                                    [J-20-2019]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT

     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


    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


                                         OPINION


JUSTICE MUNDY                                            DECIDED: October 31, 2019
        We granted allocatur in this matter to determine whether Birchfield v. North Dakota,

136 S. Ct. 2160 (2016), applies to all cases not yet final when the decision was rendered.1

Integral to this determination is the extent to which issues implicated by Birchfield must

have been preserved in prior proceedings.

        The underlying facts of this case follow. On April 11, 2014, Pennsylvania State

Police Troopers Adam Kirk and Ryan Golla conducted a traffic stop after observing

Appellant fail to use his right turn signal and then twice cross over the white fog lines on


1 The Court in Birchfield held that a warrantless blood test cannot be deemed valid by
virtue of an implied consent law when accompanied by threat of a criminal charge for
failure to consent. Birchfield, 136 S.Ct. at 2186. This Court has held that the analysis in
Birchfield applied equally to Pennsylvania’s imposition of enhanced penalties for any
conviction on the underlying driving under the influence (DUI) charge, based on a
defendant’s refusal to consent to a blood test. Commonwealth v. Monarch, 200 A.3d 51,
57 (Pa. 2019).
the roadway.     Upon interaction with Appellant, Trooper Kirk smelled alcohol and

suspected Appellant was driving under the influence of alcohol. Following two failed field

sobriety tests, Appellant was taken into custody and transported to the Williamsport DUI

Center. At the DUI Center, Matthew McCormick, an officer with the Old Lycoming Police

Department, read Appellant the Pennsylvania Department of Transportation’s DL-26

form,2 and Appellant agreed to submit to a blood alcohol content (BAC) test and

acquiesced to a blood draw. The sample of Appellant’s blood was taken and submitted

for chemical testing, which showed Appellant’s BAC to be 0.192. Appellant was charged

with three summary offenses and two counts of DUI: Count 1, general impairment

pursuant to 75 Pa.C.S. § 3802(a)(1), and Count 2, driving under the influence, highest

rate of alcohol, 75 Pa.C.S. § 3802(c).3

       On January 21, 2015, Appellant filed an omnibus pre-trial motion to suppress all

evidence resulting from the traffic stop. Omnibus Pre-trial Motion, 1/21/15, at 1. Appellant

averred Trooper Kirk lacked probable cause to stop his vehicle. As a consequence,

Appellant argued that all blood tests, field sobriety tests, portable breath tests, statements

of all police officers witnessing the traffic stop, and all statements by Appellant resulting

from the illegal stop should be suppressed. Id. at 4. Appellant did not contend his consent

to the blood draw at the Williamsport DUI Center was coerced. A hearing was held, and

on May 26, 2015, the trial court denied Appellant’s motion.

2 The DL-26 form gives a motorist notice of a police officer’s request for chemical testing,
including the type of testing and the consequences for refusing to submit to the requested
test. The DL-26 form included the warning that if Appellant refused to submit to chemical
testing, and was subsequently convicted of DUI pursuant to Section 3802(a), he would
be subject to increased penalties equivalent to those imposed for conviction of driving
with the highest rate of alcohol. The DL-26 form has subsequently been replaced by a
warning compliant with Birchfield.
3The three summary offenses were 75 Pa.C.S. § 3309(1), disregarding traffic lane; 75
Pa.C.S. § 3814(a), careless driving; and 75 Pa.C.S. § 3334(a), failure to give an
appropriate signal.


                                       [J-20-2019] - 2
       Appellant’s jury trial was held on June 22, 2016. Pertinent to our analysis, we note

that, during deliberations, the jury submitted a written question asking “can blood alcohol

level on Count 2 be used to determine the second part of Count 1?” N.T., 6/22/16, at

128.   The court called the jury back into the courtroom and informed the jury that

“[g]enerally the answer is yes. By part two, I assume that you meant proving that they

drove while in control of the vehicle when they weren’t incapable [sic] of safe driving.” Id.

at 129. The jury found Appellant guilty of both counts of DUI, and the trial court found

Appellant guilty of the summary offense of failing to give an appropriate signal, but not

guilty of the remaining two summary counts. Sentencing was deferred pending a drug

and alcohol assessment. On June 23, 2016, the day after Appellant’s trial concluded, the

United States Supreme Court decided Birchfield.

       The trial court held Appellant’s sentencing hearing on August 23, 2016.            At

sentencing, the following exchange took place.

              [The Court]: Have you and the DA’s office conferred at all
              about the situation? I mean, I would propose to go ahead and
              sentence under the Count 1 and - -

              [Defense Counsel]: That is - -

              [The Court]: Count 2 goes by the waste side [sic], is the long
              and short - -

              [Defense Counsel]: That’s the agreement we reached, yes.

                                            ...

              [Defense Counsel]: I intend on asking for bail pending appeal.
              I don’t know if Your Honor wants to set a report date and file
              a paper motion or if Your Honor would like to address that
              now. The issues would be, one, the suppression ruling, and
              then two, in light of Birchfield, while it makes the BAC count
              go away, I think it creates a weight issue as to the general
              impairment charge and especially because I think the jury
              came back with a question twice can they consider the blood
              alcohol content in determining - -


                                      [J-20-2019] - 3
              [The Court]: They do and I do recall.
N.T., 8/23/16, at 2, 5. Accordingly, the trial court sentenced Appellant only on Count 1,

DUI: general impairment and the summary offense. Appellant received a sentence of five

days to six months’ incarceration, plus fines, fees, community service, counseling, and

alcohol highway safety driving school.

       Appellant filed a post-sentence motion on September 1, 2016, alleging he was

entitled to a new trial because Birchfield held “that motorists cannot be deemed to have

consented to submit to a blood test on pain of committing a criminal offense.” Post-

Sentence Motion, 9/1/16, at ¶ 8 (quoting Birchfield, 136 S. Ct. at 2186). Appellant noted

that Birchfield included a consolidated case of Beylund v. Grant Levi, Dir., North Dakota

Dept. of Trans. In that case, the Supreme Court remanded the matter for a new trial,

holding, “[b]ecause voluntariness of consent to a search must be ‘determined from the

totality of all the circumstances,’ we leave it to the state court on remand to reevaluate

Beylund’s consent given the inaccuracy of the officer’s advisory.” Post-Sentence Motion,

9/1/16, at ¶ 10 (citing Birchfield, 136 S. Ct. at 2186). Appellant further noted that because

his trial was held on June 22, 2016, and Birchfield was not decided until June 23, 2016,

defense counsel could not have raised a challenge premised on the holding of Birchfield

prior to trial. Finally, Appellant raised the claim he noted at sentencing, that the verdict

was against the weight of the evidence because the jury based its finding of guilt on Count

1 on the inadmissible BAC evidence.

       The Commonwealth filed an answer, asserting Appellant waived any challenge to

the voluntariness of his consent by failing to raise the issue in his omnibus pre-trial motion.

The Commonwealth conceded Appellant’s case was not yet final when Birchfield was

decided and that Appellant first raised his Birchfield issue in his timely filed post-sentence




                                       [J-20-2019] - 4
motion.4 However, the Commonwealth argued that retroactivity only applies in cases

where the question is properly preserved at all stages.         Commonwealth’s Answer,

10/4/16, at ¶ 6 (citing Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) (“[W]here

an appellate decision overrules prior law and 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.”)).

       On October 14, 2016, the trial court granted Appellant’s post-sentence motion and

awarded Appellant a new trial. In granting Appellant’s motion, the trial court noted its

disagreement with the Commonwealth’s assertion that Cabeza should apply, concluding

Cabeza “was not a constitutional case or a case of constitutional rights.” Trial Court

Order, 10/31/16, at 1.     Rather, the trial court found persuasive Commonwealth v.

Marshall, 824 A.2d 323 (Pa. Super. 2003), which “held that inadmissible preliminary

breath tests prejudiced the defendant in a general impairment case and the Superior

Court ordered a new trial.” Trial Court Order, 10/31/16, at 1-2. Accordingly, the trial court

found that Appellant was “similarly prejudiced by the unconstitutional BAC evidence in

this case and a new trial is therefore required.” Id. at 2.

       The Commonwealth timely appealed, averring (1) the trial court erred in granting

Appellant’s post-sentence motion because Appellant failed to properly preserve the

suppression claim in a pre-trial motion, and (2) Birchfield created a new constitutional

right, as opposed to a new constitutional rule. In its Rule 1925(a) opinion, the trial court

suggested that the Commonwealth, and not Appellant, had waived the preservation issue




4The record reveals Appellant first raised the Birchfield issue at sentencing prior to filing
a post-sentence motion.


                                       [J-20-2019] - 5
when the Commonwealth agreed at sentencing that no sentence should be imposed on

Count 2 in light of Birchfield. Trial Court Opinion, 1/19/17, at 5.

       In a unanimous unpublished decision, a three-judge panel of the Superior Court

vacated and reversed. Commonwealth v. Hays, No. 1787 MDA 2016 (Pa. Super. Jan.

19, 2018) (unpublished memorandum). The court held that because Appellant “did not

raise any claim at, or before, trial that his consent to the blood draw was involuntary, the

trial court erred in granting [Appellant]’s post-sentence motion.” Id. at 5-6. The court cited

its prior decision in Commonwealth v. Moyer, 171 A.3d 849 (Pa. Super. 2017), wherein it

affirmed a trial court order denying a post-sentence motion to vacate and remand for a

new trial on the basis Moyer’s claim was waived for failure to preserve it pursuant to

Cabeza. Id. at 6. Appellant had argued a new trial was warranted because his consent

was involuntary under Birchfield. Id. The Moyer court held “[i]n Pennsylvania, it has long

been the rule that criminal defendants are not entitled to retroactive application of a new

constitutional rule unless they raise and preserve the issue during trial.” Id. at 7 (citing

Moyer, 171 A.3d at 855). Accordingly, in the instant case, the Superior Court held,

because Appellant failed to challenge his consent to the warrantless blood draw at any

stage of the litigation prior to his post-sentence motion, he was not entitled to retroactive

application of Birchfield. Id. at 7.5

       In this appeal, Appellant continues to pursue the underlying claim, and argues that

Birchfield should apply to all cases that were not yet final when Birchfield was decided.

Concisely, Appellant argues that his judgment of sentence is not yet final, Birchfield

created a new rule, and he is entitled to the benefit of that rule. Appellant’s Brief at 18.


5Based on its finding of waiver, the Superior Court did not address the Commonwealth’s
argument that Birchfield created a new constitutional right as opposed to a new
constitutional rule.



                                        [J-20-2019] - 6
Appellant argues, “[i]n Pennsylvania, ‘[u]nder the Teague [v. Lane, 489 U.S. 288 (1989)6]

framework, an old rule applies both on direct and collateral review, but a new rule is

generally applicable only to cases that are still on direct review.’” Id. at 9 (quoting

Commonwealth v. Olson, 179 A.3d 1134, 1139 (Pa. Super. 2018)). Further, “[w]hile

retroactive application of a new rule of law is a matter of judicial discretion usually

exercised on a case-by-case basis, the general rule is that the decision announcing a

new rule of law is applied retroactively so that a party whose case is pending on direct

appeal is entitled to the benefit of the changes in the law.” Id. (quoting In re L.J., 79 A.3d

1073, 1087 (Pa. 2013)).        Following this framework, Appellant argues that under

Birchfield’s pronouncement of a new constitutional rule, his consent to submit to a blood

draw was involuntary, and he raised that issue at his first opportunity, here, prior to

sentencing.

       Appellant does not, however, address Pennsylvania’s issue preclusion principle as

articulated by Cabeza and its progeny which formed the basis of the Superior Court’s

holding.   Rather, Appellant focuses his argument solely on the aforementioned

substantive question of retroactivity to cases pending on direct appeal asserting that he

“did not have the legal authority available to stand on to raise the issue of voluntariness

of his consent to the blood draw prior to Birchfield.” Appellant’s Brief at 12.

       The Commonwealth responds by asserting that in Pennsylvania, “it has ‘long been

the rule that criminal defendants are not entitled to retroactive application of a new

constitutional rule   unless    they raise    and    preserve    the   issue   during   trial.’”

Commonwealth’s Brief at 14 (quoting Moyer, 171 A.3d at 855 (internal citation omitted)).

6 “Under the Teague line of cases, a new rule of constitutional law is generally
retrospectively applicable only to cases pending on direct appellate review. … In other
cases, retroactive effect is accorded only to rules deemed substantive in character, and
to ‘watershed rules of criminal procedure’ which ‘alter our understanding of the bedrock
procedural elements’ of the adjudicatory process.” Commonwealth v. Washington, 142
A.3d 810, 813 (Pa. 2016) (quoting, Teague, 489 U.S. at 311 (citations omitted)).

                                       [J-20-2019] - 7
More specifically, the Commonwealth notes that when “an appellate decision overrules

prior law and 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.” Id. (quoting Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)

(citing Cabeza, 469 A.2d at 148)). The Commonwealth then cites Moyer, which involved

a defendant sentenced two days prior to Birchfield, after which the defendant filed a post-

sentence motion arguing Birchfield should apply. The Superior Court held that, although

Birchfield applied retroactively, it did not apply to Moyer because she did not properly

preserve the issue and failed to raise it prior to her post-sentence motion. Analogizing

Appellant’s case to Moyer, the Commonwealth urges this Court to affirm the Superior

Court.

         The Defender Association of Philadelphia, in an amicus brief, advances an

argument on what it refers to as the unencumbered question of retroactivity of a United

States Supreme Court federal constitutional decision to Pennsylvania cases not yet final,

essentially putting aside the procedural issues in this particular case. Amicus asserts

“[t]here is no question that Birchfield - a United States Supreme Court decision articulating

a new federal constitutional rule - has retroactive application to cases not yet final when

Birchfield was decided.” Amicus Brief at 17. Amicus then notes, the “Federal law does

not speak to Pennsylvania procedural requirements necessary to avoid forfeiture of such

a claim[,]” and urges this Court to adopt a rule that does not require preservation at trial

prior to the pronouncement of the new rule. Id.

         This Court granted review to determine whether Birchfield should apply to all cases

not yet final when the decision was rendered. As evidenced by the parties’ arguments,

our inquiry must first determine whether the issue must be preserved at all stages in the




                                       [J-20-2019] - 8
lower courts. Taking the facts as they are, both parties agreed at the time of sentencing

that Birchfield should apply in this case, illustrated by the fact that at sentencing Birchfield

was applied to Count 2 and no sentence was imposed. Now, each party asserts the other

has waived any challenge by failing to preserve the issue in the lower courts as it relates

to Count 1. Appellant claims that the Commonwealth has waived any challenge by its

admission at the time of sentencing that Birchfield applied despite Appellant’s failure to

raise the claim earlier. Conversely, the Commonwealth maintains that Appellant’s failure

to preserve his claim at all stages of adjudication should result in waiver.

       Prior to addressing the merits of Appellant’s retroactivity claim, our review

necessarily begins with a discussion of Cabeza, the seminal case relied on by the

Superior Court here and in Moyer.7 In Cabeza, this Court was asked to determine

whether a rule it announced in Commonwealth v. Scott, 436 A.2d 611 (Pa. 1981), applied

to Cabeza’s case which was pending on appeal at the time the decision in Scott was

rendered. The Cabeza Court noted, “[i]n Scott we rejected the rule that allowed a

prosecutor to cross-examine character witnesses as to mere arrests of the accused.”

Cabeza, 469 A.2d at 147. The Court went on to note, “[i]n both [Cabeza and Scott], a

defense challenge to the ruling was raised during trial and the issue preserved and argued

in post trial motions and on appeal. The only noteworthy difference between Scott and

[Cabeza] is that Scott was argued and decided first.” Id. at 148. The Court noted that

Cabeza could just as easily have been the case that overruled the prior law if Scott had

not been decided first. Therefore, because the two appellants were similarly situated, this

Court concluded that where “an appellate decision overrules prior law and announces a

7 “[T]he appellate court must give retroactive effect [to a new rule] . . . , subject, of course,
to established principles of waiver, harmless error, and the like.” Commonwealth v.
Gillespie, 516 A.2d 1180, 1183 (Pa. 1986) (citing Shea v. Louisiana, 470 U.S. 51, 58 n.4
(1985)).



                                        [J-20-2019] - 9
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.” Id.

         Despite the Superior Court’s reliance on the holding of Cabeza, Appellant declined

to address Cabeza, or argue that its holding should not apply in the instant matter.

Likewise, the Defender Association of Philadelphia seems to acknowledge Cabeza’s

applicability but argues under its holding “very few litigants will see relief.” Amicus Brief

at 17.     Amicus urges this Court to adopt the view of a concurring opinion in

Commonwealth v. Napold, 170 A.3d 1165 (Pa. Super. 2017), which acknowledged

Cabeza controlled but advocated for a new rule which would “consider an issue preserved

when it is raised in a timely fashion after the creation of the new rule on which it is

grounded.” Id. at 1170 (emphasis in original).

         While this invitation has some appeal, Appellant has failed to argue or persuade

this Court that Cabeza should be overruled, and this Court declines to revisit this well-

established law at this time. Instantly, Appellant failed to assert at or before trial that his

consent was coerced. In Cabeza, Cabeza took the same steps Scott did to preserve his

issue for appellate review. Likewise, Appellant could have taken the steps Beylund took

to preserve his challenge at all phases of litigation, and thus would have been similarly

situated. Appellant is not entitled to retroactive application of Birchfield based on his

failure to preserve the issue below. See Cabeza, 469 A.2d at 148 (“where an appellate

decision overrules prior law and 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.”) (emphasis added); see also

Commonwealth v. Sneed, 899 A.2d 1067, 1076 (Pa. 2006) (“[i]t is well-settled that in order




                                      [J-20-2019] - 10
for a new rule of law to apply retroactively to a case pending on direct appeal, the issue

had to be preserved at all stages of adjudication, including at trial and on direct appeal.”);

Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (“[c]ase law is clear, however,

that in order for a new rule of law to apply retroactively to a case pending on direct appeal,

the issue had to be preserved at “all stages of adjudication up to and including the direct

appeal.”)

       Accordingly, we affirm the opinion of the Superior Court.


Chief Justice Saylor and Justices Baer and Dougherty join the opinion.

Chief Justice Saylor files a concurring opinion.

Justice Donohue files a dissenting opinion in which Justices Todd and Wecht join.




                                      [J-20-2019] - 11
