Com. v. Stone, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
THOMAS JARROD STONE : No. 391 MDA 2017
Appeal from the Order Entered February 10, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0002951-2016
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED MAY 01, 2018
The Commonwealth of Pennsylvania appeals1 from the order entered in
the York County Court of Common Pleas, which granted the suppression
motion of Appellee, Thomas Jarrod Stone, and suppressed the results of his
blood alcohol test. We affirm.
On the night of May 23, 2014, Appellee and Aaron Groendyk were
involved in a single vehicle motorcycle accident in Warrington Township.
Pennsylvania State Police were immediately alerted, but by the time Trooper
Matthew Kabacinski arrived at the scene, emergency medical services (“EMS”)
had transported Appellee and Groendyk to York Hospital. After conducting an
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 Retired Senior Judge assigned to the Superior Court.
1The Commonwealth has certified in its notice of appeal that the suppression
court’s order substantially handicapped or terminated the prosecution of this
matter. As such, this appeal is properly before us for review. See Pa.R.A.P. §
311(d).
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investigation at the scene of the crash, Trooper Kabacinski arrived at York
Hospital to find both Appellee and Groendyk intubated. Trooper Kabacinski
directed hospital staff to draw blood from both men in order to test their blood
alcohol content (“BAC”). Appellee’s BAC registered at .118%, well above the
legal limit. Groendyk subsequently died from the injuries he sustained in the
accident.
On March 22, 2016, the Commonwealth charged Appellee with homicide
by vehicle while driving under the influence, homicide by vehicle, driving under
the influence – general impairment, driving under the influence – high rate,
and unauthorized use of a motor vehicle.2 Appellee filed a motion to suppress
the BAC results, asserting the authorities illegally obtained his blood in the
absence of a warrant or his consent.3
At the suppression hearing, Trooper Kabacinski testified that he had
investigated numerous traffic accidents in his nine years as a Pennsylvania
State Police trooper. Trooper Kabacinski stated that when he arrived on the
scene, an EMS technician informed him there was a moderate odor of alcohol
on an article of clothing found near the scene of the accident. Based upon this
information, and the fact that the accident occurred at night, over a holiday
weekend, involved two young male drivers, and that the turn in the road
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275 Pa.C.S.A. §§ 3735(a), 3732(a), 3732(a)(1), 3732(b), and 18 Pa.C.S.A. §
3928(a), respectively.
3Appellee also filed a petition for writ of habeas corpus, which the court later
denied.
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where the accident occurred was not severe, Trooper Kabacinski believed one
of the young men had driven while intoxicated. However, Trooper Kabacinski
admitted that Tyler Kline, a witness after the crash who helped Appellee off
the road, did not detect any smell of alcohol on Appellee or his clothing.
Further, Trooper Kabacinski stated that he had not personally observed the
item of clothing that smelled of alcohol, and had been unable to identify the
owner of that particular article of clothing.4
The suppression court suppressed the blood results, concluding Trooper
Kabacinski was not entitled to request hospital staff remit blood samples from
Appellee pursuant to 75 Pa.C.S.A. § 3755, as he did not possess probable
cause to believe a violation under “section 3731 (relating to driving under the
influence of alcohol or controlled substance),” occurred. Suppression Court
Opinion, 2/10/17, at 7-11. Additionally, the suppression court found that,
even if Trooper Kabacinski possessed probable cause to believe either
Appellee or Groendyk had been driving under the influence, the holding in the
recent United States Supreme Court case of Birchfield v. North Dakota, 136
S. Ct. 2160 (2016), required Trooper Kabacinski to obtain a search warrant
prior to requesting blood samples. See id., at 11-13. This timely appeal
follows.
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4 Trooper Kabacinski also testified Kline relayed to him that Appellee told
Groendyk they should not call the police. However, Trooper Kabacinski did not
appear to find this statement important enough to include it as a factor in
forming his belief that driving under the influence had occurred.
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On appeal, the Commonwealth presents the following issues for our
review:
I. DID THE TRIAL COURT ERR IN GRANTING [APPELLEE’S]
MOTION TO SUPPRESS?
A. DID THE TRIAL COURT ERR IN RULING THAT THE
TROOPER LACKED PROBABLE CAUSE TO REQUEST
HOSPITAL PERSONNEL TO DRAW BLOOD FROM THE
DEFENDANT?
B. DID THE TRIAL COURT ERR IN RULING THAT A SEARCH
WARRANT WAS REQUIRED TO DRAW DEFENDANT’S
BLOOD WHEN DEFENDANT’S BLOOD WAS LEGALLY
DRAWN PURSUANT TO 75 PA.C.S. § 1547[] AND PA.C.S.
§ 3755?
C. DID THE TRIAL COURT ERR IN SUPPRESSING
[APPELLANT’S] BLOOD DRAW PURSUANT TO THE
RULING IN BIRCHFIELD V. NORTH DAKOTA, __ U.S. __,
136 S. Ct. 2160 (2016) WHEN BIRCHFIELD DOES NOT
APPLY TO THE INSTANT CASE?
Commonwealth’s Brief, at 4.
Our scope and standard of review following an order granting a
suppression motion are as follows.
When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the
suppression court’s factual findings and whether the inferences
and legal conclusions drawn by the suppression court from those
findings are appropriate. Because Appellee prevailed in the
suppression court, we may consider only the evidence of the
defense and so much of the evidence for the Commonwealth as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the factual findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, where the appeal of the determination of the
suppression court turns on allegations of legal error, “[t]he
suppression court’s conclusions of law … are not binding on an
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appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts.” As a result, the
conclusions of law of the suppression court are subject to plenary
review.
Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super. 2015) (citation
omitted; brackets in original).
The Commonwealth argues the court erred in concluding Trooper
Kabacinski did not have the requisite probable cause to request hospital staff
draw blood for BAC testing from Appellee. Further, in the event we find
Trooper Kabacinski possessed probable cause to request the blood draw, the
Commonwealth urges us to hold that the fact that Appellee had not been
arrested at the time Trooper Kabacinski requested hospital staff draw his blood
negates any warrant requirement suggested by either Birchfield or our
Supreme Court’s decision in Commonwealth v. Myers, 164 A.3d 1162 (Pa.
2017). However, we do not reach the issue of whether Birchfield and Myers
required Trooper Kabacinski to obtain a search warrant prior to requesting a
sample of Appellee’s blood, as we find that Trooper Kabacinski lacked probable
cause to conclude that the crime of driving under the influence had occurred.
In Pennsylvania, our Motor Vehicle Code provides, in pertinent part:
(a) General rule.—If, as a result of a motor vehicle accident, the
person who drove, operated or was in actual physical control
of the movement of any involved motor vehicle requires
medical treatment in an emergency room of a hospital and
if probable cause exists to believe a violation of the section
3802 (relating to driving under influence of alcohol or
controlled substance) was involved, the emergency room
physician or his designee shall promptly take blood samples
from those persons and transmit them within 24 hours for
testing to the Department of Health or a clinical laboratory
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licensed and approved by the Department of Health and
specifically designated for this purpose. This section shall be
applicable to all injured occupants who were capable of
motor vehicle operation if the operator or person in actual
physical control of the movement of the motor vehicle
cannot be determined. Test results shall be released upon
request of the person tested, his attorney, his physician or
governmental officials or agencies.
75 Pa.C.S.A. § 3755(a).
“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. Welshans, 580 A.2d 379, 381 (Pa. Super. 1990)
(citations omitted). “In determining whether probable cause exists, we must
consider the totality of the circumstances as they appeared to the arresting
officer.” Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa. Super. 2011)
(citation and internal quotation marks omitted).
The Commonwealth asserts the evidence of probable cause adduced at
the suppression hearing clearly supports Trooper Kabacinski’s belief that that
driving under the influence had occurred. The Commonwealth supports its
argument by relying on our finding of probable cause in Commonwealth v.
Aiello, 675 A.2d 1278 (Pa. Super. 1996).
There, after coming upon a single vehicle accident, the police discovered
defendant behind the wheel of her car with blood on her face and her hands.
See id., at 1280. The defendant refused medical assistance, and was
observed staggering by the police officer. See id. Additionally, the defendant
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admitted to the police officer that she “had one or two mixed drinks” before
the accident. Id. Based upon this evidence, the court found that the police
officer correctly concluded that he had probable cause to believe defendant
had been driving under the influence, and was therefore was permitted to
request a blood draw. See id.
Aiello is plainly distinguishable from this case. Notably, the court in
Aiello based its finding of probable cause, in part, on the officer’s direct
observation of the defendant prior to requesting a blood draw. In fact, all of
the cases cited by the Commonwealth, where probable cause was found to
support a blood draw, rely upon an officer’s direct observation of the
defendant before requesting the blood draw. See Commonwealth v. Thus,
906 A.2d 552, 567 (Pa. Super. 2006) (finding probable cause where a
defendant was involved in a head on crash, emitted a moderate smell of
alcohol, and appeared to the police officer to have red eyes and labored
speech); Commonwealth v. Simon, 655 A.2d 1024, 1027-1028 (Pa. Super.
1995) (finding probable cause where police officer observed driver involved in
a crash was shaking, making nonsensical statements, and smelled strongly of
alcohol); Commonwealth v. Pelkey, 503 A.2d 414, 416 (Pa. Super. 1985)
(finding probable cause for a blood draw where defendant was found by police
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behind the wheel, in a semiconscious state, with an odor of alcohol on his
breath).5
As Trooper Kabacinksi did not directly observe Appellee prior to
requesting the blood draw by hospital personnel, probable cause to suspect
driving under the influence must have arisen from circumstances attendant to
the crash. The suppression court concluded that these attendant
circumstances did not support an inference that driving under the influence
had occurred. We are constrained to agree.
In its opinion, the suppression court found the following facts supported
Trooper Kabacinski belief that driving under the influence had occurred.
The turn in the road where the accident occurred was not severe.
The motorcycle riders were young males. The accident occurred
over a holiday. The time of the accident was at night. And, the
officer was advised by an EMT that there was the moderate smell
of alcohol on some clothes found at the scene.
Suppression Court Opinion, 2/10/17, at 10.
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5 In its initial brief, the Commonwealth also relied on the case of
Commonwealth v. March, 154 A.3d 803 (Pa. Super. 2017), to support its
assertion that probable cause can be developed in a number of different ways.
However, in its supplemental brief, the Commonwealth reports that our
Supreme Court subsequently vacated March and remanded it for
reconsideration in light of the decisions in Myers and Birchfield. See
Commonwealth’s Supplemental Brief, at 1-2; see also Commonwealth v.
March, 172 A.3d 582 (Pa. 2017) (per curiam order). As such, the
Commonwealth notes that it no longer wishes to argue that the holding in
March supports its arguments. See Commonwealth’s Supplemental Brief, at
1.
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After reviewing the standard for probable cause, the suppression court
concluded that these facts simply did not form the requisite probable cause.
See id, at 11. Further, while the suppression court recognized that a moderate
smell of alcohol on clothing could support a finding of probable cause in the
right circumstances, Trooper Kabacinski’s inability to determine if the clothing
smelling of alcohol belonged to the driver of the motorcycle defeated a finding
of probable cause under the totality of these particular circumstances. See id.
The record supports the suppression court’s findings of fact, and we find
no error in its application of the law. Trooper Kabacinski was unable to observe
either Appellee or Groendyk before formulating probable cause to believe the
crash was a result of driving under the influence. While the smell of alcohol
on clothing would normally factor into a finding of probable cause, Trooper
Kabacinski’s inability to tie this clothing to the driver of the motorcycle makes
his inference of driving under the influence nothing more than a hunch, with
does not rise to the level of probable cause. The totality of the circumstances,
when viewed through the lens of the trooper’s experience and personal
observations, does not support the determination that probable cause existed
to request the blood draw under § 3755. As such, the suppression court
committed no error in suppressing Appellee’s BAC results.6
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6 As we have determined that the suppression court properly suppressed
Appellee’s BAC test, we need not reach the merits of the Commonwealth’s
final two issues on appeal.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/01/2018
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