J-S26009-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ADANTE L. SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1505 MDA 2021

Appeal from the Judgment of Sentence Entered October 19, 2021,

in the Court of Common Pleas of Dauphin County,

Criminal Division at No(s): CP-22-CR-0005147-2019.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 19, 2022

Adante L. Smith appeals from the judgment of sentence of life in prison 

without parole, after a jury convicted him of murder of the first degree, 

robbery, and conspiracy to commit robbery.1 We affirm.

On the evening of August 30, 2019, Smith and two other men met Kyler 

Wiawada on the streets of Harrisburg to purchase cannabis. The deal went 

awry. Smith shot Wiawada “multiple times at close range.” N.T., 10/11/12, 

at 22. Wiawada died.

Ten days later, law enforcement arrested Smith. A detective told Smith,

“you have the right to remain silent, anything that you say can or may be 

used against you . . . You have the right to an attorney. If you can’t afford 

one, one will be appointed to you by Dauphin County.” N.T., 10/11/12, at 18. 

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* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 2502(a), 903, and 3701(a)(1)(l).
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The detective then interrogated Smith. After about 90 minutes, Smith 

confessed to being at the scene of the murder and that “his gun accidentally 

went off during a struggle.” Id. at 22. The Commonwealth charged Smith 

with homicide, stealing the murder weapon from a previous victim, and other 

offenses not at issue here.

The COVID-19 pandemic struck, and two years passed. On October 4, 

2021, Smith filed a motion in limine to suppress his confession. He contended 

that he “was not fully advised of his Miranda [v. Arizona, 384 U.S. 436 

(1966),] rights. Specifically, he was never advised that he could stop 

answering questions at any time and ask for a lawyer.” Smith’s Motion in 

Limine at 3. 

After a suppression hearing, defense counsel argued as follows:

we have a young man who was taken into custody for a very 

serious crime, and he avers that the totality of the 

circumstances was that . . . his confession was involuntary,

because of the pressure of the interrogation and the fact 

that he voiced his concerns about being pressured and the 

interview continued on. And the defense feels that, at that 

time, it may have been appropriate or should have been 

appropriate for the investigators to advise him that he could 

have asked for an attorney. That’s the bottom line.

N.T., 10/11/21, at 28. 

Smith made no other arguments. The court denied Smith’s motion in 

limine to suppress, because the detective gave warnings that complied with

Miranda, supra. See Trial Court Opinion, 2/28/22, at 4.
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The matter proceeded to trial. A jury convicted and the court sentenced 

Smith as described above. This timely appeal followed.

Smith raises the following two appellate issues:

1. Did the trial court’s denial of . . . Smith’s motion in 

limine to exclude self-incriminating statements . . . 

violate his rights under the 5th Amendment of the 

United States Constitution and Constitution of the 

Commonwealth of Pennsylvania as expressed in 

Miranda . . . and its federal and state-court progeny?

2. Are the protections against unknowing selfincrimination afforded by the Miranda warnings as 

currently practiced per Pennsylvania caselaw 

incomplete and inadequate, because they do not 

require police investigators/interrogators to advise 

that a person has the right to stop answering 

questions during an interrogation and ask for a 

lawyer?

Smith’s Brief at 1-2.

First, Smith asks whether denying his motion in limine violated his rights 

under Fifth Amendment to the federal constitution and the Constitution of the 

Commonwealth of Pennsylvania.2 However, Smith does not argue this issue. 

Instead, he concedes that the detective correctly gave the warnings that 

the Supreme Court of the United States required in Miranda, supra. “This is 

a case where the [suppression] court correctly applied [existent] law . . . The 

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2 There is no Fifth Amendment to the Constitution of the Commonwealth of 

Pennsylvania. Smith cites no provision under our state charter to support his 

arguments. Although Smith mentions the Constitution of the Commonwealth 

of Pennsylvania in his brief, he did not claim heightened protections under 

that charter before the suppression court, nor does he make such an assertion 

on appeal. Thus, we confine our review to the federal constitution.
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detective correctly provided rights warnings consistent with Miranda . . . .” 

Smith’s Brief at 6.

In short, Smith admits his first claim of error is meritless. We agree.

Turning to the second appellate issue, Smith claims the Supreme Court 

of the United States did not go far enough in Miranda. In his view, the Fifth 

Amendment3requires police to provide more warnings than Miranda

demands. Smith believes, to apprise citizens of their Fifth Amendment rights

fully, police must also tell people they have “the right to stop answering 

questions at any point in the interrogation and refuse to make any further 

statements to the interrogators.” Id. 

Currently, law enforcement must warn a person “that he has a right 

to remain silent, that any statement he does make may be used as evidence 

against him, and that he has a right to the presence of an attorney, either 

retained or appointed.” Miranda, 384 U.S. at 444. By attempting to expand 

that list of warnings, Smith seeks to forge new Fifth Amendment

jurisprudence.

Before we may reach the merits of this claim, we must determine if the 

constitutional question is properly before this Court. Whether a party has 

preserved an issue for appellate review “presents a question of law, and, as 

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

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3 The Fifth Amendment dictates, in relevant part, that a person shall not “be 

compelled in any criminal case to be a witness against himself . . . .”
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Trigg v. Children's Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 

2020).

“Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Pa.R.A.P. 302(a). Even issues “of constitutional 

dimension are waived if not raised in the trial court. A new and different 

theory of relief may not be successfully advanced for the first time on appeal.” 

Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884 (2019), appeal 

denied, 221 A.3d 644, (Pa. 2019) (some punctuation omitted).

Below, Smith contended the detective violated Miranda. He asserted 

he “was not fully advised of his Miranda rights. Specifically, he was never 

advised that he could stop answering questions at any time and ask for a 

lawyer.” Smith’s Motion in Limine at 3. That statement is factually and legally

erroneous. As Smith now acknowledges, the detective fully complied with

Miranda; that case did not require the detective to tell Smith “that he could 

stop answering questions at any time and ask for a lawyer.” Smith’s Motion 

in Limine at 3. 

In the suppression court, Smith did not admit the detective complied 

with Miranda and then argue that the Miranda warnings themselves were

insufficient to safeguard his Fifth Amendment rights. At best, his attorney 

said, “the defense feels that . . . it may have been appropriate or should have 

been appropriate for the investigators to advise him that he could have asked 

for an attorney.” N.T., 10/11/21, at 28. 
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Rather than making a specific, constitutional argument for expanding

the Miranda warnings, Smith merely suggested what he felt the detective

should have done. He gave no further explanation. Smith presented no 

argument to the suppression court as to why the Miranda warnings should 

be reconsidered and expanded to enhance Fifth Amendment protections. Most 

importantly, he did not contend the warnings, “as currently practiced, [are] 

incomplete and inadequate . . . .” Smith’s Brief at 1. 

Hence, he raises a novel constitutional theory for the first time on appeal

in violation of Pa.R.A.P. 302(a). We dismiss it as waived.

4 See Trigg, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/19/2022

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4 Even if Smith had argued below that Miranda v. Arizonia, 384 U.S. 436 

(1966), inadequately protects his Fifth Amendment rights, neither the 

suppression court nor this Court could have granted him relief. Miranda is a 

federal constitutional case. “In a constitutional case, only [the Supreme Court

of the United States] can correct [its] error.” Kisor v. Wilkie, ___ U.S. ___, 

___, 139 S. Ct. 2400, 2422 (2019). Thus, we may not decide whether the 

Miranda warnings are “incomplete and inadequate,” as Smith claims. Smith’s 

Brief at 1. That is a question reserved exclusively for the High Court.