                              [J-20-2019][M.O. - Mundy, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                    MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 36 MAP 2018
                                               :
                      Appellee                 :   Appeal from the Order of the Superior
                                               :   Court at No. 1787 MDA 2016 dated
                                               :   January 19, 2018, Vacating the Order of
                 v.                            :   the Court of Common Pleas of
                                               :   Lycoming County, Criminal Division, at
                                               :   No. CP-41-CR-1083-2014 dated
KIRK JACOB HAYS,                               :   October 31, 2016 and remanding.
                                               :
                      Appellant                :   SUBMITTED: February 6, 2019




                                  CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                     DECIDED: October 31, 2019


       Consistent with the majority opinion, the Supreme Court of the United States has

specified that federal retroactivity analysis does not preclude “reviewing courts [from]

apply[ing] ordinary prudential doctrines, determining, for example, whether the issue

was raised below or whether it fails the ‘plain error’ test.” United States v. Booker, 543

U.S. 220, 268, 125 S. Ct. 738, 769 (2005); see also Shea v. Louisiana, 470 U.S. 51, 58

n. 4, 105 S. Ct. 1065, 1069 n.4 (1985) (explaining that the retroactive application of a

new rule to cases pending on direct review is “subject, of course, to established

principles of waiver, harmless error, and the like”). Accordingly, this case calls for a

policy judgment at the state level -- independent from Teague retroactivity analysis --

concerning issue preservation. Accord State v. Robinson, 253 P.3d 84, 89 (Wash.

2011) (“Issue preservation and retroactivity are distinct doctrines.”).
       Significantly, over the last several decades, this Court has generally applied

waiver rules that are stricter than those that pertain in many other jurisdictions. For

example, the Court has abrogated the plain error doctrine in Pennsylvania, see

Commonwealth v. Clair, 458 Pa. 418, 423, 326 A.2d 272, 274 (1974), although that

construct continues to prevail in many other courts. In this line of cases, this Court has

stressed the institutional interests at stake, including avoiding a substantial erosion in

finality and promoting efficient judicial administration, as well as extending fairness to

other parties in litigation. See id. at 421-22, 326 A.2d at 273-74.

       Thus, the plain error doctrine is not presently available as a means of securing

judicial review of Appellant’s Birchfield challenge. Cf. State v. Vargas, 404 P.3d 416,

420-21 (N.M. 2017) (reflecting an exercise of judicial discretion to apply the fundamental

error doctrine, which does pertain in New Mexico, to reach an otherwise waived

Birchfield claim). And, from my point of view, the Court should not proceed to weaken

the otherwise prevailing practice on the strength of advocacy, such as the present

presentation by Appellant, which makes no attempt to take all relevant interests into

account.

       In terms of Appellant’s argument centered upon fairness to him, I find that his

strongest point lies in the argument that he was precluded from raising a Birchfield-type

challenge before the trial court, prior to Birchfield’s issuance, by the prevailing Superior

Court precedent holding that there was no constitutional right to refuse blood alcohol

testing. See Brief for Appellant at 12 (citing Commonwealth v. Carley, 141 A.3d 1287,

1290 (Pa. Super. 2016), and Commonwealth v. Beshore, 916 A.2d 1128, 1141-42 (Pa.

Super. 2007) (en banc)).     Nevertheless, and again in contrast to other jurisdictions

applying more liberal waiver precepts, this Court has declined to implement a futility

doctrine that would relieve litigants of the requirement to advance objections and


                            [J-20-2019][M.O. – Mundy, J.] - 2
challenges at the earliest opportunity on account of prior precedent. See Schmidt v.

Boardman Co., 608 Pa. 327, 355, 11 A.3d 924, 941 (2011) (majority decision, in

relevant part).

       In an appropriate case, I would be receptive to considering a moderate

adjustment to our approach to futility, in cases involving the retroactive application of a

new constitutional rule, along the lines of that adopted by the Supreme Court of

Washington. That court has explained as follows:

              We recognize . . . that in a narrow class of cases, insistence
              on issue preservation would be counterproductive to the goal
              of judicial efficiency. Accordingly, we hold that principles of
              issue preservation do not apply where the following four
              conditions are met: (1) a court issues a new controlling
              constitutional interpretation material to the defendant’s case,
              (2) that interpretation overrules an existing controlling
              interpretation, (3) the new interpretation applies retroactively
              to the defendant, and (4) the defendant’s trial was completed
              prior to the new interpretation. A contrary rule would reward
              the criminal defendant bringing a meritless motion to
              suppress evidence that is clearly barred by binding
              precedent while punishing the criminal defendant who, in
              reliance on that binding precedent, declined to bring the
              meritless motion. The logical result would be the creation of
              a perverse incentive for criminal defendants to make “a long
              and virtually useless laundry list of objections to rulings that
              were plainly supported by existing precedent.”
Robinson, 253 P.3d at 89 (quoting Johnson v. U.S., 520 U.S. 461, 468, 117 S. Ct. 1544,

1549 (1997)). However, I believe it would be too greatly incongruous with the existing

practice, including the general rejection of a futility rationale to excuse non-preservation

of issues, to extend this modification beyond the overruling of previous precedent that

had been established by a court of last resort, i.e., the Supreme Court of the United

States or this Court.




                            [J-20-2019][M.O. – Mundy, J.] - 3
       Because I conclude that this case does not concern the overruling of a previous

decision by a court of last resort, I support the majority’s holding that ordinary principles

of issue preservation control. In this regard, I respectfully differ with Justice Donohue’s

position to the extent that she is suggesting that previous cases by this Court

contravene the essential position of Birchfield that the physical intrusiveness of blood

testing implicates heightened Fourth Amendment protection. Rather, I do not see that

such an issue was raised in any of these cases. To the extent that the Court has

discussed the constitutionality of the Implied Consent Law upon the resolution of other

discrete challenges, constitutional or otherwise, I do not apprehend how this would have

been deemed to foreclose timely pursuit, by Appellant, of the relevant one.

       Finally, I recognize the tension between requiring preservation of issues that

have been resolved by the intermediate courts and unsettled questions to secure relief

and rejecting claims of deficient stewardship based on counsel’s failure to do so. See

Dissenting Opinion, slip op. at 7-8. Candidly, similar fairness questions are implicated

by the Court’s continuing adherence to its rejection of a plain error rule. Thus, such

rejection is clearly premised on a balance of the competing interests involved, which is

in conformity with my approach here. Moreover, some decisions of this Court, at least,

consistent with my own personal perspective, evince a greater degree of circumspection

relative to the ineffectiveness dynamic. See, e.g., Commonwealth v. Hughes, 581 Pa.

274, 331, 865 A.2d 761, 795 (2004) (“Other courts also distinguish scenarios involving

failure to anticipate a change in the law from the failure to pursue readily available

arguments relative to unsettled law.”).




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