Com. v. Reed, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TERRANCE REED, JR. : No. 1607 EDA 2021
Appeal from the Order Entered July 15, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006748-2019
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 30, 2022
I respectfully dissent. To my mind, the Majority’s resolution of this case
inequitably holds that the Commonwealth is not permitted to raise new
suppression issues in the context of a motion for reconsideration, but criminal
defendants are so entitled. My review of this matter indicates that Appellee
did not advance any specific challenges to the validity of Commonwealth v.
Gary, 91 A.3d 102 (Pa. 2014), the lack of a warrant, or the absence of an
exigency in this case prior to our Supreme Court’s announcement of
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020).1 Rather, Appellee
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1 In Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014), our High Court
concluded that that law governing warrantless searches of vehicles under
Article I, § 8 of the Pennsylvania Constitution “is coextensive with federal law
under the Fourth Amendment.” Accordingly, the Court held that “[t]he
prerequisite for a warrantless search of motor vehicles is probable cause to
search; no exigency beyond the inherent mobility of a motor vehicle is
required.” Id. In Commonwealth v. Alexander, 243 A.3d 177, 207 (Pa.
(Footnote Continued Next Page)
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first raised these issues in a motion for reconsideration. Accordingly, I would
hold that Appellee was not entitled to benefit from Alexander retroactively.
Thus, I would reverse and remand.
This case stems from the trial court’s suppression of evidence. I will
briefly review the relevant facts. On July 11, 2019, Officer Albert Hunger of
the Darby Borough Police Department was patrolling a dead-end street in an
area known for drug activity and abandoned automobiles. He noticed Appellee
asleep in a running car parked at the end of this lane. Officer Hunger checked
the vehicle’s tags over his radio and learned it was registered to an individual
named Nadine Bogel. Officer Hunger then awakened Appellee by knocking on
the window of the car. In response, Appellee opened the door. Officer Hunger
detected the odor of marijuana emanating from the vehicle and observed signs
that Appellee was intoxicated. When questioned, Appellee admitted the car
in which he had been sleeping did not belong to him. Thereafter,
Officer Hunger searched the vehicle and recovered a quantity of marijuana
and a stolen, loaded handgun. The vehicle was towed. Appellee was arrested
and charged with several possessory offenses and public drunkenness.
Appellee filed a motion to suppress the evidence seized from the car,
wherein he asserted Officer Hunger’s search was “made without probable
cause.” Omnibus Motion to Suppress, 2/28/20, at ¶¶ 8-9 (citing U.S. CONST.,
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2020), the Supreme Court reversed course and held that Article I, § 8 of the
Pennsylvania Constitution provides greater protections than the Fourth
Amendment, such that warrantless automobile searches require the existence
of “both probable cause and exigent circumstances.”
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Fourth Amend., Fifth Amend., Fourteenth Amendment; PA. CONST., Art. I, § 8).
Beyond citation, however, Appellee offered no substantive discussion of these
various constitutional precepts. At the suppression hearing, the parties
focused their arguments on the issue of whether Officer Hunger had probable
cause to effectuate a search of the vehicle. Notably, Appellee did not contend
that the search was unconstitutional because of the lack of a warrant or the
absence of an exigency. Furthermore, Appellee did not raise any arguable
challenge to the federal automobile exception adopted in Gary. Ultimately,
the trial court denied Appellee’s motion. See Order, 11/30/20, at 1.
Three weeks later, on December 22, 2020, our Supreme Court overruled
the adoption of the federal automobile exception in Gary. See Alexander,
supra at 207-09. In response, Appellee filed a motion for reconsideration of
his suppression motion, raising claims concerning the lack of a warrant and
exigency in his case for the first time. See Motion to Reconsider, 1/5/21, at
¶ 3. The trial court held a second suppression hearing, wherein the
Commonwealth responded to Appellee’s new arguments by asserting that
Appellee did not have a reasonable expectation of privacy in the vehicle of
another individual. See N.T. Suppression Hearing II, 6/2/21, at 38. Appellee
argued that the Commonwealth had waived this claim by failing to raise it
earlier in the proceedings. Id. at 46. Ultimately, the trial court suppressed
the evidence seized from Ms. Bogel’s vehicle pursuant to Alexander. See
Trial Court Opinion, 12/22/21, at 2-5.
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The trial court did not issue an explicit finding that the Commonwealth
had waived its argument. On appeal, the Commonwealth continued to argue
that Appellee lacked a reasonable expectation of privacy. See
Commonwealth’s brief at 11-24 (citing Commonwealth v. Maldonado, 14
A.3d 907, 911-12 (Pa.Super. 2012) (holding defendant “failed to establish an
expectation of privacy in the vehicle he was driving, which he did not own,
that was not registered to him, and for which he has not shown authority to
operate”)). The Majority concludes these arguments are waived since the
Commonwealth did not challenge Appellee’s expectation of privacy prior to his
filing of a motion for reconsideration. See Majority Memorandum at 6.
The lynchpin of the Majority’s analysis is Commonwealth v. Skipper,
277 A.3d 617, 621-22 (Pa.Super. 2022). In Skipper, a police officer stopped
a truck for unsafe driving on a wet roadway. Skipper was a passenger in the
truck. The driver was arrested, but Skipper was released and began to walk
away from the scene. Thereafter, police conducted an inventory search of the
vehicle, which uncovered two hidden firearms and various sundries.
Thereafter, police pursued Skipper, detained him, and discovered “two
unidentified pills” on his person. Id. at 619-20. Skipper sought to suppress
the seized evidence, claiming “he had an expectation of privacy in the vehicle
and that the vehicle was searched without probable cause, consent, or a valid
search warrant.” Id. at 620. The Commonwealth did not respond to his
assertion regarding an expectation of privacy, focusing instead upon the
legality of the officers’ conduct. The trial court granted suppression.
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“In response to the trial court’s ruling, the Commonwealth filed a motion
to reconsider in which it raised, for the first time, a challenge to Skipper’s
expectation of privacy in the vehicle.” Id. at 621. The motion was denied.
On appeal, this Court concluded the Commonwealth had waived any argument
concerning Skipper’s expectation of privacy by waiting to raise those claims in
a motion for reconsideration filed “after the trial court had already granted
the suppression motion.” Id. at 621 (emphasis in original) (citing
Commonwealth v. Enimpah, 106 A.3d 695, 701-02 (Pa. 2014)). Instantly,
the Majority relies upon Skipper to conclude the Commonwealth has waived
its arguments as to Appellee’s lack of an expectation of privacy by not raising
them prior to Appellee’s filing of a motion for reconsideration. See Majority
Memorandum at 7-8. To my mind, this holding is untenable.
In the first place, Skipper does not constitute a fair procedural parallel
to the instant case. Here, the Commonwealth did not file a motion for
reconsideration asserting claims for relief after the trial court’s initial
suppression ruling. To the contrary, Appellee was the party responsible for
filing a motion for reconsideration raising novel issues for the first time, i.e.,
the purported lack of a warrant and exigent circumstances to support Officer
Hunger’s vehicle search. See Motion to Reconsider, 1/5/21, at ¶ 3. In
seemingly fair response to these brand-new assertions, the Commonwealth
merely raised supplemental arguments of its own in light of the trial court’s
decision to grant reconsideration. Yet, the Majority’s holding finds the
Commonwealth’s arguments to be waived while affirming a grant of relief to
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Appellee upon the basis of his own belated assertions. Thus, the gravamen
of the Majority’s analysis seems to be that the Commonwealth may not raise
new claims in the context of a motion for reconsideration, but criminal
defendants are fully entitled to do so.
Such a result does not smack of fair play. To the extent that the trial
court reopened the suppression proceedings in this matter and permitted
supplemental arguments, I believe that the Commonwealth should have been
equally entitled to advance concomitant claims in response to Appellee’s new
legal theories. This Court has remanded to permit such supplemental
suppression proceedings under appropriate circumstances in the past. See,
e.g., Commonwealth v. Rodriguez, 2022 WL 1665241 (Pa.Super. May 25,
2022) (non-precedential decision at 5-7) (remanding for consideration of
supplemental suppression issues filed after the Commonwealth amended the
defendant’s information to include possessory offenses for the first time).
To the extent that the Majority insists upon a strict interpretation of
Skipper, however, that holding also implicates well-established Pennsylvania
precedent precluding litigants from raising new claims for relief in a motion
for reconsideration. See Commonwealth v. Spotz, 18 A.3d 244, 320 (Pa.
2011) (holding that criminal defendant waived issue raised for the first time
in a motion for reconsideration filed after the trial court had issued its initial
ruling); Skipper, supra at 621-22 (same with respect to the
Commonwealth); see also Prince George Center, Inc. v. U.S. Gypsum
Co., 704 A.2d 141, 145 (Pa.Super. 1997) (holding issues raised for the first
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time in a motion for reconsideration were not preserved). Specifically, the
Majority seems to have overlooked the critical fact that Appellee raised the
issues relevant to Alexander for the first time in a motion for reconsideration
filed after the trial court’s initial suppression ruling. Accordingly, I would hold
that Appellee’s arguments under Alexander are waived.
While the Commonwealth has not challenged the trial court’s holding
that Appellee is entitled to benefit from Alexander retroactively, this Court
conducts a de novo review of the suppression court’s legal conclusions. See
Commonwealth v. McMahon, ___ A.3d ___, 2002 WL 3148807, at *1
(Pa.Super. 2022). Furthermore, this Court has also considered the application
of Alexander sua sponte. See, e.g., Commonwealth v. Grooms, 247 A.3d
31, 37 n.8-n.9 (Pa.Super. 2021) (addressing the application of Alexander
despite no arguments from either party concerning it in the trial or appellate
court). Accordingly, it is proper to consider the soundness of the trial court’s
conclusions regarding Alexander in reviewing this appeal.
Our Court has consistently limited the application of Alexander to cases
where defendants raised relevant issues prior to the announcement of this
new paradigm in criminal law. As our Supreme Court has explained, “where
an appellate decision overrules prior law and announces a new principle,
unless the decision specifically declares the ruling to be prospective only, the
new rule is to be applied retroactively to cases where the issue in question is
properly preserved at all stages of adjudication up to and including any
direct appeal.” Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)
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(emphasis added); see also Commonwealth v. Newman, 99 A.3d 86, 90
(Pa.Super. 2014) (en banc) (“To be entitled to retroactive application of a new
constitutional rule, a defendant must have raised and preserved the issue in
the court below.”). In conformity with this principle, defendants are “not
automatically entitled to retroactive application of the Alexander decision[.]”
Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa.Super. 2021) (en
banc). Rather, defendants must have raised some claim relevant to
Alexander prior to the announcement of the precedent in order to benefit
from the holding. Otherwise, waiver results. See Grooms, supra at 37 n.8
(“[The defendant] here did not challenge the Gary automobile exception.
Thus, . . . [the defendant] cannot rely on Alexander to challenge the
warrantless search of his vehicle.”). Additionally, mere references to the
warrant and exigency requirements are insufficient to preserve the matter so
as to permit retroactive application of Alexander. See Commonwealth v.
Moore, 263 A.3d 1193, 1199-1201 (Pa.Super. 2021).
In Heidelberg and Moore, this Court declined to apply Alexander
where no claim concerning the automobile exception in Gary was raised by
the defendants prior to appeal. In Grooms, this Court considered the issue
sua sponte on appeal in the absence of explicit arguments from the parties.
My review of our case law, however, has not uncovered any precedent directly
addressing the question of whether a defendant can preserve a claim under
Alexander by filing a motion for reconsideration in the trial court after a
suppression ruling has already been rendered. Under these circumstances, I
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would conclude Appellee did not preserve any arguable claim that would
permit retroactive application of Alexander. As detailed above, the certified
record reveals Appellee did not raise any claim concerning the lack of a
warrant, the absence of an exigency, or the application Gary until after the
trial court had rendered its initial suppression ruling and our Supreme Court
had issued its holding in Alexander. Furthermore, Appellee made no effort
to distinguish between the protections afforded by the Fourth Amendment to
the United States Constitution and Article I, § 8 of the Pennsylvania
Constitution. Thus, I would hold that Appellee was not entitled to benefit from
Alexander retroactively. See Moore, supra at 1199-1201
Nothing precluded Appellee from challenging the validity of the search
in his case on the same grounds as the litigant in Alexander. It is always
within the ken of criminal defendants to argue to distinguish or overrule the
existing precedent in this Commonwealth. Had Appellee advanced such an
argument in this matter at a timely juncture, he might have been responsible
for the change in Pennsylvania law that was announced in Alexander.
However, Appellee did not advance any relevant claim until his motion for
reconsideration, which was not filed until after the trial court had issued its
initial suppression ruling and the Supreme Court had issued its holding in
Alexander. This ex post facto effort was insufficient to preserve any
suppression issue under Alexander for adjudication. In my opinion, the trial
court should have deemed this issue to be waived.
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Based on the foregoing discussion, I would reverse the suppression
order and remand for further proceedings. I respectfully dissent.
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