[J-64-2025] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 50 EAP 2024 : Appellee : Appeal from the Order of the Superior : Court entered on September 7, 2023, : at No. 538 EDA 2022, affirming the v. : Order of the Court of Common Pleas : of Philadelphia County, Criminal : Division, entered on January 27, 2022, PHILLIP SHIVERS, : at No. CP-51-CR-0005546-2019. : Appellant : ARGUED: September 10, 2025 : :
OPINION
JUSTICE DOUGHERTY DECIDED: July 21, 2026 In the seminal decision in Terry v. Ohio, 392 U.S. 1 (1968), the United States
Supreme Court held the police may, consistent with the Fourth Amendment to the United
States Constitution,1 subject a person to an investigative detention, what is often referred
to as a “Terry stop” or simply a “stop,” if they have reasonable suspicion “criminal activity
may be afoot[.]” Id. at 30. In Illinois v. Wardlow, 528 U.S. 119 (2000), the Supreme Court
held an individual’s “unprovoked flight” from the police in a “high[-]crime area” established
reasonable suspicion for a stop. Id. at 124-25. Presently, appellant Phillip Shivers argues
this Court should reject Wardlow under Article I, Section 8 of the Pennsylvania
1 U.S. CONST. amend. IV (“The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).
[J-64-2025] - 1 Constitution,2 the Pennsylvania counterpart to the Fourth Amendment, and hold that flight
in a high-crime area by itself does not provide the requisite reasonable suspicion for a
stop under Article I, Section 8. This is what is known as a “departure claim” — a claim
that the meaning of a provision of the Pennsylvania Constitution departs from its
equivalent in the United States Constitution, and that the state provision offers greater
protections than its federal analog. See Commonwealth v. Bishop, 217 A.3d 833, 842
(Pa. 2019). In Bishop, this Court adopted a framework for preserving departure claims in
the trial court on pain of waiver. Shivers did not comply with Bishop. Accordingly, his
departure claim is waived, and for this reason we affirm the order of the Superior Court.
In July of 2019, Officer Michael Sidebotham was a police officer in the 35th Police
District in Philadelphia. He had been working as a police officer in the district for eleven
years and was the gang intelligence officer for the district. On July 18, 2019, Officer
Sidebotham, together with Officers Ryan Del Ricci and Patrick Lutz, drove in an unmarked
police car to a gas station located at 5945 North Front Street. The gas station was a
hangout and base of operations for the Ozone Gang, a gang known for gun violence and
drug activity which was feuding with two other gangs in the area. When the police arrived
at the gas station, Shivers was sitting in front of the door to the gas station. He was
seated to the right of four or five other men, two of whom were known members of the
Ozone Gang. The officers, who were in uniform, exited their car and walked towards
Shivers. At that point, Shivers turned and ran through a parking lot and then southbound
on Front Street. As he ran, Shivers had his hands in front of him as if he were holding his
2 PA. CONST. art. I, §8 (“The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.”).
[J-64-2025] - 2 pants up or holding a gun. Officers Sidebotham and Lutz chased him. Officer Lutz tackled
Shivers, and Officer Sidebotham seized a loaded gun from his front pants pocket.
The Commonwealth charged Shivers with possession of a firearm by a prohibited
person, carrying a firearm without a license, carrying a firearm in public in Philadelphia,
resisting arrest, and providing false identification to law enforcement.3 Following a
preliminary hearing, the case was held for court. Shivers filed an omnibus pretrial motion.
The motion was a form with blanks which can be checked to specify the nature of the
claims being raised. Shivers checked blanks indicating he was seeking the suppression
of physical evidence. In addition, he checked blanks claiming his arrest was illegal; he
was arrested without probable cause; he was subjected to a stop and frisk on less than
reasonable suspicion; he was arrested without a lawfully issued warrant or other legal
justification; the search was without a warrant; and the search was conducted without
probable cause. The section of the form motion pertaining to the suppression of evidence
included preprinted language providing that “[t]he evidence was obtained in violation of
the defendant’s U.S. Constitutional rights or independently protected rights secured by
the Pennsylvania Constitution or Pennsylvania Rules of Criminal Procedure[.]” Omnibus
Motion, 9/19/19, at 1 (unpaginated).
In addition to his suppression motion, Shivers also filed a motion to compel. This
motion anticipated the Commonwealth would present evidence he was present in a high-
crime area at the suppression hearing. Accordingly, the motion requested objective and
verifiable evidence that the area in question was in fact a high-crime area. Alternatively,
Shivers contended that if the Commonwealth was “unable or unwilling” to produce such
evidence, “the court should preclude the introduction of the testimony” of high-crime area.
Motion to Compel Evidence Relating to “High Crime Area,” or, in the Alternative, Preclude
3 See 18 Pa.C.S. §§6105, 6106, 6108, 5104, and 4914, respectively.
[J-64-2025] - 3 Testimony of High Crime Area (Motion to Compel), 12/4/19, at ¶3. Shivers’s motion to
compel noted:
Prior to the United States Supreme Court’s decision in Illinois v. Wardlow, 528 U.S. 119 (2000), Pennsylvania Courts had specifically held that flight in a high[-]crime area alone was not a sufficient basis for reasonable suspicion. See, e.g., In the Interest of D.M., 743 A.2d 422 (Pa. [1999]) (remanded post-Wardlow and reversed, In the Interest of D.M., 781 A.2d 1161 ([Pa.] 2001)). Since that time, “high[-]crime areas” have become a fact of constitutional law and the term can now transform an unconstitutional seizure into a constitutional one merely by its invocation without any additional evidence save the testifying officer’s subjective opinion. Motion to Compel at ¶6. At the hearing on the motion, Shivers argued:
[B]ecause we know that the Philadelphia Police Department actually compiles and keeps data and statistics on what crimes are committed in what portions of the city, granularity to actual blocks, it’s our position that this phrase — because it has a Constitutional legal meaning now — needs to be backed up with some sort of evidence, otherwise, it is just a suggestive opinion, and that is dangerous to everybody’s Constitutional rights under the Fourth Amendment and Article [I], Section 8 of the Pennsylvania Constitution, in the sense that by somebody’s objective — subjective opinion about whether or not an area is, in fact, high crime, suddenly allows a previously unconstitutional seizure to become constitutional. N.T. Motion to Compel Hearing, 1/10/20, at 5.
Following the denial of Shivers’s motion to compel, there was a hearing on his
motion to suppress. At the beginning of the hearing, Shivers was asked to state the basis
for his motion. He responded:
Defense brings this motion to suppress under the 4th and the 14th Amendments of the U.S. Constitution as well as the broader protections of the Pennsylvania Constitution, Article One Section Eight. Defense averts [sic] that there was no justification for the stop, frisk, search, or arrest of Mr. Shivers, and that the Commonwealth lacked any probable cause or reasonable suspicion. Namely, Your Honor, we’re seeking to suppress a firearm. N.T. Suppression Hearing, 11/16/20, at 3-4.
Thereafter, the Commonwealth presented the testimony of Officer Sidebotham. At
the conclusion of the testimony, the Commonwealth argued the police had reasonable
[J-64-2025] - 4 suspicion to stop Shivers because “[w]e have a high-crime area and an unprovoked
flight.” Id. at 25; see also id. at 24-25 (“They went after this defendant because he ran in
a high-crime area.”); id. at 25 (“Flight in a high-crime area gives them the right to do that.”).
Shivers did not advocate that flight in a high-crime area should not suffice to support
reasonable suspicion under Article I, Section 8 as a legal matter. Instead, he argued the
police had no “legal justification” to approach, chase, stop, or frisk him, and that because
he had “never met” Officer Sidebotham and the officer “had no information about him,”
the officer’s “testimony about gang affiliation and it being a high-crime area . . . had
nothing to do with” him. Id. at 22-24.
At a subsequent listing, the suppression court denied suppression on the grounds
Shivers’s “unprovoked flight in a high[-]crime area gave the officers reasonable suspicion
to pursue and stop him.” N.T. Motions Hearing, 2/10/21, at 6. Shivers raised no objection
to the court’s legal determination that his flight in a high-crime area was sufficient to
establish reasonable suspicion.
Following a bench trial, the trial court convicted Shivers of all charges. The court
sentenced him to an aggregate term of three years’ probation. Shivers appealed. In his
court-ordered concise statement of the errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), he pertinently claimed:
This [c]ourt violated [Shivers’s] rights under Article I, Section 8 of [sic] Pennsylvania Constitution by holding that police had reasonable suspicion to seize [Shivers] by chasing and tackling him merely because he fled from them in a so-called high[-]crime area. That the seizure occurred in a high[- ]crime area should be irrelevant under the Pennsylvania Constitution because that factor unreasonably denies citizens living in those areas the same search and seizure protections of those who are fortunate enough to live in areas with less crime. Further, “high[-]crime area” is a vague factor incapable of an acceptable nonarbitrary factual determination necessary to determine an individual’s constitutional rights. The Pennsylvania Constitution is more protective than the U.S. Constitution in protecting individuals from unwanted intrusion by police particularly those involving
[J-64-2025] - 5 seizure of the person. See, e.g., Commonwealth v. Matos, 672 A.2d 767 (Pa. 1996). Statement of Errors Complained of on Appeal, 3/21/22, at ¶7iii. In its opinion, the trial
court concluded this claim “conflict[ed] with Pennsylvania law.” Trial Court Op., 4/14/22,
at 6.
In his brief for appellant in the Superior Court, Shivers raised the issue: “Was there
not a lack of reasonable suspicion to justify a seizure under Article I, Section 8 of the
Pennsylvania Constitution and the Fourth Amendment based solely on the flight in this
case in a high[-]crime area?” Shivers’s Brief for Appellant in Superior Court at 3
(capitalization omitted). In support of this issue, he claimed that the court “should reject
Wardlow’s holding under Article I, Section 8.” Id. at 7; see also id. at 9 (“[T]his [c]ourt
should reject the Wardlow conclusion on Article I, Section 8 grounds[.]”); id. at 11 (“[T]he
[c]ourt . . . should reject Wardlow under Article I, Section 8[.]”); id. at 31 (“Because flight
and high[-]crime area are, at best, both weak factors in the individualized reasonable
suspicion of criminal conduct analysis, this [c]ourt should reject Wardlow under Article I,
Section 8.”). The Commonwealth responded that it was “not clear” Shivers “properly
preserved” his departure claim under Bishop and, in any case, the claim was “meritless[.]”
Commonwealth’s Brief for Appellee in Superior Court at 9 n.1.
The Superior Court unanimously affirmed the judgment of sentence in an
unpublished decision. The panel reasoned it was “bound to follow [this Court’s] clear
adoption of Wardlow for state constitutional purposes” in In re D.M., 781 A.2d 1161 (Pa.
2001). Commonwealth v. Shivers, 538 EDA 2022, 2023 WL 5771571, at *3 (Pa. Super.
Sept. 7, 2023) (unpublished memorandum).
This Court granted Shivers’s petition for allowance of appeal on the following
rephrased issue: “Because flight alone by an individual at the sight of police does not
provide the necessary reasonable suspicion of criminal activity for a stop, does it violate
[J-64-2025] - 6 Article I, Section 8 to hold that there is reasonable suspicion based solely on the location
of the flight in a ‘high[-]crime area,’ a factor that involves no additional conduct by the
person police pursue and stop?” Commonwealth v. Shivers, 322 A.3d 879 (Pa. 2024)
(per curiam). In addition, we directed the parties “to address in their merits briefs whether
. . . Shivers preserved his departure claim in light of” Bishop and Commonwealth v.
Alexander, 243 A.3d 177 (Pa. 2020). Id. (quotation marks omitted).4
“The issue of waiver is a legal one over which our review is plenary.” Bishop, 217
A.3d at 838 n.2. Shivers maintains his departure claim is not waived. He argues
“[r]easons were provided in the lower court for a departure under Pennsylvania’s
Constitution, the Commonwealth was put on notice, and it contested the claim.” Shivers’s
Brief at 42. In addition, he insists that “[f]or twenty years the Superior Court has rejected
the Article I, Section 8 claim presented here.” Id. at 42-43, citing Commonwealth v.
Jefferson, 853 A.2d 404 (Pa. Super. 2004).5 According to Shivers, “[b]ecause the lower
courts have no authority to ‘correct’ a ruling that is compelled by a higher court decision,
4 Because we resolve this appeal based on waiver, the remainder of our opinion is limited
to the second issue of whether Shivers properly preserved his departure claim in the trial court. We do not further discuss the first, substantive issue of whether flight in a high- crime area is sufficient to establish reasonable suspicion under Article I, Section 8 of the Pennsylvania Constitution, and offer no view on this constitutional question. Our learned colleague “think[s] it is unfortunate that judicial resources have been wasted in this matter by searching for waiver.” Concurring and Dissenting Opinion at 2 (Donohue, J.). However, “it has long been the policy of this Court to avoid constitutional questions where a matter can be decided on alternative, non-constitutional grounds.” Commonwealth v. Janssen Pharmaceutica, Inc., 8 A.3d 267, 271 (Pa. 2010); see also Commonwealth v. Karetny, 880 A.2d 505, 519 (Pa. 2005) (“[T]his Court seeks to avoid constitutional issues if the claim may be resolved on alternative grounds[.]”). Moreover, Justice Donohue herself finds “waiver” and accordingly “would dismiss the appeal as improvidently granted.” Concurring and Dissenting Opinion at 5 (Donohue, J.). Why our finding of waiver is “unfortunate” and “waste[ful]” but hers is not is not explained. Id. at 2. 5 In Jefferson, the Superior Court concluded this Court in D.M. “adopted the rationale of
Wardlow for state constitutional purposes[,]” and accordingly the appellant’s flight in a high-crime area “established reasonable suspicion under both federal and state principles.” 853 A.2d at 407.
[J-64-2025] - 7 issue identification . . . should always be sufficient in a case like this.” Id. at 44. He
contends “[t]his case presents a question of waiver in substantially the same context” as
Alexander, where the defendant filed “a pre-printed omnibus motion” and argued he was
relying on the “broader protections” of Article I, Section 8. Id. at 43, quoting Alexander,
243 A.3d at 193 n.8. Shivers emphasizes the trial court addressed his departure claim
“on the merits” in its opinion, and the Superior Court did the same. Id. at 47.
The Commonwealth responds that Shivers waived his departure claim. It contends
Shivers “failed to comply with Bishop’s requirements for preserving a departure claim.”
Commonwealth’s Brief at 13. The Commonwealth asserts Shivers’s suppression motion
and arguments at the suppression hearing “merely cited every conceivably relevant state
and federal constitutional provision and recited the words ‘stop, frisk, search, seizure,
arrest, reasonable suspicion, probable cause, and warrant,’ without identifying a claim
that this Court should overturn its settled precedent holding that unprovoked flight in a
high-crime area may give rise to reasonable suspicion under Article I, Section 8 of the
Pennsylvania Constitution.” Id. at 15 (emphasis in original). It argues that “[i]f such
boilerplate language were sufficient to preserve the highly specific departure claim raised
here, the exact same language would be sufficient to preserve any departure claim
involving the suppression of physical evidence.” Id. at 15-16. The Commonwealth notes
as well that Shivers’s motion to compel “did not mention the departure claim raised in this
appeal, which presupposes that the unprovoked flight occurred in a high-crime area.” Id.
at 15 n.2. Regarding Shivers’s reliance on Alexander, “[t]he Commonwealth respectfully
submits that it is difficult to reconcile Alexander’s approach to the preservation issue with
the exacting requirements that this Court carefully laid out the year before in Bishop,
where this Court had specifically focused on the proper roadmap for the preservation of
such claims.” Id. at 10-11. However, the Commonwealth finds it “notable that Alexander
[J-64-2025] - 8 did not, as [Shivers] seeks to do here, overrule many years of consistent precedent
applying the Fourth Amendment and Article I, Section 8 coterminously to a particular type
of seizure.” Id. at 12 n.1.
In his reply brief, Shivers claims “[t]he Commonwealth ignores the very different
contexts of Bishop and Alexander that called for the Court’s treating the waiver issue
differently in those two cases.” Shivers’s Reply Brief at 1. He asserts that in Alexander,
as in this case, there was “settled precedent” precluding the trial court from ruling in the
defendant’s favor. Id. at 2, quoting Commonwealth’s Brief at 17. “In sharp contrast,”
Shivers submits, “Bishop involved a Pennsylvania constitutional claim of first impression
in this Commonwealth that would have obligated the lower court to decide the issue, with
the defendant perhaps prevailing.” Id.6
Pennsylvania takes “a stricter approach to waiver than pertains in many other
jurisdictions[.]” Bishop, 217 A.3d at 840 n.6. For instance, more than half a century ago,
this Court abrogated the basic and fundamental error doctrine, pursuant to which an
appellate court must consider errors claimed to be basic and fundamental despite the
absence of a specific objection in the trial court, in both civil and criminal cases. See
Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d 114, 117 (Pa. 1974) (“We conclude that basic
and fundamental error has no place in our modern system of jurisprudence.”);
Commonwealth v. Clair, 326 A.2d 272, 274 (Pa. 1974) (“[N]o longer will allegations of
basic and fundamental error serve to enable parties in criminal matters to seek reversal
on alleged errors not properly raised below.”). Rather, it is long enshrined in our Rules of
Appellate Procedure that “[i]ssues not raised in the trial court are waived and cannot be
6 The American Civil Liberties Union (ACLU) and ACLU of Pennsylvania have filed an
amici curiae brief in support of Shivers. In addition, the Pennsylvania District Attorneys Association and the Office of Attorney General of Pennsylvania (OAG), have each filed amicus briefs in support of the Commonwealth. Only the OAG has addressed the waiver question, and it agrees with the Commonwealth that Shivers’s departure claim is waived.
[J-64-2025] - 9 raised for the first time on appeal.” Pa.R.A.P. 302(a). Requiring issue preservation in the
trial court promotes the effective administration of justice. Among other things, it
encourages alert and diligent advocacy, provides the opposing party the opportunity to
respond, provides fair notice to the trial court, allows for prompt correction of errors,
bolsters the trial court record, aids appellate review, and militates against unnecessary
appeals.
Like most claims, departure claims are subject to the requirement of issue
preservation in the trial court on pain of waiver. In Bishop, this Court endorsed the
framework for preserving departure claims adopted by the New Mexico Supreme Court
in State v. Gomez, 932 P.2d 1 (N.M. 1997). This framework “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.” Bishop, 217 A.3d at 840. When there is precedent
supporting departure “in the relevant regard[,]” id. at 836, “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 840, quoting Gomez, 932 P.2d at 8. On the other hand, “[w]here there
is no precedent supporting departure, ‘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.’” Id., quoting Gomez, 932 P.2d at 8 (emphasis omitted).
“References to the state constitution, without some discussion or argument concerning
the scope of its protections, are not enough to alert the trial court to the issue of a possible
difference between the rights afforded by the state constitution and those provided by the
[federal charter].” Id. at 840-41, quoting Gomez, 932 P.2d at 10. “[S]ome analysis
[J-64-2025] - 10 explaining the grounds for departure is required.” Id. at 840; see also id. at 841 n.7 (“At
a minimum, . . . the defendant must offer some reasonably developed, colorable analysis
that would support departure.”).
Here, as Shivers acknowledges, he is raising a departure claim. See Shivers’s
Brief at 42; Reply Brief at 1. He concedes that pursuant to Wardlow, a suspect’s flight in
a high-crime area is sufficient to establish reasonable suspicion for an investigative
detention under the Fourth Amendment. However, he insists flight in a high-crime area
is not sufficient to demonstrate reasonable suspicion under the greater protections
afforded by Article I, Section 8:
In [Wardlow], the United States Supreme Court held that flight in a high[- ]crime area, but not in other areas, provides reasonable suspicion for a police pursuit and stop. Since then, the Superior Court has applied this Fourth Amendment framework to Article I, Section 8. This Court should reject that conclusion and hold that under Article I, Section 8 flight in a high[- ]crime area by itself does not provide the requisite reasonable suspicion for the police intrusions. Wardlow is inconsistent with the heightened privacy and personal securities protections guaranteed by Pennsylvania’s independent Constitution. Shivers’s Brief at 6.
Importantly, though, there is no precedent supporting the departure Shivers seeks.
No Pennsylvania case has ever held Article I, Section 8 departs from the Fourth
Amendment “in the relevant regard” — that is, regarding the circumstances sufficient to
establish reasonable suspicion. Bishop, 217 A.3d at 836. To the contrary, “for decades”
this Court has repeatedly indicated the state and federal constitutions “are coextensive
regarding the quantum and nature of evidence required for a stop[,]” such that what
suffices to permit a Terry stop under the Fourth Amendment is likewise adequate under
Article I, Section 8. Commonwealth v. Lewis, 343 A.3d 1016, 1029 (Pa. 2025) (quotations
and citation omitted); see also Interest of T.W., 261 A.3d 409, 418 (Pa. 2021)
(“Pennsylvania has always followed Terry in stop and frisk cases.”) (quotation and citation
[J-64-2025] - 11 omitted); Commonwealth v. Grahame, 7 A.3d 810, 816 (Pa. 2010) (“Pennsylvania courts
have always followed Terry regardless of whether the appellant’s claim was predicated
on the Fourth Amendment or Article I, Section 8 of the Pennsylvania Constitution.”);
Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010) (“[T]his Court has held that
federal jurisprudence, specifically [Terry], sets forth the reasonableness standard for
Article I, §8 of the Pennsylvania Constitution.”); In re D.M., 781 A.2d at 1163
(“Pennsylvania courts have consistently followed Terry in stop and frisk cases, including
those in which the appellants allege protections pursuant to Article [I], Section 8 of the
Pennsylvania Constitution.”); Commonwealth v. Wimbush, 750 A.2d 807, 810 n.2 (Pa.
2000) (“We note that Pennsylvania has consistently followed Fourth Amendment
jurisprudence in stop and frisk cases.”); Commonwealth v. Jackson, 698 A.2d 571, 573
(Pa. 1997) (“Pennsylvania has always followed Terry in stop and frisk cases[.]”).
Accordingly, pursuant to Bishop, in order for Shivers to preserve his departure claim for
appellate review, he was required to provide the trial court with some analysis explaining
why the protections under Article I, Section 8 should exceed those under the Fourth
Amendment regarding the circumstances adequate to demonstrate reasonable suspicion
for an investigative detention.
Shivers did not comply with this mandate. His form omnibus motion merely
included preprinted language asserting “[t]he evidence was obtained in violation of the
defendant’s U.S. Constitutional rights or independently protected rights secured by the
Pennsylvania Constitution or Pennsylvania Rules of Criminal Procedure[.]” Omnibus
Motion, 9/19/19, at 1 (unpaginated). This vague reference to the state constitution did
not even specify Shivers was relying on Article I, Section 8. Nor did it contend the state
constitution should be construed more expansively than the federal charter; independent
rights are not necessarily broader rights. In any case, his form motion did not offer any
[J-64-2025] - 12 sort of analysis as to why the Pennsylvania Constitution should be interpreted to provide
greater protections than the United States Constitution.
Subsequently, at the beginning of the suppression hearing, Shivers explained he
was bringing his “motion to suppress under the 4th and the 14th Amendments of the U.S.
Constitution as well as the broader protections of the Pennsylvania Constitution, Article
One Section Eight.” N.T. Suppression Hearing, 11/16/20, at 3. This explanation added a
modicum of meat to the bare bones of his motion to suppress: it specified he was relying
on Article I, Section 8, and maintained this provision offered broader protections than the
corresponding provisions of the federal charter. However, here too Shivers neglected
entirely to provide any sort of analysis as to why our constitution is supposedly more
protective than the United States Constitution in this context. At the conclusion of the
hearing, in argument on the motion, the Commonwealth squarely argued that reasonable
suspicion was established by Shivers’s “[f]light in a high-crime area[.]” Id. at 25. Shivers
was presented with a clear and obvious opportunity to make his present departure claim
that flight in a high-crime area is insufficient to support reasonable suspicion under Article
I, Section 8. Yet he did not make it.7
Shivers also failed to preserve his departure claim in his motion to compel or the
hearing on this motion. Indeed, his arguments in support of his motion to compel
suggested consideration of the high-crime-area factor was permitted under the
Pennsylvania Constitution to the same extent it is allowed under the United States
Constitution. His motion alleged that post-Wardlow, “‘high[-]crime areas’ have become a
fact of constitutional law[.]” Motion to Compel at ¶6. Similarly, he indicated at the hearing
7 When the suppression court subsequently denied Shivers’s suppression motion on the
basis his “unprovoked flight in a high[-]crime area gave the officers reasonable suspicion to pursue and stop him[,]” Shivers again stood silent. N.T. Motions Hearing, 2/10/21, at 6.
[J-64-2025] - 13 that the “phrase” high-crime area “has a Constitutional legal meaning now . . . under the
Fourth Amendment and Article [I], Section 8 of the Pennsylvania Constitution[.]” N.T.
Motion to Compel Hearing, 1/10/20, at 5. It was not until this case was pending on appeal
to the Superior Court that Shivers first raised his departure claim in his Rule 1925(b)
statement. See Statement of Errors Complained of on Appeal, 3/21/22, at ¶7iii. 8
Thus, at most, Shivers simply asserted in the trial court that Article I, Section 8
should be interpreted more expansively than the Fourth Amendment. But he never
developed any semblance of an analysis substantiating departure as required by Bishop.
Consequently, his departure claim is waived.9
8 Shivers’s Rule 1925(b) statement only accentuates his failure to preserve his departure
claim in the trial court. Again, in his Rule 1925(b) statement, Shivers contended: This Court violated [Shivers’s] rights under Article I, Section 8 of [sic] Pennsylvania Constitution by holding that police had reasonable suspicion to seize [Shivers] by chasing and tackling him merely because he fled from them in a so-called high[-]crime area. That the seizure occurred in a high[- ]crime area should be irrelevant under the Pennsylvania Constitution because that factor unreasonably denies citizens living in those areas the same search and seizure protections of those who are fortunate enough to live in areas with less crime. Further, “high[-]crime area” is a vague factor incapable of an acceptable nonarbitrary factual determination necessary to determine an individual’s constitutional rights. The Pennsylvania Constitution is more protective than the U.S. Constitution in protecting individuals from unwanted intrusion by police particularly those involving seizure of the person. See, e.g., Commonwealth v. Matos, 672 A.2d 767 (Pa. 1996). Statement of Errors Complained of on Appeal, 3/21/22, at ¶7iii. This argument clearly raised and amply developed his departure claim. Nothing remotely like it appears anywhere in the record of the trial court proceedings. 9 Justice Donohue insists this case does not involve a waiver under Bishop but rather a
“classic waiver under [Pa.R.A.P.] 302.” Concurring and Dissenting Opinion at 2 (Donohue, J.). She maintains Shivers “did not raise the specific issue at hand — that the reasonable suspicion standard could not be met with evidence of unprovoked flight in a high-crime area — in the trial court.” Id. at 4. According to Justice Donohue, Shivers’s “focus was on the development of the challenge to the high-crime area designation and rebutting the factual assertion that Shivers was found in a high-crime area[,]” and he “did (…continued) [J-64-2025] - 14 Shivers’s arguments otherwise are unpersuasive. He contends “[r]easons were
provided in the lower court for a departure under Pennsylvania’s Constitution[.]” Shivers’s
Brief at 42. To the extent his opaque reference to the “lower court” is meant to connote
the trial court — the court in which the claim must be preserved under Bishop — this claim
is demonstrably false. At no point in the proceedings before the trial court did Shivers
ever give reasons for departing from federal law under the state charter. As the
Commonwealth rightly observes, “[e]xactly the opposite is true, as the record confirms[.]”
Commonwealth’s Brief at 10. “[C]ounsel’s approach of . . . no[t] offering any reasons [to
the trial court] for departing was the antithesis of meaningful development.” Bishop, 217
A.3d at 843.
Moreover, the fact the Superior Court has previously “rejected the Article I, Section
8 claim presented here” did not obviate Shivers’s obligation to present some analysis in
support of departure. Shivers’s Brief at 42-43. In Bishop, this Court “accept[ed] that the
presentation can be truncated in futility scenarios (i.e., where the reviewing court is bound
by a contrary ruling of a higher court), [but] reinforce[d] [its] agreement with the Supreme
Court of New Mexico that mere citation to a provision of the state constitution is
not preserve a challenge to the reasonable suspicion analysis built on unprovoked flight in a high-crime area.” Id. In fact, Shivers claimed reasonable suspicion was lacking in the trial court. His motion to suppress alleged he was subjected to a stop on less than reasonable suspicion. See Omnibus Motion, 9/19/19, at 1 (unpaginated). In addition, he asserted at the commencement of the suppression hearing that “there was no justification for the stop, frisk, search, or arrest . . . , and that the Commonwealth lacked any probable cause or reasonable suspicion.” N.T. Suppression Hearing, 11/16/20, 3-4. Further, at the close of the suppression evidence, he reiterated: “there is no legal justification at that point to stop him, frisk him, chase him. It’s a pre-textual stop and there is zero justification for it.” Id. at 23; see also id. at 24 (“They had no suspicion to be there. They knew these guys so they went to stop them.”). Shivers preserved a challenge to reasonable suspicion in the trial court. What he did not preserve, however, and what has given rise to his departure waiver, is the claim that reasonable suspicion is more demanding under Article I Section 8 such that unprovoked flight in a high-crime area, while sufficient to establish reasonable suspicion under the Fourth Amendment, is inadequate to meet this standard under the Pennsylvania Constitution.
[J-64-2025] - 15 insufficient.” Bishop, 217 A.3d at 841 n.9. In other words, per Bishop, the argument for
departure can be abbreviated in circumstances where precedent forecloses relief in the
trial court but not nonexistent. Here, it was nonexistent; there was no analysis
whatsoever.
Shivers’s reliance on Alexander is misplaced as that case is distinguishable.
There, Alexander claimed this Court should “overrule or limit” Commonwealth v. Gary, 91
A.3d 102 (2014) (opinion announcing judgment of Court). Alexander, 243 A.3d at 180.
Gary “adopt[ed] the federal automobile exception to the warrant requirement” for
purposes of Article I, Section 8. Gary, 91 A.3d at 104. The federal automobile exception
“allows police officers to search a motor vehicle when there is probable cause to do so
and does not require any exigency beyond the inherent mobility of a motor vehicle.” Id.
“[P]rior to Gary, this Court’s precedents clearly held that Article I, Section 8 did offer
greater protections than the Fourth Amendment” regarding car searches. Alexander, 243
A.3d at 187. Specifically, “Pennsylvania recognized an automobile exception, but unlike
its federal counterpart, ours was ‘limited’ in application.” Id. at 187-88. There were
“decades of cases decided by majorities [of this Court] which held that Article I, Section 8
does in fact differ from federal law.” Id. at 200. Gary did not nullify this precedent. To be
sure, a three-Justice plurality in Gary concluded Article I, Section 8 “affords no greater
protection than the Fourth Amendment” with regard to car searches. Gary, 91 A.3d at
104. However, “Justice Saylor’s concurring opinion provided the crucial fourth vote that
allowed Gary to constitute a binding holding as opposed to establishing only a case-
specific result limited to Gary alone.” Alexander, 243 A.3d at 197. Justice Saylor did not
endorse the federal automobile exception based on the rationale that the state and federal
charters were coextensive but rather “for the sake of certainty and consistency[.]” Gary,
91 A.3d at 138 (Saylor, J., concurring). Accordingly, the Alexander Court explained, “[i]t
[J-64-2025] - 16 is undeniable that Gary did not produce a majority holding on what our constitution
means.” Alexander, 243 A.3d at 199. “Gary . . . did not decide the Article I, Section 8
question.” Id.; see also id. at 201-02 (“Gary . . . did not actually decide the impact of
Article I, Section 8 on automobile searches.”).
Thus, in Alexander, unlike in this case, there was “precedent supporting
departure.” Bishop, 217 A.3d at 840. As a consequence, in order for Alexander to
preserve his departure claim in the trial court under the Bishop framework, he simply
needed to invoke the constitutional principle providing the protection sought under the
Pennsylvania Constitution, and show the factual basis needed for the trial court to rule on
the issue. See id. A majority of this Court concluded Alexander complied with these
modest requirements.10 He invoked Article I, Section 8, argued the state provision offered
broader protections than the Fourth Amendment, alleged the police could have obtained
a warrant but failed to do so, and developed a factual record at the suppression hearing
supporting relief. See Alexander, 243 A.3d at 193 n.8. Here, on the other hand, where
there is no precedent supporting departure, Shivers was required under Bishop to provide
“some analysis explaining the grounds for departure[.]” Bishop, 217 A.3d at 840. As
discussed, he did not do so.11
10 This author disagreed on that point. See Alexander, 243 A.3d at 213 n.1, 215 n.4 (Dougherty, J., dissenting) (concluding Alexander waived his departure claim). 11 According to Justice Donohue, our opinion “does nothing to clarify the application of
Bishop, it further muddles it.” Concurring and Dissenting Opinion at 5 (Donohue, J.). We respectfully disagree. As amply demonstrated by the parties’ briefs, uncertainly regarding how to apply Bishop emerged after our decision in Alexander. Compare Shivers’s Brief at 43 (“This case presents a question of waiver in substantially the same context as in [Alexander], one different from the earlier decision in Bishop.”) with OAG’s Brief at 11 (“Bishop is particularly relevant.”) and Commonwealth’s Brief at 10-11 (“[I]t is difficult to reconcile Alexander’s approach to the preservation issue with the exacting requirements that this Court carefully laid out the year before in Bishop[.]”). We herein clarify that there is no tension between the two decisions.
[J-64-2025] - 17 Finally, Shivers’s waiver is not cured by the trial court and Superior Court opinions
addressing his departure claim “on the merits.” Shivers’s Brief at 47; Reply Brief at 3.
Merits consideration on appeal does not somehow retroactively preserve a departure
claim foregone in the trial court. In fact, in Bishop, the departure claim was addressed on
the merits on appeal. There, the departure claim was that Article I, Section 9 provided
greater protection than its federal counterpart, the Fifth Amendment, insofar as the state
provision requires the suppression of physical evidence recovered as a result of a
statement elicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The Superior
Court rejected this claim on the merits, holding “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.” Bishop, 217 A.3d at 837, quoting Commonwealth v.
Bishop, No. 1193 EDA 2016, slip op. at 9. Nonetheless, this Court held that “because
[Bishop] did not distinguish between the Fifth Amendment and Article I, Section 9 before
the suppression court, his claim favoring departure is waived.” Id. at 841 (emphasis
added).
In sum, Shivers’s departure claim is waived under Bishop.12 For this reason, we
affirm the order of the Superior Court affirming the denial of suppression.
12 Justice Donohue asserts that even “[i]f this case actually presented a Bishop question,”
she would find Shivers’s “failure to follow its nebulous requirements was not fatal to his appeal.” Concurring and Dissenting Opinion at 2 (Donohue, J.). Her denunciation of Bishop is surprising. At the time Bishop was decided, Justice Donohue did not criticize its requirements as “nebulous” or otherwise take issue with the opinion. Id. On the contrary, she “join[ed] in the Majority opinion, as [she] ha[d] no fundamental disagreement with the issue preservation rule espoused by the Majority therein.” Bishop, 217 A.3d at 844 (Donohue, J., concurring). In any event, to the extent her view on the matter has now changed, this does not strip Bishop of its precedential force. Stare decisis commands adherence to “even questionable decisions” because it “‘promotes the (…continued) [J-64-2025] - 18 Chief Justice Todd and Justices Mundy, Brobson and McCaffery join the opinion.
Justice Wecht files a concurring opinion.
Justice Donohue files a concurring and dissenting opinion.
evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Alexander, 243 A.3d at 196, quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991). “To reverse a decision, we demand a special justification, over and above the belief that the precedent was wrongly decided.” Id., quoting Allen v. Cooper, 589 U.S. 248, 259 (2020). Justice Donohue does not identify any such special justification for overruling Bishop.
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