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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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