Com. v. Boone, Z. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ZACHARY TYLER BOONE
Appellee No. 2081 MDA 2016
Appeal from the Order Entered December 7, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001539-2016
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 10, 2017
The Commonwealth of Pennsylvania appeals from the December 7,
2016 order entered in the York County Court of Common Pleas granting
Zachary Tyler Boone’s motion to suppress physical evidence and subsequent
petition for a writ of habeas corpus. Because we conclude that the arresting
officer had probable cause to believe that Boone had driven the vehicle
under the influence in violation of section 3802(d)(4) of the Vehicle Code, 75
Pa.C.S. § 3802(d)(4), we reverse and remand.
On November 7, 2015, at approximately 2:35 p.m., Pennsylvania
State Police Trooper Raymond Snarski was dispatched to a single-vehicle
accident on Baltimore Pike near Reynolds Road, Washington Township, York
County. N.T., 8/1/16, at 4-5 (“N.T. Suppression”). Trooper Snarski arrived
at the accident scene roughly 30 to 40 minutes later. Id. at 5. Trooper
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Snarski did not make contact with the driver at that time, as the driver was
being transported to Hanover Hospital by emergency medical personnel. Id.
at 6. Through contact with the emergency medical personnel, Trooper
Snarski determined that Boone was the driver of the vehicle. Id. at 11.
At the scene, Trooper Snarski discovered Boone’s vehicle against a
tree approximately 63 feet from the roadway, at a point where the road bent
in a right-hand curve. Id. at 5, 9. Trooper Snarski found no tire markings
on the roadway nor any other evidence that Boone had attempted to
swerve, decelerate, or otherwise maneuver the vehicle to “avoid anything.”
Id. at 5-7. In addition, Trooper Snarski found no adverse road conditions,
as “[i]t was a sunny day[,] . . . [t]he road was dry[,] . . . [and the accident
occurred] during normal daylight hours.” Id. at 5. According to Trooper
Snarski, it appeared as though the vehicle “just . . . continued straight and
struck the tree.” Id.
When Trooper Snarski approached the vehicle, he not only found
heavy damage to its front end, but also discovered a box on the floor of the
driver’s side that contained 107 nitrous oxide canisters. Id. at 7. Trooper
Snarski also found one such canister on the passenger seat of the vehicle
and a whipped-cream dispenser behind the driver’s seat. Id. When Trooper
Snarski opened the dispenser, he found that it was pressured with gas from
a loaded nitrous oxide container and contained no whipped cream. Id. at 8,
10. Trooper Snarski testified that it is “known that nitrous oxide is a
commonly abused inhalant” and that without such a dispenser, the nitrous
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oxide canisters “are just bottled gas.” Id. at 10. Trooper Snarski also
testified that he found red markings near the tip of the dispenser nozzle that
appeared to be dried blood; however, this red substance was not tested to
determine whether it was blood. Id. at 21; N.T., 3/8/16, at 11-12 (“N.T.
Prelim.”).1
After finding this evidence, Trooper Snarski went to Hanover Hospital
to question Boone. N.T. Suppression at 10-11. Boone related that he was
traveling south on Baltimore Pike, “thought he saw a cat, swerved, and then
crashed.” Id. at 11. He also claimed that he had purchased the nitrous
oxide containers that day to make cold coffee drinks. N.T. Prelim. at 6.
After speaking to Boone, Trooper Snarski interviewed Boone’s girlfriend, who
admitted that she began “huffing” nitrous oxide with Boone one week earlier
and that she had “huffed” nitrous oxide with Boone the day before. N.T.
Suppression at 12-13. Trooper Snarski then returned to Boone’s hospital
room, read Boone the O’Connell2 warnings, and asked Boone to submit to a
blood draw. Id. at 14. Boone consented, and, while his blood tested
negative for nitrous oxide, it tested positive for marijuana metabolites. Id.
at 14-15. Trooper Snarski testified that he believed that inhalants do not
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1
The notes of testimony from Boone’s preliminary hearing were
admitted as evidence at the suppression hearing.
2
Commonwealth, Dep’t of Transp., Bureau of Traffic Safety v.
O’Connell, 555 A.2d 873 (Pa. 1989).
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remain in the bloodstream long enough for detection and that NMS Labs, an
analysis company used by the PSP for blood testing, had told him the same.
Id. at 15; N.T. Prelim. at 12.
On May 5, 2016, Boone filed a petition for a writ of habeas corpus and
an omnibus pretrial motion. The omnibus pretrial motion included a motion
to suppress the results of his blood test3 and statements that he and his
girlfriend made to Trooper Snarski. On August 1, 2016, the trial court held a
hearing. On December 7, 2016, the trial court denied the motion to
suppress the statements, granted the motion to suppress the blood test
results, and granted the petition for a writ of habeas corpus. The trial court
concluded that absent testimony that Boone showed signs of intoxication
following the accident, the remaining evidence failed to establish probable
cause for Boone’s arrest. On December 15, 2016, the Commonwealth timely
filed a notice of appeal.
The Commonwealth’s only issue on appeal is whether “the suppression
court err[ed] in granting [Boone]’s motion to suppress where, under the
totality of the circumstances, probable cause existed to arrest [Boone] for
DUI, the suppression court misapplied the law in its analysis, and the
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3
Boone sought to suppress the results on the ground that Trooper
Snarski lacked probable cause to arrest him. Boone did not raise an issue
regarding the voluntariness of his warrantless blood draw under Birchfield
v. North Dakota, 136 S.Ct. 2160 (2016), in either his motion to suppress
or his brief to this Court.
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suppression court engaged in inappropriate fact weighing and credibility
determinations[.]” Cmwlth.’s Br. at 4.
Preliminary, we must address Boone’s assertion that the
Commonwealth has waived its claims on appeal because its Pennsylvania
Rule of Appellate Procedure 1925(b) statement is “too vague to permit
meaningful appellate review.” Boone’s Br. at 9. According to Boone, the
Commonwealth’s Rule 1925(b) statement “fail[ed] to identify what law the
Trial Court misapplied,” how the trial court misapplied that law, or how the
trial court inappropriately weighed the facts before it. Id. at 9-10. Further,
Boone argues that the Commonwealth waived any challenge to the trial
court’s grant of habeas relief because it did not include it in its Rule 1925(b)
statement. Id. at 11-12.
It is well settled that “when the trial court directs an appellant to file a
[Rule 1925(b)] statement, any issues that are not raised in [that] statement
will be waived for appellate review.” Commonwealth v. Smith, 955 A.2d
391, 393 (Pa.Super. 2008). Further, “when issues are too vague for the trial
court to identify and address, that is the functional equivalent of no concise
statement at all.” Id.We conclude that the Commonwealth’s Rule 1925(b) statement is not
so vague as to be the functional equivalent of no statement. Because the
trial court denied the motion to suppress the statements, it is apparent that
the Commonwealth is challenging the trial court’s suppression of the blood
test results. We recognize that Rule 1925(b) requires appellants to
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“concisely identify each ruling or error that [they] intend[] to challenge with
sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii). However, Rule 1925(b)(4)(v) also states that “[e]ach error
identified in the [s]tatement will be deemed to include every subsidiary issue
contained therein which was raised in the trial court.” Because these issues
are subsidiary to the trial court’s suppression ruling and the Commonwealth
raised them before the trial court, see Cmlwth.’s Mem. of Law in Opp. to
Defendant’s Omnibus Pretrial Motions, 8/19/16, at 6-9, we decline to find
waiver.
The Commonwealth challenges the trial court’s order granting Boone’s
motion to suppress. Our standard of review on such matters is well settled:
When the Commonwealth appeals from a suppression
order, this Court follows a clearly defined scope and
standard of review. We 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. This Court must
first determine whether the record supports the factual
findings of the suppression court and then determine the
reasonableness of the inferences and legal conclusions
drawn from those findings. In appeals where there is no
meaningful dispute of fact, as in the case sub judice, our
duty is to determine whether the suppression court
properly applied the law to the facts of the case.
Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa.Super. 2013) (internal
citations and quotation marks omitted).
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The Commonwealth argues that, contrary to the trial court’s ruling,
Trooper Snarski possessed probable cause to arrest4 Boone for DUI –
controlled substance. Our Supreme Court has set the “well-established legal
standard which governs” probable cause determinations:
Probable cause is made out when “the facts and
circumstances which are within the knowledge of the
officer at the time of the arrest, and of which he has
reasonably trustworthy information, are sufficient to
warrant a man of reasonable caution in the belief that the
suspect has committed or is committing a crime.”
Commonwealth v. Rodriguez, . . . 585 A.2d 988, 990
([Pa.] 1991). The question we ask not whether the
officer’s belief was “correct or more likely true that false.”
Texas v. Brown, 460 U.S. 730, 742 . . . (1983). Rather,
we require only a “probability, and not a prima facie
showing, of criminal activity.” Illinois v. Gates, 462 U.S.
213, 235 . . . (1983) (citation omitted) (emphasis
supplied). In determining whether probable cause exists,
we apply a totality of the circumstances test.
Commonwealth v. Clark, . . . 735 A.2d 1248, 1252
([Pa.] 1999) (relying on Gates, supra).Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009).
Section 3802(d) of the Vehicle Code governs DUI violations where the
driver is intoxicated on drugs or a combination of drugs and alcohol:
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4
The parties’ arguments address only whether Trooper Snarski had
probable cause to arrest Boone, not whether Trooper Snarski had probable
cause to request a blood draw pursuant to section 1547(a) of the Vehicle
Code. In his motion to suppress, Boone argued that Trooper Snarski lacked
probable cause to arrest and, as a result, the blood test results must be
suppressed as fruit of the poisonous tree. Accordingly, we do not address
the related but distinct question whether Trooper Snarski had probable
cause to request a blood draw.
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(d) Controlled substances.--An individual may not
drive, operate or be in actual physical control of the
movement of a vehicle under any of the following
circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in
the act of April 14, 1972 (P.L. 233, No. 64),
known as The Controlled Substance, Drug,
Device, and Cosmetic Act.
(ii) Schedule II or Schedule III controlled
substance, as defined in The Controlled
Substance, Drug, Device, and Cosmetic Act,
which has not been medically prescribed for
the individual; or
(iii) metabolite of a substance under subparagraph
(i) or (ii).
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs
the individual’s ability to safely drive, operate or
be in actual physical control of the movement of
the vehicle.
(3) The individual is under the combined influence of
alcohol and a drug or combination of drugs to a
degree which impairs the individual’s ability to
safely drive, operate or be in actual physical
control of the movement of the vehicle.
(4) The individual is under the influence of a solvent
or noxious substance in violation of 18 Pa.C.S. §
7303 (relating to sale or illegal use of certain
solvents and noxious substances).
75 Pa.C.S. § 3802(d). Specifically, section (d)(4) prohibits persons from
operating a vehicle under the influence of a solvent or noxious substance in
violation of section 7303 of the Crimes Code, which provides, in part:
(a) Offense defined.--No person shall, for the purpose
of causing a condition of intoxication, inebriation,
excitement, stupefaction, or the dulling of his brain
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or nervous system, intentionally smell or inhale the
fumes from any noxious substance or substance
containing a solvent having the property of releasing
toxic vapors or fames.
(b) Exception.--Subsection (a) of the section shall not
apply to the inhalation of any anesthesia for medical
or dental purposes.
(c) Possession prohibited.--No person shall, for the
purpose of violating subsection (a) of this section,
use, or possess for the purpose of so using, any
noxious substance or substances containing a
solvent having the property of releasing toxic vapors
or fumes.
...
(f) Definition.--As used in this section, the phrase “any
noxious substance or substance containing a solvent
having the property of releasing toxic vapors or
fumes” shall mean any substance containing one or
more of the following chemical compounds: . . .
nitrous oxide . . .
18 Pa.C.S. § 7303.
According to the Commonwealth, the trial court erred in concluding
that Trooper Snarski lacked probable cause to arrest Boone for DUI –
controlled substance. The Commonwealth argues that “[b]ased on the
totality of the[] circumstances, it was [a] highly likely inference and
probability that [Boone] was driving while under the influence of an
intoxicating substance when he crashed into the tree[, and therefore]
probable cause existed to arrest [him].” Id. at 18-19.
Boone argues that the trial court correctly suppressed the blood test
results because “the Commonwealth failed to show any evidence of any
signs of intoxication or impairment on the part of [Boone].” Boone’s Br. at
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14. Boone asserts that Trooper Snarski was “compelled to admit on cross-
examination . . . that he observed no signs of impairment” and, as a result,
the trial court correctly found no probable cause to arrest. Id. According to
Boone, even with all of the physical evidence in the vehicle, “it remains
merely speculative that [he] was under the influence of alcohol or a
controlled substance rendering him too impaired to safely drive,” and the
cases cited by the Commonwealth in support of reversal all “contain specific
and important indicia of evidence of probable cause.” Id. at 16, 18. In
effect, both Boone and the trial court would require some direct observation
of driver impairment as a necessary precondition to finding probable cause
to arrest.
Our recent decision in Commonwealth v. March, 154 A.3d 803(Pa.Super. 2017), is instructive. There, an officer responded to a single-
vehicle accident where emergency medical personnel were attending to the
unresponsive driver and took him to a local hospital. Id. at 805. The officer
“learned from witnesses to the accident that the vehicle had been traveling
eastbound . . . when it drove across the westbound lane, went off the road,
and struck a tree and utility pole.” Id. A witness also told the officer that
“the vehicle ‘did not appear to have a reason to drive off of the roadway’
[and] described the driver as ‘out of it’ and ‘pale.’” Id.
Upon inspecting the vehicle, the officer saw, in plain view, “five blue
wax paper bags and the bottom of a cut-off prescription bottle on the floor
of the vehicle near the driver’s seat.” Id. “The prescription bottle contained
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residue consistent with liquid added to heroin and used in the injection of
hypodermic needles.” Id. “Another officer saw a hypodermic needle on the
floor of the front passenger side of the vehicle.” Id. We ultimately
concluded that there was probable cause for a blood draw. Id. at 810.
Like the officer in March, Trooper Snarski responded to a single-
vehicle accident where he could not make contact with the driver. Upon
investigating the accident, Trooper Snarski found no adverse conditions that
could have caused the accident, nor did he find any indication that Boone’s
vehicle had swerved or skidded. Rather, it appeared that the vehicle had
simply failed to navigate the turn and continued straight into the tree. Upon
inspecting the interior of the vehicle, Trooper Snarski found 109 nitrous
oxide containers, including one on the passenger seat and another inside a
whipped-cream dispenser, which was pressurized with gas. Trooper Snarski
also found that the tip of the nozzle was tinged with a red substance. Upon
arriving at the hospital, Trooper Snarski learned that Boone, according to his
girlfriend, had “huffed” nitrous oxide as recently as the day before the
accident, despite Boone’s contrary claim that he had purchased the nitrous
oxide containers on the day of the accident in order to make cold coffee
drinks. Trooper Snarski also noted that Boone’s heart rate elevated when he
was asked about nitrous oxide use. Based on the totality of the
circumstances, we conclude that Trooper Snarski had probable cause to
believe that Boone had operated his vehicle under the influence of nitrous
oxide in violation of section 3802(d)(4) of the Vehicle Code.
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Boone’s arguments to the contrary are unpersuasive. Boone is correct
that in each of the cases cited by the Commonwealth, the investigating
officer or a complaining witness had viewed the suspect exhibiting signs of
intoxication. See March, 154 A.3d at 805 (noting that “witnesses . . .
described [appellee] as ‘out of it’ and ‘pale’”); Commonwealth v. Thur,
906 A.2d 552, 558 (Pa.Super. 2006) (noting that Trooper observed “that
[a]ppellant had red, bloodshot eyes and smelled moderately of alcohol . . .
and [a]ppellant’s speech was, at times, slow and labored”);
Commonwealth v. Simon, 655 A.2d 1024, 1025 (Pa.Super. 1995) (noting
that officer “detected a strong odor of alcoholic beverages, . . . [appellant]
was shaking uncontrollably,” and appellant reported being at concert that
had not occurred); Commonwealth v. Aiello, 675 A.2d 1278, 1280
(Pa.Super. 1996) (noting that appellant “staggered and was not good on her
feet and admitted to consuming “one or two mixed drinks”). However, the
probable cause determination is a measure of the totality of the
circumstances and does not rely on one particular fact. Rather, our case law
makes clear that “[p]robable cause does not require certainty, but rather
exists when criminality is one reasonable inference, not necessarily even the
most likely inference.” Commonwealth v. Salter, 121 A.3d 987, 994
(Pa.Super. 2015) (quoting Commonwealth v. Spieler, 887 A.2d 1271,
1275 (Pa.Super. 2005)). Here, one reasonable inference from the facts
presented to the officer was that Boone was operating the vehicle while or
after inhaling nitrous oxide and failed to negotiate the turn because he was
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intoxicated. The mere fact that Trooper Snarski did not observe Boone
under the influence of nitrous oxide did not preclude a determination that,
based on the totality of the circumstances, there was probable cause to
believe that Boone had operated the vehicle under the influence of nitrous
oxide.
Boone also argues that our decision in Commonwealth v. Kohl, 576
A.2d 1049 (Pa.Super. 1990), aff’d, 615 A.2d 308 (Pa. 1992), precludes a
finding of probable cause. In Kohl, the appellant crashed his vehicle while
attempting to navigate a sharp bend in the road. 576 A.2d at 1051. When
the investigating officer arrived on scene, he removed Kohl and two
passengers from the vehicle before it burst into flames; both passengers
died shortly thereafter from their injuries. Id. Kohl was taken to a local
hospital and was unconscious for an extended period. Id. Although the
investigating officers “did not smell alcohol on [Kohl]’s breath or notice any
other signs of alcohol consumption by [Kohl],” police had a hospital
technician perform a blood alcohol analysis on blood drawn for medical
reasons. Id. Kohl’s BAC was .15%. Id. Kohl moved to suppress these
results, arguing that officers lacked the probable cause required by section
1547(a)(1) of the Vehicle Code to draw a blood sample. Id. at 1052.
We held that the officers lacked probable cause, concluding that our
case law required “some indicia of alcohol or drug consumption by the
defendant before the police requested a blood or breathalyzer test.” Id. at
1053. Because no one “detected any signs of alcohol consumption” by Kohl,
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such as an odor of alcohol, “evidence of bottles or cups that may have
contained alcohol, and no one observed [Kohl] driving erratically,” we held
that “police did not have probable cause to believe [Kohl] was driving under
the influence.” Id.Kohl is factually distinguishable from this case. Here, Trooper Snarski
found physical evidence that Boone may have been “huffing” nitrous oxide.
There were 107 unopened containers of nitrous oxide in the vehicle, plus one
container on the passenger seat within reach of the operator and another
container whose gaseous contents had been injected into a whipped-cream
dispenser. Trooper Snarski also found a red substance that looked like blood
on the nozzle of the dispenser. Further, while no one observed Boone
operating the vehicle erratically, Boone’s failure to negotiate the curve,
without any indication of attempting to swerve, stop, or otherwise avoid a
road hazard or other vehicle, evidences possible intoxication.
The trial court also granted habeas corpus relief based on its
suppression of the blood test results.5 “Because we have reversed the trial
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5
Boone also argues that the Commonwealth has waived any challenge
to the trial court’s grant of habeas relief because it failed to include this
challenge in its Rule 1925(b) statement or in its brief. While Boone is
correct that the Commonwealth did not challenge expressly the habeas
ruling, this Court has held that where “the sole basis for granting . . . [a]
request for habeas corpus was the trial court’s suppression of all of the
evidence, . . . the Commonwealth properly preserved the habeas corpus
issue by appealing the suppression of the evidence.” Commonwealth v.
Rivera, 672 A.2d 830, 834 n.3 (Pa.Super. 1996). Therefore, we conclude
(Footnote Continued Next Page)
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court’s suppression ruling, the grounds for its grant of habeas corpus relief
no longer exist.” Commonwealth v. Huntingdon, 924 A.2d 1252, 1259
(Pa.Super. 2007). Accordingly, we reverse and remand for the
reinstatement of the criminal complaint.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
_______________________
(Footnote Continued)
that the Commonwealth preserved the habeas corpus issue by appealing the
suppression of the blood test results.
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