J. S63036/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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, 2017,1that 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.
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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 driving3on 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