J.A21003/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MELISSA ARNDT, :
:
Appellant : No. 3571 EDA 2014
Appeal from the Judgment of Sentence October 20, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division No(s).: CP-39-CR-0001277-2014
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 13, 2015
Appellant, Melissa Arndt, appeals from the judgment of sentence
entered in the Court of Common Pleas of Lehigh County, following her guilty
plea to driving under the influence of alcohol.1 She argues the trial court
erred in failing to suppress evidence seized during a DUI checkpoint,
because the checkpoint was not performed in accordance with the
appropriate guidelines. We affirm.
We state the facts and procedural history as set forth by the trial
court:
On September 5, 2013, a [DUI Checkpoint] was
established in the 140 block of West Main Street,
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802(b).
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Macungie, Lehigh County, Pennsylvania, that ran from
approximately 11:30 P.M. to 3:30 A.M. on September 6,
2013. Prior to the commencement of the DUI Checkpoint,
the officers involved in this highway safety program
attended a meeting where they were briefed as to the
guidelines and expectations of the DUI Checkpoint, and the
designated roles and duties were assigned. At this DUI
Checkpoint, every vehicle was to be stopped for
approximately 30 seconds.4 There were written Sobriety
Checkpoint Instructions that were reviewed at this
meeting.
Sergeant Travis Kocher of the Macungie Police
Department is the Coordinator of Events, Rovers and DUI
Checkpoint. Sergeant Kocher participated in the planning
of the DUI Checkpoint established on September 5, 2013
in the Borough of Macungie. Prior to the implementation
of the DUI Checkpoint, Sergeant Kocher created a map
that was submitted to the Coordinator of the Lehigh
County DUI Task Force, Sergeant Jason Negrom, with
whom he works closely.5 The location of the DUI
Checkpoint was determined by Sergeant Kocher and
Sergeant Negrom, based on mobile awareness studies and
statistical data including the number of DUI incidents in
the Borough of Macungie and the number of accidents in
the Borough of Macungie. Main Street is the main
thoroughfare in the Borough of Macungie, and 60 of the
118 DUI incidents that occurred in the Borough of
Macungie from approximately 2009 through 2014
happened on said street.
At approximately 12:30 A.M., [Appellant] traveled
northbound through the DUI Checkpoint.6 Officer Todd
Bernhard of the Macungie Police Department, an assigned
contact officer, stopped [Appellant] and briefly engaged
her in conversation.7 Officer Bernhard inquired if
[Appellant] had anything to drink, and [she] stated that
she had consumed alcohol earlier in the evening
During this brief stop, Officer Bernhard’s cover officer
pointed out to Officer Bernhard a red plastic cup located on
the rear passenger side floor mat of the vehicle containing
some kind of liquid. When Officer Bernhard inquired what
was in the cup, [Appellant] denied even having a cup in
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the vehicle. [Appellant] eventually relinquished the cup,
which had an odor of alcoholic beverage. Consequently,
[Appellant] was asked to step out of her vehicle and was
escorted to the testing area, where she was administered a
series of field sobriety tests. [She] failed these tests.
[Appellant] was transported to the Lehigh County
Central Booking Center where her blood was drawn.8
Analysis of her blood revealed a blood alcohol content of
.14.
_________________
4
In the event that traffic would begin to back up, the
Coordinator of the Lehigh County DUI Task Force would
determine if fewer cars would be stopped, i.e., every other
car. However, due to the fact that the Borough of
Macungie is small, with only approximately 200 to 300
vehicles passing through the DUI Checkpoint, no changes
needed to be made to this procedure on this date or in the
past thirteen (13) years. The written procedure to be
following if this traffic situation would ever arise is that
there is a prior administrative decision as to what to do in
the event that traffic backs up.
On this evening, 231 vehicles passed the DUI
Checkpoint. There were 3 DUI alcohol arrests, 1 DUI drug
arrest, 1 possession of marijuana arrest, 1 possession with
intent to deliver marijuana arrest, 1 possession of
marijuana and underage drinking arrest, and 6 traffic
citations on this evening. These statistics were later
submitted to PennDOT.
5
The initial sign, “Sobriety Checkpoint Ahead” is placed
400 feet from the initial contact area. The “Be Prepared To
Stop” sign is placed 200 feet from the initial sign. The
next sign is “Slow Checkpoint Ahead Mini-Cade,” which is
placed 200 feet from the second sign. Each additional
marker is then place 30 feet apart. The location of the
contact officer and the cover officer are also delineated on
the map.
6
[Appellant] was the sole occupant in the vehicle and she
was crying. [She] indicated that she had gotten into an
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argument/altercation with someone prior to approaching
the checkpoint.
7
Upon initial contact, Officer Bernhard identified himself
as working with the Lehigh County Task Force and stated
that the purpose for the stop was to make contact with
motorists as they passed through the Borough of Macungie
to conduct a sobriety checkpoint.
8
[The trial court] took judicial notice of the fact that
Health Network Laboratories, located at 2024 Lehigh
Street, is approved to test blood alcohol pursuant to July
6, 2013, 43 Pa. Bulletin 3786.
Trial Ct. Op., 8/20/14, 2-4 (record citations omitted).
On September 6, 2013, Appellant was arraigned on charges of driving
under the influence of alcohol (generally),2 driving under the influence of
alcohol (highest tier, second offense),3 and restrictions on alcoholic
beverages.4 On June 9, 2014, Appellant filed an omnibus pretrial motion,
and a suppression hearing was held on July 23, 2014. The trial court issued
an opinion denying the motion on August 20, 2014, and she pleaded guilty
to driving under the influence of alcohol5 on October 20, 2014. That same
day, Appellant was sentenced to “a term of imprisonment in the Lehigh
County prison of not less than thirty (30) days nor more than six (6)
2
75 Pa.C.S. § 3802(a)(1).
3
75 Pa.C.S. § 3802(b).
4
75 Pa.C.S. § 3809(a).
5
See note 1, supra.
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months,” which “was ordered to commence on November 20, 2014.”6 Trial
Ct. Op., 12/16/14, at 1-2.
Appellant timely filed a post-sentence motion requesting a new trial on
November 14, 2014, which was denied on November 19, 2014. She timely
filed her notice of appeal to this Court on December 16, 2014. Appellant
was not ordered to file a Pa.R.A.P. 1925(b) statement.
Appellant raises the following issue for review:
Were Appellant’s Constitutional rights under the Fourth
and Fourteenth Amendments to the United States
Constitution and Article One, Section Eight of the
Pennsylvania Constitution violated when Appellant’s
Omnibus Pre-Trial Motion to Suppress Evidence was denied
based on the suppression court’s finding of substantial
compliance with the Tarbert/Blouse guidelines?
Appellant’s Brief at 1.
Appellant argues the DUI checkpoint was unconstitutional because it
did not conform with one of the five guidelines set forth in Commonwealth
v. Tarbert, 535 A.2d 1035 (Pa. 1987), and Commonwealth v. Blouse,
611 A.2d 1177 (Pa. 1992), which require a “decision as to which vehicles to
stop at the checkpoint [be] established by administratively pre-fixed,
objective standards, and [not] left to the unfettered discretion of the officers
at the scene.” Appellant’s Brief at 4 (citation omitted). She argues there
were “no . . . written procedure[s] to fall back upon” in the event traffic
6
Appellant filed a petition to stay sentence pending appeal on November 19,
2014, which the trial court granted on November 24, 2014.
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were to back up at the checkpoint, leaving the on-scene officer with too
much discretion. Id. at 5. Thus, she contends the trial court erred in
denying her motion to suppress. Id. at 8. We need not reach the merits of
this issue.7
Our review is governed by the following standards:
[An appellate court’s] 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, [the appellate court is] bound by
[those] 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 courts
below are subject to [ ] plenary review.
Commonwealth v. Garibay, 106 A.3d 136, 138-39 (Pa. Super. 2014)
(alterations in original and citations omitted).
In Commonwealth v. Faust, 471 A.2d 1263 (Pa. Super. 1984),
“[f]ollowing the entry of his guilty plea [to burglary], appellant did not file a
petition to withdraw [his] plea.” Id. at 1265. “Instead, he filed a petition
7
We note at oral argument, Appellant seemingly conceded the instant issue
had been waived by virtue of her guilty plea.
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for reconsideration of sentence, which was denied.” Id. On appeal to this
Court, the appellant argued “[t]he lower court erred in failing to suppress”
evidence. Id. In affirming his judgment of sentence, we opined:
[The defendant] freely chose to plead guilty to burglary
and criminal conspiracy. This plea, in turn, greatly
restricted the number of appealable issues. Once a plea
was entered, his petition to withdraw, and subsequent
appeal from a denial thereof, were limited to allegations
challenging the jurisdiction of the court, voluntariness of
his plea and the propriety of the sentence imposed. Non-
jurisdictional defects, such as those raised by [the
defendant] here, are waived as a result of the plea of
guilty, unless said defects are the primary motivation for
the plea. [The defendant] neither alleges nor proves that
the confession or physical evidence was the primary
motivation for the plea.
Id. 1266-67 (citations omitted).
Instantly, Appellant’s guilty plea to driving under the influence of
alcohol has “restricted the number of appealable issues” to those
“challenging the jurisdiction of the court, voluntariness of [her] plea and the
propriety of the sentence imposed.” See id. Because Appellant’s claim does
not implicate any of these issues, but rather challenges the trial court’s
denial of her suppression motion, this Court discerns no basis for relief. See
id. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2015
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