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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
RICHARD LEE RAMSEY,                      :         No. 1528 MDA 2019
                                         :
                         Appellant       :


        Appeal from the Judgment of Sentence Entered August 21, 2019,
                in the Court of Common Pleas of Franklin County
                Criminal Division at No. CP-28-CR-0001462-2018


BEFORE: PANELLA, P.J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 24, 2020

        Richard Lee Ramsey appeals from the August 21, 2019 judgment of

sentence entered in the Court of Common Pleas of Franklin County, after being

convicted, in a bench trial, of driving under the influence of a controlled

substance – impaired ability and driving while operating privilege is suspended

or revoked.1 The trial court sentenced appellant to a term of incarceration of

not less than 72 hours nor more than 6 months for driving under the influence

and a consecutive sentence of 6 months’ probation for driving under

suspension. We affirm.

        The record reflects that Pennsylvania State Troopers Lucas Amarose and

Spencer Taylor testified that on April 29, 2018, at 8:00 a.m., they received a




1   75 Pa.C.S.A. §§ 3802(d)(2) and 1543(a), respectively.
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dispatch for a report of an unconscious male in the parking lot of a Sheetz in

Greencastle.   (Notes of testimony, 7/19/19 at 10, 58, 59.)         The report

described the suspect as an unconscious black male behind the wheel of a

gold sedan. (Id.) Upon arrival, Trooper Taylor noticed appellant’s vehicle

was not fully into the parking stall and the rear quarter of the vehicle was

outside of the lines.   (Id. at 59.)    Trooper Amarose observed appellant

passed out behind the wheel with the key in the ignition and the transmission

in drive. The ignition was in the “on” position, but the engine was not running.

(Id. at 11.)

      Trooper Amarose knocked on the window several times before appellant

awoke. (Id. at 12, 13.) Although it was 8:30 a.m., appellant stated that he

had been sleeping because he just got off work at 7:00 a.m. (Id. at 13.)

When Trooper Amarose asked to see appellant’s operator’s license and proof

of insurance, appellant was unable to produce his license, advising

Trooper Amarose that it was in his other clothes. (Id.) Trooper Amarose,

however, learned that appellant’s operating privileges were suspended. (Id.)

      While talking to appellant, Trooper Amarose observed prescription

medication inside appellant’s vehicle.     (Id. at 16.)     Appellant’s speech

vacillated between loud and quiet; he appeared sleepy at times and

wide-awake at other times.     (Id. at 16, 17.)   Appellant’s eye pupils were

constricted. (Id. at 25.) Appellant denied consuming alcoholic beverages.

(Id. at 17.)



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      The troopers administered three field sobriety tests. (Id. at 18.) Based

on appellant’s performance of the sobriety tests and their training,

observations, and experience, both troopers believed appellant to be under

the influence of a controlled substance to a degree rendering him incapable of

safe driving. (Id. at 19, 22 24, 25, 64, 65, 68.)

      After appellant was taken into custody, he was transported to

Chambersburg Hospital for a blood draw.           (Id. at 26.)   The chemical test

results revealed the presence of amphetamines, buprenorphine, and

norbuprenorphine. (Id. at 27, 28.) The forensic toxicologist’s report noted

that the narcotic effects of buprenorphine have the potential to cause

significant impairment of the skills necessary for safe driving. (Id. at 30.)

      Following    his   conviction   and   the    imposition    of     sentence,   no

post-sentence motions were filed. Appellant filed a timely notice of appeal.

The trial court directed appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).                Appellant timely

complied. The trial court then filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            [1.]   Whether the trial court erred in finding the
                   Commonwealth had established beyond a
                   reasonable doubt each of the elements of DUI:
                   controlled substance – impaired ability –
                   1st offense when the testimony of a witness
                   admitted to testify as an expert in forensic
                   toxicology opined to a reasonable degree of
                   medical certainty that the substances in
                   [appellant’s] blood could not have resulted in
                   impairment conflicted to such an extent with the


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                    testimony of the testifying members of the
                    Pennsylvania State Police that the finder of fact
                    could not reasonably have concluded that the
                    Commonwealth had proven all of the elements
                    of the offense beyond a reasonable doubt[?]

             [2.]   Whether the trial court abused its discretion by
                    finding [appellant] guilty beyond a reasonable
                    doubt against the weight of the evidence when
                    that evidence was so inconsistent that the finder
                    of fact could not reasonably have concluded that
                    the Commonwealth had proven [appellant’s]
                    guilt beyond a reasonable doubt[?]

             [3.]   Whether a post-sentence motion is not required
                    when the charges in question relate to a petty
                    offense where [appellant] is not entitled to a
                    jury trial or resultant jury verdict[?]

Appellant’s brief at 7-8 (extraneous capitalization omitted).

       Appellant first challenges the sufficiency of the evidence to sustain his

convictions. It is well settled that “when challenging the sufficiency of the

evidence on appeal,” in order to preserve that issue for appeal, an appellant’s

“Rule 1925(b) statement must specify the element or elements upon which

the evidence was insufficient.” Commonwealth v. Gibbs, 981 A.2d 274, 281

(Pa.Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (citation and

internal quotation marks omitted).

       In his Rule 1925(b) statement, appellant frames his sufficiency

challenge as follows:     “Whether the evidence presented at the bench trial

failed to prove every element of the crime charged beyond a reasonable doubt

and,   therefore,   was   insufficient   to    support   [appellant’s]   conviction?”

(Appellant’s “statement of matters complained of on appeal,” 10/9/19 at


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unnumbered page 1.)      Because appellant failed to specify the element or

elements of the conviction or convictions upon which he now claims the

evidence was insufficient, appellant waives this issue on appeal.2 See Gibbs,

981 A.2d at 281.

      Nevertheless, we note that a reading of appellant’s brief on this issue

reveals that he is challenging the credibility of the state troopers while

attempting to bolster the testimony of his forensic toxicologist. (Appellant’s

brief at 15-16.) In so doing, appellant challenges the weight of the evidence,

not its sufficiency. See, e.g., Commonwealth v. Wilson, 825 A.2d 710,

713-714 (Pa.Super. 2003) (a review of the sufficiency of the evidence does

not include a credibility assessment; such a claim goes to the weight of the

evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997)

(the fact-finder makes credibility determinations, and challenges to those

determinations go to the weight of the evidence, not the sufficiency of the

evidence).

      Appellant’s second issue raises a weight of the evidence claim. In order

to raise a weight claim on appeal, Pennsylvania Rule of Criminal Procedure 607

requires an appellant to raise the claim with the trial judge in a motion for a

new trial “(1) orally, on the record, at any time before sentencing; (2) by

written motion at any time before sentencing; or (3) in a post-sentence




2We note that appellant’s Rule 1925(b) statement contained argument after
each issue in violation of Pa.R.A.P. 1925(b)(4).


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motion.” Pa.R.Crim.P. 607(A). “The purpose of this rule is to make it clear

that a challenge to the weight of the evidence must be raised with the trial

judge or it will be waived.” Pa.R.Crim.P. 607, comment.

      Our review of the certified record before us reveals that appellant failed

to raise his weight claim with the trial judge in a motion for a new trial orally,

on the record, prior to sentencing; by written motion prior to sentencing; or

in a post-sentence motion. Accordingly, appellant waives his weight claim on

appeal.

      Appellant finally claims that he was not required to preserve his claim

by filing a post-sentence motion because DUI is a “petty offense.” (Appellant’s

brief at 8, 21.) Appellant waives this issue on appeal for failure to raise it

below. Pa.R.Crim.P. 607(A); Pa.R.A.P. 302(a); see also Commonwealth v.

Johnson, 33 A.3d 122, 126 (Pa.Super. 2011), appeal denied, 47 A.3d 845

(Pa. 2012).

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/24/2020




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