Com. v. Welling, J.

• Court: Superior Court of Pennsylvania
• Decided: January 8, 2026
• Docket: 1031 WDA 2024
• Status: Unpublished

Opinion

J-S36013-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JOSHUA WELLING : : Appellant : No. 1031 WDA 2024

Appeal from the Judgment of Sentence Entered July 18, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006200-2023

BEFORE: PANELLA, P.J.E., NICHOLS, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY PANELLA, P.J.E.: FILED: JANUARY 8, 2026

Joslynn Welling1 appeals from the judgment of sentence entered in the

Court of Common Pleas of Allegheny County for her convictions of Driving

Under the Influence (“DUI”): Controlled Substance, 75 Pa.C.S.A. §

3802(d)(1), and DUI: Combination of Controlled Substances, 75 Pa.C.S.A. §

3802(d)(2). Welling challenges the denial of her suppression motion. She

argues that the DUI checkpoint was illegal and the officer did not have cause

to remove her from her vehicle. After careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 “Ms. Welling uses she/her/hers pronouns and the preferred first name ‘Joslynn.’” Appellant’s Brief, at 6 n.1. We have adopted Welling’s preferred pronouns and name for our review. J-S36013-25

On May 5, 2023, around 11:00 p.m., Welling was stopped at a DUI

checkpoint on Perry Highway in McCandless Township. The officer detected an

odor of burnt marijuana and observed that Welling was nervous and had

bloodshot and glassy eyes. When asked whether she had consumed any

alcohol or drugs, Welling initially denied that she had but then admitted that

she had consumed edible marijuana that night. Welling was asked to leave

her vehicle and perform a series of sobriety tests which Welling agreed to do.

Based on her performance, the observing officer concluded that Welling was

too impaired to operate a vehicle. Thereafter, Welling was read her Miranda

rights and consented to additional drug influence evaluation. Additionally,

Welling was read the DL-26B form and consented to a blood draw. Later, the

lab report indicated that Welling tested positive for cannabinoids, specifically

Delta-9 THC and Delta-9 Carboxy THC. On May 22, 2023, Welling was charged

with one count each of DUI: Controlled Substance and DUI: Combination of

Controlled Substances.

Welling filed a suppression motion, and a hearing was held on March 14,

2024. At the hearing, the officers testified as to the operation of the DUI

checkpoint and their interaction with Welling. At the end of the hearing, the

court denied Welling’s suppression motion.

A stipulated non-jury trial was held on July 18, 2024. The trial court

found Welling guilty of both counts and proceeded to sentencing. Welling was

sentenced to a 4-day DUI alternative to jail program, six months’ probation,

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and highway safety school. Welling appealed and filed a court ordered concise

statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). The trial

court issued an opinion in support of its ruling.2 See Pa.R.A.P. 1925(a).

On appeal, Welling raises the following issues.

1. Did the suppression court err in denying Ms. Welling’s suppression motion as the DUI checkpoint that she was subjected to constituted an arbitrary and discriminatory roadblock, and, as a result, violated her rights under the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution?

2. Did the suppression court err in denying Ms. Welling’s motion to suppress because Officer Dobransky did not possess the requisite quantum of cause necessary to remove Ms. Welling from her vehicle and subject her to standardized field sobriety tests?

Appellant’s Brief, at 5 (unnecessary capitalization omitted).

Our standard and scope of review for the denial of a suppression motion

is well established.

Our standard of review of a denial of suppression is whether the record supports the trial court’s factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we 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.

2 The Honorable Wrenna Watson ruled on the suppression motion. The Honorable Thomas Caulfield presided over the non-jury trial and sentencing. Presumably, because Welling’s issues raised on appeal involve the denial of her suppression motion, Judge Watson authored the 1925(a) opinion.

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Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa. Super. 2011) (en

banc) (citation omitted).

In her first issue, Welling challenges the constitutionality of the DUI

checkpoint where she was stopped. “Although the stopping of a motor vehicle

at a sobriety checkpoint constitutes a seizure for constitutional purposes, such

checkpoint stops are not per se unreasonable, and hence are not per se

unconstitutional under either the Fourth Amendment to the United States

Constitution or Article I, Section 8 of the Pennsylvania Constitution.”

Commonwealth v. Worthy, 957 A.2d 720, 724 (Pa. 2008) (citation

omitted).

When conducting a DUI checkpoint, the Tarbert/Blouse3 guidelines

provide the minimum constitutional requirements to which police must

comply.

To 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.

3 Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality); Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).

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Commonwealth v. Mercado, 205 A.3d 368, 373 (Pa. Super. 2019) (en

banc) (brackets, emphasis, and citation omitted). “Substantial compliance

with the guidelines is all that is required to reduce the intrusiveness of the

search to a constitutionally acceptable level.” Worthy, 957 A.2d at 725

(brackets and citation omitted).

Welling asserts that the Commonwealth failed to satisfy the fifth prong.

Welling argues that the Commonwealth failed to establish that the checkpoint

was operated pursuant to pre-fixed, objective standards because it did not

establish how the officer in charge (“OIC”) of the checkpoint was determined

and it failed to establish how many cars were waved through. See Appellant’s

Brief, at 20-23. Therefore, according to Welling, she was subjected to the

unfettered discretion of the officers at the scene. See id. at 23. The

Commonwealth argues that the instant case is consistent with our Supreme

Court’s decision in Worthy, and thus, the checkpoint was constitutional. See

Appellee’s Brief, at 23-27. We agree with the Commonwealth.

In Worthy, officers conducting a planned sobriety checkpoint

suspended the checkpoint three times when the traffic was heavy to allow all

traffic to pass through without stopping. See Worthy, 957 A.2d at 721-22.

The appellee was one of the vehicles stopped and he was ultimately arrested

and charged with two DUI offenses. Id. at 722. The appellee filed a

suppression motion arguing that “because the administrative approval for the

checkpoint failed to delineate any fixed criteria as to the circumstances under

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which the checkpoint could be temporarily suspended and then restarted, it

conferred upon the on-site officers unfettered discretion concerning which

vehicles to stop[.]” Id. Agreeing with the appellee, the trial court granted the

suppression motion and the Superior Court affirmed. Id. at 723. Our Supreme

Court granted review and reversed.

The Supreme Court reasoned that the decision to stop vehicles was not

subject to the arbitrary discretion of the officers because when the checkpoint

was in operation every vehicle was briefly stopped and when the checkpoint

was suspended every vehicle was allowed to pass through unimpeded. See

id. at 726. Allowing officers to avoid unreasonable delay and ensure the safe

operation of the checkpoint is consistent with the Tarbert/Blouse guidelines.

See id. As the Supreme Court explained: “[d]iscretion so severely limited by

the requirements of maximum safety and minimum delay is not unfettered.”

Id. (emphasis in original). Further, the Supreme Court rejected the notion

that “the decision as to when to suspend a checkpoint can be reduced to a

single, quantitative, pre-determined standard, i.e., the specific number of

vehicles backed up behind a checkpoint.” Id. at 727 (citation omitted). Such

a predetermined decision cannot “incorporate all of the complexities involved

in assessing traffic conditions” and requiring officers to tally the vehicles

passing through the checkpoint would distract the officers from their primary

responsibility of “conducting a sobriety checkpoint safely, efficiently, and with

only reasonable delay to the travelling public.” Id.

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Here, the trial court summarized the testimony and explained why the

checkpoint complied with the fifth Tarbert/Blouse guideline.

In this case, the government’s factual presentation satisfied its burden of demonstrating compliance with the particular Tarbert-Blouse guideline at issue. The roadblock took place on May 5, 2023. The Operation Plan called for every vehicle to be stopped. It also recognized the possibility that a traffic back-up would take place. When that happens, Sgt. Petosky testified as to what the response would be. “If traffic or a backlog occurs at this checkpoint site to where there is a significant number of cars waiting to be checked, the checkpoint OIC will ensure that traffic is [waved] through without being stopped. After traffic has completely cleared, the next vehicle entering the checkpoint will be stopped and the checkpoint will resume normal operations.” [N.T., 3/14/25, at] 13. From cross-examination of Sgt. Petosky, we learned a few things. The person making the decision to temporarily suspend the roadblock is the OIC. . . . The primary consideration which drives that decision is “just eyeballing” the situation.[FN6]

FN6: The court interpreted the phrase “just eyeballing it” as the officer’s way of saying I considered all the circumstances that I was presented with and made a decision based upon the totality of those circumstances. Contributing to this conclusion was the manner in which the officer said it, the tone of his voice and his facial expressions as he said it.

The government’s second witness was Officer Connor Dobransky. He testified “that we let vehicles go on this checkpoint”. [N.T., 3/14/25, at] 32. But, this evidence came with two caveats. First, “I don’t know exactly when we let that influx of cars through.” Id. The best he could offer was speculation.

Q: So, there could have been a backlog right prior to speaking [to Ms. Welling] —

A: Yeah. Absolutely. There could have been. Yes.

[Id.] Second, the decision to suspend the roadblock is not his to make as that is “completely out of my control.” [Id. at] 40. The totality of this evidence shows a written operational plan allowed

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for a common eventuality — a traffic back-up. The plan provided a solution[: vehicles would be waved through until traffic abated.] That solution was implemented. Recognizing a certain latitude must be given [to] the commanding officer on the scene to extinguish the back-up, the court finds no deviation from the Tarbert-Blouse guidelines.

Trial Court Opinion, 1/2/25, at 10-11 (footnote and unnecessary capitalization

As explained by the trial court, and consistent with Worthy, the process

implemented by the officers on the scene, who exercised discretion to allow

vehicles through due to traffic, as contemplated by the Operation Plan, did not

run afoul of the Tarbert/Blouse guidelines. Such a decision cannot be

adequately predetermined and allowing officers to make that determination

on the scene is necessary for the safe, efficient, and effective operation of a

sobriety checkpoint. See Worthy, 957 A.2d at 727. Therefore, Welling’s first

issue does not merit relief.

In her second issue, Welling argues that the officer lacked probable

cause to remove her from the vehicle. Welling argues that the officer’s decision

to remove her from the vehicle required probable cause that she was under

the influence, which was lacking because it was based only on the “singular

observation” of her bloodshot and glassy eyes. See Appellant’s Brief, at 25.

Welling’s argument is wholly without merit.

First, Welling is incorrect that the officer needed probable cause to

remove her from the vehicle. Only reasonable suspicion is required to support

a lawful investigative detention. See Commonwealth v. Cauley, 10 A.3d

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321, 326 (Pa. Super. 2010). “To meet the standard of reasonable suspicion,

the officer must point to specific and articulable facts which, together with the

rational inferences therefrom, reasonably warrant the intrusion.” Id. (citation

omitted). In the context of DUIs, only reasonable suspicion is required to

subject a driver to sobriety tests. See id. at 327.

Second, rather than a “singular observation” the officer testified that

when he came into contact with Welling, he smelled the odor of burnt

marijuana and Welling was nervous in addition to Welling having bloodshot

and glassy eyes. See N.T., 3/14/25, at 28. Notably, Welling also admitted to

having consumed edible marijuana that night. Id. At that point the officer

asked Welling to exit the vehicle to perform sobriety tests. Id. at 29. The

officer clearly had the requisite cause, reasonable suspicion, to do so. See

Cauley, 10 A.3d at 327 (odor of alcohol and bloodshot eyes constituted

reasonable suspicion of intoxication to justify investigative detention to allow

officer to submit the defendant to sobriety tests). Based on Welling’s

performance of the sobriety tests, the officer’s suspicions were confirmed and

the investigation continued. Therefore, Welling’s argument does not merit

relief.

Judgment of sentence affirmed.

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DATE: 01/08/2026

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