J-A15007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


____________________________________________


       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


____________________________________________


       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:


____________________________________________


       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

____________________________________________


       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)


                                          - 14 -
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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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