Com. v. Ford, J.

• Court: Superior Court of Pennsylvania
• Decided: October 13, 2021
• Docket: 569 MDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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.

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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)).

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