Ordinary Waiver, Not “Departure” Waiver: Article I, Section 8 Challenges Must Be Raised at Suppression Under Pa.R.A.P. 302

1. Introduction

Commonwealth v. Shivers reached the Supreme Court of Pennsylvania on a question of major recurring significance in street-encounter litigation: whether, consistent with Article I, Section 8 of the Pennsylvania Constitution, police may conduct a Terry stop based solely on unprovoked flight in a high-crime area. The Court also directed supplemental briefing—on its own initiative—on whether Phillip Shivers preserved a state-constitutional “departure” argument under Commonwealth v. Bishop and Commonwealth v. Alexander.

Justice Donohue’s concurring and dissenting opinion does not resolve the merits of the flight/high-crime-area issue. Instead, it argues the Court and parties were pulled into the wrong procedural framework. In her view, this is not a “Bishop departure” preservation case at all; it is a straightforward instance of classic waiver because the specific constitutional theory later advanced (that flight + high-crime area cannot establish reasonable suspicion under Article I, Section 8) was never raised in the suppression court.

2. Summary of the Opinion

Justice Donohue would not decide whether unprovoked flight in a high-crime area can, by itself, support reasonable suspicion under the Pennsylvania Constitution. She concludes the appeal should be dismissed as improvidently granted because Shivers did not preserve that legal theory in the trial court.

Her central holding (as to procedure) is that the waiver here is governed by Pa.R.A.P. 302(a)—issues not raised in the trial court cannot be raised for the first time on appeal—rather than by the more specialized “departure” argument framework associated with Commonwealth v. Bishop.

3. Analysis

3.1. Precedents Cited

• Terry v. Ohio, 392 U.S. 1 (1 968).
  Role in the case: Establishes the federal baseline permitting brief investigative seizures based on reasonable suspicion. The granted question in Shivers is framed as whether Pennsylvania’s Article I, Section 8 permits a stop under the Terry framework when the only indicia are flight and a high-crime area. Justice Donohue treats Terry primarily as background; her focus is on preservation.
• Commonwealth v. Shivers, 322 A.3d 879 (Pa. 2024) (per curiam).
  Role in the case: This is the Court’s grant order identifying the substantive constitutional question and, importantly, directing the parties to address preservation in light of Bishop and Alexander. Justice Donohue views this directive as a misstep that diverted analysis away from ordinary Rule 302 waiver.
• Commonwealth v. Bishop, 217 A.3d 833 (Pa. 2019).
  Role in the case: Bishop adopted a framework (drawing on Gomez) for evaluating whether litigants adequately develop a “departure” claim—i.e., that the Pennsylvania Constitution affords greater protection than the federal analog. The Majority applied Bishop to find waiver due to inadequate departure analysis. Justice Donohue criticizes importing Bishop where the underlying issue was not raised in the trial court at all.
• Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020).
  Role in the case: Cited in the grant order’s preservation inquiry. Alexander is emblematic of modern Pennsylvania constitutional “independence” analysis. Justice Donohue’s point is that—even where state constitutional law is more protective—one must still preserve the specific theory at the trial level.
• Commonwealth v. Romberger, 378 A.2d 283, 286 (Pa. 1977).
  Role in the case: Provides the foundational articulation of waiver doctrine: if an issue is cognizable in a proceeding and not raised, it is waived. Justice Donohue uses Romberger to anchor her conclusion that Shivers’ omission at suppression is dispositive under ordinary appellate principles.
• State v. Gomez, 932 P.2d 1, 8-9 (N.M. 1997).
  Role in the case: Source of the departure-argument development test adopted in Bishop. Justice Donohue characterizes this line of authority as irrelevant to “classic waiver” situations because it presupposes the claim was raised and the question is whether it was sufficiently developed.
• Commonwealth v. Lewis, 343 A.3d 1016, 102 6 (Pa. 2 02 5).
  Role in the case: Referenced in a footnote to show the Court recently addressed a related evidentiary dispute: whether “high-crime area” must be supported by “specific empirical data.” Justice Donohue uses Lewis to contextualize Shivers’ actual trial-level strategy—challenging the high-crime designation evidentiary basis—rather than mounting a categorical constitutional attack on the relevance of “high-crime area.”
• Commonwealth v. Matos, 672 A.2d 767 (Pa. 1996).
  Role in the case: Cited by Shivers in his Pa.R.A.P. 1925(b) statement to support the proposition that Pennsylvania provides more robust protections than federal law in seizure contexts. Justice Donohue treats this as part of the problem: the “novel” state-constitutional theory appears for the first time only at the post-sentence appellate-preservation stage, not during suppression litigation where the record and arguments are made.

3.2. Legal Reasoning

Justice Donohue’s reasoning is procedural and proceeds in three steps:

1. Identify what was actually litigated in the suppression court.
   She reads the record as showing that Shivers litigated an evidentiary/factual dispute: whether the Commonwealth proved the area was “high crime,” including urging that such a designation should be supported by empirical police statistics. His suppression argument, in her view, did not present the categorical legal contention that “even if it is a high-crime area, flight + that factor cannot equal reasonable suspicion under Article I, Section 8.”
2. Apply Pa.R.A.P. 302(a): the unraised issue is waived.
   Because the specific constitutional theory was not presented to the trial court in the suppression proceeding, it cannot be raised for the first time on appeal. Justice Donohue frames this as “basic” waiver, supported by Romberger’s statement of Pennsylvania’s “fundamental doctrine.”
3. Reject the Majority’s reframing as a Bishop “departure claim” waiver.
   In her view, Bishop’s departure-analysis requirements are designed to test whether a litigant has adequately developed an argument that state constitutional meaning departs from federal meaning. That inquiry only makes sense if the claim is actually before the court. Where the claim was not raised at all in the trial court, the case ends under Rule 302, and deploying Bishop “shoehorns” ordinary waiver into a specialized doctrine—thus “muddling” Bishop’s application.

3.3. Impact

Although Justice Donohue’s writing is not a merits ruling on flight-based reasonable suspicion, its procedural focus has several practical implications for Pennsylvania criminal litigation:

• Issue “granularity” matters at suppression. A defendant who challenges whether an area is truly “high crime” may still waive a different legal theory: that “high-crime area” should be irrelevant (or categorically insufficient in combination with flight) under Article I, Section 8.
• Pa.R.A.P. 1925(b) cannot cure suppression-stage omissions. Raising a novel constitutional theory for the first time in a concise statement—even with citations like Matos—does not substitute for presenting it when the suppression court can address it.
• Limits on Bishop’s reach (conceptually). The opinion warns against using Bishop’s “departure claim” rubric to decide cases that are more straightforwardly resolved by ordinary waiver principles, suggesting Bishop should not become an all-purpose gatekeeping doctrine in Pennsylvania constitutional criminal procedure.
• Institutional caution about sua sponte preservation reframing. Justice Donohue attributes wasted judicial resources to the Court’s own redirection to Bishop/Alexander, signaling that preservation inquiries should be tightly tethered to what was actually argued and decided below.

4. Complex Concepts Simplified

• Terry stop / “reasonable suspicion”: A brief police detention to investigate possible criminal activity, requiring specific, articulable facts suggesting crime may be afoot—less than probable cause.
• Article I, Section 8: Pennsylvania’s constitutional search-and-seizure provision. Pennsylvania sometimes interprets it to provide greater protection than the Fourth Amendment.
• “High-crime area”: A contextual factor sometimes used in reasonable-suspicion analysis. Shivers litigated whether the Commonwealth proved this fact adequately (e.g., with empirical support).
• Unprovoked flight: Running from police without a clear precipitating event. Courts debate how much suspicion it implies, especially when combined with location-based factors.
• “Departure claim” (Bishop): An argument that Pennsylvania’s constitutional provision should be construed differently (more protectively) than the parallel federal provision, typically requiring developed analysis.
• Waiver (Pa.R.A.P. 302): If you do not raise an issue in the trial court when you could have, you generally cannot raise it later on appeal. Justice Donohue says that is the real problem here.
• DIG (dismissed as improvidently granted): An appellate disposition where a higher court later concludes it should not have taken the case, often because of procedural defects like waiver.

5. Conclusion

Justice Donohue’s concurring and dissenting opinion frames Commonwealth v. Shivers as a cautionary preservation decision rather than a merits decision about flight-based reasonable suspicion. Her key takeaway is that courts should not transform a straightforward failure to raise an issue at suppression into a sophisticated Bishop “departure” adequacy analysis. Where the specific Article I, Section 8 theory was not presented to the suppression court, the case is governed by Pa.R.A.P. 302(a) and traditional waiver principles, and she would dispose of the appeal on that basis (via a DIG).