[ J
- 16 - 2020 ] [MO: Saylor, C.J. ] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

KAITLYN N. WOLFEL,

Appellant : : : : : : : : : : : : 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. CP

12

- CR

- 0000040

- 2015 and remanding. SUBMITTED: April 16, 2020

CONCURRING O PINION

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, t he Majority narrowly read s the Commonwealth’s timely objection to the suppression court’s sua sponte invocation of unraised grounds for relief in its briefing below and overlook s 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 writ e 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

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violation of these rules or any statute, and shall make an order granti ng 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 compl y with [ the Rule’s ] directive.” Id. at 688. We “stress[ed] . . . the essential purposes served by the R ule” and explicitly “disapprove[d] of non

compliance with its unambiguous mandate .” Id. (emphasis added). T he suppression court proceedings here did not adhere to those strictures. The consequences of that n on compliance are readily apparent

. T he parties do not dispute that Wolfel failed explicitly to invoke Article I, Section 8 as a basis for suppressing t he evidence of her blood draw either in h er omnibus pre

- trial
motion or in her post

- Birchfield 1 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 w as inclined to grant Wolfel ’ s second motion , th at court did not contemporaneously make specific findings of fact or conclusions of law as requir ed 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 “f or 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 , i t 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

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defendant had not raise d 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 interj ection 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 bela tedly 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
discern ed that she had waived it

. See Commonwealt h 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 ap pellant 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, t he record reflects that the Comm onwealth’s “chief argument” at the suppression hearing was that[ J

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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. , 8/12/2 0 16, at 4. Indeed, the entirety o f 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, i n disputing defense counsel’s view that Wolfel was entitled to retroactive applicat ion of the rule announced in Birchfield , t he 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 t hat fleeting remark, read in context, was insufficient to preserve for appellate review the weighty issue now relied upon . And t he 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 pr ior 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 argum ent into its preserved non - retroactivity claim by conflating the two concepts is unavailing. W hether 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 ann ouncing a new rule of constitutional magnitude must be applied retroactively to criminal cases then

- pending in state courts. No r do defendants in those circumstances have the burden of proving that police acted in “bad faith” to secure the benefits of tho se rulings when seeking suppression of unlawfully obtained evidence. In any event , n otwithstanding 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 t hat claim by not p ressing it in the Superior Court. See Commonwealth v. McGill , 832 A.2d 1014, 1018 n.6 (Pa. 2003).[ J

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matter of Pennsylvania constitutional law nearly t hirty 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 violation s 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.).