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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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