J-S32021-23

2023 PA Super 205

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JENNIFER N. SMITH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 315 MDA 2023

Appeal from the Order Entered January 24, 2023

In the Court of Common Pleas of Clinton County Criminal Division at 

No(s): CP-18-CR-0000449-2021

BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.

OPINION BY KUNSELMAN, J.: FILED: OCTOBER 16, 2023

In this interlocutory appeal as of right,1the Commonwealth seeks to 

challenge the order granting Jennifer N. Smith’s suppression motion. Because 

it did not preserve various theories for appellate review, we affirm.

On October 7, 2021, Joel Gross, an agent with the Pennsylvania Board

of Probation and Parole (“the Board”) received an e-mail from a colleague, 

Agent Liam Sweeney. According to that e-mail, a third-party parolee, Danielle 

Parsons, told Agent Sweeney that she and two other women “drove to [Ms. 

Smith’s] house [and] bought bath salts.” N.T., 12/19/22, at 38. However, 

the e-mail did not include the date on which this alleged transaction occurred. 

See id.

Based on the e-mail, Agent Gross sought permission from his supervisor 

to conduct an administrative search of the Smith residence, because Ms. 

Smith was under his supervision. He intended to look for evidence that she 

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1 See Pa.R.A.P. 311(d).
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had violated parole “condition number 5 - - not to possess or use any drugs.” 

Id. at 41. The supervisor granted the request, but the Board agents delayed 

their search for a week, until October 13, 2021, due to Columbus Day and 

staffing shortages.

When Board agents arrived at her home, Ms. Smith answered the door. 

Agent Gross immediately handcuffed her. He entered the house and found 

what he considered to be evidence “indicative that there was new criminal - -

or criminal activity” afoot. Id. The agents therefore stopped their search to 

“turn over [the] investigation to the police.” Id. at 45-46. They called Chief

David Winkleman of Pine Creek Township Police Department. He arrived on 

scene 20 to 30 minutes later. 

Agent Gross told Chief Winkleman what the administrative search had 

revealed. Next, he walked the chief through the residence, and both of them 

“took pictures.” Id. at 46; see also id. at 60. The chief “document[ed

narcotics and drug paraphernalia] for the fact of preparation of the search 

warrant.” Id. at 60. He then exited the building and applied for a search 

warrant through another affiant, an agent with the Office of the Attorney 

General of Pennsylvania.

A magisterial district judge issued the warrant. Police reentered Ms. 

Smith’s home, seized physical evidence, arrested her, and charged Ms. Smith

with criminal conspiracy and various drug-related offenses.

2

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2 See 18 Pa.C.S.A. § 903 and 35 Pa.C.S.A. §§ 780-133(a)(16), (a)(30), and 

(a)(32).
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Ms. Smith filed a motion to suppress the evidence. The court of common 

pleas held an evidentiary hearing and directed the parties to file briefs. 

In its brief, the Commonwealth contended Agent Gross, on behalf of the 

Board, had reasonable suspicion to perform an administrative search of the

Smith home. See Commonwealth’s 1/3/23 Suppression-Court Brief at 1-2. 

It also argued that, when Chief Winkleman walked through the home to take 

pictures, prior to getting a search warrant, his action “was not an added search 

within the meaning of either [c]onstitution, because he did not offend a 

recognized expectation of privacy.” Id. at 3. It claimed Ms. Smith retained

no reasonable expectation of privacy in the items that Agent Gross already 

uncovered during his administrative search. 

Three weeks later, the court issued an Opinion and Order granting the

suppression motion due to two constitutional violations.

First, the suppression court ruled the information in Agent Sweeney’s

October 7th e-mail to Agent Gross was insufficient to provide Agent Gross with 

reasonable suspicion that Ms. Smith was currently violating her parole. See

Suppression Court Opinion, 1/24/23, at 13-18. It also found the underlying 

tip from Danielle Parsons to Agent Sweeney had gone stale, because Parsons

provided that information over a month prior to the October 13, 2021 search. 

Thus, the suppression court held that Agent Gross’s administrative search of 

the residence was unreasonable and, as a result, unconstitutional. 

Second, the suppression court ruled Chief Winkleman’s walkthrough of 

Ms. Smith’s residence was a warrantless search by the police department that 
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the federal and state constitutions prohibited. In the suppression court’s view, 

a law-enforcement search occurred separate from the administrative search, 

even though Agent Gross accompanied the chief. Given “the Commonwealth 

has not alleged that exigent circumstances existed . . . the entry by Chief 

Winkleman is clearly in violation of [Ms. Smith’s] constitutional rights.” Id. at 

19.

On February 3, 2023, the Commonwealth moved for reconsideration of 

the order granting suppression. For the first time, it presented an alternative 

theory for admitting the evidence at trial – the doctrine of inevitable discovery. 

See Commonwealth’s Motion for Reconsideration at 4. The Commonwealth 

asserted Chief Winkleman’s warrantless search was unnecessary to procure a

search warrant. “Simply put, Agent Gross’s information would’ve arrived in 

exactly the same form to [the affiant and magisterial district judge] without 

Chief Winkleman’s participation.” Id.

The court of common pleas summarily denied reconsideration, and this 

timely appeal followed.

The Commonwealth raises two appellate issues, which we reordered for 

ease of disposition:

1. Whether the [suppression] court committed reversible 

error when it found [Chief] Winkleman’s after-the-fact 

“walkthrough” . . . to be done “clearly in violation of 

[Ms. Smith’s] constitutional rights?”

2. Whether the [suppression] court committed reversible 

error when it found that reasonable suspicion did not 

exist, because the court decided the tip provided by a 
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known informant that [Ms. Smith] was selling drugs 

[out of her home] was unsupported and was too old?

Commonwealth’s Brief at 9.

We begin our analysis with Chief Winkleman’s warrantless walkthrough

of Ms. Smith’s home, during which he gathered evidence by taking pictures of 

various incriminating items. 

The Commonwealth makes two arguments in this regard. First, it claims 

Ms. Smith retained no reasonable expectation of privacy inside her home. See

Commonwealth’s Brief at 21-22. It asserts she forfeited her privacy rights 

once Agent Gross entered the residence and saw evidence of drug dealing. 

Hence, the Commonwealth believes the chief did not conduct a “search” in an 

area where Ms. Smith retained a reasonable expectation of privacy. 

Second, the Commonwealth contends the evidence Chief Winkleman

photographed and eventually seized should not be subject to the exclusionary 

rule.

3 The Commonwealth argues police would have inevitably discovered that 

evidence based solely on Agent Gross’s administrative search, because the 

magisterial district judge would have issued a search warrant in light of Agent 

Gross’s observations, even if Chief Winkleman had never performed a 

warrantless search of the home. See id. at 22. In other words, the chief’s

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3 See, e.g., Wong Sun v. United States, 371 U.S. 471 (1963) (holding that, 

under the exclusionary rule, because the investigating agents obtained 

defendant’s statements and seized narcotics during an illegal entry of a 

residence, that evidence was fruit of the poisonous tree that must be excused 

at trial).
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walkthrough and pictures did not secure the warrant – the administrative 

search did.

According to Ms. Smith, the Commonwealth waived both arguments. 

See Smith’s Brief at 28, 31-32. 

“The issue of waiver presents a question of law, and, as such, our 

standard of review is de novo, and our scope of review is plenary.” Trigg v. 

Children's Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).

First, we address the Commonwealth’s claim that Ms. Smith had no

reasonable expectation of privacy inside her home following Agent Gross’s

administrative search.

Upon receiving the Commonwealth’s notice of appeal, the trial court 

directed it to file a Statement of Errors Complained of on Appeal, pursuant to 

Pennsylvania Rule of Appellate Procedure 1925. In its order, the trial court

warned the Commonwealth that failure to comply with Rule 1925 would result 

in waiver of any issues not raised in the 1925(b) Statement. See T.C.O., 

2/28/23, at 1.

Rule of Appellate Procedure 1925(b) is very clear and very strict. “The 

Statement shall concisely identify each error that the appellant intends to 

assert with sufficient detail to identify the issue to be raised for the judge.” 

Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). “Issues not included in the 

Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).
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This is because, the “absence of a trial court opinion poses a substantial 

impediment to meaningful and effective appellate review.” Commonwealth 

v. Lord, 719 A.2d 306, 308 (Pa. 1998). “Rule 1925 is intended to aid trial 

judges in identifying and focusing upon those issues which the parties plan to 

raise on appeal. Rule 1925 is thus a crucial component of the appellate 

process.” Id. 

In its 1925(b) Statement, the Commonwealth only raised one issue 

regarding Chief Winkleman. It identified the alleged error as: “Whether the 

[suppression c]ourt’s reasoning erred, when it called Chief Winkleman’s entry 

into the residence a second, unconstitutional search without analyzing the 

application of inevitable discovery.” Commonwealth’s Statement of Errors at 

2. Thus, the question of Ms. Smith’s privacy expectation in her home following 

Agent Gross’s administrative search is missing from the 1925(b) Statement. 

The Commonwealth has waived that issue.

Turning to the inevitable-discovery argument, while the Commonwealth 

included it in the 1925(b) Statement, the prosecution nevertheless committed 

waiver of this theory, as well. In its 1925(a) Opinion, the trial court said, “the 

Commonwealth . . . never argued that theory or presented any case law on 

said theory before [the suppression c]ourt; and, therefore, [the court] finds 

that the Commonwealth has waived this argument.” Trial Court Opinion, 

3/21/23, at 2. We agree.

When a defendant moves to suppress the prosecution’s evidence, the 

“Commonwealth shall have the burden of going forward with the evidence and 
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of establishing that the challenged evidence was not obtained in violation of 

the defendant’s rights.” Pa.R.Crim.P. 581(H). It “satisfies that burden if it 

proves to the satisfaction of the suppression court that the evidence was 

properly seized.” In re L.J., 79 A.3d 1073, 1086 (Pa. 2013).

Recently, in Commonwealth v. Skipper, 277 A.3d 617 (Pa. Super. 

2022), this Court found the Commonwealth waived the issue of a defendant’s

expectation of privacy in a searched vehicle by waiting until its motion for 

reconsideration to raise that issue. In Skipper, the trial court “conducted a 

suppression hearing . . . [and] directed the parties to file briefs setting forth 

their arguments and supporting law.” Id. at 620. 

However, the “Commonwealth, in its brief before the [suppression]

court . . . did not challenge [defendant’s] expectation of privacy. Id. at 621. 

“Thus, the [suppression] court, in its order and opinion granting the motion 

to suppress, noted the Commonwealth had conceded [defendant’s]

expectation of privacy by failing to raise a timely challenge.” Id. Next, the 

Commonwealth moved for reconsideration and, for the first time, raised the 

issue of defendant’s expectation of privacy in the vehicle.

This Court stated, “the Commonwealth did not challenge [defendant’s]

expectation of privacy until after the trial court had already granted the 

suppression motion.” Id. (emphasis in original). “At the suppression hearing 

and in its memorandum of law, the Commonwealth focused solely on the 

legality of the police conduct and, thus, the Commonwealth did not properly 

challenge [defendant’s] expectation of privacy” to meet its burden under 
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Pa.R.Crim.P. 581(H). Id. As such, we dismissed the issue of whether the 

defendant had a reasonable privacy expectation in the vehicle as waived. 

Here, the Commonwealth repeated that procedural mistake. After the 

suppression hearing, the court directed the parties to brief their legal 

arguments regarding whether police lawfully seized the evidence against Ms. 

Smith. In its brief, the Commonwealth never mentioned inevitable discovery. 

It only contended Ms. Smith retained no reasonable expectation of privacy in 

her home. Hence, it failed to argue to the suppression court that, if Chief 

Winkleman performed an unconstitutional search of the home, the court 

should nevertheless admit the evidence at trial under the doctrine of inevitable 

discovery. 

As in Skipper, the Commonwealth waited until after the suppression 

court had ruled on the motion to suppress to raise a new theory of inevitable

discovery. Thus, the Commonwealth “waived [this] claim on appeal, because 

it failed to meet its initial burden, and, instead, conceded” the exclusionary 

rule applied to the evidence if unconstitutionally seized. Id. at 621.

Accordingly, we hold that, after the issuance of an order and opinion 

granting suppression, the Commonwealth may not offer a new legal theory to 

oppose suppression in a motion for reconsideration. Such a practice would 

eviscerate the mandate that the Commonwealth be prepared to go “forward 

with the evidence and [bear the burden] of establishing that the challenged 

evidence was not obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 

581(H). 
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Were we to endorse the procedure that the Commonwealth employed

here, we would force defendants to relitigate motions to suppress indefinitely 

with each new motion for reconsideration that the Commonwealth files. The 

prosecution could retry the suppression motion over and over, testing out

various legal theories, until it found one that the suppression court accepted. 

Rule of Criminal Procedure 581 prohibits such gamesmanship, because the 

Rule aims “to provide one single procedure for the suppression of evidence 

alleged to have been obtained in violation of the defendant’s rights.” 

Pa.R.Crim.P. 581 Comment (emphasis added). Piecemeal litigation by

reconsideration motion produces multiple procedures concerning suppression 

that the framers of Rule 581 never envisioned or desired. Therefore, the 

Commonwealth must meet its burdens of production and persuasion based on 

theories it argues before a suppression court rules on a motion to suppress. 

This requirement is not overly demanding. Rule 581 simply asks the 

Commonwealth, which possesses the evidence and access to law-enforcement 

witnesses, to take the time to develop all legal theories against a suppression 

motion prior to or shortly after the suppression hearing. If it does not, the 

Commonwealth concedes and waives any theory not raised and argued during 

the suppression hearing or in its initial brief to the suppression court. See 

Skipper, supra.

Issues of inevitable discovery and Chief Winkleman’s search of the home

dismissed as waived. 
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Issue of whether Agent Gross’s administrative search was supported by 

reasonable suspicion dismissed as moot.

Order affirmed. Case remanded for further proceedings consistent with 

this Opinion.

Jurisdiction relinquished. 

Judge Dubow joins this Opinion. 

Judge Nichols concurs in result.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/16/2023