J-S41012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                             Appellee

                        v.

KEVIN SOUFFRANT,

                             Appellant                   No. 1299 MDA 2014


         Appeal from the Judgment of Sentence entered July 3, 2014,
             in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0002313-2013
                        and CP-36-CR-0002314-2013



BEFORE: ALLEN, LAZARUS, and PLATT*, JJ.

MEMORANDUM BY ALLEN, J.:                                   FILED JULY 24, 2015

       Kevin Souffrant (“Appellant”) appeals from the judgment of sentence

imposed following his conviction for first-degree murder, aggravated assault,

two counts of simple assault, terroristic threats, and endangering the welfare

of a child.1

       The pertinent facts and procedural history are as follows: On March 9,

2013, officers from the Lancaster City Bureau of Police responded to a report

of shots fired at 1117 Wabank Street, Apartment C-304, in Lancaster

County, Pennsylvania. Affidavit of Probable Cause, 3/10/13. Upon arrival,

____________________________________________


1
 18 Pa.C.S.A.      §§    2502(a),     2702(a)(1),   2701(a)(3),   2706(a)(1),   and
4304(a)(1).


*Retired Senior Judge assigned to the Superior Court.
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the officers located inside the apartment a deceased female, Shadae Brooks,

who had suffered multiple gunshot wounds, and additionally found Appellant

in the vestibule outside the apartment, also suffering from multiple gunshot

wounds.   Id.   Their investigation led police officers to interview Leonda

Washington and Shaina Taylor-Brooks, who informed police that they had

been inside the apartment prior to the shooting, and saw Appellant strike

the victim on the head with a small silver handgun, and threaten to kill

everyone in the apartment, including three children under age five.     Id.,

N.T., 5/6/14, at 275-276. Ms. Washington and Ms. Taylor-Brooks were able

to leave the apartment with two of the children while Appellant was beating

the victim, and when the victim attempted to give Ms. Washington and Ms.

Taylor-Brooks the third child to take with them, Appellant physically

restrained her from doing so, and pointed the gun at Ms. Washington and

Ms. Taylor-Brooks. Id. Ms. Washington and Ms. Taylor-Brooks were able to

leave with two of the children while the victim remained in the apartment

with Appellant and her infant child.       Id.    Appellant instructed Ms.

Washington and Ms. Taylor-Brooks that if he heard police sirens he would

shoot the victim, and the two women thus opted not to report the incident to

police. Id., at 314. However, at approximately 4:38 p.m. that afternoon,

Officer Mark Gehron received a report from an unidentified source of shots

fired at Apartment C-304, and upon arrival found Appellant and the

deceased victim. Id. at 388-389; 415-416. Appellant was transported to

Lancaster General Hospital for treatment of his gunshot injuries, where he

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was interviewed by police and informed them that two men had entered his

apartment and shot him and the decedent. Following further investigation,

Appellant was arrested and charged with the aforementioned crimes.

     On July 17, 2014, Appellant filed a motion to suppress the statements

he made to the police while undergoing treatment at Lancaster General

Hospital. Following a suppression hearing on April 15, 2014, the trial court

denied Appellant’s motion. A jury trial commenced on May 5, 2014, at the

conclusion of which the jury returned its guilty verdicts. On July 3, 2014,

the trial court sentenced Appellant to life imprisonment without the

possibility of parole for murder, and consecutive sentences of six to twelve

years for aggravated assault, one to two years for the first count of simple

assault, one to two years for the second count of simple assault, one to two

years for terroristic threats, and one to two years for endangering the

welfare of a child. Appellant filed a notice of appeal on July 10, 2014. Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

     Appellant raises two suppression issues for our review:

     I.    Did the trial court err in denying [Appellant’s] suppression
           motion, where his statement was the fruit of illegally
           obtained medical records and protected health information
           regarding [Appellant’s] level of cognitive awareness, the
           medication he was receiving, and its effects on his
           cognition?

     II.   Did the trial court err in denying [Appellant’s] suppression
           motion, where his statement was not knowing, intelligent
           and voluntary, and where the statement was obtained in
           violation of [Appellant’s] constitutional rights to end the
           interrogation?


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Appellant’s Brief at 5.

      Our scope and standard of review of suppression claims is well settled:

             An appellate court's standard of review in addressing a
      challenge to a trial court's denial of a suppression motion is
      limited to determining whether the factual findings are supported
      by the record and whether the legal conclusions drawn from
      those facts are correct. [Because] the prosecution prevailed in
      the suppression court, we may consider only the evidence of the
      prosecution and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the record supports the factual findings of
      the trial court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted).

      In his first issue, Appellant challenges the trial court’s denial of his

suppression motion, and maintains that the trial court should have

suppressed evidence and statements he made to the police while undergoing

treatment at Lancaster General Hospital.        Appellant’s Brief at 16-25.

Specifically, Appellant asserts that while he was hospitalized at Lancaster

General Hospital, Detective Aaron Harnish asked one of Appellant’s nurses

what medication Appellant was taking and whether it would have any effect

on his capacity to understand and be able to respond to interview questions.

Appellant’s nurse informed the officer that Appellant had been prescribed

Fentanyl, and that it would not have any effect on his cognitive abilities.

Shortly thereafter, Detective Harnish provided Appellant with Miranda

warnings, and proceeded to interview Appellant about the March 9, 2013



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shooting, during which Appellant informed the officer that an individual

named Will Blackman and another unidentified male had forced their way

into Appellant’s apartment and were responsible for the shooting.              N.T.,

4/15/14, at 67-68.2


____________________________________________


2
  At the suppression hearing, Detective Harnish testified about his
conversation with the Lancaster General Hospital staff regarding Appellant’s
condition:

Assistant District Attorney:              What did you do ... from the time you
                                          arrived [at Lancaster General Hospital]
                                          until you had an opportunity to speak
                                          with [Appellant]?

Detective Harnish:                        We did several things. One of those
                                          things was speak to a nurse to ascertain
                                          his cognitive abilities as to whether or
                                          not he was on any psychotropic
                                          medication, to determine what his
                                          speech was like, what his awareness was
                                          like and to basically assess whether or
                                          not he had the capacities to be able to be
                                          interviewed at that point in time. We
                                          also spoke to the officers on scene to see
                                          if they had any interaction with him,
                                          making similar assessments.

Assistant District Attorney:              Now, obviously at that point in time,
                                          [Appellant] had sustained at least three
                                          gunshot wounds, correct?

Detective Harnish:                        That’s correct.

                                           ***

Assistant District Attorney:              And did the medical staff that you made
                                          contact with indicate to you whether or
(Footnote Continued Next Page)


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      Appellant alleges that Detective Harnish’s question to the nurse about

his medications constituted an “illegal search” in violation of his HIPPA

privacy rights, and that under the Fourth Amendment of the United States

Constitution, and Article I, Section 8 of the Pennsylvania Constitution, he is

entitled to suppression of the statements he made to Detective Harnish. We

disagree.

      In general, the Fourth Amendment of the United States Constitution,

and Article I, Section 8 of the Pennsylvania Constitution, do not permit police

to conduct searches or seizures absent a lawfully obtained search warrant,

and evidence seized as a result of an illegal search must be suppressed.

Commonwealth v. Dougalewicz, 113 A.3d 817, 824 (Pa. Super. 2015)

Here, Appellant argues that because Detective Harnish obtained his medical

information in violation of HIPAA, and then proceeded to interrogate him

after unlawfully receiving information about his medications, he is entitled to


                       _______________________
(Footnote Continued)

                                           not he would have the cognitive ability to
                                           speak with you?

Detective Harnish:                         They did. The nurse had stated that he
                                           was on a fentanyl drip but that it should
                                           not affect his cognitive ability in any way,
                                           and that there was no other medication
                                           that he was taking that would affect his
                                           recollection.

N.T., 4/15/14, at 49-50.




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suppression because they were obtained in violation of his constitutional

right to privacy. Appellant’s Brief at 16-25.

      HIPAA is a federal statute that “provides for monetary fines and

various terms of imprisonment for the wrongful disclosure of individually

identifiable health information.   42 U.S.C. § 1320d–6.”    T.M. v. Elwyn,

Inc., 950 A.2d 1050, 1059 (Pa. Super. 2008).           “HIPAA provides for

confidentiality of medical records and governs the use and disclosure of

protected health information by ‘covered entities’ that have access to that

information and that conduct certain electronic health care transactions.

HIPAA provides both civil and criminal penalties for improper disclosures of

medical information and limits enforcement of the statute to the Secretary of

Health and Human Services. ... The ability to bring an enforcement action

to remedy HIPAA violations, and ensure that a healthcare provider is HIPAA

compliant, lies within the exclusive province of the Secretary of Health and

Human Services....”     Jackson v. Mercy Behavioral Health, 2015 WL

401645, at 3 (W.D. Pa. Jan. 28, 2015) (citations an internal quotations

omitted). See also United States v. Prentice, 683 F. Supp. 2d 991, 1001

(D. Minn. 2010) (HIPAA was enacted in order to assure an individual's right

to privacy in his or her medical records and provides that [a] covered entity

may not use or disclose protected health information, except as permitted or

required by the regulations; a covered entity is defined as a health plan, a

health care clearinghouse, or a health care provider, that transmits health


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information electronically, in certain kinds of covered transactions, and

accordingly, a law enforcement agency is not a covered entity, subject to the

restraints on the use or receipt of protected medial information); Title 45

C.F.R. § 164.104 and 164.502; Miller v. Allstate Fire & Cas. Ins. Co., No.

CIV. 07-260, 2009 WL 700142, at *3 (W.D. Pa. Mar. 17, 2009) (“Entities

covered by HIPAA include:         (1) a health plan, (2) a health care

clearinghouse, and (3) a health care provider ... 45 C.F.R. § 160.10.”).

      In this case, Appellant does not allege, nor does HIPAA indicate, that

law enforcement officers are “covered entities” subject to the confidentiality

requirements of HIPAA. Appellant cites no authority that compels a finding

that under the either the federal or state constitutions, HIPAA-protected

medical information obtained by a police officer from a hospital employee

should be suppressed in a criminal proceeding against the patient. Appellant

does not direct us, nor are we able to find, any language within HIPAA itself

that would mandate suppression of evidence in a criminal proceeding; nor

are we aware of any other statutory or precedential authority which would

compel the suppression of the statements made by Appellant during his

interview with Detective Harnish.    See Elder-Evins v. Casey, No. C 09-

05775 SBA LB, 2012 WL 2577589, at *8 (N.D. Cal. July 3, 2012) (“As other

courts have noted, HIPAA does not have a suppression remedy [a]nd where

this is the case, it is inappropriate for the court to exclude evidence on this

basis.”); United States v. Elliott, 676 F. Supp. 2d 431, 439 (D. Md. 2009);


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(“Federal courts have acknowledged the importance of protecting a patient's

right to privacy in medical records[;] [t]hat right, however, is not absolute,

and must be balanced against the government's interests in obtaining the

information. ... HIPPA was passed to ensure an individual’s right to privacy

over medical records, it was not intended to be a means for evading

prosecution in criminal proceedings.”) (citations omitted); United States v.

Streich, 560 F.3d 926, 935 (9th Cir. 2009) (“HIPAA does not provide any

private right of action, much less a suppression remedy.”); Sherman v.

Jones, 258 F. Supp. 2d 440, 443 (E.D. Va. 2003) (“There is no general

fundamental       constitutional     right     to   privacy   in   personal   medical

information.”).

       Even if Appellant’s nurse, as an employee of Lancaster General

Hospital, violated his HIPAA-protected privacy rights by informing Detective

Harnish that Appellant was on Fentanyl, we find no merit to Appellant’s claim

that Appellant’s subsequent statements to Detective Harnish were a product

of that alleged HIPAA violation and should have been suppressed as “fruit of

the poisonous tree.”3        As this Court has made clear, “[t]he fruit of the

____________________________________________


3
 See Commonwealth v. Shaw, 370, 431 A.2d 897, 900 (Pa. 1981) quoting
Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9
L.Ed.2d 441 (1963) (emphasis added, citation omitted) (The United States
Supreme Court has held that not 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
(Footnote Continued Next Page)


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poisonous tree doctrine excludes evidence obtained from, or acquired as a

consequence of, lawless official acts.” Commonwealth v. Brown, 700 A.2d

1310, 1318 (Pa. Super. 1997).               Here, Appellant alleges that Detective

Harnish committed a “lawless official act” when he asked the nurse if

Appellant was on any mind-altering medication, and that the statements

made by Appellant during the detective’s subsequent interview should have

been suppressed. As explained above, however, we find no authority upon

which to hold that Detective Harnish conducted an unconstitutional or

otherwise unlawful search or seizure when he asked the nurse about

Appellant’s medication, and accordingly we find no merit to Appellant’s clam

that his subsequent statements to Detective Harnish were obtained by

exploitation of any illegality to warrant suppression. Appellant’s claim that

he is entitled to suppression because of a violation of his rights under HIPAA,

fails.

         In his second issue, Appellant claims that his Miranda waiver and

subsequent statements to Detective Harnish were not knowing, intelligent,

and voluntary because at the time he made them, he had suffered several

gunshot injuries, was on Fentanyl, and was incapable of understanding what

he was doing.      Appellant’s Brief at 26-33.       Additionally, Appellant argues
                       _______________________
(Footnote Continued)

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.”).




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that in the course of the custodial interrogation, Detective Harnish violated

Appellant’s constitutional rights when he failed to halt the interrogation after

Appellant complained of suffering physical pain, repeatedly stated that he

did not want to talk any more, asked to call his mother, and requested a

lawyer. Id. Accordingly, Appellant argues that his statements made during

Detective Harnish’s interrogation should have been suppressed.4

       The trial court, addressing these claims, explained:

              [Appellant’s] statements to the police were not obtained in
       violation of his Constitutional rights. Testimony was presented
       at the suppression hearing that the detectives who interviewed
       [Appellant] identified themselves prior to the beginning of the
       interview.    The Detective explained to [Appellant] that he
       wanted to talk to him and asked [Appellant] if he would be
       willing to speak to them, at which point the detective read
       [Appellant] his Miranda rights. [Appellant] was informed that
       he could stop the interview at any point if he did not understand
       the question or needed explanation.             Based on these
       circumstances, it appears [Appellant] knowingly, voluntarily, and
       intelligently waived his Constitutional rights prior to making his
       statements.

              In addition, the level of articulation required to invoke the
       right to counsel in Pennsylvania is not met if a Defendant asks
       whether an attorney is necessary. ... Since [Appellant] merely
       asked the police whether he needed an attorney, he did not
       articulate his desire to have an attorney present during the
       questioning.

             [Appellant] also claims that his right to remain silent was
       not honored. The Detective testified at the suppression hearing
       that during their interview, [Appellant] made several requests to
____________________________________________


4
  The Commonwealth does not contest that Appellant was subjected to a
custodial interrogation when interviewed by Detective Harnish at Lancaster
General Hospital.



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     invoke his right to remain silent, but he then continued to talk
     unprompted by the police. The Supreme Court of the United
     States held that the right to remain silent must be “scrupulously
     honored” when it is invoked. See Miranda v. Arizona, 384
     U.S. 436, 479 (1966).        However, the police may reinitiate
     interrogation after the right to remain silent is invoked. See
     Commonwealth v. Harris, 972 A.2d 1196, 1203 (2009). Here,
     [Appellant] did pause during the interview, but [Appellant]
     continued to volunteer the information without provocation by
     the police, and therefore, his claim is meritless.

            Finally, [Appellant] states that the physical pain he was
     experiencing during his questioning caused the interrogation to
     be illegal. However, the police questioned [Appellant’s] nurse as
     to what medication [Appellant] was on, and found [Appellant] to
     have a proper cognitive ability to provide a knowing, intelligent,
     and fully voluntary statement.

Trial Court Opinion, 10/31/14, at 4-5.

     Upon review, we find no error in the trial court’s analysis.     At the

suppression hearing, Detective Harnish testified that he had been employed

as a police detective for over fourteen years, during which he had on

multiple occasions observed individuals under the influence of drugs and

alcohol, and understood the signs and symptoms indicating the individual’s

ability to comprehend.   N.T., 4/15/14, at 59.   He testified that when he

provided Appellant with his Miranda rights and interviewed him, he

observed no indication that Appellant was unable to understand him, and

that Appellant consistently displayed cognitive awareness. Id.

     Additionally, Detective Harnish testified that although Appellant did

indicate during the interview that he no longer wanted to speak to the

police, Appellant then “almost in the same breath” continued to speak about


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the events of March 9, 2013, thereby voluntarily waiving his right to remain

silent, and continuing to talk, on his own initiative.      N.T., 4/15/14, at 62.

See Commonwealth v. Nahodil, 462 Pa. 301, 305-06, 341 A.2d 91, 93

(1975) (After the defendant indicated he would not answer any questions,

the police were required to immediately desist from further questioning, but

the defendant had the right to later change his mind and waive his right to

remain silent, providing he did it voluntarily and on his own initiative, and

the burden of proving that his change of mind occurred voluntarily and

without    his   being   threatened,    tricked   or   cajoled,    was   upon   the

Commonwealth).

      Finally, although Appellant during the interview asked the detective if

he “thought he needed an attorney,” such a statement does not constitute

an unequivocal invocation of the right to counsel, particularly because after

asking    whether   he   needed   an    attorney,   Appellant     immediately   and

volitionally continued to speak to the officers.        See Commonwealth v.

Champney, 65        A.3d 386, 387 (Pa. 2013)            cert. denied sub nom.

Pennsylvania v. Champney, 134 S. Ct. 1276, 188 L. Ed. 2d 359 (2014)

quoting Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129

L.Ed.2d 362 (1994) (for the Miranda/Edwards rule to apply, there must be

an unequivocal invocation of the right to counsel; the determination of

whether the right to counsel was invoked by the accused is an “objective

inquiry” but requires, at a minimum, some statement that can reasonably be


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construed to be an expression of a desire for the assistance of an attorney in

dealing with custodial interrogation by the police; if the accused makes an

ambiguous or equivocal reference that would lead an officer, in light of the

circumstances, to believe that the accused might be invoking the right to

counsel, the police interrogation need not cease; rather the suspect must

“articulate his desire to have counsel present sufficiently clearly that a

reasonable police officer in the circumstances would understand the

statement to be a request for an attorney”).

      Given the foregoing, we find no error in the trial court’s denial of

Appellant’s suppression motion, and accordingly, we affirm the judgment of

sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




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