Com. v. Gallagher, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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