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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                    :            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.
J. S63036/17


          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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