J-S65033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT R. GALLAGHER                        :
                                               :
                       Appellant               :   No. 843 MDA 2019

          Appeal from the Judgment of Sentence Entered May 1, 2019
    In the Court of Common Pleas of Susquehanna County Criminal Division
                      at No(s): CP-58-SA-0000001-2019


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                           FILED DECEMBER 30, 2019

        Appellant, Robert R. Gallagher, appeals from the judgment of sentence

of a fine of $500.00, which was imposed after conviction at a bench trial for

operating a motor carrier vehicle in violation of out-of-service criteria.1 We

affirm on the basis of the trial court opinion.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 4107(b.1) (“No person shall operate a motor carrier vehicle or
cause, permit, require or otherwise allow any other person to operate a motor
carrier vehicle in violation of driver out-of-service criteria or standards
periodically adopted by the United States Department of Transportation and
adopted by reference by the department under the provisions of section 6103
(relating to promulgation of rules and regulations by department). The
department shall coordinate with the Pennsylvania Public Utility Commission
in the enforcement of this subsection and 66 Pa.C.S. § 3312 (relating to
evasion of motor carrier and broker regulations).”).
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        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case.       See Trial Court Opinion, filed

June 21, 2019, at 1-4. Therefore, we have no reason to restate them at length

here.     For the convenience of the reader, we briefly note that, on

November 14, 2018, Corporal Jeffrey Burman of the Pennsylvania State Police

was working a motor carrier enforcement detail at the Welcome Center/Weigh

Station in Great Bend Township, Susquehanna County, when Appellant pulled

in his truck and trailer. Id. at 2. In compliance with the inspection, Appellant

provided Corporal Burman with his driver’s license, registration of the truck,

a bill of lading, and a tablet containing an electronic record of his hours of

service in a duty status log. Id. The corporal noticed that Appellant was

marked “off duty” in the log from 9:30 that morning until the time of the

inspection at 3:45 p.m., even though Appellant had been driving a loaded

trailer when he pulled in for the inspection. Id. at 3. Corporal Burman then

observed multiple instances where Appellant appeared to be driving based on

the record of the truck’s physical movement, but Appellant’s duty status log

indicated that he was not driving. Id. After Appellant was convicted of the

aforementioned charge and sentenced, he did not file any post-sentence

motions; he filed a timely direct appeal on May 24, 2019.2

        Appellant presents the following issue for our review:


____________________________________________


2Appellant filed his statement of errors complained of on appeal on June 17,
2019. The trial court entered its opinion on June 21, 2019.

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       Whether the verdict was against the sufficiency of the evidence?

Appellant’s Brief at 4.

       Preliminarily, we note that, although not mentioned in his statement of

questions involved, Appellant argues that “Corporal Burman did not apply the

correct safe harbor exception for drivers who have current logs for the past

six days but are not current on the day of the citation.” Id. at 8 (citing 49

C.F.R. § 395.13(b)(3)).3 However, Appellant raised this argument for the first

time in his brief to this Court. Failure to raise this claim before the trial court

results in waiver. Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”).          Accordingly,

Appellant’s assertion that a “safe harbor exception” applies to his case is

waived.

       Appellant’s remaining contention is that the evidence was not sufficient

to establish that he presented a false duty status log and that his actions were

in violation of driver out-of-service criteria. Appellant’s Brief at 7, 9.

       This Court’s standard for reviewing sufficiency of the evidence
       claims is as follows:

          We must determine whether the evidence admitted at trial,
          and all reasonable inferences drawn therefrom, when
          viewed in a light most favorable to the Commonwealth as
          verdict winner, support the conviction beyond a reasonable
          doubt. Where there is sufficient evidence to enable the trier
          of fact to find every element of the crime has been
____________________________________________


3“A driver failing only to have possession of a record of duty status current
on the day of examination and the prior day, but has completed records of
duty status up to that time (previous 6 days), will be given the opportunity to
make the duty status record current.” 49 C.F.R. § 395.13(b)(3).

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         established beyond a reasonable doubt, the sufficiency of
         the evidence claim must fail.

         The evidence established at trial need not preclude every
         possibility of innocence and the fact-finder is free to believe
         all, part, or none of the evidence presented. It is not within
         the province of this Court to re-weigh the evidence and
         substitute our judgment for that of the fact-finder. The
         Commonwealth’s burden may be met by wholly
         circumstantial evidence and any doubt about the
         defendant’s guilt is to be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that, as a matter
         of law, no probability of fact can be drawn from the
         combined circumstances.

      Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
      2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
      (Pa.Super. 2012)).

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal

brackets omitted).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Jason J. Legg,

we conclude that Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of that question. See Trial

Court Opinion, filed June 21, 2019, at 4–6 (finding: Corporal Burman credibly

testified that, following an inspection of Appellant’s duty status log, he found

numerous inconsistencies between Appellant’s log entries and his physical

locations at the time of the entries; Appellant’s explanation that the errors in

the electronic log were due to a malfunction of his tablet “is not convincing

particularly where he testified that he failed to perceive those errors for two

days”; “the Commonwealth, through the credible testimony of [Corporal]

Burman, met its burden of proving beyond a reasonable doubt” that Appellant

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made “a false report in connection with a duty status”). Consequently, we

affirm on the basis of the trial court’s opinion. The parties are instructed to

attach the opinion of the trial court in any filings referencing this Court’s

decision.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/2019




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