Commonwealth v. Price, N., Aplt.

                                  [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



                                      [J-27-2022] - 2
             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



                                     [J-27-2022] - 3
             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.




                                      [J-27-2022] - 13
       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.



                                     [J-27-2022] - 14
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.


                                       [J-27-2022] - 15
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)).


                                     [J-27-2022] - 16
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




                                      [J-27-2022] - 17
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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