J-S24024-23
2023 PA Super 162
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KELVIN MCLEAN :
:
Appellant : No. 176 MDA 2023
Appeal from the Judgment of Sentence Entered December 16, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0006639-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY LAZARUS, J.: FILED SEPTEMBER 07, 2023
Kelvin McLean appeals nunc pro tunc from his judgment of sentence,
entered in the Court of Common Pleas of Dauphin County, after a jury
convicted him of one count each of statutory sexual assault,1 corruption of
minors,2 and unlawful contact with a minor.3 We conclude the trial court
properly denied McLean’s motion to suppress DNA evidence taken pursuant to
court order, and, therefore, we affirm his judgment of sentence.
The trial court sets forth the facts of this case as follows:
In March of 2018, Dauphin County Children and Youth Services
[DCCYS] received a child abuse referral alleging that B.F. (DOB:
8/[]/01) who was sixteen (16) years old at the time, had given
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 3122.1.
2 Id. at § 6301.
3 Id. at § 6318.
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birth to a child. [I]t was alleged [by DCCYS] that B.F. was fifteen
(15) years old at the time of conception and that [McLean, B.F.’s
mother’s paramour at the time of conception,] was the biological
father of the child. . . . DCCYS had information from the hospital
that B.F. wanted to put [McLean’s] name as the biological father
on the child’s birth certificate.
B.F. had told hospital staff that she viewed [McLean] as a father,
that she was planning on being adopted by him, and wanted her
child to have the same last name as she. DCCYS interviewed B.F.,
who denied that [McLean] was the biological father.
Initially[,] the allegation was deemed unfounded upon the
information DCCYS had at the time. Despite this, DCCYS was
familiar with B.F. [due to two prior dependency proceedings in
2012 and 2015,] and had concerns with B.F.’s ability to care for
her child.
…
During the summer of 2018, DCCYS provided housing assistance
for B.F., her child, [B.F.’s mother (Mother), Mother’s child with
McLean, and McLean.] After a caseworker went to check on the
family at the hotel [in which they were being housed], [] DCCYS
began to have concerns that the relationship between B.F., [now]
sixteen (16), and [McLean] was [not a familial relationship but
rather a romantic relationship.] Thereafter, DCCYS pursued
dependency of B.F. and her child.
On August 22, 2018, DCCYS obtained a court order[, issued by
the Honorable John F. Cherry,] to place B.F. and her child in the
care and custody of DCCYS, as well [as] an order for paternity
testing of [McLean. It was subsequently determined that McLean
failed to attend his scheduled appointment for paternity testing.
As a result,] DCCYS requested an order for contempt of court for
[McLean’s] lack of compliance with the August 22, 2018 order. It
was stipulated at the trial that the buccal swab of [McLean] was
performed by [a “Miss Johnson”] on behalf of the court. After
collecting DNA from the child, both samples were sent out for
testing.
…
On November 8, 2018[, as a result of testimony stating there is a
99.99% probability that McLean is the biological father of B.F.’s
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child, based on the results of the DNA test] the Honorable Royce
Morris issued an order [legally establishing McLean’s paternity.]
B.F. testified at trial and admitted that [McLean] is the biological
father of her child. She further admitted that she and [McLean]
engaged in sexual intercourse beginning when she was fifteen
(15) years old, and adamantly stated that she consented. She
also identified [McLean] in court and stated they were not married.
In addition to DCCYS’ child abuse investigation, the Steelton
Borough Police Department had also opened an investigation in
March of 2018 and re-opened it in August of 2018. Officer Dory
Thompson [] of Steelton Borough Police Department testified that
they received a Childline referral in March of 2018 stating that B.F.
had given birth to a child, that she was fifteen (15) years of age
at the time of conception, and that [McLean’s] name was on the
child’s birth certificate. Officer Thompson interviewed B.F., who
denied the allegations, and because there was no other evidence
that [McLean] was the father at that time, the case was closed.
After DCCYS took custody of B.F., she was placed in a foster home,
then Pinkney’s Vineyard,[4] and finally a youth shelter. Cell
phones are prohibited at the youth shelter [and] DCCYS maintains
possession of the youth’s belongings if they are unable to give
them to a parent. In this case, DCCYS took possession of B.F.’s
phone. [This occurred sometime between late August and early
September of 2018.] While [B.F.’s phone was in DCCYS’]
possession, Mother provided the passcode to DCCYS and they
were able to look at B.F.’s phone[, in which they found
photographs and videos that prompted them to notify law
enforcement.]
Based on the information provided by DCCYS, Officer Thompson
[obtained a search warrant to obtain B.F’s cell phone and
download the contents of that cell phone, which revealed photos
and videos of sexual acts performed by B.F. that had been
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4 Pinkney’s Vineyard was founded in 2003 to help disadvantaged teen
mothers. See PINKNEY’S VINEYARD OF FAITH MINISTRIES, http://pvfm.org/ (last
visited Aug. 3, 2023).
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forwarded to a number associated with McLean.5] Thereafter,
Officer Thompson was notified that [McLean] was found to be the
biological father of B.F.’s child through paternity testing. [As a
result of learning of McLean’s paternity results, and other
information gathered throughout the Steelton Borough Police
Department’s investigation, criminal charges were filed against
McLean shortly thereafter. Officer Thompson then applied for and
obtained an arrest warrant for McLean.]
On or about November 25, 2018, McLean was charged with the
above-mentioned offenses. McLean filed an omnibus pretrial
motion to suppress the DNA evidence. After a hearing on
February 20, 2020, before the Honorable William T. Tully, the
suppression court denied McLean’s motion[, concluding that] the
dependency action August 22, 2018 order was lawfully filed, and
that McLean’s defense counsel conceded his argument upon
learning that this order arose from a separate proceeding. A jury
trial was held [with the same jurist presiding], beginning on
October 6, 2020, wherein McLean was found guilty on all counts.
McLean was sentenced on December 16, 2020, to an aggregate
sentence of six (6) to twelve (12) years of incarceration and five
(5) years of consecutive state probation. McLean was notified he
was a Tier 3 sexual offender [under the Sex Offenders Registration
and Notification Act (SORNA)] and all standard sexual offender
conditions were imposed. McLean filed a timely post-sentence
motion on December 28, 2020, which was subsequently denied
on January 7, 2021. On February 3, 2021, McLean filed a timely
notice of appeal, which was dismissed on May 26, 2021, for failure
to comply with Pennsylvania Rule of Appellate Procedure 3517.
On July 28, 2022, McLean filed a petition [under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546].
Christopher Wilson, Esquire (Attorney Wilson) was appointed as
PCRA counsel. Based upon the agreement of the parties, on
November 10, 2022, Defendant’s PCRA petition was granted, and
his appeal rights were reinstated, nunc pro tunc. On January 31,
2023, McLean filed a timely notice of appeal, nunc pro tunc. The
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5 The information obtained from B.F.’s cell phone was not used in Officer
Thompson’s affidavit of probable cause leading to the approval of a warrant
for McLean’s arrest in the underlying matter. See Affidavit of Probable Cause,
11/19/18, at 1-3. The affidavit was based solely on the events that led to the
dependency court’s order establishing McLean’s paternity. See id. at 2-3.
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trial court directed McLean to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).]
Trial Court Opinion, 3/23/23, at 2-7 (unpaginated, citations omitted).
On appeal, McLean raises the following issue for our consideration:
Whether the [s]uppression [c]ourt erred in denying the
motion to suppress the DNA sample obtained from [McLean]
while he was in prison, and whether the [s]uppression
[c]ourt’s decision was erroneous, and the findings were not
supported by the record?
Appellant’s Brief, at 3.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining
whether the suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth 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 suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
. . . the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the court[] below are
subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
The Fourth Amendment to the United States Constitution and Article I,
§ 8, of the Pennsylvania Constitution protects a private citizen from
unreasonable searches and seizures. Commonwealth v. Wilmer, 194 A.3d
564, 565 (Pa. 2018). In order to either search a constitutionally protected
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area for evidence or seize a criminal defendant, law enforcement is generally
required to obtain a warrant supported by probable cause, with limited
exceptions. See Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa.
1991).
It is well settled that “[a] criminal defendant with standing to pursue a
motion to suppress in this Commonwealth has a right to compel the
prosecution to prove its evidence was not obtained in violation of his
constitutional rights.” Commonwealth v. Enimpah, 106 A.3d 695, 703 (Pa.
2014); see Pa.R.Crim.P. 581(H). The Commonwealth has the initial burden
to “present evidence that the defendant’s constitutional rights were not
infringed.” See Enimpah,
106 A.3d at 701. If the Commonwealth presents
evidence that shows the defendant “lacked a privacy interest, the burden
shifts to the defendant to demonstrate he had a reasonable expectation of
privacy in the area searched.”
Id. Thereafter, it is incumbent on the
suppression court to consider all of the evidence to determine whether the
Commonwealth met its burden of production, and, if so, whether the
defendant met his burden of persuasion that he possessed a reasonable
expectation of privacy. See id.; see also Commonwealth v. Elmobdy,
823
A.2d 180, 183 (Pa. Super. 2003) (“It is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and the weight to
be given to their testimony. The suppression court is free to believe all, some
or none of the evidence presented at the suppression hearing.”).
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Instantly, McLean contends that because the contempt order in the
dependency action resulted in his incarceration, and the record is devoid of
any testimony from the individual who performed the buccal DNA swab test
for his paternity, McLean was coerced by law enforcement to consent to an
unlawful search and seizure. See Appellant’s Brief, at 10. McLean argues
that the evidence obtained as a result of this alleged unlawful search and
seizure, which resulted in the dependency court entering an order establishing
McLean’s paternity, could not be used in the officer’s probable cause affidavit
supporting his arrest for the subject offenses. Id. at 11. In support of its
denial of McLean’s suppression motion, the trial court opined that “[a]fter
hearing testimony and reviewing the August 22, 2018, [o]rder, [] the
dependency action was filed in good faith[, and t]here was no evidence of any
police participation [or misconduct that] would otherwise justify suppression
of any evidence.” Trial Court Opinion, 3/23/23, at 9.
We agree with the trial court that the dependency action was a separate
and lawful proceeding. The record of the suppression hearing supports the
court’s determination that the order establishing McLean’s paternity would
have provided the necessary probable cause to support a warrant for his arrest
in this criminal matter, regardless of whether the court established paternity
by default or by genetic testing. See Eadie v. Bohatch, 601 A.2d 361 (Pa.
Super. 1992) (holding defendant’s failure to comply with trial court’s order to
submit blood testing gave trial court authority to resolve paternity issue).
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Additionally, we emphasize that the use of buccal swabs is a minimal intrusion
into a defendant’s privacy interest following his lawful arrest and does not
require a demonstration of consent. See Commonwealth v. Smith, 164
A.2d 1255, 1260 (Pa. Super. 2017) (“[W]hen the prospective DNA sample is
being used for identification purposes [upon arrest], the donor of that sample
has no more privacy interest in it than in his fingerprints.”). Therefore, we
find the Commonwealth sustained its burden of demonstrating McLean’s
constitutional rights were not infringed upon. See
Enimpah, supra.
Next, McLean contends that the suppression court’s decision not to
exclude the DNA test was not supported by the record, and, thus, constitutes
reversible error. In response, the Commonwealth argues that because
McLean was incarcerated as a result of the dependency court finding him in
contempt for failure to submit to genetic testing, no warrant was needed to
obtain his DNA. See Appellee’s Brief, at 7. In fact, the trial court noted that,
at the suppression hearing, McLean’s defense attorney conceded that McLean
was not coerced after he realized that the order was from the dependency
court, and not “at the request of law enforcement.” N.T. Suppression Hearing,
2/20/20, at 33. See also id. at 8 (defense counsel stating based on receipt
of dependency court order and discussions with prosecution, “I don’t think
necessarily all aspects of that [suppression] motion are appropriate at this
point.”); id. at 17-19 (defense counsel acknowledging order was not initiated
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by law enforcement; trial court stating “tenor of the case changes dramatically
with the appearance of that court order” from dependency action).
In civil proceedings pertaining to domestic relations, dependency, or
custody actions, the plaintiff has the right to request and obtain court-ordered
genetic testing. See 23 Pa.C.S.A. § 4343(c)(1).6 In the event that an order
is granted requiring the defendant to submit to paternity testing, “[t]he order
must advise the defendant that his failure to appear for the testing will result
in entry of an order finding that he is the father of the child.” Pa.R.C.P
1910.15(b)(1). Failure to appear for genetic testing by the defendant allows
the requesting party to seek, and obtain, from the court, a contempt order
punishable by a period of imprisonment, fines, and/or probation. See 23
Pa.C.S.A. § 4344.7
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6 “Upon the request of any party to an action to establish paternity, supported
by a sworn statement from the party, the court or domestic relations section
shall require the child and the parties to submit to genetic tests.” 23 Pa.C.S.A.
§ 4343(c)(1).
7 Pursuant to section 4344:
A person who willfully fails or refuses to appear in response to a
duly served order or other process under this chapter may, as
prescribed by general rule, be adjudged in contempt. Contempt
shall be punishable by any one or more of the following:
(1) Imprisonment for a period not to exceed six months.
(2) A fine not to exceed $ 500.
(3) Probation for a period not to exceed six months.
23 Pa.C.S.A. § 4344.
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Here, it was established at the suppression hearing that the dependency
court had the authority to issue its August 22, 2018 order requiring McLean
submit to court-ordered DNA testing following DCCYS’ initiation of its action.
See N.T. Suppression Hearing, 2/20/20, at 4. As a result of McLean’s failure
to comply with the dependency court’s order, he was lawfully found in
contempt. See id. at 13-14. All of this information was relayed to Officer
Thompson of the Steelton Borough Police Department and was included in
Officer Thompson’s testimony at the suppression hearing. See id.; see also
Elmobdy, supra.
“[W]ith respect to the breathalyzer test, buccal, swab, and fingernail
scrape, the United States Supreme Court has characterized the scope of the
intrusions as . . . an ‘almost negligible’ physical intrusion; and[] a ‘very limited
intrusion.’” Commonwealth v. Simonson, 148 A.3d 792, 800 (Pa. Super.
2016) (citing Birchfield v. North Dakota,
579 U.S. 438, 462 (2016);
Maryland v. King,
569 U.S. 435, 446 (2013); and Cupp v. Murphy,
412
U.S. 291, 296 (1973)). In Simonson, this Court held that a gun residue test
on a defendant’s hands could not be considered an unlawful intrusion and was
a search incident to a lawful arrest supported by a legitimate governmental
interest. See id. at 800. We found that this test was far less intrusive than
the buccal swab at issue in Maryland v.
King, supra. See
Simonson, supra
at 801. However, we also emphasized that a defendant’s privacy interest
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protecting him or her from a buccal swab is substantially diminished once in
police custody. See id. at 800.
Additionally, “DNA collection occurs only after it has been determined
that there is probable cause to believe that the arrestee committed a crime.
In light of this probable cause finding, arrestees possess a diminished
expectation of privacy in their own identity, which has traditionally justified
taking their fingerprints and photographs.” Smith, supra at 1260 (quoting
United States v. Mitchell, 652 F.3d 387, 411-12 (3d. Cir. 2011)). While
McLean avers that reliance on Smith is misplaced as its factual basis arises
out of a buccal swab pursuant to a warrant, see Appellant’s Reply Brief, at 1,
the discussion it provides on the degree of a defendant’s expectation of privacy
is instructive on the suppression issue at bar. See Smith, supra at 1259-60.
Here, the dependency court’s finding that McLean was in contempt as a
result of his failure to appear for paternity testing was, conclusively, an order
mandating his arrest. See N.T. Suppression Hearing, 2/20/20, at 13-14. As
a result of this arrest, Officer Thompson obtained information that McLean was
in custody of law enforcement at Dauphin County Prison. See id. at 14. Under
these circumstances, it is abundantly clear that McLean’s arrest was supported
by probable cause. See Smith, supra at 1260. With McLean in police
custody, the need to obtain his consent was substantially diminished, as was
his reasonable expectation of privacy concerning the DNA test. See
Simonson, supra at 800.
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As noted above, a court presiding over domestic relations matters may
enter a contempt order in response to a defendant’s failure to follow a court
order, but it is not the sole remedy. See Smith v. Beard, 473 A.2d 625, 629
(Pa. Super. 1984) (establishing dependency court may resolve question of
paternity on its own accord following defendant’s inability to comply with
paternity blood testing). A dependency court has the discretion to determine
the applicable penalty regardless of a defendant’s inability or refusal to comply
with a court order, or refusal to submit to paternity testing for other reasons.
See
Eadie, supra at 310-11; see also supra n.7.
Here, assuming, arguendo, that McLean’s buccal swab DNA test had
occurred as a result of an unlawful arrest and thus violated his protected
privacy interest, the dependency court could have made a default
determination that McLean was the father of B.F.’s child solely based upon
his failure to appear for the testing. See Eadie, supra at 309. Even if
the order establishing paternity by the dependency court was lacking any
reasonable degree of biological certainty, but was only the result of McLean’s
own default, the order would still provide the necessary probable cause for
Officer Thompson to obtain a warrant for McLean’s arrest. See In re Petition
to Compel with Child Abuse Investigation,
875 A.2d 365, 379 (Pa. Super.
2005) (holding plaintiff Child and Youth Services need not obtain warrant
when performing investigation subject to domestic relations court order, but
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separate criminal matters require solicitation of warrant supported by
probable cause).
McLean was lawfully arrested and incarcerated due to a finding of
contempt by the dependency court, and since that finding was predicated on
his failure to submit to a buccal DNA swab, which is also a routine booking
procedure incident to that arrest, we do not require any further inquiry into
the conduct of law enforcement at that time. See Smith, supra at 1259-
60.8
We hold that a buccal mouth swab test conducted incident to a
defendant’s incarceration for contempt of an order entered in a separate
dependency matter, which test was used to establish paternity in the
dependency matter, does not violate a defendant’s privacy rights when that
determination of paternity is used to obtain an arrest warrant in a subsequent
criminal matter. Accordingly, the suppression court did not err in denying
McLean’s motion to suppress. Jones, supra.
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8 While the Supreme Court of Pennsylvania has recently emphasized that an
absence of evidence suggesting any exigent circumstance does not permit
officers to order a warrantless, non-consensual blood draw, reliance on this
decision is misguided in the context of McLean’s DNA sample. See
Commonwealth v. Jones-Williams,
279 A.3d 508 (Pa. 2022). The
comparison of a blood test without a warrant to a buccal swab subject to a
lawful arrest implicates two distinct expectations of privacy. Law enforcement
does not have the ability to obtain warrantless blood draws due to the higher
degree of bodily intrusion into a defendant’s person. See
Simonson, supra
at 797. However, a buccal swab has long been considered a negligible
intrusion for the limited scope of what it can establish. See
id. at 799.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/7/2023
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