J-A07025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MELISSA MARIE SPRING
Appellant No. 725 WDA 2015
Appeal from the Judgment of Sentence April 10, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001276-2014
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED APRIL 13, 2016
Appellant, Melissa Marie Spring, appeals from the April 10, 2015
judgment of sentence of 72 hours to 6 months imprisonment, plus a
$1,000.00 fine, following her conviction for driving under the influence
(DUI), highest rate of alcohol.1 After careful review, we affirm.
The trial court has set forth the relevant facts and procedural history
as follows.
[Appellant] was arrested on July 6, 2014[,]
and charged with DUI and Careless Driving after she
was stopped at a Pennsylvania State Police
checkpoint.
A preliminary hearing was held on August 20,
2014 before Magisterial District Judge D. Neil
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1
75 Pa.C.S.A. § 3802(c).
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McEwen. [Appellant] was held for trial on all charges
at the conclusion of the preliminary hearing.
[Appellant] was arraigned on October 21,
2014.
An Omnibus Motion[, seeking suppression of
evidence,] was filed on January 30, 2015. The sole
issue raised was whether or not the DUI checkpoint
was lawful.
An evidentiary hearing on the Omnibus Motion
was held February 4, 2015. Th[e suppression] court
made the following findings of fact at the conclusion
of that hearing:
1. Corporal James Powell was a patrol
supervisor for the Mercer barracks at the time in
question.
2. One of his duties involves reviewing
statistics and preparing request[s] for roadblock
approval.
3. Once he makes a request, it’s submitted to
the patrol supervisor in Butler for final approval.
4. Upon receipt of final approval, the
roadblock is implemented.
5. The barracks has between two and four
roadblocks per year.
6. For the period from May 11th, 2013,
through May 13th, 2014, there were four DUI stops
within a five mile radius of the intersection of Route
58 and Irishtown Toad [sic] in Pine Township.
7. The total number of stops for alcohol
related DUI’s [sic] made by the Pennsylvania State
Police during that period [in Mercer County] were
forty-five (45).
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8. Forty (40) of the forty-five (45) stops
occurred between the hours of 10:00 p.m. and 5:00
a.m.
9. Six of the stops occurred on what can be
considered holiday weekends; being the stop on July
5th, 2013, November 29th, 2013, two on December
27th, 2013, and two on January 5th, 2014.
10. Corporal Powell submitted a request to set
a DUI checkpoint up for the hours of 10:00 p.m.
until 4:00 a.m., from July 5th through July 6th, 2014,
to Butler for approval. It was approved and the
roadblock was set up.
11. [Appellant] is not contesting the manner
in which the actual DUI checkpoint was run, but only
his documentation for support of said checkpoint.
12. There are three bars on Route 58 west of
the checkpoint.
13. Route 58 is a main artery between Mercer
and Grove City.
On the basis of these facts, th[e suppression
c]ourt denied the Omnibus Motion.
A non-jury trial was held on February 19,
2015. [Appellant] was found guilty of DUI, a first
offense within 10 years under sub-section (c) and
not guilty of the remaining charges.
[Appellant] was sentenced on April [10],
2015[.]
Trial Court Opinion, 6/4/15, at 1-3.
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Appellant filed a timely notice of appeal on May 5, 2015.2 On appeal,
Appellant raises the following issue for our review.
Was the sobriety checkpoint stop of [Appellant]
lawful when the Commonwealth failed to
demonstrate that there were any alcohol related
arrests or DUI’s [sic] proximate to the checkpoint?
Appellant’s Brief at 5.
Our review is guided by the following.
Initially, we note “[o]ur 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.” Commonwealth v. Kearney, 92 A.3d
51, 65 (Pa. Super. 2014) (quotation and quotation
marks omitted).
[W]e 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 findings of the
suppression court, we are bound by those facts
and may reverse only if the court erred in
reaching its legal conclusions based upon the
facts.
Commonwealth v. Jaynes, --- A.3d ---, 2016 WL 805572, at *2 (Pa.
Super. 2016), quoting, Commonwealth v. Williams, 941 A.2d 14, 26–27
(Pa. Super. 2008) (en banc) (citations, quotations, and quotation marks
omitted).
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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With this standard in mind, we note that “[i]t is undisputed that the
stopping of an automobile and the detention of its occupants is a seizure
subject to constitutional restraints.” Commonwealth v. Blouse, 611 A.2d
1177, 1178 (Pa. 1992) (citations omitted).
Article I, Section 8, of the Pennsylvania Constitution
prohibits “unreasonable searches and seizures.” In
order to determine the reasonableness of a particular
search or seizure a balancing analysis is utilized,
wherein the intrusion on the individual of a particular
law enforcement practice is balanced against the
government’s promotion of legitimate interests. A
central concern in balancing the opposing interests is
protecting the individual from arbitrary invasions at
the unfettered discretion of the officers in the field.
Id. (citations omitted). Nevertheless, the Pennsylvania Motor Vehicle Code
“provides police with authority to stop vehicles and conduct systematic DUI
or traffic safety checkpoints, even though such stops are not based on
reasonable suspicion or probable cause standards.” Commonwealth v.
Garibay, 106 A.3d 136, 139 (Pa. Super. 2014), appeal denied 123 A.3d
1060 (Pa. 2015); see also generally 75 Pa.C.S.A. § 6308(b)3.
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Section 6308(b) provides as follows.
§ 6308. Investigation by police officers
…
(b) Authority of police officer.—Whenever a
police officer is engaged in a systematic program of
checking vehicles or drivers or has reasonable
suspicion that a violation of this title is occurring or
(Footnote Continued Next Page)
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[W]hen conducting roadblock checkpoint stops,
police in Pennsylvania must comply with the
Tarbert/Blouse[4] guidelines. Our Supreme Court
has stated these guidelines as follows:
[T]he conduct of the roadblock itself can be
such that it requires only a momentary stop to
allow the police to make a brief but trained
observation of a vehicle’s driver, without
entailing any physical search of the vehicle or
its occupants. To avoid unnecessary surprise
to motorists, the existence of a roadblock can
be so conducted as to be ascertainable from a
reasonable distance or otherwise made
knowable in advance. The possibility of
arbitrary roadblocks can be significantly
curtailed by the institution of certain
safeguards. First the very decision to hold a
drunk-driver roadblock, as well as the decision
as to its time and place, should be matters
reserved for prior administrative approval, thus
removing the determination of those matters
from the discretion of police officers in the
field. In this connection it is essential that the
route selected for the roadblock be one which,
based on local experience, is likely to be
travelled by intoxicated drivers. The time of
the roadblock should be governed by the same
consideration. Additionally, the question of
which vehicles to stop at the roadblock should
_______________________
(Footnote Continued)
has occurred, he may stop a vehicle, upon request or
signal, for the purpose of checking the vehicle’s
registration, proof of financial responsibility, vehicle
identification number or engine number or the
driver’s license, or to secure such other information
as the officer may reasonably believe to be
necessary to enforce the provisions of this title.
75 Pa.C.S.A. § 6308(b).
4
Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987); Blouse, supra.
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not be left to the unfettered discretion of police
officers at the scene, but instead should be in
accordance with objective standards prefixed
by administrative decision.
Blouse, [supra] at 1180 (quoting Tarbert, [supra]
at 1043). Otherwise stated:
[T]o be constitutionally acceptable, a
checkpoint must meet the following five
criteria: (1) vehicle stops must be brief and
must not entail a physical search; (2) there
must be sufficient warning of the existence of
the checkpoint; (3) the decision to conduct a
checkpoint, as well as the decisions as to time
and place for the checkpoint, must be subject
to prior administrative approval; (4) the choice
of time and place for the checkpoint must be
based on local experience as to where and
when intoxicated drivers are likely to be
traveling; and (5) the decision as to which
vehicles to stop at the checkpoint must be
established by administratively pre-fixed,
objective standards, and must not be left to
the unfettered discretion of the officers at the
scene.
Commonwealth v. Worthy, 957 A.2d 720, 725
([Pa.] 2008) (citing Blouse, supra, and Tarbert,
supra). “Substantial compliance with the
Tarbert/Blouse guidelines is all that is necessary to
minimize the intrusiveness of a roadblock seizure to
a constitutionally acceptable level.”
Commonwealth v. Yastrop, 768 A.2d 318, 323
([Pa.] 2001). However, where police do not comply
with the guidelines in establishing a checkpoint, the
trial court should suppress evidence derived from the
stop, including the results of field sobriety and blood
alcohol testing. See Commonwealth v. Blee, 695
A.2d 802, 806 (Pa. Super. 1997).
Garibay, supra at 139-140 (parallel citations omitted).
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Instantly, Appellant’s challenge on appeal mirrors her challenge raised
in her omnibus pretrial suppression motion. Specifically, Appellant confines
her argument to the fourth prong of the above-mentioned test, the choice of
time and place of the checkpoint. Appellant’s Brief at 11-12. Appellant
asserts that “only two incidents out of the 58 in the year being considered by
the State Police are even remotely close to this intersection, and again are
occurring in fact at different intersections than the checkpoint.” Id. at 11.5
“No DUI arrests or incidents and no accidents could be reported at the
intersection of the actual checkpoint[.]” Id. Further, “although the
Appellant does not dispute the time of day chosen for the checkpoint, the
holiday weekend argument advanced by the Commonwealth does not hold
water either.” Id. at 12. “[O]nly 6 of the 58 incidents testified to occur[red]
on a holiday weekend[.]” Id.
Upon review, we conclude Appellant’s assertions are belied by the
suppression court record. At the February 4, 2015 hearing, Corporal James
H. Powell, of the Pennsylvania State Police, testified as follows about his role
in setting up DUI sobriety checkpoints. N.T., 2/4/15, at 2. Corporal Powell
stated that a focus report was run from May 2013 to May 2014 which
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5
On cross-examination Appellant asked Corporal Powell about additional
DUIs, those for drug possession and DUIs with drugs. N.T., 2/4/15, at 13.
Appellant includes the drug related DUIs in the overall report in reaching 58
DUIs in the year. Id.
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revealed several DUIs in the Grove City, Pine Township, vicinity. Id. at 5.
Corporal Powell specifically testified to the following.
Q. Now, when you’re looking at the focus report
from the location where the DUI checkpoint was
established, what’s the range, if you know, as to how
far out of radius - - how do you determine what the
range is when looking at that report?
A. Basically, what was in the general area over the
past year.
Q. When you say general area, what do you mean?
A. For instance, there was a DUI taken
approximately two miles away at the Sheetz on 58 in
Grove City and that was May 11th, 2013. There was
another one at Irishtown Road and 208 and in Pine
Township that occurred the year before.
Q. What’s the furthest away that report shows in
reference to the Route 58 and Irishtown Road
distance?
A. The furthest location?
Q. Yes.
A. Looks like Williamson Road and Conneaut Lake
Road in Sugar Grove Township.
Q. How long time-wise or driving distance, mileage-
wise?
A. I’m going to say approximately 25, 30 miles.
Q. Okay. Now, on the report, in addition to the
vicinity report you have there that shows the DUI’s
[sic], what relationship, if any, to State Route 58 and
Irishtown Road did you choose in this location, or
why did you choose that specific location as opposed
to some other location that’s similar?
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A. Probably because there’s also drinking
establishments in Grove City and Mercer and along
58 and that’s a corridor that most people travel back
and forth down 58, to get to Mercer and back to
Grove City and there are numerous drinking
establishments in those two locations.
Q. On that report, are there any incidents of DUI
that occurred on State Route 58 and/or Irishtown
Road in that previous year?
A. Other than the one I mentioned at Sheetz on
State Route 58 and Irishtown Road, there was one
on 358 south near George Junior Road and one near
Nicklin Road, which is also in Pine Township.
Q. When looking at that report, through your
experience and in doing these in the past, does this
report generally reflect any report that you would
use in setting up a DUI checkpoint in the past, as far
as statistics go, when you’re looking to try and find a
centralized location?
A. Yes.
The Court: If I understand the testimony,
there were three DUI’s [sic] in that period?
A. There was [sic] four.
The Court: Sheetz, Nicklin - -
A. Sheetz, right, and Irishtown Road, 208,
Nicklin Road and State Route 58 near George
Junior Road in Pine Township.
The Court: How many DUI’s [sic] did you have
in Mercer County during that period?
A. In Mercer County overall?
The Court: Yeah. For that year.
A. I count 45.
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The Court: Thank you.
Q. Now, that 45 that you just talked about, is that
the whole County of Mercer?
A. That’s the whole County of Mercer.
The Court: These are PSP arrests?
A. Yes.
Q. So, of the 45 that you had, you base - - this
represents roughly 10 percent of the general location
of where - - at least, the Irishtown Road and State
Route 58 represent about 10 percent of all DUI’s
[sic] you had in 2013?
A. That’s correct.
Id. at 6-9.
Upon review of the testimony, and in light of our standard, we
conclude the trial court did not err in concluding the checkpoint substantially
complied with the Tarbert/Blouse guidelines. Appellant misconstrues the
specificity required of the state police in choosing a location. Appellant
essentially argues the exact intersection of the checkpoint location must
have a history of DUIs. Rather, our cases have held that the officer in
charge of setting up the checkpoint must articulate specifics such as the
reason for the location and the number of prior DUIs in the area of the
checkpoint. See Commonwealth v. Ziegelmeier, 685 A.2d 559, 562 (Pa.
Super. 1996) (holding “there was testimony … that the determination was
based on several factors, including volume traffic, number of DUI arrests in
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that area (as compared to the total number in Camp Hill) and the number of
DUI related accidents. Therefore, the roadblock was constitutional under the
requirements of Tarbert and Blouse[]”); cf. Blee, supra at 806 (holding
the officer “never testified as to the number of alcohol-related accidents
and/or arrests on Route 11 in Edwardsville, the specific location of the
sobriety checkpoint. … At the very least, the Commonwealth was required
to present information sufficient to specify the number of DUI-related arrests
and/or accidents on Route 11 in Edwardsville, the specific location of the
sobriety checkpoint[]”). Herein, Corporal Powell testified to ten percent of
the DUIs in Mercer County occurring in the area where the checkpoint was
placed. Further, Route 58 was a main connection known locally to be
traveled to Grove City.
Further, to the extent Appellant accepts the relevance of the
Commonwealth’s data that 40 out of 45 DUIs occurred between hours of
10:00 p.m. and 5:00 a.m., but focuses his inadequacy challenge solely on
the fact that only six of the reported DUIs were committed on holiday
weekends, we find Appellant’s temporal argument unavailing. Appellant’s
Brief at 12. A review of the February 4, 2015 suppression hearing reveals
that Appellant’s holiday weekend argument was never raised or discussed at
the hearing. The record is devoid of any challenge by Appellant to the date
of the checkpoint, rather Appellant’s argument was confined to the time of
day during which the checkpoint was performed. On appeal, Appellant
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concedes the she “does not dispute the time of day chosen for the
checkpoint[.]” Id. Therefore, we conclude the state police proffered
sufficient evidence that the place for the checkpoint was based on “local
experience as to where and when intoxicated drivers are likely to be
traveling[.]” Garibay, supra at 140, quoting Worthy, supra. Accordingly,
the Commonwealth has substantially complied with the fourth
Tarbert/Blouse factor and Appellant’s argument is devoid of merit.
Based on the foregoing, we conclude the trial court properly denied
Appellant’s suppression motion. Accordingly, we affirm the trial court’s April
10, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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Com. v. Spring, M.
Combined Opinion