[J-16-2020] [MO: Saylor, C.J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

KAITLYN N. WOLFEL,

Appellant

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No. 23 WAP 2019

Appeal from the Order of the 

Superior Court entered December 

29, 2017 at No. 1357 WDA 2016, 

reversing the Order of the Court of 

Common Pleas of Cameron County 

entered August 19, 2016 at No. CP12-CR-0000040-2015 and 

remanding.

SUBMITTED: April 16, 2020

CONCURRING OPINION

JUSTICE WECHT DECIDED: JULY 21, 2020

In concluding that the Commonwealth waived its argument that Kaitlyn Wolfel had 

failed to raise a claim under Article I, Section 8 of the Pennsylvania Constitution, the 

Majority narrowly reads the Commonwealth’s timely objection to the suppression court’s 

sua sponte invocation of unraised grounds for relief in its briefing below and overlooks

significant procedural irregularities in that court’s resolution of Wolfel’s motion. 

Nonetheless, while I disagree with the route the Majority takes, I concur in today’s result, 

inasmuch as I, too, would find waiver, albeit on alternative grounds. Additionally, I write 

to highlight the suppression court’s failure to adhere to our Rules of Criminal Procedure.

The duties of Pennsylvania trial courts when faced with suppression motions are 

clear. Pa.R.Crim.P. 581(I) commands that, “[a]t the conclusion of” a suppression hearing,

the court “shall enter on the record a statement of findings of fact and conclusions of law 

as to whether the evidence was obtained in violation of the defendant’s rights, or in 
[J-16-2020] [MO: Saylor, C.J.] - 2

violation of these rules or any statute, and shall make an order granting or denying the 

relief sought.” Notwithstanding the Rule’s plain language, in Commonwealth v. Millner, 

888 A.2d 680 (Pa. 2005), this Court “recognize[d] that . . . it is not uncommon for 

suppression judges to fail to comply with [the Rule’s] directive.” Id. at 688. We “stress[ed] 

. . . the essential purposes served by the Rule” and explicitly “disapprove[d] of noncompliance with its unambiguous mandate.” Id. (emphasis added). The suppression 

court proceedings here did not adhere to those strictures. The consequences of that noncompliance are readily apparent.

The parties do not dispute that Wolfel failed explicitly to invoke Article I, Section 8

as a basis for suppressing the evidence of her blood draw either in her omnibus pre-trial 

motion or in her post-Birchfield1 motion to suppress. Nor did Wolfel raise any state

constitutional grounds for suppression at the August 12, 2016 hearing. Although the 

suppression court indicated that it was inclined to grant Wolfel’s second motion, that court 

did not contemporaneously make specific findings of fact or conclusions of law as 

required by Rule 581(I). See Notes of Testimony (“N.T.”), 8/12/2016, at 27. One week 

later, the court entered an order formally granting Wolfel’s motion “for reasons stated on 

the record,” Order, Morgan, S.J., 8/19/2016, despite the absence from those proceedings 

of any stated rationale for affording relief. Consequently, it was not until the suppression 

court issued its Pa.R.A.P. 1925(a) opinion on February 21, 2017, that the court revealed 

that its decision to suppress Wolfel’s blood draw “was based on” Article I, Section 8 of the 

Pennsylvania Constitution, in addition to the Fourth Amendment to the United States 

Constitution, the latter of which was the sole basis for suppression asserted by Wolfel. 

Opinion, Morgan, S.J., 2/21/2017, at 3. By waiting more than six months after the 

suppression hearing to announce an alternative justification for its ruling that the 

 

1 Birchfield v. North Dakota, ___ U.S. ___, 136 S.Ct. 2160 (2016).
[J-16-2020] [MO: Saylor, C.J.] - 3

defendant had not raised herself, the court effectively prevented the Commonwealth from 

objecting after it already had filed its statement of errors complained of on appeal.

In its principal brief in the Superior Court—the first opportunity to challenge the 

suppression court’s erroneous sua sponte invocation of Article I, Section 8—the 

Commonwealth expressly “noted that Wolfel couched her suppression motion solely as 

a Birchfield issue,” and further “submit[ted] that interjection of Article I, Section 8 analysis 

and authority into this matter is unwarranted.” Commonwealth’s Brief, Docket No. 1357 

WDA 2016, at 14. Although the Commonwealth could have been more precise in 

highlighting the fact that the suppression court belatedly rendered its decision upon 

grounds that Wolfel had not raised, the Commonwealth sufficiently communicated 

Wolfel’s failure to preserve her Article I, Section 8 claim such that the Superior Court ably

discerned that she had waived it. See Commonwealth v. Wolfel, 1357 WDA 2016, 2017 

WL 6629411, at *3-4 (Pa. Super. Dec. 29, 2017) (unpublished). Thus, I do not share the 

Majority’s view that the Commonwealth’s treatment of Wolfel’s waived claim in its briefing 

itself constituted a waiver, and I would not disturb the Superior Court’s resolution of that 

issue.

That being said, the Commonwealth failed to preserve its present claim that the 

good-faith exception to the federal exclusionary rule should be applied here. At the 

suppression hearing, and as the appellant below, the Commonwealth bore the burden of 

establishing that the evidence derived from the coerced blood draw was admissible 

despite the facially unconstitutional means by which it was obtained. Commonwealth v. 

Enimpah, 106 A.3d 695, 701-02 (Pa. 2014). That burden necessarily includes raising for 

timely consideration by the suppression court any applicable exceptions to the 

exclusionary remedy in order to preserve those issues for appeal. Here, the record 

reflects that the Commonwealth’s “chief argument” at the suppression hearing was that 
[J-16-2020] [MO: Saylor, C.J.] - 4

Birchfield did not apply retroactively to cases pending at the time the Supreme Court of 

the United States issued its decision in June 2016. See N.T., 8/12/2016, at 4. Indeed, 

the entirety of the Commonwealth’s argument, and of the suppression court’s questions 

and commentary, concerned the retroactivity of that decision. See id. at 21-23, 24-27.

To be fair, in disputing defense counsel’s view that Wolfel was entitled to 

retroactive application of the rule announced in Birchfield, the Commonwealth briefly 

commented that the Pennsylvania State Trooper who had read the invalid implied consent 

warning to Wolfel “was proceeding according to his training[,] doing what he would have 

been trained was required, acting totally in good faith. Nobody’s claimed otherwise.” Id.

at 21-22.2 But that fleeting remark, read in context, was insufficient to preserve for 

appellate review the weighty issue now relied upon. And the record contains no other 

indication that the Commonwealth sought to preempt an unfavorable ruling on Fourth 

Amendment grounds by invoking the good-faith exception, which this Court rejected as a 

 

2 Echoing its approach before the suppression court, in its Pa.R.A.P. 1925(b) 

statement the Commonwealth raised a single claim that the court erred in granting 

Wolfel’s suppression motion because, “[w]hen the police acted in good faith reliance on 

the legal authority that was in effect at the time of the collection of the blood sample, 

Birchfield should not be applied retroactively to exclude evidence obtained prior to its 

decision.” Pa.R.A.P. 1925(b) Statement, 10/4/2016, at ¶ 1. Having failed to put the issue 

squarely before the suppression court at the hearing on Wolfel’s motion, the 

Commonwealth’s effort to shoehorn its unpreserved good-faith exception argument into 

its preserved non-retroactivity claim by conflating the two concepts is unavailing. Whether 

or not police “acted in good faith” when they violated a person’s constitutional rights has 

no bearing on whether a decision by the U.S. Supreme Court announcing a new rule of 

constitutional magnitude must be applied retroactively to criminal cases then-pending in 

state courts. Nor do defendants in those circumstances have the burden of proving that 

police acted in “bad faith” to secure the benefits of those rulings when seeking 

suppression of unlawfully obtained evidence. In any event, notwithstanding the 

Commonwealth’s singular focus upon the retroactivity question at the suppression 

hearing and in its sole claim of error raised on appeal, it abandoned that claim by not 

pressing it in the Superior Court. See Commonwealth v. McGill, 832 A.2d 1014, 1018 n.6 

(Pa. 2003).
[J-16-2020] [MO: Saylor, C.J.] - 5

matter of Pennsylvania constitutional law nearly thirty years ago. See Commonwealth v. 

Edmunds, 586 A.2d 887 (Pa. 1991); see also Commonwealth v. Johnson, 86 A.3d 182 

(Pa. 2014).

3

 For these reasons, I conclude that the Commonwealth waived its extant

assertions of that exception, and I would remand the matter to the Superior Court with 

instructions to reinstate the order of suppression.

Accordingly, I concur in the result reached by the Majority.

Justice Baer joins this concurring opinion.

 

3 Whether, in light of Edmunds, Pennsylvania’s trial and intermediate appellate

courts, which are bound by the Pennsylvania Constitution and decisions from this Court 

interpreting it, may apply the good-faith exception to the federal exclusionary rule in state 

prosecutions involving standalone Fourth Amendment violations has not yet been 

addressed by this Court. Because that issue was not raised by the parties, I take no 

position on the views expressed by the Majority and Dissent as to its applicability here. 

See Maj. Op. at 8-9; Diss. Op. at 3 (Dougherty, J.).