J-A14034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TINA SUE MCKAHAN                           :       No. 10 WDA 2019

       Appeal from the Suppression Order Entered November 28, 2018
               in the Court of Common Pleas of Greene County
            Criminal Division at No(s): CP-30-CR-0000096-2018

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 16, 2019

       The Commonwealth of Pennsylvania appeals from the Order granting

the Motion to Suppress filed by Tina Sue McKahan (“McKahan”) in this driving

under the influence of alcohol (“DUI”) case.         We reverse and remand for

further proceedings.

       The suppression court set forth the relevant facts underlying this appeal

as follows:

              [O]n January 30, 2018, at approximately midnight, []
       Officer [Maggie] Vorum [(“Officer Vorum”) of the Waynesburg
       Borough Police,] while traveling east on [R]outes 21 and 18 [in
       Greene County], came upon [McKahan’s vehicle]. [McKahan] was
       involved in a roll-over accident, and [Officer Vorum] and certain
       civilian bystanders observed [McKahan] pinned under her vehicle,
       a [J]eep.[1]    As a result of that incident, [McKahan] was
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1 After the bystanders and Officer Vorum had extracted McKahan from the
vehicle, Officer Vorum detected a strong odor of alcoholic beverages on
McKahan’s person. Officer Vorum did not have McKahan perform any field
sobriety tests due to the severity of her injuries.
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      trans[port]ed to Ruby Memorial Hospital, a trauma facility, located
      in the state of West Virginia, approximately twenty [] miles from
      the scene of the accident.

            [Officer] Vorum contacted the on-call [magisterial] district
      judge in Greene County, in an effort to determine how she may
      obtain [McKahan’s] blood, in the event that blood had been drawn
      for medical purposes. In that effort, [P]atrolman Bill Nichols, also
      of the Waynesburg Borough Police Department, contacted the
      Greene County District Attorney’s Office.        [Officer Vorum]
      [telephoned] the emergency room at Ruby Memorial [Hospital],
      [and] a female answered and indicated that [McKahan] was being
      treated. … [Officer Vorum] did not ask for [McKahan’s] blood to
      be drawn[, nor did any other officer. Rather, McKahan’s blood
      was drawn per regular hospital protocol for trauma patients].

Order, 9/5/18, at 2-3 (unnumbered) (footnote added, some paragraph breaks

and capitalization omitted).

      After Officer Vorum had returned to the police station immediately

following the accident, she prepared a police report and a memo, both of which

she faxed to West Virginia State Trooper First Class M.A. Broadwater (“Trooper

Broadwater”). Trooper Broadwater then prepared and submitted an Affidavit

and Complaint for Search Warrant.           Notably to this appeal, Trooper

Broadwater stated therein that police sought disclosure of “[a]ll medical

records of every nature pertinent in any way to any medical treatment

rendered on behalf of [] McKahan [] since 01/29/2018, … including, but not

limited to … [r]esults of all laboratory tests[.]” N.T., 8/30/18, Exhibit 1, page

1 (emphasis added). A West Virginia magisterial district judge executed the

search warrant on January 30, 2018.




                                      -2-
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        Upon receiving the search warrant, the hospital sent McKahan’s

toxicology blood test report to Officer Vorum via a compact disk (“the CD”).2

The blood test result showed that McKahan had a blood alcohol content

(“BAC”) of .193% after the crash. Thereafter, Officer Vorum charged McKahan

with two counts of DUI,3 as well as careless driving, driving while operating

privilege is suspended or revoked, and operation of a motor vehicle without

required financial responsibility.4

        On July 20, 2018, McKahan filed a Motion to suppress evidence,

including her blood test results, asserting, in relevant part, that the search

warrant was facially unlawful as being overly broad. Specifically, McKahan

pointed out that the search warrant improperly authorized disclosure of all of

her medical records.

        The suppression court conducted a suppression hearing on August 30,

2018, wherein Officer Vorum and McKahan testified. By an Order entered on

November 28, 2018, the suppression court granted McKahan’s Motion to

suppress. Therein, the suppression court found, in relevant part, as follows:


____________________________________________


2 It appears from the record that the CD contained additional medical records
for McKahan, aside from the toxicology report. See N.T. (suppression
hearing), 8/30/18, at 11 (wherein counsel for McKahan stated that the CD
contained 138 pages of medical records). But see also id. at 10 (wherein
Officer Vorum stated that the only medical record that she had reviewed was
the toxicology report).

3   See 75 Pa.C.S.A. § 3802(a)(1), (c).

4   See 75 Pa.C.S.A. §§ 3714(a), 1543(a), 1786(f).

                                           -3-
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       Officer Vorum did have probable cause to believe that [McKahan]
       was driving under the influence. The [c]ourt also determines that
       the search warrant[,] as issued[,] was overly broad[,] as it sought
       [McKahan’s] complete medical records. The warrant was not
       narrowly tailored and the Commonwealth had probable cause only
       to obtain [McKahan’s] chemical test results showing levels of
       blood and/or controlled substances.

Order, 11/28/18, at 1-2.            The court ruled that the search warrant was

unconstitutional for its overbreadth, relying on Commonwealth v. Rivera,

816   A.2d    282,    290    (Pa.    Super.    2003)   (stating   that   “[a]   warrant

unconstitutional for its overbreadth authorizes in clear or specific terms the

seizure of an entire set of items, or documents, many of which will prove

unrelated to the crime under investigation.              An overbroad warrant is

unconstitutional because it authorizes a general search and seizure.” (citation

and ellipses omitted)). In response, the Commonwealth timely filed a Notice

of Appeal,5 followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement

of errors complained of on appeal.

       The Commonwealth now presents the following issue for our review:

       Did the lower court err in determining [that] the medical blood
       alcohol results should be included in its suppression Order[,] upon
       finding that the out-of-state agency assisting the investigating
       officer exceeded the request of the investigator[,] and applied for
       an overly-broad search warrant for the entire medical record of
____________________________________________


5  In filing this interlocutory appeal, the Commonwealth complied with
Pennsylvania Rule of Appellate Procedure 311(d), which provides that “[i]n a
criminal case, under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d);
Commonwealth v. Petty, 157 A.3d 953, 954 n.1 (Pa. Super. 2017).

                                           -4-
J-A14034-19


      the driver transported to an out-of-state trauma center following
      a suspected DUI crash?

Brief for the Commonwealth at 4 (capitalization omitted).

      This Court has summarized the proper scope and standard of review

when reviewing the grant of a suppression motion as follows:

      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
      findings of fact bind an appellate court if the record supports those
      findings. 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. Boyd, 17 A.3d 1274, 1276 (Pa. Super. 2011) (citations

omitted).

      It is axiomatic that

      [a] search warrant cannot be used as a general investigatory tool
      to uncover evidence of a crime. Nor may a warrant be so
      ambiguous as to allow the executing officers to pick and choose
      among an individual’s possessions to find which items to seize,
      which would result in the general “rummaging” banned by the
      Fourth Amendment.

Commonwealth v. Rega, 933 A.2d 997, 1011 (Pa. 2007) (internal citations

omitted); see also Commonwealth v. Johnson, 33 A.3d 122, 125 (Pa.

Super. 2011) (stating that the requirement for specificity in a warrant has not

been strictly construed, but has been historically tempered by the rule that

search warrants should be read in a common sense fashion and should not be

invalidated by hypertechnical interpretations).


                                      -5-
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       Here, the Commonwealth challenges the suppression court’s ruling that

the search warrant was unlawful and unconstitutionally overbroad, and the

court’s suppression all of the medical evidence, and particularly, the BAC

results in McKahan’s toxicology report. See Brief for the Commonwealth at

13-17. The Commonwealth further argues that

       [t]he extreme remedy of suppressing the entire medical record,
       to include the [BAC] results, might have been appropriate if the
       [suppression] court found some misconduct on the part of [the
       police,] or evidence that law enforcement officials had embarked
       upon a “fishing expedition” for other evidence of the commission
       of a crime.

Id. at 17. However, the Commonwealth urges, no such impropriety occurred

here, and the suppression court thus should have not suppressed the

toxicology report.     Id.; see also id. at 16 (wherein the Commonwealth

asserts that this evidence “could have been obtained through inevitable

discovery[.]”).

       We conclude that the suppression court improperly viewed the search

warrant in a hypertechnical fashion in suppressing all of the medical evidence,

including the BAC results. See Johnson, supra (emphasizing that search

warrants should not be invalidated by hypertechnical interpretations);

Pa.R.Crim.P. 205, cmt.; see also Commonwealth v. Clark, 28 A.3d 601,

1291    (Pa.   2011)   (stressing   the   need   for   practical,   totality-of-the-

circumstances approaches to search warrants). Although the section of the

search warrant identifying the items to be searched and seized states, “[a]ll

medical records of every nature pertinent in any way to any medical treatment

                                      -6-
J-A14034-19


rendered on behalf of [] McKahan[,]” it states immediately thereafter that the

request specifically concerned records “since 01/29/2018[,]” including

“[r]esults of all laboratory tests[.]” N.T., 8/30/18, Exhibit 1, page 1 (emphasis

added).    Though Trooper Broadwater should not have phrased the search

warrant to pertain to “all” of McKahan’s medical records, this was merely

inartful drafting, and does not render the warrant unlawful. Therefore, we

reverse the suppression court’s Order, and hold that the toxicology report

showing McKahan’s BAC, alone, is admissible on remand.6

       Order reversed; case remanded for further proceedings; jurisdiction

relinquished.

       Judge Ott concurs in the result.

       Judge Kunselman files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2019




____________________________________________


6On remand, any medical records on the CD aside from the toxicology report
are not relevant and must be excluded.

                                           -7-
