IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 453 MAL 2018 : Respondent : Petition for Allowance of Appeal from : the Order of the Superior Court : v. : : : TAMEEKAH MATILDA BARRETT, : : Petitioner : : : :

COMMONWEALTH OF PENNSYLVANIA, : No. 454 MAL 2018 : Respondent : Petition for Allowance of Appeal from : the Order of the Superior Court : v. : : : BRETT JASON WISE, : : Petitioner : : : :

DISSENTING STATEMENT

JUSTICE WECHT FILED: December 27, 2018

The instant Petition for Allowance of Appeal raises legal issues that implicate the

decision that the Supreme Court of the United States issued in Birchfield v. North Dakota,

__ U.S. __, 136 S.Ct. 2160 (2016). Because this Court has not yet addressed the impact of Birchfield upon the law of this Commonwealth, we have no binding precedent against

which to test the merits of these issues, or by which to evaluate lower courts’ analyses of

the legal questions that arise in the wake of Birchfield.

Currently pending before this Court are several cases that necessitate our

consideration of Birchfield. The legal landscape following Birchfield remains substantively

unsettled, nearly any claim that implicates that decision consequently remains at least

potentially viable, and this Court has elected to consider several legal issues emanating

from the Birchfield decision. Under these circumstances, I would not deny allocatur in

this case or any other that depends in whole or in part upon an analysis of Birchfield. We

are ill-advised conclusively to foreclose the possibility of further review until such time as

this Court can provide a clear, definitive, and precedential articulation of what Birchfield

means for Pennsylvania law.

I respectfully dissent from the Court’s denial of allocatur, as I would hold this

petition in abeyance pending further developments.

Justice Donohue joins this dissenting statement.

[453 MAL 2018; 454 MAL 2018] - 2