J-S41012-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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

4304(a)(1).
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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 

____________________________________________

3See 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