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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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                        :           No. 2506 EDA 2016

                      Appeal from the Order July 29, 2016
               in the Court of Common Pleas of Chester County,
               Criminal Division, No(s): CP-15-CR-0002140-2015

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JUNE 30, 2017

        The Commonwealth of Pennsylvania (“the Commonwealth”) appeals

from the Order granting a new trial to Hugo Alberto Cabrera (“Cabrera”).

We affirm.

        In its Opinion, the trial court thoroughly set forth the relevant factual

and procedural background, which we adopt for the purpose of this appeal.

See Trial Court Opinion, 9/20/16, at 1-11.

        On appeal, the Commonwealth raises the following issue for our

review:

        Whether the trial court erred when it sua sponte raised a claim
        based on Birchfield v. North Dakota,[1] and committed an
        error of law in awarding [Cabrera] a new trial, as Birchfield []
        does not apply retroactively to [Cabrera’s] case, as the issue
        was not properly preserved by [Cabrera]?

Brief for the Commonwealth at 4 (capitalization omitted, footnote added).



1
    136 S. Ct. 2160 (2016).
J-S23045-17


      The Commonwealth contends that the trial court erred by raising, sua

sponte, a Birchfield issue, and granting Cabrera a new trial. Id. at 19. The

Commonwealth asserts that Cabrera waived any Birchfield issue, as he

failed to raise the issue at or before trial.   Id. at 20; see also id. at 23

(citing Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983)).                 The

Commonwealth argues that a suppression claim not raised prior to trial is

waived, and cannot be raised for the first time in an oral motion for

extraordinary relief at sentencing. Brief for the Commonwealth at 24. The

Commonwealth claims that Cabrera’s reliance on Pa.R.Crim.P. 581(B)2 is

misplaced, as “[t]his provision is primarily concerned with newly discovered

and undiscoverable evidence; and not changes in the law.”        Brief for the

Commonwealth at 29. The Commonwealth contends that Rule 581(B) “is a

pre[]trial rule” which “does not permit a suppression motion to be litigated

post-trial.”   Id.   The Commonwealth asserts that “Birchfield [] does not

apply where a defendant has been convicted[,] and did not raise a

Birchfield claim; irrespective if the defendant has been sentenced.” Id. at

32.   The Commonwealth claims that “Birchfield does not fall within the

category of non-waivable claims, as any suppression issue, even those of a


2
  Rule 581 concerns the suppression of evidence, and subsection 581(B)
provides that “[u]nless the opportunity did not previously exist, or the
interests of justice otherwise require, such motion shall be made only after a
case has been returned to court and shall be contained in the omnibus
pretrial motion set forth in Rule 578.        If timely motion is not made
hereunder, the issue of suppression of such evidence shall be deemed to be
waived.” Pa.R.Crim.P. 581(B).


                                  -2-
J-S23045-17


constitutional dimension, can be waived if not raised and preserved at all

stages of the adjudication[,] up to and including the direct appeal.” Id. at

37-38. The Commonwealth points to federal law, and argues that “for a new

rule of constitutional law; retroactivity is accorded only to rules deemed

substantive in character ….” Id. at 38 (citing Teague v. Lane, 109 S. Ct.

1060 (1989)). The Commonwealth contends that “[t]he Birchfield decision

is not substantive, since it does not prohibit punishment for a class of

offenders[,] nor does it decriminalize conduct.” Id. at 39.3

         In its Opinion, the trial court addressed the Commonwealth’s issue, set

forth the relevant law, and determined that the court had properly (1)

granted Cabrera’s Motion for extraordinary relief; (2) vacated the verdict at

Count I of the Information, driving under the influence of alcohol or

controlled substance, 75 Pa.C.S.A. §§ 3802(d)(1)(i) and 3802(d)(1)(iii); and

(3) granted Cabrera a new trial as to that charge. See Trial Court Opinion,

9/20/16, at 11-21.      We agree with the sound reasoning of the trial court,

which is supported by the record and free of legal error, and affirm on this

basis.    See id.; see also Commonwealth v. Evans, 153 A.3d 323, 331

(Pa. Super. 2016) (vacating the judgment of sentence, and remanding for a


3
   The Commonwealth also contends that trial counsel cannot be deemed
ineffective for not anticipating the Birchfield decision.    Brief for the
Commonwealth at 41.       However, as this issue was not raised in the
Commonwealth’s Statement of Questions Presented, we decline to address
it. See Pa.R.A.P 2116(a) (providing that “[n]o question will be considered
unless it is stated in the statement of questions involved or is fairly
suggested thereby.”).


                                    -3-
J-S23045-17


re-evaluation of the appellant’s purported consent, where the appellant only

consented to the warrantless blood draw after being informed, by the police,

that his refusal to submit to the test could result in enhanced criminal

penalties, in violation of Birchfield).

      Order affirmed.

      Judge Olson and Judge Solano join the memorandum.

      Judge   Olson     files   a   concurring   memorandum   in   which   Judge

Musmanno joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2017




                                      -4-
                                                                     Circulated 05/17/2017                        11 :43 AJ

s:\admin\sarcione\Cabrera Hugo Cmwlth Appeal 1925a.docx




COMMONWEALTH OF PENNSYLVANIA                        : IN THE COURT OF COMMON PLEAS

                   vs.                              : CHESTER COUNTY, PENNSYLVANIA

HUGO ALBERTO CABRERA                                : NO. 15-CR-0002140-20',l.5
                                                                                                   ...
                                                                                                  ---~)




                                                    : CRIMINAL ACTIQ.N.;;.:._LJ.WV                        .       l
                                                                         \                         .

Nicholas J. Casenta, Jr., Esquire, Chief Deputy District Attorney,    and •
       Cynthia B. Morgan, Esquire, for the Commonwealth                      ....     ,·\.
                                                                                             ·.
                                                                                                              •       • I_
Ellen B. Koopman, Esquire, for the Defendant

                          OPINION         SUR RULE         1 9 2 5 Ca)              ;---·<,,'.

               Before this Honorable reviewing Court is the Commonwealth's timel

appeal from our grant of an oral motion for extraordinary relief made by the Defendant o

the record, in open court, during his sentencing hearing. Defendant's sentencing hearin

was held on July 29, 2016. Defense counsel made an oral motion for extraordinary reli f

at sentencing based on the recent United States Supreme Court decision of Birchfield .

North Dekote, 136 S.Ct. 2160 (U.S. N.D. June 23, 2016). We granted Defendant's or                                             J


motion for extraordinary relief on July 29, 2016, vacating Defendant's conviction for

violating 75 Pa. C.S.A. § 3802(d)(1)(i), -(iii) (Count I) and awarding a new trial as to th~t

charge. The Commonwealth filed its Notice of Appeal on August 5, 2016, pursuant to P

R.A.P. 311 (a)(6), which provides that "[a]n appeal may be taken as of right and witho t

reference to Pa. R.A.P. 341 (c) from: . . . (6) New trials.- An order . . . in a crimin I

proceeding awarding a new trial where the ...        Commonwealth claims that the trial cou

committed an error of law.". Pa. R.A.P. 311 (a)(6). The Commonwealth's Appeal i

timely, see Pa. R.A.P. 902 ("An appeal permitted by law as of right from a lower court t

an appellate court shall be taken by filing a notice of appeal with the clerk of the low r

court within the time allowed by Rule 903 (time for appeal)."); Pa. R.A.P. 903(a)("Exce t

                                                1
s:\admin\sarcione\Cabrera   Hugo Cmwlth Appeal 1925a.docx




as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manne\r

of taking appeal) shall be filed within 30 days after the entry of the order from which th

appeal is taken."), and authorized by the Rules of Appellate Procedure, Pa. R.A. .

311(a)(6), and thus is properly before this Honorable reviewing Court.

            ·   The operative facts underlying the present appeal are as follows.         o,j
August 24, 2016 the Commonwealth filed an Information charging Defendant with oni

count of Driving Under Influence of Alcohol or Controlled .Substance, 75 Pa. C.S.A.          f
3802(d)(1)(i), -(iii), -(2) (Count I); one count of Driving on Roadways Laned for Traffic, 7,

Pa. C.S.A. § 3309(1) (Count II): one count of Careless Driving, 75 Pa. C.S.A. § 3714(

(Count 111), and one count of Drivers Required to Be Licensed, 75 Pa. C.S.A. § 1501 (a

(Count IV). The charges stemmed from a motor vehicle stop that occurred within the

confines of Chester County, Pennsylvania on March 27, 2015. (Suppression Transcrip ,

3/28/16, N.T. 9-10, 14-18).

                As a result of that stop, Defendant was arrested and transported by police

to the hospital. (Suppression Transcript, 3/28/16, N.T. 23). At the hospital, the policr

read to the Defendant          PennDOT's standard Form DL-26.      (Suppression Transcript

3/28/16, N.T. 23). Form DL-26, at least as in use on March 27, 2015, advised Defenda t

that, in the event he were to be convicted of violating 75 Pa. C.S.A. § 3802(a)(1), h

would face more severe civil and criminei penalties if he refused to consent to th

administration of a blood test. (See 3/28/16, Ex. C-1). The arresting officer testified th t

the Defendant signed the Form DL-26 after the officer read it to him (3/28/16, Ex. C-1;




                                                  2
s:\admin\sarcione\Cabrera    Hugo Cmwlth Appeal 192Sa.docx




Suppression Transcript, 3/28/16, N.T. 23-24).1                    The blood test results yielded thr

presence of 16 nanograms of Delta-9-THC, a marijuana constituent, and 99 nanogram

of 9-Carboxy-THC, a marijuana metabolite, per milliliter of Defendant's blood.                              (Se

3/28/16, Ex. C-3, Stipulation).

                 Armed with the results of Defendant's blood test, the Commonwealth filed

its Information against Defendant· charging him with the aforementioned offense

Defense counsel filed a Motion to Suppress Evidence on February 17, 2016. In h, 1.

Motion, defense counsel challenged the admissibility of the evidence _obtained from thj

Defendant on the basis that the officer did not have the requisite quantum of causet..

needed to effectuate the traffic stop and on the basis that the officer exceeded hi

jurisdiction under the MPJA when he stopped the Defendant. Defense counsel did not

argue that the blood draw directly violated the Defendant's Fourth Amendment/Article I,

Section 8 rights.

                 We held an evidentiary hearing on Defendant's Motion to Suppress

Evidence on March 28, 2016. At the close Of this hearing, following a brief period                             foi
deliberation, we denied Defendant's Motion, placing our Findings of Fact anI

Conclusions of Law on the record in open court. We also issued a formal written Orde:r

memorializing this denial on March 28, 2016.

                 Following our resolution of Defendant's Motion to Suppress Evidence, the



1
 The Defendant's signature on the Form DL-26 appears to read "H Sagastegui". This is the same name as that whic
appears on the "Acknowledgement of Notice of Presentment of Information to the Court of Common Pleas an
Waiver of Arraignment" appended to the front of the Information which Defendant and his counsel signed on Jun
17, 2015. We are not certain of the origin of the surname "Sagastegui" but it appears to have been used with sorn
consistency by the Defendant in this matter.

                                                        3
s:\ad m in\sarcione\Cabrera   Hugo Cmwlth Appea I 192Sa.docx




parties proceeded to a stipulated-fact non-jury trial before the undersigned. Immediate!

prior to the trial, the Commonwealth withdrew Count Ill of the Information, chargin,

Careless Driving under 75 Pa. C.S.A. § 3714(a). The Stipulation that formed the basir

for the stipulated-fact nan-jury trial was admitted as Commonwealth's Exhibit C- .

(3/28/16, Ex. C-3).

                 On the basis of those stipulations, which included the data concerning the

results of Defendant's blood test, we issued a Verdict on April 1, 2016 convicting

Defendant of Count I, charqlnq Driving Under the Influence of Alcohol or Co~trollet

Substance, 75 Pa. C.S.A. § 3802(d)(1)(i) and 3802(d)(1 )(iii), both of which section

require introduction of chemical test results (in this case, a blood test), and acquitte

Defendant of Count I, charging Driving Under the Influence of Alcohol or Controlled

Substance, 75 Pa. C.S.A. § 3802(d)(2), the "general impairment" section relating t,

driving under the influence of a controlled substance only. We also acquitted Defenda t

of Count II, Driving on Roadways Laned for Traffic, 75 Pa. C.S.A. § 3309(1) but convicted

him of violating 75 Pa. C.S.A. § 1501 (a), Drivers Required to Be Licensed (Count IV.

Our Verdict with respect to these latter two (2) charges is not at issue in this appeal.

                 As part of our April 1, 2016 Verdict, we directed the Court Administrator t

schedule Defendant for sentencing at _a date and time consistent with the customal

business of the Court. On June 10, 2016, upon defense motion, Defendant's sentencin

was continued ta allow Defendant to file an application for the Countis lntermediat

Punishment Plan (hereinafter, "JPP11) program. Defendant was approved for JPP on Jun.

20, 2016. We reconvened on July 29, 2016 for Defendant's sentencing.



                                                     4
s:\admin\sarcione\Cabrera     Hugo Cmwlth Appeal 1925a.docx




                  Between the date of the Verdict and the date of Defendant's sentencinl

hearing, between in fact the date of the Defendant's approval for IPP and the date of

sentencing, the United States Supreme Court on June 23, 2016 issued the Birchfield                                J1
Norlh Dakota decision. See Birchfield v. Norlh Dakota, 136 S.Ct. 2160 (U.S. N.D. Jun

23, 2016). The Birchfield, supra decision involved appeals by three (3) DUI defendant .

Id. The first defendant, Danny Birchfield, refused to consent to a blood test after belnd

advised by the arresting officer that refusing to submit to the blood test could lead ti

criminal punishment. Id. Mr. Birchfield was charged with a misdemeanor violation of hi

State's refusal statute and entered a conditional guilty plea. Id. On appeal he argue                                 I
that the Fourth Amendment prohibited criminalizing his refusal to submit to the test. I~.

The State.Courts did not accept his argument, but the United States Supreme Court di,.

Id.     The United States Supreme Court stated the Fourth Ameridment prohibii

criminalizing refusals to consent to blood tests.                   Id.   The second defendant, Willia!

Robert Bernard, Jr., refused to take a breath test after being advised by the arrestinf

officer that his refusal would be considered a crime under Minnesota law.2                               Id.   The ·

United States Supreme Court concluded that the Fourth Amendment permits a State t,

compel warrantless breath tests incident to arrests for drunk driving. Id. Finally, the thir

defendant, Steven Michael Beylund, agreed to have his blood drawn after being advise

that a refusal to do so would constitute a crime under North Dakota law. Id. After th

blood test yielded a result of 0.250%, more than three (3) times the State's legal limi ,

administrative proceedings were initiated that resulted in defendant Beylund's driver'

2
  The cases involving the first and third defendants In Birchfield, supra, arose in North Dakota, while Mr. Bernard
case arose in Minnesota. Birchfield, supra. The three cases were consolidated for argument before the Unite
States Supreme Court. Id.

                                                         5
s:\admin\sarcione\Cabrera   Hugo Cmwlth Appeal 1925a.docx




license being suspended for two (2) years.                  Id.   The defendant appealed th

administrative suspension.         Id.    The North Dakota District Court rejected defenda1t

Beylund's claim that his consent to the blood draw was coerced and involuntary due tb

the fact that the arresting officer advised him that refusal would constitute a crime. ,,.

Relying on what was then its own, pre-United States Supreme Court. decision                   iI
Birchfield, the North Dakota Supreme Court affirmed the lower court's determination tha

defendant Beylund's consent was voluntary. Id.              The United States Supreme Couj

however, did not agree. Id. Holding that the North Dakota Supreme Court erroneous!

assumed that the State could permissibly compel both blood and breath tests, the Unite,

States Supreme Court remanded defendant Beylund's case to the North Dakota Stat

Courts to determine whether defendant Beylund's consent to the administration of th

blood test was voluntary under the totality of the circumstances given the "parti I

inaccuracy of the officer's advisory." Id.

                   In the weeks following the United States Supreme Court June 23,

pronouncement in Birchfield,             supra, the Commonwealth allowed every as-yet un

sentenced defendant who had previously tendered an open plea to violations of the         pj(
se provisions of§ 3802 of the Motor Vehicle Code, those provisions that require chemic,'.

testing to establish the violation, to re-plead to the applicable "general impairmen '

provisions that do not require any chemical test results. (Sentencing Hearing, 7/29/1 ,

N.T. 4-5). As we stated earlier, we had already acquitted Defendant of the applicabl

"general impairment" charge levied here, 75 Pa. C.S.A. § 3802(d)(2).             Principles   I
Double Jeopardy would thus prevent this Court from convicting Defendant of violating 7

Pa. C.S.A. § 3802(d)(2) for the incident forming the basis of the above-captioned matte ,

                                                   6
s:\admin\sarcione\Cabrera   Hugo Cmwlth Appeal 1925a.docx




see 18 Pa. C.S.A. _§ 109(1); thus, the option of vacating Defendant's conviction on Cou1
I for violating 75 Pa. C.S.A. § 3802(d)(1)(i), -(iii) and substituting a conviction for or pie

to 75 Pa. C.S.A. § 3802(d)(2) was not available to the Commonwealth here, and, f

Defendant's conviction under 75 Pa. C.S.A. § 3802(d)(1)(i), -(iii) were to be removed, th.

Commonwealth would .have no recourse to penalize the Defendant for his intoxicate,

driving and would be relegated to punishing Defendant, if at all, for his summary violatior

of 75 Pa. C.S.A. § 1501(a} only.                                                                 I
                At Defendant's sentencing hearing on July 29, 2016, which followed, as wr

just mentioned, a string of cases re-pleaded, as we indicated, to. accommodate th

concerns raised by the United States Supreme Court's Birchfield, supra, decision, th

following exchange occurred.

                 [THE PROSECUTOR]: This is, well, it's Hugo Cabrera, term
                 number 2140 of 2015.           This was a suppression into a
                 stipulated fact trial, your Honor.

                 THE COURT: Right.

                 [THE PROSECUTOR]: There was a DL-26 involved in the
                 blood draw, though that was not admitted into evidence
                 because it was stipulated that it was a consensual blood draw.
                 Your Honor found him-

                 THE COURT: Is he present?

                 [DEFENSE COUNSEL]: Yes, your Honor, he's seated.

                 THE COURT: He should have a seat next to counsel.

                 [THE PROSECUTOR]: Your Honor found him -

                 THE COURT: I found him not guilty under 3802(d)(1)(1) and -
                 I'm sorry.        I found him guilty of 3802(d)(1 )(i) and
                 3802(d)(1)(iii), not guilty of 3802(d)(2).


                                                  7
s:\admin\sarcione\Cabrera   Hugo Cmwlth Appeal 1925a.docx




                 [THE PROSECUTOR]: That's correct.

                 THE COURT: Not guilty of driving on roadways laned for
                 traffic. Careless driving was withdrawn. And drivers required
                 to be licensed, I found him guilty.

                 [DEFENSE COUNSEL]: That's correct.

                  Tl-IE COURT: And does the U.S. Supreme Court decision
                 impact this or. not?

                 [THE PROSECUTOR]: My position is it does not. I know
                 [defense counsel] is going to argue that it does.

                 [DEFENSE COUNSEL]: 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.

                   Certainly at the time of litigation, I was unaware that this
                 was an appropriate challenge to make. However, while the
                 case is still pending, the law has changed significantly. And
                 because the case is still pending, l think it is appropriate for
                 me to make this request at this time and proceed to challenge
                 the blood.

                 [THE PROSECUTOR]: Your Honor, I would argue the
                 opposite. He has been convicted by your Honor. · He was
                 convicted upon a blood draw that was stipulated to be
                 consensual at the time. The Commonwealth v. Birchfield-

                 THE COURT: We have to operate in good faith here.

                 [THE PROSECUTOR]: Of course, your Honor.

                 THE COURT: This was under paragraph four, the defendant
                 in the stipulated fact trial, the defendant did consent to testing
                 of his blood. But that was pursuant, I'm sure, to the reading of
                 the DL-26 form even though it's not contained in there, I
                 mean.

(Sentencing Hearing Transcript, 7/29/16, N.T. 2-4)(emphasis added).



                                                   8
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                  The Commonwealth objected to Defendant's oral Motion. (Suppressio

Hearing Transcript, 7/29/16, N.T. 4). The Commonwealth stated,

                  [THE PROSECUTOR]: If I could, your Honor, I think I can
                  clarify this. The reason that we have been allowing for
                  defendants who have pied open and have not been
                  sentenced, we have been allowing them to essentially
                  withdraw their guilty pleas.       And then we have been
                  repleading them to 3802(a)(1) or 3802(d)(2). The reason we
                  have been allowing that is because after a guilty plea, but
                  prior to sentencing, the defense can ask for withdrawal of a
                  guilty plea for really any reason and the Court will grant it, so
                  long as it does not prejudice the Commonwealth. This is a
                  very different situation. Your Honor found at the time that the
                  defendant, that we proved sufficiently beyond· a reasonable
                  doubt that he had marijuana in his system under 3802(d)(1)(i)
                  and 3802(d)(iii).

                  THE COURT: I guess the question becomes is Birchfield
                  applicable here?

                  [THE PR.OSECUTOR]: It's not, your Honor, because it's not
                  retroactive. The issue is not preserved for appeal.
                  understand, of course, why [defense counsel] wasn't going to
                  make that argument at the time because she didn't know that
                  would be a viable argument. lt would have been seen, quite
                  frankly, as a frivolous argument to make. And I understand
                  that. But if your Honor were to vacate this conviction, every
                  single other person that has ever pied or been convicted and
                  sentenced pursuant to a DL-26 -

                   THE COURT:          He hasn't been sentenced. That's the
                   difference.

                   [THE PROSECUTOR}: But he has been convicted. That's
                   very different than an open guilty plea.

(Sentencing Hearing Transcript, 7/29/16, N.T. 4-6).

                   The Commonwealth contended that Defendant had failed to preserve the

Fourth Amendment issue pre-trial and consequently, his issue was waived und r

Commonwealth v. Cabeza, 469 A.2d 146 (Pa.. 1983), which the Commonwealth cited for

                                                    9
s:\admin\sarcione\Cabrera   Hugo Cmwlth Appeal 1925a.docx




the proposition that new rules do not apply retroactively unless the issue concerning thj

rule has been preserved at all stages in the litigation up to and including direct appea.

(Sentencing Hearing Transcript, 7 /29/16, N.T. 6-8).         They also contended that they di,

not realize that Birchfield, supra would be an issue in Defendant's case "until your Hon r

brought it up this morning[.]"     (Sentencing Hearing Transcript, 7/29/16, N.T. 7). In othjr

words, they contended that we improperly raised a defense on behalf of a party su

sponte by asking both counsel on the· record at the sentencing                 hearing whethe

Birchfield, supra had an impact on Defendant's case.

                 Ultimately, we granted Defendant's oral Motion for Extraordinary Relief on

July 29, 2016 pursuant to Pennsylvania Rule of Criminal Procedure 704(8).           We vacater

Defendant's verdict at Count I of the Information, Driving Under the Influence of Alcohol

or Controlled Substance, 75 Pa. C.S.A. § 3802(d)(1)(i) and§ 3802(d)(1)(iii) and grante,

Defendant a new trial as to that charge. As we stated on the record,

                 Under the Rule 70_4, it mentions the remedy of one of these
                 being a new trial. So in my humble opinion, the use of the
                 blood test can then be determined at a subsequent
                 suppression hearing.

(Sentencing Hearing Transcript, 7/29/16, N.T. 13)(emphasis added). It was our intentio1

with respect to Count I of the Information, to put the parties back in the same positior

they enjoyed prior to the stipulated fact trial so that the issue concerning the applicabilitr

of Birchfield, supra to Defendant's compelled blood test and the validity of his waiver          f

his constitutional     rights could be litigated properly.     (Sentencing   Hearinq Transcrip , .

7/29/16, N.T. 10, 13).      ·




                                                  10
s:\admin\sarcione\Cabrera   Hugo Cmwlth Appeal 192Sa.docx




                  The Commonwealth filed its Notice of Appeal on August 5, 2016. By Orde

dated August 5, 2016, we directed the Commonwealth to file within twenty-one (21) day



The Commonwealth timely complied, complaining that we erred by granting Defendant'!

oral motion for extraordinary relief because Defendant had failed to preserve his

Birchfield claim prior to or during trial and because this Court allegedly improperly raiser

the Birchfield issue sue sponte.        Having reviewed the relevant constitutional, statutorr

and decisional law, we are now prepared to make the following recommendatiom

regarding the merits of the Commonwealth's appeal.

                   In support of its first issue, the preservation issue, the Commonwealth cite!

Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983) for the proposition that where a

appellate decision overrules prior law and announces a new principle, unless the decisio

specifically declares the ruling to be prospective only, the new rule is to be applied

retroactively to cases where the issue in question is properly preserved at all stages If

adjudication up to and including any direct appeal. Commonwealth           v.   Cabeza, 469 A.2r

 146 (Pa. 1983). Unquestionably, Cabeza, supra states the proposition for which it har

been cited. However, Cabeza, supra, involved the award of a new trial by the appellate

court, not an oral mo~ion for extraordinary relief made immediately before sentencind.

The holding in Cabe~a. supra, that an issue concerning a new rule of law must b I

 properly preserved at all stages of litigation in order to obtain relief on direct appeal, mu t

 be viewed in the context in which it arose, i.e. the perspective of an appellate cour

 reviewing a direct appeal. Defendant has not even reached the direct appeal stage. Thi

 context in which the instant case developed involved, as we discussed above, an or

                                                   11
s:\admin\sarcione\Cabrera    Hugo Cmwlth Appeal 192Sa.docx




motion for extraordinary relief immediately prior to sentencing.             Such a motion i



permitted in delineated circumstances such as occurred in the case sub judic .

Preservation at earlier stages is not required, because, given the nature and scope of           al
oral motion for extraordinary relief, the issues giving rise to such motion do nJ

necessarily arise prior to or during trial. Preservation of issues raised in oral motions for

extraordinary relief is accompflshed, in the event the oral motion is denied, by filing

subsequent post-sentence motion. Commonwealth v. Askew, 907 A.2d 624 (Pa. Supe .

2006), appeal denied, 919 A.2d 954 (Pa. 2007). Indeed, had we denied Defendant's or,!

motion, Defendant would likely have filed a post-sentence motion, preserving the issur

for purposes of appeal and thus satisfying Cabeza, supra and allowing for direct appeJ

of the issue, assuming for purposes of argument that we would have denied Defendant'

post-sentence motion. Cabeza, supra did not involve an oral n:1otion for extraordina1

relief and is thus factually and procedurally inapposite. The Commonwealth's reliance or

Cabeza, supra is putting the proverbial horse before the cart. In terms of Defendant'

oral motion for extraordinary relief, the factual and procedural prerequisites to th

undersigned's exercise of discretion under Pennsylvania Rule of Criminal Procedur

704(8) were met.            The Commonwealth's failure to recognize the differences in th

procedural postures of Cabeza, supra and the instant case is a fatal flaw in th ,

foundation of its argument.

                  Although it is true that Defendant did not, prior to or during trial, make a

direct Fourth Amendment/Article I, Section 8 claim that his blood test results should b

suppressed as unconstitutionally compelled and the product of an involuntary waiver

                                                  12
s:\admin\sarcione\Cabrera   Hugo Cmwlth Appeal 1925a.docx




constitutional rights due to the misinformation the officer gave him concerning thi.

applicability of higher criminal penalties were he to refuse, at the time Defenda]1

appeared before the Court to litigate his pre-trial motion challenging the basis for the stol

and the admission of evidence as fruit of the poisonous tree, the validity or

Pennsylvania's Implied Consent laws was not in question. It was an accepted part or

Pennsylvania law that, by driving on the roadways of this Commonwealth, motorists gave

up their right to unfettered refusal of any chemical test, including blood tests. Counsel dif

not raise this argument because to do so would have been, in this Commonwealt1,

considered meritless, even frivolous. Counsel cannot be deemed ineffective for failing te

raise a frivolous issue. Commonwealth v. Silvis, 452 A.2d 1045. (Pa. Super. 1982). Tht.

Birchfield, supra issue did not arise until after Defendant's stipulated fact trial, indeed well

after the trial, but a little more than one month before sentencing. Defendant's conviction

was not yet final because he had not been sentenced. See Commonwealth                        ex rel. Holl

v. Ashe,    82 A.2d 244 (Pa. 1951), cert.      denied, Holly v. Commonwealth of Pennsylvani                 ,

72 S.Ct. 90 (U.S. Pa. 1951)(the judgment in a criminal case is the sentence and not the

conviction; final judgment in a criminal case means the sentence). When we convened

for sentencing on July 29, 2016, defense counsel raised the Birchfield issue at the earliJ

possible moment, by making an oral motion for extraordinary relief.3 Pennsylvania Rul



3
    Pennsylvania Rule of Criminal Procedure 704(8) provides

                ' (8) Oral Motion for Extraordinary Relief

                    (1) Under extraordinary circumstances, when the interests of justice
                  require, the trial judge may, before· sentencing, hear an oral motion in
                  arrest of Judgment,for a judgment of acquittal, or for a new trial.


                                                    13
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of Criminal Procedure 704(8) expressly contemplates this motion, particularly under

circumstances like the one that occurred here, where there has been an interveninf

change in case law. See Pa. R.Crim.P. 704(8), Comment ("It would be appropriate fir

counsel to move for extraordinary relief, for example, when there has been a change                                 T
case /aw[.]")(emphasis added). Further, Pennsylvania Rule of Criminal Procedure 704(8!

expressly contemplates the type of                       relief given here.               See      Pa.    R.Crim.l

704(8)(1 )("Under extraordinary circumstances, when the interests of justice require, thi

trial judge may, before sentencing, hear an oral motion in arrest of judgment, for                                  j
judgment of acquittal, or for a new tria/.")(emphasis added). A defendant who makes a                               1
oral motion for extraordinary relief and, if denied, follows it with a post-sentence motior

raising the same issue, is considered to have properly preserved his issue for purposer

. of direct appeal, and the appellate courts will address the merits of his issue on direT

appeal. Commonwealth v. Askew, 907 A.2d 624 (Pa. Super. 2006), appeal denied,                                      91i
A.2d 954 (Pa. 2007)(Rule 704 specificauy declares that any motion for extraordinary reliif

must be preserved via post-trial motion).                      It is, in effect, an alternative method              If
preserving, when followed by a timely-filed post-sentence motion,4 an issue for appejl

when certain extraordinary circumstances occur. It is a way of affording an avenue                                 fo(
                    (2) The judge shall decide a motion for extraordinary relief before
                  imposing sentence, and shall not delay the sentencing proceeding in order
                  to decide it.

                    (3) A motion for extraordinary relief shall have no effect on the
                  preservation or waiver of issues for post-sentence consideration on
                  appeal.

Pa. R.Crim.P. 704(8).


4
 An oral motion for extraordinary relief, by Itself, does nothing to preserve an issue for appellate review. Pa.
R.Crim.P.704(B)(3).

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relief to defendants for whom a change in the law cannot be anticipated, and for who

counsel cannot be deemed ineffective for failing to raise it pre- or during trial,      ser
Commonwealth v, Jones, 811 A.2d 994 (Pa. 2002), denial of post-conviction relief atf'd,

858 A.2d 75 (Pa. 2004), denial of post-conviction relief affd, 54 A.3d 14 (Pa. 2012!



failing to advance a novel legal theory which has never been accepted by the pertine1t

courts) and who would otherwise be unable to obtain appellate review of the issue, evet

in a PCRA context, for both of those reasons. Indeed, had we denied Defendant's or,I

motion for extraordinary relief, we would have no doubt that defense counsel would havr

followed our denial with a timely-filed post-sentence motion I thereby preserving the issur

for appellate review. However, we are not at the direct appeal stage. Questions of

preservation at this juncture are premature. To right certain wrongs at the earliest tim

instead of perpetuating error, to avoid unnecessary proceedings as well as unnecessar

appeals, and ultimately, to ensure that Defendant's sentence is valid and not predicate,

on incompetent evidence and that his waiver of his constitutional right to bodily integritr

was truly knowing, voluntary and intelligent instead of obtained by coercion and/or

misrepresentations of the law, we took the earliest opportunity which with we wer

presented to place the parties, with respect to the charges of violating 75 Pa. C.S.A.. ·

3802(d)(1)(i) and -(d)(1)(iii) in Count I, back into the same positions they enjoyed prior to

trial, with the opportunity to present to the Court a suppression motion raising tht

Birchfield issue so that both parties may litigate to the fullest their positions as to   itr
applicability to and impact upon Defendant's case. Indeed, this is precisely the remedr

the United States Supreme Court ordered with respect to defendant Beylund, wh,

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challenged the validity of his consent to the blood test due to the arresting officer'.

warnings concerning the ability of the State to compel his compliance. Birchfield, 13;

S.Ct. at 2186-87. As the United States Supreme Court stated,

                 Because voluntariness of consent to a search must be
                 'determined from the totality of all the circumstances,' ... we
                 leave it to the state court on remand to reevaluate Beylund's
                 consent given the partial inaccuracy of the officer's advisory.

Birchfield, 136 S. Ct. at 2186.      We ordered the same remedy as that prescribed by th

United States Supreme Court for addressing a defendant's claim that unlawful warnings

tainted the validity of the defendant's consent to a blood test. Birchfield, supra. Furthej,

Pennsylvania Rule of Criminal Procedure 704(8) requires that "[t]he judge . . . decide        r
motion for extraordinary relief before imposing sentence, and shall not delay thr

sentencing proceeding in order to decide         it." Pa. R.Crim.P. 704(8)(2). The need for   t
quick decision on an oral motion for extraordinary relief, coupled with the fact thjt

evidence de hors the record must be developed in order to get to the bottom of thr

underlying issue properly, requires that the sentencing court be given a bit of latitude i

determining whether or not said motion should be granted. It is difficult for a sentencin,
                                                                                               I
court to examine in the context of an oral motion for extraordinary relief, the consideratio

of which is expressly mandated to not delay sentencing, all of the technical legal nicetie

that may impact upon the resolution of the ultimate underlying issue. At all times we ai

for fairness. Because there is at least arguable merit to Defendant's motion, because th

circumstances that occurred here with the issuance of the Birchfield decision fulfill th

requirements of Pennsylvania Rule of Criminal Procedure 704(8), and because of th

fact that the result of our decision placed the parties in the same position they were i


                                                  16
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prior to trial with _the complete ability to litigate the merits of Defendant's Birchfield claiJ

to the fullest, we would respectfully submit that our decision to grant Defendant's oril

motion for extraordinary relief was proper under Pennsylvania Ruleof Criminal ProcedurT

704(8). Certainly, there is no harm to the Commonwealth here. Of course, they may nJ\

like our decision because, in light of his acquittal on the safe driving charge, they cannJt

re-plead him to a lesser offense and, if we determine after the suppression hearing th ,t

the Defendant's consent was involuntary, they will lack the evidence necessary to preva I

on the crime(s) .as charged. However, as we stated ~efore, we do at all times strive fol

fairness, and for decisions, particularly with regard to convictions and sentencing, that arr

accurate, viable and right in the eyes of the law. These aims do not conflict with thi.

duties of the prosecution under our Constitution; that is to say, our goals are, or shoul                  1
be, compatible in this respect. Finally, in light of the Commonwealth's acquiescence ii

the plea context to.withdrawals of pleas due to Birchfield, supra and the allowance of rj

pleading to lesser charges, to reject Defendant's right to judicial review of his BirchfielJ:

supra claim is to essentially penalize Defendant for exercising his right to a trial instead of

capitulating to the Commonwealth with the tender of a plea. This is neither fair nor just.5

                 There appears to be very little case law regarding the standard of appellat.

review applicable to decisions regarding oral motions for extraordinary relief. Howeve ,

there is plenty of case law concerning the standard of review for decisions granting a ne

trial. "[A] trial court has an 'immemorial right to grant a new trial, whenever, in its opinio ,


5
  See also Zack Needles, Pa. Courts Retroactively Applying SCOTUS Blood Test Ruling, Pennsylvania Law Weeki ,
August 30, 2016, at· 1, 13 (discussing cases ln which three Common Pleas Court Judges from Fayette Count ,
Jefferson County and Warren-Forest applied Birchfield retroactively to cases pending direct review at the tim
Birchfield, supra was issued).

                                                     17
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the justice of a particular case so requires."'        Commonwealth v. Dorm, 971 A.2d 128 ,

1288 (Pa. Super. 2009)(citing Commonwealth v. Powell, 590 A.2d 1240, 1242                    (P,.
199:)). "[T]he 'interest of jus~ce' is a ~istorically recognized basis.for the award ~f ~ nei

trial.   Id. As the Pennsylvania Superior Court stated'. "[t]he granting of a new trial in thr

Interest of justice cannot be arbitrary, but must be supported by the record.'

Commonwealth v. Riley, 643 A.2d 1090, 1093 (Pa. Super. 1994). The appellate standar

of review regarding an order granting a new trial in the interest of justice is abuse o

discretion.     Commonwealth       v. Dorm, 971 A.2d 1284, 1288 (Pa. Super. 2009)(citin

Commonwealth        v.   Powell, 590 A.2d 1240, 1243 (Pa. 1991)).    An abuse of discretion i

not a      mere error in judgment,           but, rather, involves bias,    ill   will,   manifes

unreasonableness, misapplication of the law, partiality, and/or prejudice. Dorm, 971 A.2,

at 1288-89 (citing Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa. Super. 2008), rev',

on other grounds, 15 A.3d 333 (Pa. 2011)). Our Supreme Court has held that the !er

"abuse of discretion" indicates that the appellate court determines that the trial couiI

committed an error of law. Powell, 590 A.2d at 1245 n .. 8. Our Supreme Cou_rt furthi

explained that an error of law is a clearly _erroneousconclusion and judgment-one th            :t
is clearly. against logic and effect of such facts as are presented in support of th

application or against the reasonable and probable deductions to be drawn from the fact

disclosed upon the hearing; an improvident exercise of discretion; an error of la

Powell, 590 A.2d at 1245 n. 8.          Given that there is a Pennsylvania Rule of Crimin

Procedure that expressly authorizes the actions taken by this Court under the particular

circumstances as were presented to this Court and that we have complied to the lette

with the requirements of said Rule, it is our position that our granting of Defendant's or

                                                  18
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motion for extraordinary relief and our award of a new trial on Count 1 charging 75 P .

C.S.A § 3802(d)(1)(i), -(iii) IJYaS supported by the record and did not constitute an abus

of discretion Or an error of law. Accordingly, we would respectfully submit that !hr

Commonwealth's allegation that we erred by granting Defendant's oral motion for

extraordinary relief has no merit and should, respectfully, be denied and dismissed.

  ·             With respect to the Commonwealth's second issue, our alleged iri1propej'

raising of a defense sua sponte on behalf of the. opposing party, the Commonwealth'

argument is, at best, natve: at worst it is disingenuous. The argument derives from th ·

following exchange.

                THE COURT: I would have appreciated being briefed on this
                and given some notice if this was the position of everyone.

                [THE PROSECUTOR]: We honestly, your Honor, didn't
                realize until your Honor brought it up this morning that this
                was going to have a Birchfield effect.

(Sentencing       Hearing Transcript,      7/29/16,   N.T. 7).   The   hollowness

Commonwealth's statement is evident from the fact that the effects of the Birchfie/ ,

supra decision were rippling through the Court on every DUI case involving a blood te t

that was litigated throughout that miscellaneous term and we had in fact been discussins

Birchfield, supra all week before getting to the Defendant's case on July 29, 2016, will

the Commonwealth, as We stated earlier, allowing every Defendant who tendered           ar
· open plea to the charge of per se DUI based on blood test results to withdraw his or hi'

plea and tender a plea to the lesser applicable general impairment provisions of section

3802. It is further, and perhaps more tellingly so, evident from the fact that when wj




                                                 19
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convened for Defendant's sentencing hearing on July 29, 2016., the Commonwealtj

opened discussion with a recitation of the following facts.                                ·

                 [THE PROSECUTOR]: There was a DL-26 involved in the
                 blood draw, though that was not admitted into evidence
                 because it was stipulated that it was a consensual blood draw.

(Sentencing Hearing Transcript, 7/29/16, N.T. 2). It was in fact the Commonwealth whi

brought the Birchfield, supra issue to the forefront of everyone's consciousness lt

Defendant's sentencing hearing, not the Court.

                 The crux of the Commonwealth's chagrin, it seems, is that our questioI
11And
        does the U.S. Supreme Court decision impact this [sentencing] or not?" (Sentencin,

Hearing Transcript, 7/29/16, N.T. 3), made on the record in open court in the presence     J~
both parties after the Commonwealth's recitation of the facts of the case, precipitate!

defense counsel's making an oral motion for extraordinary relief to the Court.        (Se

Sentencing Hearing Transcript, 7/29/16, N.T. 3 [11Yes, your Honor.          I would make

motion right now for extraordinary relief."]). However, we did not make that motion. W

did not suggest to defense counsel that an oral motion for extraordinary relief should b.

made.      We did not represent or suggest to defense counsel that Defendant would



the Defendant or even rule on the ultimate issue of whether or not Birchfield, supt.

requires suppression of Defendant's blood test results.        We asked a legal questiol

implicated by the facts recited by the Commonwealth and gave both parties the

opportunity to respond. We did not raise a defense on behalf of the Defendant. Defens

counsel did that. And to suggest that defense counsel was ignorant of Birchfield, supr

and would not have made an oral motion for extraordinary relief if we hadn't aske

                                                  20
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whether Birchfield, supra has an impact on the case a. t hand is absurd, particularly as th!

Commonwealth recognized, in response to our question, that defense counsel "is goini

to argue that it does." (Sentencing Hearing Transcript, 7129/16, N.T. 3). We merelr

acted on the defense motion to place the parties back in the position they were in prior tr.

trial so that the issue concerning the validity of his waiver of his constitutional rights coulj

be fully explored by both parties to the fullest extent permissible by law. When thJ.

deprivation of one's liberty is predicated on his waiver of important constitutional right

we consider it prudent.and wholly appropriate to voice on the record in the presence          If
                                                                                               1•



both parties any questions or concerns we have about the validity and/or propriety of thi

actions we are about to take in order to ensure that the actions we take are appropriati

and consistent with a person's constitutional safeguards. Ignorance is not bliss when oni.

shoulders the burden of making such solemn, weighty and portentous decisions .:

other people's lives as whether to consign them to prison and for how long.                Every

person, whether judge, prosecutor, defense .counsel, or lay consumer, has an interest it

ensuring that our criminal justice system works fairly for all, not only for those who do not

put the Commonwealth through the rigors of a trial.

                 For all of the foregoing reasons, we would respectfully submit that the

Commonwealth's argument that we improperly sua sponte raised a defense on behalf of

the Defendant is without merit and should, respectfully, be denied and dismissed.

                 Accordinqly, because it is our position that neither of the issues th

Commonwealth has raised have any merit, we would respectfully request that this




                                                   21
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Honorable reviewing Court deny and dismiss the Commonwealth's         appeal and reman

this matter for proceedings consistent with our Order dated July 29, 2016.

                                              BY THE COURT:




Date                                                                               J.




                                                  22
