Com. v. Plovetsky, L. ( 2017 )

J. S63036/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 549 WDA 2017
:
LARRY PLOVETSKY :
Appeal from the Order, March 21, 2017,
in the Court of Common Pleas of Indiana County
Criminal Division at No. CP-32-CR-0000795-2016
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 29, 2017
This case concerns a motion to suppress evidence obtained from a
chemical blood draw. Herein, the Commonwealth appeals from the order of
March 21, 2017,1 that granted Larry Scott Plovetsky’s (“appellee’s”) omnibus
pre-trial motion. After careful review, we affirm.2
The suppression court provided the following factual history:
1
The order was dated March 17, 2017, but was docketed on March 21,
2017.
2
The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order terminates or substantially handicaps the prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa.Super. 2013),
citing Pa.R.A.P. 311(d). In Commonwealth v. Gordon, 673 A.2d 866, 869
(Pa. 1996), our supreme court held that the Commonwealth may appeal the
grant of a defense motion in limine that excludes Commonwealth evidence
and has the effect of substantially handicapping the prosecution. As the trial
court ruling excludes Commonwealth evidence, and the Commonwealth has
certified that the effect of the ruling substantially handicaps the prosecution,
we find that this appeal is properly before this court.
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On November 19, 2016, a two-vehicle accident
occurred at the intersection of Old William Penn
Highway and Strangford Road in Burrell Township,
Indiana County. As a result of this accident,
Clara Santus was killed. Ms. Santus was the
operator of a vehicle traveling east on Old William
Penn Highway. It is alleged by the Pennsylvania
State Police and the Commonwealth that [appellee]
was the operator of a vehicle that turned into
Ms. Santus’ lane of travel, causing the accident.
Following the accident, Trooper Garrett Padasak of
the Pennsylvania State Police was the first Law
Enforcement Officer to arrive at the scene. EMS and
the Fire Department had [preceded] his arrival.
Trooper Padasak talked with [appellee] at the scene
in an effort to determine if he was impaired in any
way. Trooper Padasak testified that he observed
[appellee’s] eyes and speech and looked for other
signs of impairment. He further testified that
[appellee] did not appear to be impaired. [Appellee]
told the trooper, in regards to the accident, that he
did not see the car before he turned. Thereafter,
other members of the Pennsylvania State Police
[a]rrived at the scene, including Trooper
Gregory Lentz and Corporal Op De Beeck.
At some point, a conversation between the police
officers in the presence of [appellee] took place in
regards to [appellee] voluntarily undergoing a blood
test at Indiana Regional Medical Center. The officers
had no evidence of impairment in regards to
[appellee], however, they informed him that there
could be civil ramifications from the accident and
suggested to him that it would be in his best interest
to obtain a blood test.
[Appellee] contacted a friend and obtained a ride to
the Indiana Regional Medical Center for the purposes
of voluntarily undergoing a blood test. At some
point after [appellee’s] arrival at the hospital,
Trooper Eric Smith arrived at the hospital. Trooper
Smith testified that he was there because he was
assisting in the crash investigation and to get a
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voluntary blood draw from [appellee]. He indicated
that he was sent there by the dispatcher. He did not
know [appellee] was not under arrest at that time.
While at the Indiana Regional Medical Center,
Trooper Smith entered [appellee’s] room, spoke with
[appellee] and read to him the DL 26 Form, also
known as the [O’Connell w]arnings,
Commonwealth, [Dep’t.] of [Trans.], Bureau of
Traffic Safety v. O’Connell[,] 555 A.2d 873 ([Pa.
]1989); Commonwealth, [Dep’t.] of [Trans.],
Bureau of Licensing v. Scott[,] 684 A.2d 539 ([Pa.
]1996). He indicated he read the form as protocol
for the Pennsylvania State Police. He indicated that
[appellee] signed and consented to the blood draw.
He indicated that he spoke briefly to [appellee] and
[appellee] informed him that he wanted the blood
draw to show that he was not under the influence.
As part of the [O’Connell w]arnings, Trooper Smith
informed [appellee] that he was under arrest for
driving under the influence. The Trooper also
informed [appellee] of the consequences of a refusal.
Specifically, the enhanced penalties resulting from a
refusal.
Trial court opinion and order, 3/17/17 at 1-2.
Appellee’s blood tested positive for THC, a chemical found in
marijuana. (Notes of testimony, 2/28/17 at 14.) The Commonwealth
charged appellee with homicide by vehicle while driving under the influence,
accidents involving death/injury while not properly licensed, DUI: controlled
substance/schedule I--first offense, driving without a license, operating a
vehicle without required financial responsibility, disregard traffic lane, vehicle
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turning left, and careless driving3 on April 27, 2016. All charges were held
over for court following a preliminary hearing on August 3, 2016.
On January 12, 2017, appellee filed a motion for extraordinary relief to
suppress the results of the chemical blood draw taken on November 19,
2016, based on the Supreme Court of the United States’ decision in
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). On January 25, 2017,
the Commonwealth filed a motion to amend the information to add the
charge of vehicular homicide.4 On February 28, 2017, the suppression court
held a hearing on both motions. Immediately after the hearing, the
suppression court granted the Commonwealth’s motion to amend the
information. On March 17, 2017, the trial court granted appellee’s motion to
suppress the results of the chemical blood draw.
The Commonwealth filed a notice of appeal on April 3, 2017, and on
April 5, 2017, the suppression court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa. R.A.P.
1925(b). The Commonwealth timely complied on April 26, 2017. The
suppression court filed an opinion pursuant to Pa. R.A.P. 1925(a) on June 1,
2017.
The Commonwealth raises the following issues for our review:
3
75 Pa.C.S.A. §§ 3735(a), 3742.1(a), 3802(d)(1)(i), 1501(a), 1786(f),
3309(1), 3322, and 3714(a), respectively.
4
75 Pa.C.S.A. § 3732(a).
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I. Whether the Suppression Court erred in law
and/or abused its discretion in granting
Appellee’s Motion to Suppress blood evidence
where Appellee was not subject to an illegal
arrest lacking probable cause.
II. Whether the Suppression Court erred in law
and/or abused its discretion in granting
Appellee’s Motion to Suppress pursuant to the
United States Supreme Court decision in
Birchfield v. North Dakota, where Appellee
voluntarily, and without coercion, consented to
a blood draw for the purposes of avoiding civil
liability and not while under arrest and/or in
the custody of law enforcement.
III. Whether the Suppression Court erred in law
and/or abused its discretion in finding that
Trooper Smith did not tell Appellee that
reading the DL-26 form was a matter of
protocol where evidence and testimony
presented during the Suppression Hearing
indicated Appellee was so informed.
Commonwealth’s brief at 4.
We begin by noting our well-settled standard of review:
When the Commonwealth appeals from a
suppression order, we follow a clearly defined
standard of review and consider only the evidence
from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the
context of the entire record, remains uncontradicted.
The suppression court’s conclusions of law, however,
are not binding on an appellate court, whose duty is
to determine if the suppression court properly
applied the law to the facts.
Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa.Super. 2012)
(citations omitted), appeal denied, 70 A.3d 810 (Pa. 2013).
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In its first issue for our review, the Commonwealth contends that
appellee was not subject to an illegal arrest lacking probable cause.
Specifically, the Commonwealth avers that appellee was not under arrest at
the time he submitted to chemical blood testing. We must, therefore,
conduct two inquiries: (1) whether appellee was subject to arrest; and (2) if
appellee was subject to arrest, whether the Pennsylvania State Police had
sufficient probable cause to arrest appellee.
Our supreme court has defined an “arrest” as “any act that indicates
an intention to take a person into custody and that subjects him to the
actual control and will of the person making the arrest.” Commonwealth
v. Colon, 719 A.2d 1099, 1101 n.3 (Pa.Super. 1998), citing
Commonwealth v. White, 669 A.2d 896 (Pa. 1995), Commonwealth v.
Woodson, 493 A.2d 78 (Pa. 1995).
In order to determine whether an individual has been placed under
arrest, this court utilizes a conjunctive test because it affords the criminal
defendant the most protection.
Under the conjunctive test, an arrest exists when
(1) the police intended to take appellant into
custody, and (2) appellant was subjected to the
actual control and will of the police.
[Commonwealth v. Lovette, 450 A.2d 975, 978
(Pa. 1982).] This test is an objective test, and all
circumstances must be viewed “in the light of the
reasonable impression conveyed to the person
subjected to the seizure.” Commonwealth v.
Butler, 729 A.2d 1134, 1137 (Pa.Super. 1999),
Commonwealth v. Douglass, 539 A.2d 412, 419
(Pa.Super. 1988).
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Commonwealth v. Hannon, 837 A.2d 551, 554 (Pa.Super. 2003), appeal
denied, 847 A.2d 1279 (Pa. 2004).
The record reflects that Troopers Padasak and Lentz testified that they
told appellee that it would “probably be in his best interest” to submit to
chemical blood testing due to potential civil consequences--particularly a
potential civil cause of action initiated by Ms. Santus’ family. (Notes of
testimony, 2/28/17 at 32.) Appellee obtained private transportation to the
hospital and voluntarily went to the hospital to submit for a blood draw.
(Id. at 12-13, 24, 33-34.)
Before appellee submitted to a blood draw, Trooper Smith read
appellee the DL-26 Form, verbatim, which contained the O’Connell
warnings. (Id. at 25-27, 29.) At the time he read appellee the O’Connell
warnings, Trooper Smith was in full uniform, including his service belt and
service weapon. (Id. at 30.) The DL-26 Form contains the following
warnings:
It is my duty as a police officer to inform you of the
following:
1. You are under arrest for driving under
the influence of alcohol or a controlled
substance in violation of Section 3802 of
the Vehicle Code.
2. I am requesting that you submit to a
chemical test of blood . . . .
3. If you refuse to submit to the chemical
test, your operating privilege will be
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suspended for at least 12 months. If you
previously refused a chemical test or
were previously convicted of driving
under the influence, you will be
suspended for up to 18 months. In
addition, if you refuse to submit to the
chemical test, and you are convicted of
violating Section 3802(a)(1) (relating to
impaired driving) of the Vehicle Code,
then, because of your refusal, you will be
subject to more severe penalties set
forth in Section 3804(c) (relating to
penalties) of the Vehicle Code. These
are the same penalties that would be
imposed if you were convicted of
driving with the highest rate of
alcohol, which include a minimum of
72 consecutive hours in jail and a
minimum fine of $1,000.00, up to a
maximum of five years in jail and a
maximum fine of $10,000.
4. You have no right to speak with an
attorney or anyone else before deciding
whether to submit to testing. If you
request to speak with an attorney or
anyone else after being provided these
warnings or you remain silent when
asked to submit to chemical testing, you
will have refused the test.
Pa.Dept. of Transp. Form DL-26 (3-12) Form (“DL-26 Form”).
Up until Trooper Smith read appellee his O’Connell warnings, appellee
was objectively free to leave the hospital at any time. Moreover, appellee
was not subject to arrest at the scene of the accident and could have
refused to submit to a chemical blood test altogether. He instead elected to
arrange for transportation to the hospital, in an effort to prove that he was
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not intoxicated at the time of the accident. (Notes of testimony, 2/28/17 at
25.)
We find that upon Trooper Smith’s reading of the DL-26 Form, the
reasonable impression conveyed to appellee would have been that he was
under arrest, and that he was no longer free to refuse to consent to a
chemical blood draw without suffering any potential civil and/or criminal
consequences.
We must now determine whether the police had probable cause to
place appellee under arrest for driving under the influence. As this court has
previously explained:
Probable cause exists where the officer has
knowledge of sufficient facts and circumstances to
warrant a prudent person to believe that the driver
has been driving under the influence of alcohol or a
controlled substance. [Commonwealth v.] Hilliar,
[943 A.2d 984, 994 (Pa.Super. 2008), appeal
denied, 956 A.2d 432 (Pa. 2008).] Additionally,
probable cause justifying a warrantless arrest is
determined by a “totality of the circumstances.”
Furthermore, probable cause does not involve
certainties, but rather the factual and practical
considerations of everyday life on which reasonable
and prudent [persons] act. Commonwealth v.
Williams, 941 A.2d 14, 27 (Pa.Super. 2008)
(citations and internal quotation marks omitted)
Commonwealth v. Angel, 946 A.2d 115, 118 (Pa.Super. 2008).
As stated above, the record reflects that appellee did not exhibit any
signs of impairment. Indeed, Troopers Padasak and Lentz repeatedly
testified that appellee was not exhibiting any signs of impairment. (Notes of
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testimony, 2/28/17 at 8, 9, 19, 32, 35.) The Commonwealth failed to
produce any evidence that would warrant a prudent person to believe that
appellee had been driving while under the influence of alcohol or a controlled
substance.
Accordingly, any evidence obtained as a result of an unlawful arrest
must be suppressed.
The United States Supreme Court has stated that
any material, tangible, or verbal evidence “obtained
either during or as a direct result of an unlawful
invasion” is inadmissible at trial. Wong Sun v.
United States, 371 U.S. 471, 485 (1963).
Our supreme court further stated:
We need not hold that all evidence is
“fruit of the poisonous tree” simply
because it would not have come to light
but for the illegal actions of the police.
Rather, the more apt question in such a
case is “whether, granting establishment
of the primary illegality, the evidence to
which [the] instant objection is made has
been come at by exploitation of that
illegality or instead by means sufficiently
distinguishable to be purged of the
primary taint.”
Commonwealth v. Cunningham, 370 A.2d 1172,
1176-1177 (Pa. 1977), quoting Wong Sun, 371 U.S.
at 487-488.
Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa.Super. 2015).
Here, we find that while the record reflects that appellee voluntarily
consented to a chemical blood draw, the chemical blood draw ceased to be
voluntary after appellee was informed by Trooper Smith, as a matter of
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“protocol,” that he was under arrest for driving under the influence and that
he would face a license suspension and/or enhanced civil and criminal
penalties if he elected to decline the chemical blood draw. Therefore, we
find that appellee was subject to an unlawful arrest, as the Commonwealth
has failed to establish that the police had any probable cause to place
appellee under arrest. Accordingly, we affirm the suppression court’s order
suppressing the results from the blood draw. Because that evidence is the
fruit of the poisonous tree, we need not address the remaining issues raised
by the Commonwealth.
Order affirmed.
Solano, J. joins this Memorandum.
Bowes, J. concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2017
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