DON’T “WAIVE” YOUR APPELLATE ISSUE GOODBYE
In a recent case before the PA Supreme Court, the Appellant, Scott Bishop, argued that the PA Supreme Court “should interpret the provision of the Pennsylvania Constitution conferring upon individuals a right against self-incrimination to provide greater protection than the Fifth Amendment to the United States Constitution, as interpreted by the Supreme Court of the United States.”
However, the Court affirmed the Superior Court’s decision to affirm the trial court’s ruling on Bishop’s Motion to Suppress, concluding that Bishop’s counsel had waived the opportunity to argue the issue after failing to properly preserve it.
The question at issue involved the interplay between the Fifth Amendment to the U.S. Constitution and Article I, Section 9 of the Pennsylvania Constitution Article.
“Under the Fifth Amendment to the United States Constitution … a statement made by a criminal defendant during a custodial interrogation who has not been apprised of the warnings required by Miranda v. Arizona generally must be suppressed. However, the violation does not justify the exclusion of physical evidence recovered as a result of the statement.” (Citations omitted.)
“The Pennsylvania Constitution’s analogue to the Fifth Amendment is contained in Article I, Section 9” which, to date, ‘has not been interpreted by this Court to provide any greater protection than does the Fifth Amendment in the relevant regard.”
The facts surrounding Bishop’s case were that he was questioned by parole agents at his home during which time he made certain statements that ultimately led to the agents finding evidence which led to him being charged with multiple criminal offenses. Prior to trial, Bishop filed a suppression motion which, “indicated, in broad terms, that both the statements and physical evidence had been obtained in violation of his “U.S. Constitutional rights or independently protected rights secured by the Pennsylvania Constitution. The motion also alleged that ‘the questioning of the defendant was not preceded by adequate warnings as to the right to counsel, the right to remain silent and be free from self-incrimination.’” (Citations omitted.)
The trial court held that Bishop should have received Miranda warnings and that his statement relating to the location of a firearm was subject to exclusion. It determined however, that “the parole agent’s inquiry about the location of [Bishop’s] vehicle did not rise to the level of interrogation, and therefore, suppression was not required.” Furthermore, the trial court “concluded that the inevitable discovery exception to the warrant requirement pertained [to the physical evidence recovered], and accordingly, there was no constitutional violation.”
After Bishop was convicted of the charged offenses, he appealed to the Superior Court and again “made no attempt to distinguish between the federal and state charters in the proceedings before the intermediate court.” The Superior Court affirmed the trial court in a non-precedential opinion.
Bishop then appealed to the PA Supreme Court where he “argued that all physical evidence should be suppressed under ‘Amendments 4 and 14 of the U.S. Constitution, as well as Article I, Section 8 of the Pennsylvania Constitution’ and that his statements should be suppressed ‘under Amendments 5 and 6 and 14 of the Federal Constitution and Article I, Section 9 of the Pennsylvania Constitution.’ Notably, he did not initially seek suppression of the physical evidence under Article I, Section 9.”
The Commonwealth argued that Bishop failed to preserve the issue he was now raising before the PA Supreme Court.
At the outset, the majority noted that “[i]n terms of efforts by criminal defendants to raise claims for departure from federal constitutional jurisprudence on independent state grounds, the Commonwealth [was] correct that the precedent of this Court requires that some analysis explaining the grounds for departure is required.”
“[L]awyers who omit reasons, or provide only scant ones, in their efforts to secure relief for their clients should know very well that they are proceeding at the risk of waiver.”Commonwealth v. Bishop, No. 37 EAP 2018 (Pa. September 26, 2019)
Although the PA Supreme Court “does not require appellants to engage in a ‘complete analysis’ on pain of waiver,” it noted that “some analysis is required” and “mere citation to a provision of the state constitution is insufficient.”
In Bishop’s case, the majority found that Bishop’s counsel “failed to confront the prevailing case law to which he alluded” and “did not articulate anything along the lines of the rationale” to support his argument that the PA Supreme Court “should rely on Article I, Section 9 of the Pennsylvania Constitution to expand the application of the exclusionary rule beyond its reach under the federal constitutional jurisprudence of the Supreme Court of the United States, where it was created.”
“In other words,” the majority continued, “counsel’s approach of neither suggesting departure nor offering any reasons for departing was the antithesis of meaningful development.” Implicit in the decision and explicitly, the Court’s decision served as a reminder to appellate counsel: “lawyers who omit reasons, or provide only scant ones, in their efforts to secure relief for their clients should know very well that they are proceeding at the risk of waiver.”
Accordingly, the majority concluded 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.”
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