Howard Bashman.

Upon Further Review

On Sept. 26, the Pennsylvania Supreme Court issued its ruling in a case captioned Commonwealth v. Bishop, No. 37 EAP 2018. The court had granted review to decide whether the Pennsylvania Constitution should be construed to provide broader protection than the Fifth Amendment to the U.S. Constitution with regard to the suppression of physical evidence recovered as a result of a statement that government authorities obtained from a criminal suspect in violation of the suspect's Miranda rights.

Instead of resolving that question on the merits, however, the court decided by a vote of 6-1 that the defendant had waived his ability to obtain a ruling in his favor by failing to adequately preserve the question presented before either the trial court or the Pennsylvania Superior Court.

In reaching its waiver ruling, the court identified a flaw in its practice of deciding whether to grant discretionary review on allowance of appeal that could benefit from the adoption of a rule change to require the filing of an answer in opposition to a petition for allowance of appeal whenever the prevailing party in the court below intends to assert that procedural issues should preclude the Supreme Court from deciding the question presented on its merits.

Some background on the Pennsylvania Supreme Court's procedures for considering whether to grant discretionary review on petition for allowance of appeal, and how those procedures differ from the ones the U.S. Supreme Court uses, would be useful to better understand this waiver issue. Both the Pennsylvania Supreme Court and the U.S. Supreme Court accept most of the cases that they decide on the merits, after oral argument, through a discretionary process that involves, in the first instance, convincing the court that the issue in question is deserving of review. After review is granted, and before oral argument occurs, the parties then brief the case on the merits. In the Pennsylvania Supreme Court, this sort of request for discretionary review is now known as a petition for allowance of appeal and had previously been known as an allocatur petition. And in the U.S. Supreme Court, this sort of request is known as a petition for writ of certiorari.

In many ways, the rules of the Pennsylvania Supreme Court and the U.S. Supreme Court are similar when it comes to these sorts of petitions. Neither court requires the filing of an answer in opposition. However, in practice the procedures of the two courts are quite different. The U.S. Supreme Court will request the filing of an answer in opposition from the party that prevailed in the court below before deciding to grant a petition for certiorari. By contrast, the Pennsylvania Supreme Court regularly grants petitions for allowance of appeal in which no answer in opposition was filed, without first requesting the filing of an answer in opposition from the prevailing party below.

Moreover, the rules governing this type of discretionary review in the U.S. Supreme Court require the party opposing a petition for writ of certiorari to assert in the answer in opposition any and all procedural objections, including waiver-related objections, to review. If the opposing party fails to preserve these sort of procedural objections in its brief in opposition, the court can and often will deem waived any procedural objections that the opposing party seeks to raise for the first time in its merits briefing.

By contrast, there is no equivalent requirement in the Pennsylvania Rules of Appellate Procedure mandating that the prevailing party must raise any available procedural objections to the granting of review in an answer in opposition to the petition for allowance of appeal on pain of waiver for failing to do so. This procedural difference between the U.S. Supreme Court's consideration of petitions for certiorari and the Pennsylvania Supreme Court's consideration of petitions for allowance of appeal proved dispositive when the Pennsylvania Supreme Court decided Bishop last month.

The Pennsylvania Supreme Court granted review to decide the question presented in Bishop in October 2018 without having received any answer in opposition from the prosecution to the defendant's petition for allowance of appeal. As a result, it was not until the prosecution filed its brief for appellee on the merits that it argued to the Pennsylvania Supreme Court that the defendant's substantive argument should be deemed waived due to the defendant's failure to adequately develop that argument before either the trial court or the Pennsylvania Superior Court.

In Bishop, the Pennsylvania Supreme Court held that the prosecution did not waive its ability to argue waiver by filing to file an answer in opposition to the defendant's petition for allowance of appeal because the filing of any answer in opposition remains optional under current Pennsylvania practice. The court did observe, with considerable understatement, that "the court could certainly benefit from the filing of a brief in opposition at the allocatur stage, when pervading waiver concerns are present." And the court ultimately concluded that no persuasive reasons existed to excuse defendant Scott Bishop from having failed to adequately preserve his arguments under the Pennsylvania Constitution before the trial and intermediate appellate courts. Thus, the Pennsylvania Supreme Court held that the question presented was waived and refused to resolve it on the merits.

Justice Christine Donohue issued a concurring opinion in which she suggested that the court's appellate rules committee should consider amending the Pennsylvania Rules of Appellate Procedure to require the filing of an answer in opposition whenever the prevailing party below intends to assert that procedural defects should prevent the court from considering the question presented on its merits. Donohue wrote that "it is a tremendous waste of our judicial resources and those of the parties, for this court to grant allowance of appeal, require briefing, and prepare for and participate in oral argument, only then to resort to waiver" to decide the case.

I agree with Donohue that the Pennsylvania Supreme Court should consider revising the Pennsylvania Rules of Appellate Procedure to require the prevailing party in the court below to file an answer in opposition to a petition for allowance of appeal asserting any procedural impediments to the Pennsylvania Supreme Court's resolution of the question presented on its merits, on pain of waiver for failure to do so. Here's hoping that the court's recent ruling in Bishop can serve as the impetus for such a change in the not too distant future.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, and can be reached by telephone at 215-830-1458 and via email at [email protected]. You can access his appellate web log at http://howappealing.law.com/ and via Twitter @howappealing.