandemic struck, and two years passed. On October 4,
2021, Smith filed a motion in limine to suppress his confession. He contended
that he “was not fully advised of his Miranda [v. Arizona, 384 U.S. 436(1966),] rights. Specifically, he was never advised that he could stop
answering questions at any time and ask for a lawyer.” Smith’s Motion in
Limine at 3.
After a suppression hearing, defense counsel argued as follows:
we have a young man who was taken into custody for a very
serious crime, and he avers that the totality of the
circumstances was that . . . his confession was involuntary,
because of the pressure of the interrogation and the fact
that he voiced his concerns about being pressured and the
interview continued on. And the defense feels that, at that
time, it may have been appropriate or should have been
appropriate for the investigators to advise him that he could
have asked for an attorney. That’s the bottom line.
N.T., 10/11/21, at 28.
Smith made no other arguments. The court denied Smith’s motion in
limine to suppress, because the detective gave warnings that complied with
Miranda, supra. See Trial Court Opinion, 2/28/22, at 4.
-2-
J-S26009-22
The matter proceeded to trial. A jury convicted and the court sentenced
Smith as described above. This timely appeal followed.
Smith raises the following two appellate issues:
1. Did the trial court’s denial of . . . Smith’s motion in
limine to exclude self-incriminating statements . . .
violate his rights under the 5th Amendment of the
United States Constitution and Constitution of the
Commonwealth of Pennsylvania as expressed in
Miranda . . . and its federal and state-court progeny?
2. Are the protections against unknowing self-
incrimination afforded by the Miranda warnings as
currently practiced per Pennsylvania caselaw
incomplete and inadequate, because they do not
require police investigators/interrogators to advise
that a person has the right to stop answering
questions during an interrogation and ask for a
lawyer?
Smith’s Brief at 1-2.
First, Smith asks whether denying his motion in limine violated his rights
under Fifth Amendment to the federal constitution and the Constitution of the
Commonwealth of Pennsylvania.2 However, Smith does not argue this issue.
Instead, he concedes that the detective correctly gave the warnings that
the Supreme Court of the United States required in Miranda, supra. “This is
a case where the [suppression] court correctly applied [existent] law . . . The
____________________________________________
2 There is no Fifth Amendment to the Constitution of the Commonwealth of
Pennsylvania. Smith cites no provision under our state charter to support his
arguments. Although Smith mentions the Constitution of the Commonwealth
of Pennsylvania in his brief, he did not claim heightened protections under
that charter before the suppression court, nor does he make such an assertion
on appeal. Thus, we confine our review to the federal constitution.
-3-
J-S26009-22
detective correctly provided rights warnings consistent with Miranda . . . .”
Smith’s Brief at 6.
In short, Smith admits his first claim of error is meritless. We agree.
Turning to the second appellate issue, Smith claims the Supreme Court
of the United States did not go far enough in Miranda. In his view, the Fifth
Amendment3 requires police to provide more warnings than Miranda
demands. Smith believes, to apprise citizens of their Fifth Amendment rights
fully, police must also tell people they have “the right to stop answering
questions at any point in the interrogation and refuse to make any further
statements to the interrogators.” Id.
Currently, law enforcement must warn a person “that he has a right
to remain silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an attorney, either
retained or appointed.” Miranda, 384 U.S. at 444. By attempting to expand
that list of warnings, Smith seeks to forge new Fifth Amendment
jurisprudence.
Before we may reach the merits of this claim, we must determine if the
constitutional question is properly before this Court. Whether a party has
preserved an issue for appellate review “presents a question of law, and, as
such, our standard of review is de novo, and our scope of review is plenary.”
____________________________________________
3The Fifth Amendment dictates, in relevant part, that a person shall not “be
compelled in any criminal case to be a witness against himself . . . .”
-4-
J-S26009-22
Trigg v. Children's Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa.
2020).
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Even issues “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.”
Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884 (2019), appeal
denied, 221 A.3d 644, (Pa. 2019) (some punctuation omitted).
Below, Smith contended the detective violated Miranda. He asserted
he “was not fully advised of his Miranda rights. Specifically, he was never
advised that he could stop answering questions at any time and ask for a
lawyer.” Smith’s Motion in Limine at 3. That statement is factually and legally
erroneous. As Smith now acknowledges, the detective fully complied with
Miranda; that case did not require the detective to tell Smith “that he could
stop answering questions at any time and ask for a lawyer.” Smith’s Motion
in Limine at 3.
In the suppression court, Smith did not admit the detective complied
with Miranda and then argue that the Miranda warnings themselves were
insufficient to safeguard his Fifth Amendment rights. At best, his attorney
said, “the defense feels that . . . it may have been appropriate or should have
been appropriate for the investigators to advise him that he could have asked
for an attorney.” N.T., 10/11/21, at 28.
-5-
J-S26009-22
Rather than making a specific, constitutional argument for expanding
the Miranda warnings, Smith merely suggested what he felt the detective
should have done. He gave no further explanation. Smith presented no
argument to the suppression court as to why the Miranda warnings should
be reconsidered and expanded to enhance Fifth Amendment protections. Most
importantly, he did not contend the warnings, “as currently practiced, [are]
incomplete and inadequate . . . .” Smith’s Brief at 1.
Hence, he raises a novel constitutional theory for the first time on appeal
in violation of Pa.R.A.P. 302(a). We dismiss it as waived.4 See Trigg, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2022
____________________________________________
4 Even if Smith had argued below that Miranda v. Arizonia, 384 U.S. 436(1966), inadequately protects his Fifth Amendment rights, neither the
suppression court nor this Court could have granted him relief. Miranda is a
federal constitutional case. “In a constitutional case, only [the Supreme Court
of the United States] can correct [its] error.” Kisor v. Wilkie, ___ U.S. ___,
___, 139 S. Ct. 2400, 2422 (2019). Thus, we may not decide whether the
Miranda warnings are “incomplete and inadequate,” as Smith claims. Smith’s
Brief at 1. That is a question reserved exclusively for the High Court.
-6-