                            [J-20-2019] [MO: 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
               v.                                :   of 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


                                  DISSENTING OPINION


JUSTICE DONOHUE                                           DECIDED: October 31, 2019

       I disagree with the learned Majority that Hays’ failure to challenge our prior decision

in Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983), requires a finding that he is not

entitled to benefit from the United States Supreme Court’s decision in Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016). Based on my research and the case law relied upon by

Hays, he was under no obligation to preserve his objection to the warrantless blood draw.

I therefore would conclude that Birchfield applies retroactively to cases pending on direct

appeal at the time of the decision regardless of preservation.

       As the United States Supreme Court has recognized, judicial decisions have had

retroactive application “for near a thousand years.” Harper v. Virginia Dep't of Taxation,

509 U.S. 86, 94 (1993) (quoting Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372 (1910)

(Holmes, J., dissenting)). In Griffith v. Kentucky, 479 U.S. 314 (1987), the Court made

clear that this general rule of retroactivity was without limits, holding that “a new rule for
the conduct of criminal prosecutions is to be applied retroactively to all cases, state or

federal, pending on direct review or not yet final[.]” Id. at 328. See also Davis v. United

States, 564 U.S. 229, 243 (2011) (Griffith’s rule of retroactivity applies to all cases on

direct review “with no exception”).

       In some cases, the United States Supreme Court left it to the states to determine

whether the failure to preserve an issue in a lower court served as a barrier to applying a

new federal constitutional rule on direct appeal. See, e.g., United States v. Booker, 543

U.S. 220, 268 (2005) (new rule announced in Blakely v. Washington, 542 U.S. 296 (2004),

can be waived for failure to raise the claim below); Shea v. Louisiana, 470 U.S. 51, 59 n.4

(1985) (same, as to the new rule announced in Edwards v. Arizona, 451 U.S. 477 (1981)).

In O’Connor v. Ohio, 385 U.S. 92 (1966) (per curiam), however, the Court reversed the

Ohio Supreme Court’s finding that the appellant was not entitled to benefit from the new

rule announced in Griffin v. California, 380 U.S. 609 (1965),1 based on his failure to raise

the claim in the courts below. The O’Connor Court observed that both the State and the

defendant had relied on the former decisions that Griffin overruled, and that “[d]efendants

can be no more charged with anticipating the Griffin decision than can the States.”

O’Connor, 385 U.S. at 93. Therefore, the Court held that the appellant’s “failure to object

to a practice which Ohio had long allowed cannot strip him of his right to attack the

practice following its invalidation by this Court.” Id.

       In Cabeza, this Court, in reliance on our prior decision of August v. Stasak, 424

A.2d 1328 (Pa. 1981), held that “where an appellate decision overrules prior law and



1  The Court in Griffin held that commentary on a defendant’s decision not to testify
violated the Fifth Amendment. Griffin, 380 U.S. at 614.


                              [J-20-2019] [MO: Mundy, J.] - 2
announces a new principle, unless the decision specifically declares the ruling to be

prospective only, the new rule is to be applied retroactively to cases where the issue in

question is properly preserved at all stages of adjudication up to and including any direct

appeal.” Cabeza, 469 A.2d at 148. But this Court has also held that the failure to preserve

an issue in a lower court does not result in waiver of a new rule of law for cases pending

on direct appeal at the time of the announcement of the new rule. In Kuchinic v. McCrory,

222 A.2d 897 (Pa. 1966), this Court held that the new rule announced in Griffith v. United

Airlines, 203 A.2d 796 (Pa. 1964) (abandoning the rule that the place of the tort was

controlling for choice of law cases), applied even though the issue had not been raised in

the courts below. Kuchinic, 222 A.2d at 901. The Court thoroughly explained the reason

for its conclusion:

              The effective administration of justice ordinarily requires that
              a litigant who fails to raise at trial an available objection waives
              it on appeal. This Court is reluctant to permit a party to allege
              error in the jury charge for the first time on appeal, because it
              would be manifestly unfair to permit a party to take his
              chances on a verdict, and then complain if he loses, when an
              earlier objection would have afforded the trial court an
              opportunity to correct the error. The present case, of course,
              is one where an earlier objection would have been to no avail,
              because the charge correctly stated prevailing law.
              Furthermore, the rule espoused by appellee [(requiring
              preservation of the issue to be entitled to application of the
              new rule on appeal)] would compel counsel to urge upon the
              trial court every conceivable theory, on the mere chance that,
              before his case is finally concluded, one such theory might
              become the law. Since, by hypothesis, the trial court would
              have to overrule any objection based on his failure to adopt
              one of these theories, on appeal, the winning party below
              would be in the same position as the instant appellee. Indeed
              this requirement would tend to delay justice, for the court
              below would still have to consider and rule on each theory.
              Therefore, we are unwilling to conclude that the appellants'
              failure to interject the rationale of Griffith into the trial




                              [J-20-2019] [MO: Mundy, J.] - 3
              constitutes a waiver and precludes them from now seeking
              the benefit of that decision.

Id. (internal citations and footnotes omitted).     The Kuchinic Court observed, “Since

appellants had no knowledge of their right to have this case tried under Pennsylvania law,

they could not be deemed to have waived that right.” Id. at 901 n.9 (citing Linda Coal &

Supply Co. v. Tasa Coal Co., 204 A.2d 451, 453 (Pa. 1964)).

       After our decision in Cabeza, we have relied on Kuchinic for the proposition that

the failure to preserve a claim in a court below does not preclude application of a new

rule of law on appeal. In Cleveland v. Johns-Manville Corp., 690 A.2d 1146 (Pa. 1997),

we held, relying on Kuchinic, that “where a fundamental change in the law occurs after

the lower court enters its order, but before the appellate court rules, the failure to raise

the issue in the lower court will not preclude appellate review of that issue.” Id. at 1151.

       This Court has likewise relied upon O’Connor to find that there is no preservation

requirement for a new rule of law announced during the pendency of the defendant’s

direct appeal. In Commonwealth v. Clark, 266 A.2d 741 (Pa. 1970), for example, we cited

O’Connor to support our decision that a defendant did not waive his speedy trial argument

by failing to raise it below “since the law at the time of his trial did not entitle him to the

relief he now seeks.” Id. at 743-44. See also Commonwealth v. Cheeks, 239 A.2d 793,

796 (Pa. 1968) (relying on O’Connor to find that the failure to object at trial did not result

in waiver as the basis for objection was decided a year later; “[i]t would be manifestly

unfair to hold appellant to a waiver when this waiver is alleged to have occurred at a time

when neither the defendant nor his attorney had any way of knowing that there existed a

right to be waived”); Commonwealth v. Baity, 237 A.2d 172, 179 (Pa. 1968) (same).




                              [J-20-2019] [MO: Mundy, J.] - 4
       In his brief before this Court, Hays asserts that the law in Pennsylvania at the time

of his trial was “that there was no constitutional right to refuse blood alcohol testing.”

Hays’ Brief at 12 (citing Commonwealth v. Beshore, 916 A.2d 1128 (Pa. Super. 2007) (en

banc) (relying on case law from this Court to conclude that “under our Implied Consent

Law, there is 'no constitutional right to refuse chemical testing’”); Commonwealth v.

Carley, 141 A.3d 1287 (Pa. Super. 2016) (same, relying on Beshore), rev’d in part

pursuant to Birchfield, 165 A.3d 879 (Pa. 2017)). Hays asserts that because of this

existing case law, he had no “legal basis to object or raise the voluntariness of his consent

until Birchfield was decided,” as “[t]he prevailing case law at the time clearly held that

individuals did not have a constitutional right to refuse blood alcohol testing.” Id. at 12-

13. Relying on O’Connor’s progeny, Hays asserts that under these circumstances, he

cannot be found to have waived his Fourth Amendment claim. Id. at 14 (quoting Cheeks,

239 A.2d at 796).

       The O’Connor/Kuchinic line of cases irreconcilably conflict with Cabeza line of

cases.2 Notably, no case from this Court discusses the two lines of cases or has




2  The Majority cites to two cases that reiterated Cabeza’s holding, Commonwealth v.
Sneed, 899 A.2d 1067 (Pa. 2006), and Commonwealth v. Tilley, 780 A.2d 649 (Pa. 2001).
See Majority Op. at 10-11. In both Sneed and Tilley, the Court cited to Cabeza for the
proposition that because the defendant failed to raise a challenge at trial or on direct
appeal to the issues subsequently decided in their favor during the pendency of their
direct appeal by the United States Supreme Court, they were not entitled to their
retroactive application on collateral review. Sneed, 899 A.2d at 1075; Tilley, 780 A.2d at
652. As both Sneed and Tilley are appeals in PCRA matters, not direct appeals, they are
of limited value, as these cases involve final judgments, brought decades after the rule
they attempt to rely on was announced. Moreover, the question of retroactivity of a new
case in the collateral context presents an entirely different set of considerations. See
Teague v. Lane, 489 U.S. 288 (1989). In fact, in Teague, the United States Supreme
Court recognized the general rule of retroactivity of new case law on direct appeal. Id. at



                              [J-20-2019] [MO: Mundy, J.] - 5
attempted to distinguish them, nor did Cabeza overrule Kuchinic. Indeed, the Cabeza

Court did not so much as mention Kuchinic, and Cleveland did not acknowledge the

existence of Cabeza.3

       In my view, we must resolve this conflict. There is ample support for allowing a

criminal defendant to benefit from a new rule of law announced while his or her case is

pending on direct appeal, regardless of whether the defendant raised the claim prior to

the issuance of the new decision. First and foremost, by refusing to allow all defendants

to benefit from a new rule of law on direct appeal, we are violating the foundational basis

for the Griffith Court’s decision. In reaching its conclusion that a new rule pertaining to

criminal prosecutions is retroactive to all cases pending on direct appeal, the Court

observed that “selective application of new rules violates the principle of treating similarly

situated defendants the same.” Griffith, 479 U.S. at 323 (citation omitted). It continued,

stating, “[The] failure to apply a newly declared constitutional rule to criminal cases

pending on direct review violates basic norms of constitutional adjudication.” Id. at 322.

Additionally, relying on Justice Harlan’s concurring opinion in Mackey v. United States,

401 U.S. 667 (1971), the Griffith Court reasoned:

              If we do not resolve all cases before us on direct review in light
              of our best understanding of governing constitutional
              principles, it is difficult to see why we should so adjudicate any

304-05. Thus, Sneed and Tilley do not cabin our ability to apply Birchfield retroactively
to Hays on direct appeal, despite his failure to preserve the objection before the trial court.
3 Although the Majority is correct that Hays does not cite to Cabeza or advocate for its
overruling, he does cite to the O’Connor line of cases in support of his claim that he is
entitled to retroactive application of Birchfield. As this Court has neither recognized nor
distinguished between the two lines of cases in the past, I disagree with the Majority that
Hays is not entitled to relief on this basis. See Majority p. at 10. Further, for the reasons
stated throughout this Dissent, I also disagree with the Majority that Cabeza is the “well-
established law” applicable in this case. Id.


                              [J-20-2019] [MO: Mundy, J.] - 6
              case at all.... In truth, the Court’s assertion of power to
              disregard current law in adjudicating cases before us that
              have not already run the full course of appellate review, is
              quite simply an assertion that our constitutional function is not
              one of adjudication but in effect of legislation.

Griffith, 479 U.S. at 323 (quoting Mackey, 401 U.S. at 679 (Harlan, J., concurring)).

       Second, there is no need for a retroactivity discussion for a defendant that

preserved the issue which was subsequently decided favorably in another case while on

direct appeal. The same legal basis for granting relief in the case that announced a new

rule of law would likewise be applicable to this defendant’s case. As aptly stated by the

Cabeza Court, “The only noteworthy difference between [Commonwealth v. Scott, 436

A.2d 607 (Pa. 1981)] and [Cabeza] is that Scott was argued and decided first. [Cabeza]

may well have been the case which overruled prior law if Scott had not been decided

[first].” Cabeza, 469 A.2d at 148. In other words, even if Scott did not apply retroactively,

Cabeza would have been entitled to relief on the same basis in his own right, having

raised and preserved the issue below.

       Further, and perhaps most significantly, by ruling that a defendant who does not

preserve the issue cannot benefit from a new rule decided while his or her case is on

direct review, we are foreclosing that defendant from obtaining any relief on a basis that

our courts have now found to be error. The law in Pennsylvania is clear that “counsel

cannot be deemed ineffective for failing to predict changes in the law.” Commonwealth

v. Cousar, 154 A.3d 287, 303 (Pa. 2017) (citing cases). Thus, counsel who fails to

preserve an issue that is subsequently decided in her client’s favor is not ineffective for

failing to raise it below, and the defendant is not entitled to collateral relief on that basis.

It seems incongruous to require trial counsel to be so prophetic as to predict changes in




                              [J-20-2019] [MO: Mundy, J.] - 7
the law in order for her client to be entitled to benefit from a new rule, but then find that

she is not ineffective for failing to do so. In my view, the law cannot both deprive a

defendant of a new rule of law announced during the pendency of direct review because

counsel waived its application by failing to object and also find that counsel is not

ineffective for failing to preserve the issue. This completely closes the courtroom door to

a defendant, and there is no other area of the law that removes any avenue for relief for

a criminal defendant.

       Moreover, the case at bar mirrors the concerns raised in O’Connor, Kuchinic and

their progeny. At the time of Hays’ trial, the law provided that a driver who refused to

submit to a requested blood test would be criminally punished for his refusal.4 See 75

Pa.C.S. § 1547(b)(1), (2) (effective July 10, 2006 - May 24, 2016).5 This was based on

Pennsylvania’s implied consent laws applicable to all drivers. See id. § 1547(a). Under

this prior version of the statute, police simply needed to inform a driver of the

consequences of refusing a blood alcohol test; where a driver was so informed, the

consent given for the blood alcohol test was valid. See Pa. Dept. of Transp., Bureau of

Driver Licensing v. Weaver, 912 A.2d 259, 264-65 (Pa. 2006).


4  If the driver refused to submit to chemical testing and was ultimately convicted under
75 Pa.C.S. § 3802(a)(1) (DUI – general impairment, incapable of safely driving), he would
be subjected to a loss of driving privileges and the enhanced penalty provisions applicable
to an individual convicted of DUI – highest rate of alcohol (id. §§ 3802(c), 3804(c)). Id. §
1547(b)(1), (2). The penalties imposed pursuant to section 3804(c) range from
“imprisonment of not less than 72 consecutive hours” and “a fine of not less than $1,000
nor more than $5,000” for a first offense to “imprisonment of not less than one year” and
“a fine of not less than $2,500” for an offender convicted of a third or subsequent offense.
75 Pa.C.S. § 3804(c).
5 Following Birchfield, the General Assembly amended section 1547 to remove the
enhanced criminal sentencing penalties associated with a refusal to submit to a
warrantless blood test. See generally 75 Pa.C.S. § 1547 (effective January 20, 2018).


                              [J-20-2019] [MO: Mundy, J.] - 8
        Prior to Birchfield, this Court had held that a warrant was not required for a blood

draw where police had probable cause to suspect that an individual was driving under the

influence of alcohol or a controlled substance. In Commonwealth v. Kohl, 615 A.2d 308

(Pa. 1992), this Court held that under Article I, Section 8 of the Pennsylvania Constitution,

“in instances in which probable cause has been established, the absence of a warrant

requirement under the implied consent provisions does not render the blood, breath, and

urine tests unreasonable … due to time’s dissipating effect on the evidence.” Id. at 315,

disapproved of based on Birchfield by Commonwealth v. Myers, 164 A.3d 1162 (Pa.

2017) (plurality).   The Kohl Court found that 75 Pa.C.S. § 1547(a)(2), a provision

contained in a prior version of our implied consent statute, was unconstitutional under

both the federal and state constitutions because it permitted a warrantless blood alcohol

test based on less than probable cause to believe that a driver of a vehicle was under the

influence of alcohol.6 Kohl, 615 A.2d at 314, 315. It further held, however, that section


6   Section 1547(a)(2), which Kohl ruled unconstitutional, provided:
               (a) General rule.-Any person who drives, operates or is in
               actual physical control of the movement of a motor vehicle in
               this Commonwealth shall be deemed to have given consent
               to one or more chemical tests of breath, blood or urine for the
               purpose of determining the alcoholic content of blood or the
               presence of a controlled substance if a police officer has
               reasonable grounds to believe the person to have been
               driving, operating or in actual physical control of the
               movement of a motor vehicle:
                                         *    *   *
               (2) which was involved in an accident in which the operator or
               passenger of any vehicle involved or a pedestrian required
               treatment at a medical facility or was killed.
As found by the Kohl Court, “The statutory provision does not require any individualized
suspicion of alcohol or drug use by the driver.” Kohl, 615 A.2d at 313.


                              [J-20-2019] [MO: Mundy, J.] - 9
1547(a)(1) was constitutional because it provided for a warrantless blood draw if police

had probable cause to believe that the person was driving under the influence of alcohol

or a controlled substance. Id. at 315.

       Five years later, in response to a Fourth Amendment challenge to the law, a

plurality of this Court held that the appellant “had no constitutional right to refuse chemical

testing,” and where the prerequisites of our implied consent law were met, “no search

warrant was necessary” to conduct a blood alcohol test. Commonwealth v. Stair, 699

A.2d 1250, 1253-55 (Pa. 1997) (Opinion in Support of Affirmance (“OISA”)). Notably, the

remainder of the Court did not take issue with this aspect of the OISA; its disagreement

was based on its conclusion that the trooper had no authority to arrest the defendant, as

the traffic stop occurred in Maryland, not Pennsylvania. Id. at 1256-57 (Opinion in Support

of Reversal).7 See also Commonwealth v. Riedel, 651 A.2d 135, 139 (Pa. 1994) (holding

that under the Fourth Amendment, “where an officer has probable cause to request a

blood test pursuant to 75 Pa.C.S. § 3755(a), the failure to verbalize the request shall not

bar the officer from obtaining the results of a medical purposes blood test without a

warrant”), disapproved of based on Birchfield by Commonwealth v. Myers, 164 A.3d 1162

(Pa. 2017) (plurality); Commonwealth v. Shaw, 770 A.2d 295, 299 (Pa. 2001) (holding

that pursuant to Article I, Section 8, “[t]he implied consent provision of 75 Pa.C.S. §

1547(a)(1) does not eliminate the need to obtain a warrant to seize medical records, but

only to request and conduct chemical tests”), quoting Reidel, 651 A.2d at 135 (Zappala,

J., concurring).


7 Furthermore, this Court denied allowance of appeal in Beshore, which held, in reliance
on the OISA in Stair, held that a defendant has no constitutional right to refuse to consent
to a blood test. See Commonwealth v. Beshore, 982 A.2d 509 (Pa. 2007).


                             [J-20-2019] [MO: Mundy, J.] - 10
       Both the Commonwealth and criminal defendants operated in reliance upon that

law. It was not until the United States Supreme Court issued its decision in Birchfield

(which occurred one day after Hays’ trial8) that a change in the law occurred. Now,

pursuant to Birchfield, a warrantless blood draw is generally unconstitutional, and the

illegality is not cured by a state’s implied consent law. Birchfield, 136 S. Ct. at 2185-86.

The Court recognized that the exigent circumstances exception to the warrant

requirement may apply, but stated that this question must be considered on a case-by-

case basis. Id. at 2174. The Birchfield Court further held, in pertinent part, that consent

cannot be coerced by the threat of enhanced criminal penalties for refusing a blood test.

Id. at 2186.

       As in O’Connor, Kuchinic, Clark and Cleveland, Hays had no basis to move to

suppress the warrantless blood draw and blood results in his case, as the law in place at

the time of his trial did not entitle him to relief on this claim. It was not until the Birchfield

Court handed down its decision that Hays had a valid basis to advocate for the exclusion

of this evidence. As such, pursuant to longstanding precedent of this Court and the United

States Supreme Court, his failure to object on this basis does not result in waiver of the

claim on direct appeal. O’Connor, 385 U.S. at 93; Kuchinic, 222 A.2d at 901; Clark, 266

A.2d at 743-44; Cleveland, 690 A.2d at 1151.

       For the foregoing reasons, I disagree with the Majority’s conclusion that Hays is

not entitled to retroactive application of Birchfield because he failed to preserve the issue

before the trial court. I therefore respectfully dissent.



8 Hays’ trial occurred on June 22, 2016; the high Court decided Birchfield on June 23,
2016.


                              [J-20-2019] [MO: Mundy, J.] - 11
Justices Todd and Wecht join this dissenting opinion.




                     [J-20-2019] [MO: Mundy, J.] - 12
