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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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).
____________________________________________


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.

____________________________________________


3
    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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J-A07025-16


       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


____________________________________________


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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J-A07025-16


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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J-A07025-16



                    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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J-A07025-16


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


                                    - 12 -
J-A07025-16


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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