J-S57035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

KOREY THOMPSON

                            Appellant                     No. 506 EDA 2014


                Appeal from the Order entered January 23, 2014
              In the Court of Common Pleas of Philadelphia County
                  Criminal Division at No: MC-CR-0026151-2011


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED DECEMBER 04, 2014

        Appellant Korey Thompson appeals from the January 23, 2014 order1

of the Court of Common Pleas of Philadelphia County (trial court), which

denied his petition for writ of certiorari2 (Petition) after he was convicted in

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1
  Insofar as Appellant attempts to appeal from the July 26, 2013, judgment
of sentence entered in Municipal Court of Philadelphia, we must disagree.
The appeal here lies from the trial court’s January 23, 2014 order denying
Appellant’s Petition. See generally Commonwealth v. Wormley, 949
A.2d 946, 947 (Pa. Super. 2008). Accordingly, we have corrected the
caption above.
2
    As we have explained:
        A petition for a writ of certiorari is an alternative to an appeal for
        a trial de novo in the common pleas court. Whereas the petition
        requests that the common pleas court review the record made in
        the municipal court, the appeal gives the defendant a new trial
        without reference to the record established in the municipal
        court. The following example illustrates the difference between
        the two procedures: “[I]f the evidence was insufficient to sustain
        the conviction, [the] . . . writ of certiorari would terminate the
(Footnote Continued Next Page)
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the Philadelphia Municipal Court of driving under the influence (DUI) of a

controlled substance in violation of Section 3802(d)(1)(iii) and (2) of the

Motor Vehicle Code (Code).3 On appeal, Appellant alleges that the municipal

court erred in denying his pre-trial suppression motion. For the reasons set

forth below, we affirm the trial court’s order.

      The    facts     and    procedural     history   underlying   this   appeal   are

undisputed. As summarized by the trial court:
             On June 18, 2011, following his arrest at a sobriety
      checkpoint, [Appellant] was charged under Chapter 38 of the
      . . . Code    for driving under the influence of a controlled
      substance metabolite . . . and driving under the influence under
      a drug or combination of drugs that impair ability to safely
      operate a vehicle . . . . It was [Appellant’s] second offense.
             [Appellant] filed a [m]otion to [s]uppress, which was heard
      by the Honorable Gerard Kosinski on July 26, 2012. At the
                       _______________________
(Footnote Continued)

      prosecution, while a de novo appeal would merely require a new
      trial at which the Commonwealth would have another
      opportunity to convict the defendant.”
Commonwealth v. Speights, 509 A.2d 1263, 1264 n.2 (Pa. Super. 1986)
(citation omitted), appeal denied, 535 A.2d 83 (Pa. 1987).
3
 Section 3802(d) of the Code, relating to controlled substances, provides in
pertinent part:
      An individual may not drive, operate or be in actual physical
      control of the movement of a vehicle under any of the following
      circumstances:
          (1) There is in the individual’s blood any amount of a:
               ....
             (iii) metabolite of a [schedule I, II, or III]
             substance[.]
          (2) The individual is under the influence of a drug or
          combination of drugs to a degree which impairs the
          individual’s ability to safely drive, operate or be in actual
          physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(d)(1)(iii), (2).



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      [m]otion to [s]uppress hearing, Lieutenant James McCarrick
      testified to instituting the sobriety checkpoint at 3600
      Kensington Avenue on June 17, 2011, beginning at 10:00 p.m
      and concluding at 4:00 a.m. the following morning, June 18,
      2011. . . .
             On the basis of the evidence presented, Judge Kosinski
      held that the sobriety checkpoint comported with all
      constitutional requirements.
              ....
             The case proceeded to waiver trial on June 17, 2013
      before the Honorable Bradley K. Moss.               Based on the
      [testimonial evidence] . . . , and the legal arguments of
      [Appellant’s] counsel and the Commonwealth, Judge Moss found
      [Appellant] guilty of the offense[s] charged.          [Appellant’s]
      counsel moved for a mistrial on the grounds that [Appellant] had
      previously appeared before Judge Moss, which Judge Moss
      denied.
             [Appellant], through his counsel, filed [the Petition], which
      the [trial court] heard on January 23, 2014. . . . [The trial
      court], after hearing oral arguments, denied [Appellant’s]
      Petition[.]
             On January 30, 2014, [Appellant] timely filed this [n]otice
      of [a]ppeal to the Superior Court. Pursuant to [the trial court’s]
      directive, on February 20, 2014, [Appellant] timely submitted his
      [c]oncise [s]tatement of [e]rrors [c]omplained of on [a]ppeal.

Trial Court Opinion, 3/21/14, at 1-3 (internal record citation omitted).

Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement, the trial court

issued a Pa.R.A.P. 1925(a) opinion. In the Rule 1925(a) opinion, the trial

court concluded that, based on the record, Appellant’s claim challenging the

municipal court’s denial of his suppression motion was without merit,

because the sobriety checkpoint passed constitutional muster.         The trial

court also dismissed as lacking merit Appellant’s argument that the data or

statistical evidence relied upon by Lieutenant McCarrick to institute the

sobriety checkpoint was stale.




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       On appeal,4 Appellant raises a single issue for our review:
       Should not the evidence against [A]ppellant have been
       suppressed where [A]ppellant was illegally stopped at a DUI
       checkpoint that did not comply with constitutional standards
       because the specific location selected for the checkpoint was not
       supported by any data on DUI[-]related arrests or accidents at
       that location, and it was not chosen because it was likely to be
       traveled by intoxicated drivers?

Appellant’s Brief at 3.
       [T]o be constitutionally acceptable, a checkpoint[5] 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
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4
  When considering a petition for writ of certiorari, a common pleas court sits
as an appellate court with respect to the judgment of sentence entered in
the lower court. See Commonwealth v. Dincel, 457 A.2d 1278, 1281-82
(Pa. Super. 1983). As a result, the standards of review used by the common
pleas courts are identical to the standards used by this Court. Thus, with
respect to the denial of a suppression motion, that review:
       [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 in the suppression court, we may
       consider only the evidence of the Commonwealth and so much of
       the evidence for the defense as it remains uncontradicted when
       read in the context of the record as a whole. Where the record
       supports the factual findings of the [suppression] court, we are
       bound by those facts and may reverse only if the legal
       conclusions drawn therefrom are in error.
Commonwealth v. Scarborough, 89 A.3d 679, 683 (Pa. Super. 2014)
(quotation omitted). We note that in In the Interest of L.J., 79 A.3d 1073
(Pa. 2013), our Supreme Court recently applied prospectively a new rule
regarding the scope of review in suppression matters. L.J., 79 A.3d at
1088-89. Specifically, it clarified that an appellate court’s scope of review in
suppression matters includes the suppression hearing record, and not
evidence elicited at trial. Because the litigation in this case commenced
prior to L.J., it has no bearing on the instant case.
5
  Section 6308 of the Motor Vehicle Code authorizes law enforcement to
engage in “systematic program[s] of checking vehicles or drivers,” i.e.,
checkpoints or roadblocks. 75 Pa.C.S.A. § 6308(b).



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       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) (summarizing

Commonwealth           v.    Blouse,      611      A.2d   1177   (Pa.   1992),      and

Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987)6 (plurality)

(generally known as the “Tarbert/Blouse guidelines”)).                   “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).      The underlying policy of Tarbert/Blouse is the prevention of

arbitrary    checkpoints,      which     violate    constitutional   prohibitions   on

unreasonable searches and seizures. See Blouse, 611 A.2d at 1178.

       Instantly, Appellant essentially argues that the Commonwealth did not

satisfy the Tarbert/Blouse guidelines because it failed to adduce sufficient

evidence to establish that the location for the checkpoint was likely to be

traveled by intoxicated drivers. Appellant’s Brief at 7. As a result, Appellant

argues, the checkpoint was unconstitutional, and the evidence obtained

therefrom should have been suppressed. Id. We disagree.
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6
 The Tarbert court balanced the intrusion on individuals from checkpoints
with the government’s legitimate interests. Tarbert, 535 A.2d at 1042-43.



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       Under      Pennsylvania       Rules     of      Criminal    Procedure,     “[t]he

Commonwealth shall have the burden . . . of establishing that the challenged

evidence    was    not    obtained    in   violation    of   the   defendant’s   rights.”

Pa.R.Crim.P. 581(H). To establish that a roadblock likely is to be traveled by

intoxicated drivers, the Commonwealth, at the minimum,7 must adduce

evidence sufficient to indicate that the location of the roadblock was selected

based on an evaluation of DUI arrests in a particular police district, which

has a disparately high number of DUI arrests.                See Commonwealth v.

Fioretti, 538 A.2d 570, 576 (Pa. Super. 1988) (upholding a checkpoint

where its location in District 13 was chosen based on an evaluation of drunk-

driving arrests in the fifteen districts comprising the Williamsport Police

____________________________________________


7
  Roadblocks are deemed constitutional where the Commonwealth provides
a greater quantum of location-specific evidence of DUI arrests or accident to
justify the establishment of a roadblock. See Commonwealth v. Stewart,
846 A.2d 738, 741 (Pa. Super. 2004) (“[T]he route selected was likely to be
traveled by intoxicated drivers . . . . The record indicates that there were
thirty-two [DUI] arrests and twenty-six underage drinking citations in the
area of the roadblock over the previous six years[.]”), appeal denied, 885
A.2d 42 (Pa. 2005); Commonwealth v. Rastogi, 816 A.2d 1191, 1193 (Pa.
Super. 2003) (“[The officer] also stated that for confirmation he looked at
Philadelphia Police Department accident investigation statistics for the years
1996 and 1997, which showed 80 and 101 arrests for those years
respectively on Allegheny Avenue.”), appeal denied, 856 A.2d 833 (Pas.
2004); Commonwealth v. Ziegelmeier, 685 A.2d 559, 562 (Pa. Super.
1996) (“[The officer] stated that during a thirteen month period from
September 1, 1993, to October 1, 1994, he had statistics that showed there
were 58 DUI arrests in the area of the checkpoint, out of a total of 80 DUI
arrests in the entire borough.”); Commonwealth v. Myrtetus, 580 A.2d
42, 45 (Pa. Super. 1990) (“[T]he selected roadblock location, time and day
of the week were among the highest for DUI arrests[.]”).



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Department, and the record indicated that the district had a disparately high

number DUI arrests).

      Instantly, to establish its burden of proof, the Commonwealth at the

suppression hearing offered the testimony of Philadelphia Police Lieutenant

James McCarrick, employed in the accident investigation division.           N.T.

Hearing, 7/26/12, at 6. Lieutenant McCarrick testified that he was the DUI

coordinator for the City of Philadelphia. Id. He also testified that, as the

DUI coordinator, he has “received training from the State Police in the

operation administration of DUI checkpoints.” Id.

      Regarding the particular checkpoint at issue sub judice, Lieutenant

McCarrick testified that he instituted the sobriety checkpoint at 3600

Kensington Avenue on June 17, 2012. Id. at 7. He also testified that he

chose the 3600 Kensington location based on statistical evidence from 2007

to 2009.    Id.   Specifically, describing how he examines the statistics,

Lieutenant McCarrick relayed:
      Basically, what I do is break down the entire City of Philadelphia
      into individual districts, seven-day periods, 24-hour blocks. This
      is the 24th District, which, is in that time period was fifth is in
      the city for the number of DUI-related incidents, and it also tells
      me the largest majority of DUI incidents occur between 10:00
      p.m. and 4:00 a.m. on Friday and Saturday.

Id. (emphasis added). Lieutenant McCarrick further testified that he chose

the 3600 Kensington location because it was “large and safe enough to

sustain an operation . . . which consists of four vehicles, 18 officers, three

supervisors, and one large processing center, approximately the size of a fire

truck.” Id. at 7-8.

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      On cross-examination, elaborating on his background, Lieutenant

McCarrick remarked “I go to training. I receive my training. I go to updated

training each year; and, in the training, the instructors use various methods,

whether it be slide shows, chalkboards, and the rest is physical operation

itself.” Id. at 11. He, however, acknowledged that he did not have written

materials or guidelines on how to operate a sobriety checkpoint. Id. at 10-

11. Lieutenant McCarrick further acknowledged that he personally selected

the location and date of the checkpoint at 3600 Kensington Avenue. Id. at

11.    Explaining how he collected information necessary to initiate a

checkpoint, Lieutenant McCarrick testified: “I tabulated everything DUI that

took place in the entire city during that three-year period, I broke down into

districts, into days, into hours.” Id. at 12. With respect to the nature of the

underlying information, Lieutenant McCarrick testified that “every DUI arrest

in the city . . . is assigned a . . . number of that arrest; where it took place;

when it took place; who was arrested. I’m able to see every one of those

arrests.”   Id. at 13.   He, however, conceded that he did not review any

Pennsylvania Department of Transportation (DOT) studies. Id.

      Lieutenant McCarrick repeated that the checkpoint at issue ran from

10:00 p.m. until 4:00 a.m. Id. at 14. He also explained that, although the

City of Philadelphia is 143 square miles, the 24th District, in which the 3600

block of Kensington Avenue is located, is roughly 2.2 square miles. Id. at

12. Finally, Lieutenant McCarrick admitted that DUI-related information was




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not specific to any location within the 24th district, including the 3600 block

of Kensington Avenue. Id.

      Based on the evidence of record, we conclude that, under Fioretti, the

Commonwealth provided sufficient evidence to justify the establishment of a

checkpoint at 3600 Kensington Avenue. Here, Lieutenant McCarrick testified

that he selected the 3600 Kensington location for the checkpoint because of

his examination of three years of incident data or statistical evidence for the

City of Philadelphia. The statistical evidence broken down by police district

revealed that the 24th District, where 3600 Kensington Avenue is located,

had the fifth highest rate of DUI-related incidents in the city. See Fioretti,

538 A.2d at 577 (“[T]he location of the roadblock was chosen based on a

statistical analysis of which district had the highest number of driving under

the influence arrests or accidents[.]”).    We, therefore, agree with the trial

court’s conclusion that the checkpoint at 3600 Kensington Avenue was

constitutional because the Commonwealth substantially complied with the

Tarbert/Blouse guidelines.       Accordingly, the trial court did not err in

denying Appellant’s Petition.

      To   the   extent   Appellant   relies   on   this   Court’s   decision   in

Commonwealth v. Blee, 695 A.2d 802 (Pa. Super. 1997), to compel a

different result, we disagree.    In Blee, the appellee was stopped at a

sobriety checkpoint set up on Route 11 in Edwardsville, Luzerne County.

Blee, 695 A.2d at 803-04. The police officer responsible for overseeing the

selection of the checkpoint testified that, prior to selecting the location, “he

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reviewed studies from [DOT] regarding DUI arrests and DUI-related

accidents in Luzerne County during the years 1989 through 1994.”                Id. at

804. The officer, however, admitted on cross-examination that “the studies

were not specific to DUI-related accidents and arrests at the particular

location of the sobriety checkpoint, that is, Route 11 in Edwardsville.” Id.

He acknowledged that the studies specifically “indicated that, among roads

in Luzerne County, Route 11 had the second highest incidence of alcohol-

related accidents, and that, among the municipalities in Luzerne County,

Edwardsville had one of the highest incidences of alcohol-related accidents.”

Id.

      “The studies did not provide any information concerning DUI-related

accidents or arrests in the area of the checkpoint nor did [they] indicate the

likelihood of the checkpoint location being traveled by drunk drivers.”             Id.

Based on these facts, a panel of this Court held that the sobriety checkpoint

at issue was unconstitutional because it did not comport with the

Tarbert/Blouse     guidelines.       Id.    at   806   (“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.”).   As a result, the panel affirmed the trial court’s order

granting the appellee’s suppression motion. Id.

      The facts of the case sub judice are distinguishable from those in Blee.

As the trial court noted, in Blee,
      the highway at issue was situated in rural portions of the state.
      Further, the data relied upon in Blee concerned a road which

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      stretched for a great many miles in that rural area. Here, the
      road at issue is located in the 24th District of Philadelphia, hardly
      a rural area. And, it is significantly smaller in size and mileage
      than the location/rule area at issue in Blee.

Trial Court Opinion, 3/21/14, at 10 (emphasis in original). Also, unlike Blee,

in which only county-wide data was used in choosing a checkpoint location,

here Lieutenant McCarrick testified that he selected a location in the 24th

District because the district had the fifth highest rate of DUI-related

incidents in the City of Philadelphia. With respect the specific location in the

24th District, Lieutenant McCarrick testified that he chose the 3600 block of

Kensington Avenue because it was large enough to carry out safely a

sobriety checkpoint. Accordingly, Appellant’s reliance on Blee is misplaced.

      In sum, the Commonwealth presented sufficient evidence to establish

that the location for the checkpoint at 3600 Kensington Avenue was likely to

be traveled by intoxicated drivers. See Worthy, 957 A.2d at 725 (“[I]t is

essential that the route selected for the roadblock be one which, based on

local experience, is likely to be traveled by intoxicated drivers.”). Therefore,

applying the Tarbert/Blouse guidelines, the checkpoint was constitutional.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014



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