Com. v. Thompson, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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