J-A01001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                          :    IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :         PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 LESHON A. MARTIN                         :
                                          :    No. 537 EDA 2017
                    Appellant

            Appeal from the Judgment of Sentence July 14, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0002616-2015


BEFORE:    LAZARUS, J., OTT, J., and PLATT*, J.

CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:

FILED APRIL 04, 2018

      I concur with the majority’s determination that Martin did not waive his

Birchfield claim. Specifically, the majority declines to find that Martin waived

his claim where he “raised Birchfield soon after it was decided, and before

he was sentenced.” Majority Memorandum, 04/04/18, at 9 n.10. Instead,

the majority concludes that Martin “was not entitled to Birchfield’s retroactive

application” because he did not “challenge the validity of his consent until after

his conviction and Birchfield’s disposition [and, thus, he did not have a

consent issue that was pending” while the Supreme Court was deciding the

issue in Birchfield. Id. at 9. In essence, the majority has foreclosed review

of Martin’s consent issue based on his failure to raise the issue “at all stages

of adjudication.” See Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa.


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* Retired Senior Judge assigned to the Superior Court.
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1983). Applying the waiver doctrine or finding that Martin is not entitled to

retroactive application of the law for his failure to raise the issue during trial

are distinctions without a difference.   For this reason, I dissent.

      In Commonwealth v. Torres, 176 A.3d 292 (Pa. Super. 2017), our

Court affirmed the suppression of the results of a warrantless blood test

obtained after a defendant was advised of his O’Connell warnings following

a DUI arrest. In Torres, the defendant, who was tried in the Municipal Court,

filed a pre-trial motion to suppress physical evidence and statements he made

to the police. He did not challenge the voluntariness of his consent on the

ground that he was threatened by criminal penalties. After being convicted of

two counts of DUI and being sentenced, Torres filed a de novo appeal in the

court of common pleas. One week after his appeal was filed, the United States

Supreme Court decided Birchfield.           Torres then filed a supplemental

suppression motion, invoking Birchfield and arguing that his consent for the

blood draw was coerced. The Commonwealth argued that Torres had waived

his claim since he had not presented it in the Municipal Court via his first

suppression motion.     The trial court disagreed and, following a hearing,

granted Torres’ supplemental motion to suppress on the bases that:            (1)

Birchfield constituted an “intervening change in the law”; and (2) since

Torres was threatened with criminal penalties for his refusal to consent to the

warrantless blood test, the totality of the circumstances showed that his

consent was involuntary under Birchfield. Torres, 176 A.3d at 295.




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      On appeal, the Commonwealth again argued that Torres waived his

claim in the trial court by not raising it first in the Municipal Court. Referencing

Pa.R.Crim.P. 508(B), our Court noted that a defendant may raise a

suppression issue at a trial de novo in certain limited circumstances, including:

(1) where the opportunity did not previously exist, or (2) the interests of

justice otherwise require. Id. at 296. Concurring with the trial court, our

Court did not find the issue waived where the “interests of justice” required

the court to hear the suppression motion. Id. In particular, the trial court

opined that “[Torres] previously did not have a genuine opportunity to

challenge the voluntariness of his consent pursuant to Birchfield because

such an argument, though available, would have been essentially frivolous,

with little to no hope of success based on case law at the time.” Torres, 176

A.3d at 296. The trial court also reasoned that judicial economy would be

promoted by its decision to consider the issue. Id.

      Likewise, here, Martin filed a Pa.R.Crim.P. 704 oral motion for

extraordinary relief, raising Birchfield for the first time, prior to sentencing.

Rule 704 indicates that “[u]nder extraordinary circumstances, when the

interests of justice require, the trial judge may, before sentencing, hear an

oral motion . . . for a new trial.”    Pa.R.Crim.P. 704.     Not only had Martin

developed the record before the trial court to facilitate meaningful evaluation

of the claim, but the trial court could have held a hearing to determine the

validity of Martin’s consent and reached a reasoned decision as to whether a

new trial was required.     Under these factual circumstances, where Martin

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raised the claim, before his sentence was final, based on an intervening

change in the law at the earliest possible opportunity,1 I believe that the

interests of justice dictate that the trial court address Martin’s Birchfield

claim.   See Commonwealth v. Gillespie, 516 A.2d 1180, 1182-83 (Pa.

1986) (discussing rule of retroactivity announced in Cabeza and adopting

reasoning in Shea v. Louisiana, 470 U.S. 51 (1985) that noted distinction

between applying full retroactivity to pending and undecided direct review of

judgment of sentence and collateral attack on state conviction which had

become final, “properly rests on considerations of finality.”).




____________________________________________


1 Instantly, Martin was convicted on May 5, 2016, Birchfield was decided on
June 23, 2016, and Martin raised the Birchfield claim in an oral motion on
July 13, 2016. He was sentenced on July 14, 2016, and raised the involuntary
consent claim again in a timely post-sentence motion filed on July 25, 2016.

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