J-S23045-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
HUGO ALBERTO CABRERA,
Appellee No. 2506 EDA 2016
Appeal from the Order Entered July 29, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002140-2015
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
CONCURRING MEMORANDUM BY OLSON, J.: FILED JUNE 30, 2017
I agree with the learned majority’s well-reasoned memorandum in this
case and, thus, I join the majority’s memorandum. I write separately
merely to note a few deficiencies that, I believe, are present in the
Commonwealth’s brief and argument to this Court.
On appeal, the Commonwealth claims that the trial court erred in
granting Defendant, Hugo Alberto Cabrera (hereinafter “Defendant”), a new
trial because Defendant did not claim, in his suppression motion, that his
consent to the blood draw was involuntary. According to the
Commonwealth, Defendant waived any challenge to his consent and the trial
court, thus, could not grant him a new trial based upon the United States
Supreme Court’s recent opinion in Birchfield v. North Dakota, ___ U.S.
___, 136 S.Ct. 2160 (2016) – which was issued after Defendant was found
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guilty of driving under the influence (hereinafter “DUI”), but prior to
sentencing.1 Commonwealth’s Brief at 19-42.
It is undoubtedly true that Defendant failed to raise the appropriate
claim in his pre-trial motion to suppress.2 Nevertheless, the
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1
The Commonwealth also claims that the trial court “sua sponte raised [the]
claim” regarding the voluntariness of Defendant’s consent – and, thus, the
trial court erroneously advocated on behalf of Defendant. Commonwealth’s
Brief at 19. The Commonwealth’s claim is meritless. To be sure, during the
July 29, 2016 sentencing hearing, the trial court judge merely asked counsel
to advise him as to whether the United States Supreme Court’s recent
opinion in Birchfield “impact[ed] this or not.” See N.T. Sentencing
Hearing, 7/29/16, at 3. The Commonwealth responded: “[m]y position is it
does not. I know [Defendant’s counsel] is going to argue that it does.”
Defendant’s counsel then declared:
Yes, Your Honor. I would make a motion right now for
extraordinary relief, asking to vacate at least the conviction
as it pertains to count one, since it was premised upon what
we now know is the illegally seized blood draw evidence.
Id. (some internal capitalization omitted).
Therefore, it is clear that the trial court merely asked counsels’ advice as to
whether a newly issued Supreme Court opinion affected the case at bar.
The trial court neither sua sponte raised a defense nor acted as an advocate
for Defendant.
2
Within Defendant’s motion to suppress, Defendant argued that the results
of the blood test must be suppressed because: 1) the arresting officer did
not have reasonable suspicion or probable cause to conduct the initial traffic
stop, and 2) the arresting officer did not have probable cause “to pursue the
truck driven by [Defendant] outside of his primary jurisdiction under the
Municipal Police Jurisdiction Act.” Defendant’s Motion to Suppress, 2/17/16,
at 2. I further note that, during the suppression hearing, Defendant’s
counsel acknowledged that the suppression motion did not raise any issue
regarding “the consensual nature of the blood draw.” N.T. Suppression
Hearing, 3/28/16, at 25.
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Commonwealth’s argument to this Court misses the mark, as the trial court
specifically granted Defendant a new trial “in the interest of justice.” Trial
Court Opinion, 9/20/16, at 12-19. The Commonwealth overlooks this fact in
its brief to this Court; and, since the Commonwealth does not raise any
claim that the trial court’s grant of a new trial “in the interest of justice” was
incorrect, the Commonwealth’s claim on appeal immediately fails.
Commonwealth v. Spotz, 716 A.2d 580, 585 n.5 (Pa. 1999) (“[the
Pennsylvania Supreme Court] has held that an issue will be deemed to be
waived when an appellant fails to properly explain or develop it in his brief”);
Commonwealth v. Hallman, 67 A.3d 1256, 1263 (Pa. Super. 2013) (“this
Court may not act as counsel for an appellant and develop arguments on his
behalf”) (internal quotations and citations omitted).
Further, even if the Commonwealth properly argued the claim to this
Court, I agree with the majority that the trial court was within its discretion
in ordering a new trial. As the Pennsylvania Supreme Court has held:
The rationale “in the interest of justice,” employed to rectify
errors which would otherwise result in unfairness, is deeply
rooted in both federal jurisprudence and the common law of
Pennsylvania. In the federal system this aspect of judicial
discretion is evidenced in Rule 33 of the Federal Rules of
Criminal Procedure. The first sentence of the Rule provides,
“[T]he court on motion of a defendant may grant a new trial
to him if required in the interest of justice.” F.R.Crim.P. 33.
The application of this discretionary provision has been held
to apply broadly and its use may only be reviewed if there is
evidence of manifest abuse. In United States v. Narciso,
446 F.Supp. 252, 304 (E.D.Mich. 1977), the [district] court
stated that “the very words of the rule—‘interest of
justice’—mandate the broadest inquiry into the nature of
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the challenged proceeding.” A judge granting a new trial
under this Rule need assign no reason other than it is
required in the interest of justice. The federal system has
recognized that this power is not without restriction,
especially when the action taken potentially intrudes upon
the domain of the jury. In Tennent v. Peoria & P.V. Ry.
Co., 321 U.S. 29, 35 (1944), the United States Supreme
Court stated, “Courts are not free to reweigh the evidence
and set aside a jury verdict merely because the jury could
have drawn different inferences or conclusions or because
judges feel that other results are more reasonable.”
This concept of “interest of justice” has also been
historically recognized as a viable ground for granting a new
trial in this Commonwealth. A trial court has an
“immemorial right to grant a new trial, whenever, in its
opinion, the justice of the particular case so requires.”
March v. Phila. & W. Chester Traction Co., 132 A. 355
(Pa. 1926). Indeed, . . . [the Pennsylvania Supreme] Court
has expressly approved of a trial court's granting a new
trial, sua sponte, for the promotion of justice, if sufficient
cause exists. Commonwealth v. Dennison, 272 A.2d
180, 182 (Pa. 1971). Where it will result in the attainment
of justice, a trial court may grant a new trial without the
initiation of the defendant. Fisher v. Brick, 56 A.2d 213
(Pa. 1948).
...
It is the trial judge's review of the conditions and activity
surrounding the trial which leaves him or her in the best
position to make determinations regarding the fairness of
the process and its outcome. It is apparent, therefore, if a
trial court determines that the process has been unfair or
prejudicial, even where the prejudice arises from actions of
the court, it may, in the exercise of its discretionary powers,
grant a new trial “in the interest of justice.”
The right of a court in an appropriate case to provide relief
under the rubric of “interest of justice” cannot at this stage
of the development of our jurisprudence be seriously
questioned.
...
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Recognizing that the concept of “in the interest of justice” is
merely an identification of a portion of the vast reservoir of
discretionary powers vested in the trial court, the standard
of review to be employed in testing the appropriateness of
its use in a given matter is the well recognized “abuse of
discretion standard.”
This concept of “in the interest of justice” is merely a
recognition of the trial court's discretionary power to ensure
the fairness of the proceedings during the adjudicatory
stage. An arbitrary and unsupported use of this power by a
trial court to avoid justifying its ruling would be clearly
inappropriate. As [the Pennsylvania Supreme] Court stated
in Beal v. Reading Co., 87 A.2d 214 (Pa. 1952), “mere
conclusions such as ‘interest of justice’ are insufficient. All
judicial process necessarily is in the interest of justice.
Such conclusion, in the absence of amplification, could well
serve as a cloak or shield for abused judicial discretion.” 87
A.2d at 216. . . .
Commonwealth v. Powell, 590 A.2d 1240, 1242-1243 (Pa. 1991) (some
internal citations and emphasis omitted).
In the case at bar, the trial court thoroughly explained why it felt
compelled to grant Defendant a new trial “in the interest of justice.” To be
sure, as the trial court explained, it granted Defendant a new trial because:
during the traffic stop, the police officer requested that Defendant submit to
a chemical test of his blood;3 the officer informed Defendant that, if
Defendant refused the test and was later convicted of impaired driving,
Defendant was subject to enhanced criminal penalties;4 from the time of the
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3
See Commonwealth’s Trial Exhibit C-1 (DL-26 Form).
4
See Commonwealth’s Trial Exhibit C-1 (DL-26 Form).
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traffic stop through the date Defendant was convicted of DUI, the law in this
Commonwealth held that such warnings and coercive criminal penalties were
permissible for refusing a properly requested blood draw;5 at the time
Defendant filed his pre-trial suppression motion, the law in this
Commonwealth would have rendered frivolous any claim that the threat of
enhanced criminal penalties caused Defendant’s consent to be involuntary;6
prior to sentencing, the United States Supreme Court issued Birchfield and
held that a state may not “impose criminal penalties on the refusal to submit
to” a blood draw;7 Birchfield changed Pennsylvania law, caused the police
officer’s warning to Defendant to be partially inaccurate, and potentially
rendered Defendant’s consent involuntary;8 since counsel cannot be held
“ineffective for failing to anticipate changes in the law” or “for not making
frivolous objections,” Defendant would not have been able to successfully
claim that his counsel was ineffective for failing to seek suppression of the
blood test results based upon the (allegedly) involuntary consent; 9 and, the
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5
See, e.g., Pa. Dep’t of Transp., Bureau of Driver Licensing v.
Weaver, 912 A.2d 259, 264-265 (Pa. 2006).
6
See Commonwealth v. Graham, 703 A.2d 510, 512 (Pa. Super. 1997).
7
See Birchfield, 136 S.Ct. at 2186.
8
Commonwealth v. White, 528 A.2d 596, 598 (Pa. 1987);
Commonwealth v. McBall, 463 A.2d 472, 475 (Pa. Super. 1983).
9
See Graham, 703 A.2d at 512.
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trial court’s pre-sentence grant of a new trial, “in the interest of justice,” was
the only way Defendant’s consent to the blood draw could be reevaluated
under Birchfield, “given the partial inaccuracy of the officer’s advisory.”10
See Trial Court Opinion, 9/20/16, at 12-21. Given the trial court’s well-
reasoned opinion and basis for its grant of a new trial, I agree with the
majority that the trial court was within its discretion when it granted
Defendant a new trial “in the interest of justice.”
Judge Musmanno joins this concurring memorandum.
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10
See Birchfield, 136 S.Ct. at 2186.
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