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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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
____________________________________________


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.




____________________________________________


10
     See Birchfield, 136 S.Ct. at 2186.




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