Commonwealth v. Price, N., Aplt. ( 2022 )

[J-27-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 18 WAP 2021
:
Appellee : Appeal from the Order of the
: Superior Court entered November
: 20, 2020 at No. 1734 WDA 2019,
v. : reversing the Order of the Indiana
: County Court of Common Pleas
: entered October 15, 2019 at No.
NATHANIAL RAY PRICE, : CP-32-CR-0001267-2016, and
: remanding.
Appellant :
: ARGUED: April 13, 2022
OPINION
JUSTICE DONOHUE DECIDED: OCTOBER 19, 2022
We granted allocatur review in this case to determine whether the Commonwealth
waived reliance on the doctrine of inevitable discovery where its Concise Statement of
Matters Complained of on Appeal filed pursuant to Rule 1925(b) of the Pennsylvania
Rules of Appellate Procedure asserted only that the trial court erred in granting a motion
to suppress filed by Appellant Nathanial Ray Price (“Price”) because the affidavit of
probable cause at issue failed to assert probable cause sufficient for the issuance of a
warrant. In particular, we must address whether, under these circumstances, the doctrine
of inevitable discovery constitutes a “subsidiary issue” to the issue of the sufficiency of
probable cause under Pa.R.A.P. 1925(b)(4)(v) and was thus not waived by operation of
Pa.R.A.P. 1925(b)(4)(vii). Concluding that it was not a subsidiary issue and thus not
preserved for review by the Superior Court, we vacate that court’s order.
Factual and Procedural Background
On October 26, 2016, Price and two others, Justin Stevenson and Isiah Scott,
allegedly conspired to commit a double murder and robbery. On October 28, 2016, the
Commonwealth filed an Application for Search Warrant (the “Application”) directed to
“Celico Partnership d/b/a Verizon Wireless” seeking “[a]ny and all phone records for
phone number/s 724-762-3803 from the time period 10/25/16 through and including
10/28/16.” Omnibus Pretrial Motion for Relief, 9/1/2017, Exhibit D. The Affidavit of
Probable Cause (the “Affidavit”) in support of the Application read as follows:
Your affiant is Cpl John FISANICH. I am currently employed by
the PA State Police as Supervisor in the Troop “A” Criminal
Investigations Unit. I was so employed when this investigation
was conducted.
On 10/27/16 at approximately 0040 hours, the PA State Police
Patrol Unit was dispatched to a reported disturbance at 903
Hillside Drive In Cherry Hill Twp., Indiana County. Upon arrival,
Patrol Troopers immediately saw a male lying In the downstairs
area. He was clearly deceased. Upon clearing the residence
for any further threats or suspects, Troopers found a female
lying in an upstairs bedroom. She was also clearly deceased.
The scene was secured and a supervisor and Criminal
Investigators were tailed to the scene, as per PSP regulations.
As the investigation progressed through the day, several
suspects were Identified. One suspect is identified as Nathanial
Ray PRICE w/n/m DOB (3/21/98). Investigators learned his
phone number, and he was later taken into custody. The
phone number listed on this Search Warrant Application is
724-762-3803 and is the number that is associated to
Nathaniel PRICE.
Based on my training and experience, I believe that there Is
valuable information regarding the act of Criminal Homicide to
be gleaned from the cellular phone records associated with the
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aforementioned number. I ask that this search be granted to
further this investigation.
Id. (emphasis added).
The trial court, per the Honorable Thomas M. Bianco, issued the search warrant,
which was then served on Verizon Wireless, and the responsive phone records were
subsequently obtained. In his Omnibus Pretrial Motion for Relief filed on September 1,
2017, Price moved to suppress the phone records on the ground that the Affidavit failed
to state probable cause. Omnibus Pretrial Motion for Relief, 9/1/2017, ¶ 34. In particular,
Price argued that the Affidavit failed to include any factual averments that linked the
identified phone number to the phone retrieved from Price after the crime. As the bolded
language above reflects, the Affidavit states only that “investigators learned his phone
number” but provides no indication as to how they obtained this information or in any
respect confirmed its accuracy.
In his opinion deciding the claims raised in the Omnibus Pretrial Motion, Judge
Bianco granted the motion to suppress the phone records, ruling as follows:
Defendant argues that the Affidavit did not provide probable
cause for the issuance of the Search Warrant because it “failed
to link the ‘Samsung Galaxy cellular phone’, stated to be in Mr.
Price’s possession, but without specifying a date, time, and
place when so found, with the telephone number ‘724-762-
3803’ stated to be that of Mr. Price... .” The Court agrees.
The two operative phrases in the Affidavit that attempt to link
Price to the phone number are “Investigators learned his phone
number,” and “724-762-3803 ... is the number that is associated
with Nathanial PRICE.” These phrases are completely devoid
of any foundation or explanation of how the investigators
determined that 724-762-3803 was the cell phone number
associated with Price’s cell phone.4 Therefore, looking at the
“totality of the circumstances,” and reviewing the Affidavit in a
“common-sense, nontechnical manner,” see Commonwealth v.
Jones, 542 Pa. 418, 668 A.2d 114, 117 (1995), this Court finds
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that the Affidavit “did not provide the issuing authority5 with a
substantial basis to conclude that probable cause existed” to
search the phone records of 724-762-3803. See
Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532 (2001).
WHEREFORE, Defendant’s Motion to Suppress regarding the
Search Warrant dated 10/28/2016 at 1:15 P.M. for the phone
records for phone number 724-762-3803 is GRANTED. Any
and all evidence seized pursuant to said Search Warrant is
suppressed.
4 The Court acknowledges that the Court
rejected a similar argument by Defendant with
regard to Defendant’s residence. The Court
finds a distinction between stating that
Defendant’s residence is 6910 Route 286
Highway East, Indiana, PA, and stating that
Defendant’s cell phone number is 724-762-
3803, in that it would be impossible for the
affiant to know Defendant's cell phone number
without receiving that information from another
source. In comparison, Defendant was taken
into custody at his residence, therefore, the
address of that residence is within the
knowledge of the affiant without the necessity of
information from a third party.
5 This Court is well aware that it was the issuing
authority of the Search Warrant at issue.
Despite this fact, the Court believes that it is
appropriate to review its prior decision in light of
the Suppression Motion filed, and render the
decision required by Pennsylvania
jurisprudence.
Opinion and Order of Court, 10/15/2019, at 29-30.
[J-27-2022] - 4
Pursuant to Pa.R.A.P. 311(d),1 the Commonwealth appealed Judge Bianco’s
decision to the Superior Court. In its Pa.R.A.P. 1925(b) statement of issues complained
of on appeal, the Commonwealth set forth a single issue:
The Trial Court erred as a matter of law and abused its
discretion in granting Defendant’s Motion to Suppress when
the Trial Court ruled that “the Affidavit did not provide probable
cause for issuance of the Search Warrant ...” (See paragraph
10 of Order of Court dated 10/15/2019 and page 29 of the
Opinion and Order of Court dated 10/15/2019).
Pa.R.A.P. Rule 1925(b) Statement, 12/9/2019, at 1.2 In its subsequent brief filed with the
Superior Court, the Commonwealth set forth two principal arguments. First, the
Commonwealth argued that the trial court’s original ruling to issue the warrant was
correct, as the Affidavit contained sufficient probable cause because it was not necessary
for the affiant to explain how he knew the identified phone number. In this regard, the
Commonwealth further indicated that Price had no expectation of privacy in his cell phone
number and it was significant that he may have communicated with his accomplices using
his cell phone. As a result, the Commonwealth claimed that the “law of the case” doctrine
prevented the same court from reversing its original ruling. Commonwealth v. Price, 244
A.3d 1250, 1253 (Pa. Super. 2020). Second, the Commonwealth contended that
although the Affidavit inadvertently failed to include factual support to explain how the
police officers had obtained the number for the phone found on Price’s person, those
1 Pa.R.A.P. 311(d) provides that “[i]n a criminal case, under the circumstances provided
by law, the Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal that the
order will terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).
2 For his Rule 1925(a) opinion, Judge Bianco adopted (without modification) his Opinion
and Order of Court dated October 15, 2019 deciding Price’s Omnibus Pretrial Motion.
[J-27-2022] - 5
police officers indeed possessed that information at the time of issuance of the “allegedly
deficient” warrant (namely, during a post-crime interview with Price). Accordingly, the
Commonwealth argued that recovery of the phone records for Price’s cell phone number
was inevitable. Id.The Superior Court rejected the Commonwealth’s law of the case doctrine
argument. That doctrine prevents a court in later stages of litigation from reversing the
prior decisions of another judge in that court or by a higher court in an earlier phase of
the case. Id. (citing Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa. Super. 2013)).
Citing to this Court’s decision in Commonwealth v. Starr, 664 A.2d 1326 (Pa. 1995),
however, the Superior Court indicated that the law of the case doctrine does not prevent
a judge from modifying his/her own rulings, as by its terms the doctrine only prevents a
second judge from revisiting in the same case the decision of an appellate court or
another judge of coordinate jurisdiction. Price, 244 A.3d at 1253. In the current case,
Judge Bianco, as the judge who issued the warrant, was free to revisit that decision and
grant the motion to suppress. Id.
With respect to the second issue, the Superior Court declined to rule on the
Commonwealth’s contention that the Affidavit sufficiently established probable cause.3
3 The Superior Court did not delineate the contents of the Affidavit in question in this
case. Rather than setting forth the text of the October 28, 2016 Affidavit at issue here,
the court instead quoted in full the contents of a separate affidavit of probable cause
contained in a later application dated May 5, 2017 for a search warrant seeking the phone
that police seized from Price at the time of his arrest. Price, 244 A.3d at 1252. Unlike the
Affidavit filed on October 28, 2016 for the phone records from Verizon Wireless, the May
5, 2017 affidavit quoted in the Superior Court’s opinion contained the factual information
conspicuously missing from the October 28, 2016 Affidavit for the Verizon Wireless phone
records – including in particular that “[t]hrough the course of investigation, specifically
suspect interviews, investigators learned PRICE’S phone number to be 724-762-3803
... .” Id. (emphasis added).
[J-27-2022] - 6
Instead, the court indicated that “even if” the warrant application did not establish probable
cause, the phone records obtained through the issuance of the warrant were “nonetheless
admissible under the doctrine of inevitable discovery.” Id. at 1254. Citing to this Court’s
decision in Commonwealth v. Henderson, 47 A.3d 797 (Pa. 2012), the court held that the
Commonwealth established that because the police had in their possession at the time
the Application was presented to the issuing court the information relevant to the
existence of probable cause that was missing from the Affidavit (specifically, how the
investigators had learned the number of Price’s phone), a proper, second warrant
application could have been filed and the phone records could thus have been
appropriately seized. Id. The Superior Court held that although the Commonwealth had
not referenced the inevitable discovery doctrine in its Rule 1925(b) statement, it
constituted a “subsidiary issue to its probable cause issue” pursuant to Pa.R.A.P.
1925(b)(4)(v) and therefore was not waived pursuant to Pa.R.A.P. 1925(b)(4)(v). Id. at
1253 n.1.
The Issue Presented
This Court granted discretionary review with respect to the following issue:
Did the Superior Court err in reversing the order entered on
October 15, 2019, at paragraph 10 thereof, relating to
suppression of the search warrant issued on October 28,
2016, at 1:15 P.M., which search warrant failed to state
probable cause within the four-corners of its affidavit, on the
basis of inevitable discovery, inasmuch as inevitable
discovery was outside of that raised in the concise statement
pursuant to Pa.R.A.P. 1925 and, by so doing, the Superior
Court went outside the four-corners of such search warrant’s
affidavit?
Commonwealth v. Price, 259 A.3d 888 (Pa. 2021) (per curiam). Our standard of review
of a suppression ruling of a trial court is to determine whether the Commonwealth has
[J-27-2022] - 7
met its burden to establish by a preponderance of the evidence that the challenged
evidence is admissible. Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. 2006);
Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992). If there is no meaningful
dispute of fact, our duty is to determine whether the suppression court properly applied
the law to the facts of the case, keeping in mind that the conclusions of law of the
suppression court are not binding on this Court. Commonwealth v. Nester, 709 A.2d 879,
881 (Pa. 1998). Moreover, in our construction of our appellate rules, pursuant to
Pa.R.A.P. 107 we must, to the extent not inconsistent with any express provision of the
appellate rules, construe them in consonance with the rules of statutory construction in
the Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991. See, e.g., Commonwealth v.
Far, 46 A.3d 709, 712-13 (Pa. 2012). The object of all interpretation is to ascertain and
effectuate the intent of the drafters, a task that is best accomplished by considering the
language of the provisions at issue. Commonwealth v. Pressley, 887 A.2d 220, 223 n.5
(Pa. 2005); 1 Pa.C.S. § 1921(a). We may consult the explanatory comments of the
committee that worked on a rule. Commonwealth v. Lockridge, 810 A.2d 1191, 1195 (Pa.
2002).
The Arguments of the Parties
Price argues that the Commonwealth failed to present the inevitable discovery issue
“with any particularity” in its Rule 1925(b) statement, and that Pa.R.A.P. 1925(b)(4)(vii)
specifically provides that “Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.” Price’s Brief at 15.
According to Price, Pa.R.A.P. 1925(b)(4)(ii) provides, in pertinent part, that the statement
shall concisely identify each ruling or error that the appellant intends to challenge with
[J-27-2022] - 8
sufficient detail to identify all pertinent issues for the judge. Id. Moreover, the Comment
to Pa.R.A.P. 1925 states that “[t]he paragraph explains that the Statement should be
sufficiently specific to allow the judge to draft the opinion required under 1925(a).” Id.Price insists that the Commonwealth’s Rule 1925(b) statement was, at a minimum,
too vague to alert Judge Bianco of the need to discuss the inevitable discovery issue in
his written opinion. Specifically, the Commonwealth’s Rule 1925(b) statement identified
a challenge on a single issue, namely whether the Affidavit contained sufficient probable
cause. Id. at 16. This recitation of the sole issue necessarily confined Judge Bianco’s
focus to the four corners of the Affidavit, which could not have alerted him to the separate
and distinct issue of inevitable discovery. Id.
Conversely, the Commonwealth contends that this Court should affirm the Superior
Court’s reversal of the trial court’s suppression ruling based upon the “right for any
reason” doctrine. In this regard, the Commonwealth claims that Price has never denied
that the Affidavit linked his cell phone to the murders. Commonwealth’s Brief at 10. That
the Affidavit did not explain how the police knew Price’s cell phone number is irrelevant,
as such an explanation is not required. Id. According to the Commonwealth, “a phone
number, like an address, goes to particularity rather than probable cause,” and
accordingly Price’s suppression claim failed to dispute the issuing authority’s finding of
probable cause. Id. If this Court declines to decide the appeal based upon the “right for
any reason” doctrine, the Commonwealth recommends that the case be remanded to the
Superior Court to decide the probable cause issue.
The Commonwealth also argues that the Superior Court’s decision may be affirmed
on the issue of inevitable discovery. The Commonwealth notes that it did raise and
[J-27-2022] - 9
preserve the inevitable discovery issue in the trial court. Commonwealth’s Brief in
Opposition of Defendant’s Omnibus Pretrial Motions, 3/15/2019, at 28. Moreover, the
Commonwealth claims that the information allegedly “missing” from the Affidavit was in
fact not missing at all, as it was set forth in a later affidavit of probable cause, specifically
the one filed on May 5, 2017 in connection with the application for a warrant seeking the
phone that police seized from Price at the time of his arrest. According to the
Commonwealth, the May 5, 2017 affidavit shows that the police had obtained the
information in question before the October 28, 2016 Affidavit at issue here was filed with
the trial court.
Analysis
The purpose of a Rule 1925(b) statement is to facilitate appellate review and to
provide the parties and the public with the legal basis for a judicial decision. See, e.g.,
Commonwealth v. Parrish, 224 A.3d 682, 692 (Pa. 2020) (quoting Commonwealth v.
DeJesus, 868 A.2d 379, 382 (Pa. 2005)). To this end, Rule 1925(b)(4)(ii) provides that
the Rule 1925(b) 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). Highlighting this need for conciseness, Rule
1925(b)(4)(iv) indicates that the Rule 1925(b) statement “should not be redundant or
provide lengthy explanations as to any error.” Pa.R.A.P. 1925(b)(4)(iv). On the other
hand, the Rule 1925(b) statement cannot be “too concise,” as it must properly specify the
errors to be addressed on appeal. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.
Super. 2011), appeal denied, 613 Pa. 642 (Pa.); Commonwealth v. Dowling, 778 A.2d
683 (Pa. Super. 2001). As our Superior Court has indicated, “a [c]oncise [s]tatement
[J-27-2022] - 10
which is too vague to allow the court to identify the issues raised on appeal is the
functional equivalent of no [c]oncise [s]tatement at all.” Commonwealth v. Reeves, 907
A.2d 1, 2 (Pa. Super. 2006), appeal denied, 919 A.2d 956 (Pa. 2007). Pursuant to Rule
1925(b)(5)(vii), “[i]ssues not included in the Statement and/or not raised in accordance
with the provisions of this paragraph (b)(4) are waived.”
To ensure that a Rule 1925(b) statement is both concise but also sufficiently
detailed to identify all of the issues desired to be raised on appeal, Rule 1925(b)(4)(v)
provides that “[e]ach error identified in the Statement will be deemed to include every
subsidiary issue that was raised in the trial court[.]” Pa.R.A.P. 1925(b)(4)(v) (emphasis
added). As the explanatory note to this subsection of Rule 1925(b) explains, Rule
1925(b)(4)(v) was modeled after Rule 14(1) of the Rules of the Supreme Court of the
United States, which addresses the contents of a petition for a writ of certiorari. Pa.R.A.P.
1925 Note. Rule 14(1) states in relevant part that “[t]he statement of any question
presented is deemed to comprise every subsidiary issue fairly included therein.” Sup. Ct.
R. 14(1).
The text of these rules emphasizes that to be a “subsidiary issue,” the unstated
issue must be “included” within the stated issue. Whether the unstated issue is fairly
“included” within the stated issue depends in substantial part upon the interrelationship
between the two issues – i.e., whether resolution of the stated issue may depend, in whole
or in part, upon the resolution of the unstated issue.4 In other words, the question is
4 In interpreting what constitutes a subsidiary issue under Rule 1925(b)(4)(c), the
Commonwealth directs us to two prior decisions from this Court, Commonwealth v.
Laboy, 936 A.2d 1058 (Pa. 2007), and Commonwealth v. Rogers, 250 A.3d 1209 (Pa.
2021). In Laboy, defendant's Rule 1925(b) statement was exceedingly brief but the trial
[J-27-2022] - 11
whether resolution of the two issues is sufficiently connected to each other such that the
resolution of one may depend in some respect upon resolution of the other. This
interrelationship typically occurs when the unstated issue is an element of, or important
to, the broader stated issue. For example, in Desher v. Southeastern Pennsylvania
Transportation Authority, 212 A.3d 1179 (Pa. Commw. 2019), appeal denied, 222 A.3d
1135 (Pa. 2020), a plaintiff filed a complaint against SEPTA under the Federal Employers’
Liability Act (FELA), contending that SEPTA was negligent for failing to follow its Accident
and Illness Prevention Program (AIPP), which required SEPTA to place automated
external defibrillators in its facilities and train its employees on their use. Id. at 1183. The
court issued a Rule 1925(a) opinion resolving the claim on its merits. The Superior Court
reversed, finding the claim waived due to its brevity. We reversed the Superior Court’s
decision, holding that it was fairly evident from context (including the trial transcript) that
the sole legal issue was whether the defendant was vicariously liable for his co-
defendant’s actions. We stated that “the common pleas court readily apprehended
Appellant’s claim and addressed it in substantial detail.” Laboy, 936 A.2d at 1060. In
Rogers, we likewise held that the weight-of-the-evidence claim was “readily
understandable from context” and that “the trial court had no difficulty apprehending the
claim as set forth in the concise statement and addressing its substance.” Rogers, 250
A.3d at 1224-25.
We decline to find that these cases provide any substantial guidance regarding the
construction of Rule 1925(b)(4)(v). Neither case cites to the rule nor makes any attempt
to define the term “subsidiary issue.” Instead, the focus in these cases was on the
question of whether the brevity of a Rule 1925(b) statement hinders or prevents
meaningful appellate review in particular cases (thus requiring waiver). We note that in
the present case, Judge Bianco apparently did not apprehend that the inevitable
discovery doctrine was at issue, as he did not address it in his Rule 1925(a) opinion.
The Commonwealth also indicates that on two occasions this Court has cited to the
inevitable discovery doctrine sua sponte. Commonwealth v. Miller, 724 A.2d 895, 900
n.5 (Pa. 1999); Commonwealth v. Albrecht, 720 A.2d 693, 702 n.11 (Pa. 1998). No issues
relating to Rule 1925(b)(4)(v) were at issue in these cases, and on both occasions
inevitable discovery was merely mentioned in footnotes as alternative support for this
Court’s textual rulings.
[J-27-2022] - 12
trial court ruled that the AIPP was not a “safety rule” that SEPTA had a duty to enforce
under FELA. Id. at 1184. In his Rule 1925(b) statement, the plaintiff set forth a broad
and general issue relating to SEPTA’s negligence and then on appeal argued that the
trial court had erred in concluding that the AIPP was not a safety rule. Id. SEPTA argued
that because the plaintiff’s Rule 1925(b) statement did not include the phrase “safety rule,”
the plaintiff had waived the issue on appeal. Id. at 1185. The Commonwealth Court
disagreed, ruling that the issues of duty and breach as related to a “safety rule” are
subsidiary issues to the broader issue of negligence. The specific issues related to the
duty to provide a safe workplace were clearly included within the broader issue of the
employer’s alleged negligence generally.
Conversely, an unstated issue is not subsidiary when it is separate and distinct
from the stated issue. In Commonwealth v. Hernandez, 242 A.3d 452, 2020 WL 6939662(Pa. Super. 2020) (non-precedential decision), for example, Hernandez was convicted of
sexual assault and the rape of an unconscious person. In his Rule 1925(b) statement,
Hernandez raised a single issue, specifically the Commonwealth’s failure to produce any
evidence to prove the victim’s lack of consent. In his appellate brief, however, he also
raised new issues, including a challenge to his inability to use intoxication as a defense
at trial. The Superior Court ruled that this effort to expand the issues raised during his
appeal violated Rule 1925(b)(4)(v). The unstated intoxication issue was not included
within his stated sufficiency challenge to the evidence relating to the victim’s consent, but
rather was a separate and distinct defense to the crimes with which he was charged.
Because it was deemed not to be a subsidiary issue, it was waived pursuant to Rule
1925(b)(4)(vii) for purposes of appeal.
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In the present case, the Commonwealth’s Rule 1925(b) statement set forth a single
stated issue, namely whether the trial court “erred as a matter of law and abused its
discretion … [when it] ruled that the Affidavit did not provide probable cause for issuance
of the Search Warrant.” Pa.R.A.P. Rule 1925(b) Statement, 12/9/2019, at 1.5 The
Superior Court declined to decide this issue. Instead, that court held that “even if” the
Affidavit lacked probable cause, the doctrine of inevitable discovery required reversal of
the trial court’s decision to suppress the phone records for the telephone number 724-
762-3803 identified in the Affidavit.6 Although the Commonwealth’s Rule 1925(b)
5 The Dissent criticizes our “refus[al] to look beyond the face of the Commonwealth’s
1925(b) Statement,” Dissenting Op. at 5 (Mundy, J.), and notes that this Court did so in
Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007) (per curiam), and Commonwealth v.
Rogers, 250 A.3d 1209, 1222 (Pa. 2021). However, both cases are readily
distinguishable in that each involved a Rule 1925 statement that mentioned the actual
claim. Rogers, 250 A.3d at 1225 (“[W]e find that the brevity of Appellant's weight-of-the-
evidence claim as set forth in his concise statement represents a good-faith attempt to
comply with Rule 1925’s concision requirement”); id. at 1224 (describing the statement in
Laboy as “exceedingly brief in setting forth an evidentiary-sufficiency claim.”). See supra
note 4.
Looking beyond the face of the statement is permitted in some circumstances to
determine if the statement adequately apprised the trial judge of the nature of the claim,
as indicated by Rogers discussing the concision requirement. We do not interpret Laboy
and Rogers to permit a court to address a claim that is simply not mentioned in the Rule
1925 statement.
6 The Superior Court concluded that the Commonwealth “carried its burden” to establish
that it would have inevitably discovered the evidence by lawful means, as the police had
the evidence inadvertently omitted from the Affidavit which “would have enabled [it] to
obtain a proper, second warrant.” Price, 244 A.3d at 1254. The Superior Court cited to
no evidence of record, however, to demonstrate that the Commonwealth ever even
considered filing an application for a “proper, second warrant,” thus leaving the
“inevitability” of obtaining the evidence by this means highly questionable. In this regard,
we note that in support of its contention that the Commonwealth had “carried its burden”
on this issue, the Superior Court cited only to this Court’s decision in Commonwealth v.
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statement made no reference to the inevitable discovery doctrine, in a short footnote the
Superior Court indicated that the inevitable discovery doctrine “is a subsidiary issue of its
probable cause issue,” citing to Rule 1925(b)(4)(v). Price, 244 A.3d at 1253 n.1. The
Superior Court offered no support or legal analysis in support of this ruling. We must
therefore determine whether an application of the inevitable discovery doctrine is
“included” within the issue of the existence of sufficient probable cause to support the
issuance of a warrant and is thus a subsidiary issue not waived on appeal.
It is hornbook constitutional law that evidence seized pursuant to a warrant that is
not supported by probable cause violates the fundamental constitutional guarantees of
Article I, Section 8 of the Pennsylvania Constitution7 and will be suppressed pursuant to
a straightforward application of the exclusionary rule. See, e.g., Commonwealth v.
Gordon, 683 A.2d 253, 256 (Pa. 1996). The inevitable discovery doctrine is an exception
to application of the exclusionary rule, and may be applied if the prosecution can establish
by a preponderance of the evidence that the illegally obtained evidence ultimately or
Henderson, 47 A.3d 797 (Pa. 2020), a case involving application of the independent
source doctrine, and in which the Commonwealth in fact filed a second application for a
search warrant. Id. at 799.
7 Article I, Section 8 of the Pennsylvania Constitution provides as follows:
Security from Searches and Seizures
Section 8. The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no warrant to
search any place or to seize any person or things shall issue without
describing them as nearly as may be, nor without probable cause,
supported by oath or affirmation subscribed to by the affiant.
PA. CONST. art. I, § 8.
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inevitably would have been discovered by lawful means. See, e.g., Commonwealth v.
Melendez, 676 A.2d 226, 230 (Pa. 1996); Nix v. Williams, 467 U.S. 431, 447 (1984)
(“[W]hen ... the evidence in question would inevitably have been discovered without
reference to the police error or misconduct, there is no nexus sufficient to provide a taint
and the evidence is admissible.”). “The purpose of the inevitable discovery rule is to block
setting aside convictions that would have been obtained without police misconduct.”
Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa. Super. 2009) (citing Nix, 467 U.S.
at 444 n.4).
The inevitable discovery doctrine is not a subsidiary issue to a claim of adequate
probable cause to support the issuance of a search warrant. This Court has repeatedly
and without exception referred to the inevitable discovery doctrine as an exception to
application of the exclusionary rule.8 See, e.g., Commonwealth v. Bishop, 217 A.3d 833,
837 (Pa. 2019); Commonwealth v. Shabazz, 166 A.3d 278, 296 (Pa. 2017) (listing
“attenuation, inevitable discovery, independent source, or some intervening act or event”
as applicable exceptions); Commonwealth v. Wiley, 904 A.2d 905, 909 (Pa. 2006);
Commonwealth v. Wright, 494 A.2d 354, 365 (Pa. 1996). The existence of adequate
probable cause in the affidavit of probable cause and the inevitability of discovery of
evidence by lawful means are alternative responses that the Commonwealth may assert
in response to a suppression motion. These alternative responses, however, require
8 The Commonwealth itself describes the inevitable discovery doctrine as an “exception”
to the warrant requirement in its brief filed with this Court. Commonwealth’s Brief at 24
n.5 (the four corners principle “does not apply when considering an exception to the
warrant requirement, such as inevitable discovery”) (emphasis added)); see also
Commonwealth’s Brief in Opposition of Defendant’s Omnibus Pretrial Motions,
3/15/2019, at 28 (“An important and relevant doctrine to the present case is the inevitable
discovery exception to the exclusionary rule.”) (emphasis added)).
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different arguments and evidentiary support, and one’s success or failure does not in any
respect depend upon the success or failure of the other. As such, these issues are
entirely separate and distinct from each other.
The Commonwealth disagrees with this analysis, indicating that the doctrine of
inevitable discovery is so closely linked to the issue of probable cause that it is
appropriately referred to as “probable cause plus.” Commonwealth’s Brief at 25. To this
end, the Commonwealth relies upon a line of federal circuit court decisions holding that
an illegal search is not subject to suppression if at the time of the illegal search the
prosecution had sufficient probable cause to obtain a warrant, albeit after the illegal entry.
See, e.g., United States v. Christy, 739 F.3d 534, 540 (10th Cir. 2014); United States v.
Brown, 64 F.3d 1083, 1085 (7th Cir. 1995); United States v. Souza, 223 F.3d 1197 (10th
Cir. 2000); United States v. Whitehorn, 829 F.2d 1225, 1231 (2d Cir. 1987). In these
cases, federal courts have not suppressed evidence seized in violation of the Fourth
Amendment where probable cause existed at the time of the illegal search that would
ultimately have led to obtaining a warrant and thus “ultimately or inevitably would have
been discovered by lawful means.” Nix, 467 U.S. at 444.
The flaw in this response is that, as we have explained, the application of doctrines
that would permit the introduction of evidence obtained by executing the search warrant
has nothing to do with the specific claim raised by Price. Price alleged that “[t]he affidavit
fails to state probable cause.” Omnibus Pretrial Motion for Relief, 9/1/2017, ¶ 34. He
specifically alleged that the warrant was therefore unlawfully issued under the federal and
state constitutions. Id. ¶ 35. The Commonwealth’s invocation of these doctrines would
establish an independent basis to admit the evidence divorced from the issue of whether
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the search warrant was supported by probable cause. Indeed, the Souza case cited by
the Commonwealth stated that “the inevitable discovery exception does not apply in
situations where the government's only argument is that it had probable cause for the
search[.]” Souza, 223 F.3d at 1203. Moreover, the doctrine “may apply where, in addition
to the existence of probable cause, the police had taken steps in an attempt to obtain a
search warrant.” Nothing prevented the Commonwealth from asserting that the search
warrant sufficiently established probable cause and, in the alternative, that the evidence
is not subject to suppression due to the applicability of the inevitable discovery doctrine.
The Commonwealth’s Rule 1925(b) statement thus should have separately raised the
inevitable discovery doctrine to preserve it for appeal, and the Superior Court erred in
ruling that inevitable discovery was a “subsidiary issue” under Pa.R.A.P. 1925(b)(4)(v).
Finally, we decline to address the Commonwealth’s alternative argument that the
Affidavit established probable cause. Instead, we remand for the Superior Court to
address that issue in the first instance. Having concluded that the inevitable discovery
issue was waived pursuant to Pa.R.A.P. 1925(b)(4)(vii), the order of the Superior Court is
hereby vacated, and the matter is remanded to the Superior Court.
Chief Justice Todd and Justices Dougherty, Wecht and Brobson join the opinion.
Justice Mundy files a dissenting opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.
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