J-A07043-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SORANGEL FONTANEZ-RESTO                    :
                                               :
                       Appellant               :   No. 121 MDA 2019

        Appeal from the Judgment of Sentence Entered January 7, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0004826-2016


BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JUNE 17, 2020

        Sorangel Fontanez-Resto appeals from the judgment of sentence

entered January 7, 2019, following her bench trial conviction of driving under

the influence (“DUI”)—controlled substance, and accidents involving damage

to attended vehicle or property.1 She challenges the trial court’s denial of her

pre-trial motion to dismiss, the sufficiency of the evidence underlying her DUI

conviction, and claims the trial court should have recused itself. Because all

of these issues were waived, we affirm.

        On July 10, 2016, Officer Wayne Holben of the West Reading Police

Department responded to a hit and run vehicle accident. Arriving on the scene,

he found Fontanez-Resto asleep seated in the front seat of her vehicle, the

striking vehicle. She appeared disoriented and lethargic and her pupils were

____________________________________________


1   75 Pa.C.S.A. §§ 3802(d) and 3743 respectively.
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pinpoint. She admitted to having taken Tramadol and Lipitor. Fontanez-Resto

failed all three field sobriety tests that the officer administered, falling asleep

during one of the tests. A Drug Recognition Expert officer went to the scene

and evaluated Fontanez-Resto, and determined that she was under the

influence of a narcotic. See Trial Court Opinion, 7/01/19, at 7-10.

       After a bench trial on January 7, 2019, the court found Fontanez-Resto

guilty of DUI-controlled substance and accidents involving damage to

attended vehicle or property. The court sentenced her to 72 hours to six

months of incarceration at Berks County Jail. This timely appeal followed.2

       Fontanez-Resto raises three issues on appeal:

    1. Did the [] trial court commit reversible error by its failure to
       dismiss the DUI alcohol/drug impairment charge after the July 25,
       2017 Commonwealth testimony and the court’s September 11,
       2017, order which excluded the blood results of the Appellant?

    2. Did the [] trial court commit reversible error by permitting the
       Commonwealth to continue the criminal prosecution of the
       [A]ppellant on the DUI impairment criminal charge, alcohol or
       drugs without any expert testimony of alcohol or drug
       impairment?

    3. Should the [] trial court have recused itself from the contested
       DUI trial of the appellant on November 16, 2018, after it had
       conducted the scheduled ARD hearings on December 19, 2016,
       January 23, 2017, February 27, 2017, April 12, 2017 and May 15,
       2017?
____________________________________________


2 However, because counsel’s mailing address in the court system was
incorrect, and he did not receive the court’s order, counsel failed to file a
timely concise statement of errors. After this Court remanded to the trial
court, Fontanez-Resto filed an amended concise statement listing thirty-five
numbered grievances. The trial court responded in its Rule 1925(a) opinion.
See Pa.R.A.P. 1925.


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Fontanez-Resto Br., at 2-3 (some capitalization omitted).

      In her first issue, Fontanez-Resto claims that the trial court erred when

it denied her motion to dismiss the DUI—controlled substance charge following

the pre-trial hearing. See id. at 6-7. This issue is waived.

      Issues not included in a concise statement of errors complained of on

appeal are waived. See Krebs v. United Refining Co. of Pa., 893 A.2d 776,

797 (Pa.Super. 2006) (“We will not ordinarily consider any issue if it has not

been set forth in or suggested by an appellate brief's statement of questions

involved, and any issue not raised in a statement of matters complained of on

appeal is deemed waived.”) (citations omitted); see also Commonwealth v.

Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b)

statement will be deemed waived.”).

      Here, in her concise statement of errors, Fontanez-Resto did not claim

that the trial court erred by failing to dismiss the DUI—controlled substance

charge after the pretrial hearing. See Amended Statement of Errors

Complained of on Appeal, 6/07/19. Accordingly, she has waived her first issue.

      In her second issue, Fontanez-Resto challenges the sufficiency of the

evidence to support her conviction of DUI—controlled substance. Specifically,

she claims that without expert testimony and blood test results, the evidence

introduced by the Commonwealth was insufficient to prove her guilt. See

Fontanez-Resto’s Br., at 8. This issue is also waived.

      When reviewing a challenge to the sufficiency of the evidence, we

determine “whether viewing all the evidence admitted at trial in the light most

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favorable to the [Commonwealth], there is sufficient evidence to enable the

fact-finder to find every element of the crime beyond a reasonable doubt.”

Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa.Super. 2016) (citation

omitted).

      However, the certified record we received from the trial court does not

contain the trial transcript, and its absence prevents us from reviewing

Fontanez-Resto’s sufficiency claim.

      This Court cannot meaningfully review claims raised on appeal
      unless we are provided with a full and complete certified record.
      This requirement is not a mere “technicality” nor is this a question
      of whether we are empowered to complain sua sponte of lacunae
      in the record. In the absence of an adequate certified record, there
      is no support for an appellant’s arguments and, thus, there is no
      basis on which relief could be granted.

      The certified record consists of the original papers and exhibits
      filed in the lower court, the transcript of proceedings, if any, and
      a certified copy of the docket entries prepared by the clerk of the
      lower court. Our law is unequivocal that the responsibility rests
      upon the appellant to ensure that the record certified on appeal is
      complete in the sense that it contains all of the materials
      necessary for the reviewing court to perform its duty.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (en banc)

(citations and some quotation marks omitted).

      Here, the trial transcript is not a part of the certified record, and it was

Fontanez-Resto’s duty, as appellant, to ensure that the record contained it.

Accordingly, her failure to do so results in waiver of this issue on appeal. See

id.

      In her final issue, Fontanez-Resto claims that the trial court should have

recused itself because Fontanez-Resto had appeared before the court for ARD

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hearings on five occasions prior to trial. This issue is also waived because

Fontanez-Resto did not raise it in the trial court.

      Pennsylvania Rule of Appellate Procedure 302(a) states that “[i]ssues

not raised in the lower court are waived and cannot be raised for the first time

on appeal.” Pa.R.A.P. 302(a). Instantly, it does not appear that Fontanez-

Resto raised any claim of possible judicial bias before the trial court. The

certified record does not contain a motion to recuse and the docket entries do

not reflect that Fontanez-Resto ever filed such a motion, and the absence of

the trial transcripts from the certified record precludes us from determining

that Fontanez-Resto preserved the claim in an oral motion. Moreover, it is not

our responsibility to scour the record and find evidence that the appellant

preserved her claims. Rather, that responsibility rests with the appellant. See

Pa.R.A.P. 2117(c), 2119(e). Fontanez-Resto did not comply with this rule of

appellate procedure. She thus also waived her third issue.

      Judgment of sentence affirmed.

Judge Dubow joins the Memorandum.

Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/17/2020


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