Com. v. Cabrera, H. ( 2017 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
    J-S23045-17
    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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    J-S23045-17
    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).
    -5-
    J-S23045-17
    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
    .
    -6-
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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
    .
    -7-