Com. v. Potsko, A.

J-A14024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OFPENNSYLVANIA
Appellee
v.
AMANDA MARY POTSKO
Appellant No. 1079 MDA 2021
Appeal from the Judgment of Sentence July 13, 2021
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0002070-2020
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 20, 2022
Appellant, Amanda Mary Potsko, appeals from the July 13, 2021
judgment of sentence imposing six months of probation for DUI—highest rate
of alcohol (75 Pa.C.S.A. § 3802(c)). We affirm.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
On March 8, 2020, at approximately 1:33 a.m., Trooper
Keith Roman (hereinafter “Trooper Roman”) was traveling east on
the Sans Souci Parkway in Hanover Township when he observed
a silver Honda Accord, driven by [Appellant], traveling in the same
direction, in front of him. Trooper Roman followed [Appellant],
noticing that the vehicle was swerving, had difficulty maintaining
its lane, crossed over the lane dividers several times, traveled in
the oncoming lane of traffic, and traveled in both lanes of traffic
on the double yellow lane divider. Based on the erratic driving,
Trooper Roman activated his emergency lights and sirens and
pulled [Appellant] over. Once [Appellant] was pulled over,
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* Former Justice specially assigned to the Superior Court.
J-A14024-22
Trooper Roman made contact with [Appellant], and observed that
she had glassy, bloodshot eyes; slow, slurred speech; sluggish
action; and smelled a strong odor of alcohol coming from her.
Based on Trooper Roman’s observations of [Appellant], he
decided to conduct field sobriety tests, which consisted of the
horizontal gaze nystagmus test (hereinafter “HGN test”), walk and
turn test, and the one-legged stand test. Trooper Roman found
six indicators present for the HGN test, and several indicators
present for both the walk and turn and one-legged stand tests.
Trooper Roman also noticed that [Appellant] had a hard time
concentrating on multiple tasks at once, following directions, and
completing the tests. At the conclusion of the tests, Trooper
Roman determined that [Appellant] was under the influence,
placed her under arrest for suspicion of DUI, and transported her
to PSP Wyoming. At PSP Wyoming, Trooper Roman read the DL-
26A form to [Appellant], after which, [Appellant] signed the form.
Trooper Michael O’Boyle (hereinafter “Trooper O’Boyle”)
subsequently had [Appellant] take the BAC test between 3:14 to
3:19 a.m. on March 8, 2020. The result of [Appellant’s] BAC test
was 0.164 percent.
[Appellant] also testified that she was at a restaurant called
“Six String Saloon” on the Sans Souci Parkway for eight hours,
arriving at 5:30 p.m. on March 7, 2020, and leaving at
approximately 1:30 a.m. on March 8, 2020. During her eight
hours at the restaurant, [Appellant] claims she consumed three
drinks: a vodka and cranberry with dinner, and one or two beers.
While she was dancing at the restaurant, an intoxicated patron
dropped her and spilled beer on her. [Appellant] stated she had
bloodshot and glassy eyes because she was crying about her ex-
husband.
Trial Court Opinion, 10/19/21, at 1-2.
At the conclusion of a May 26, 2021 bench trial, the trial court found
Appellant guilty of the aforementioned DUI offense as well as general
impairment under § 3802(a)(1) of the Vehicle Code. The latter merged for
sentencing purposes. This timely appeal followed.
Appellant presents four questions:
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1. Whether the trial court improperly admitted into evidence and
then relied in error upon responding Trooper Roman’s pretext
for conducting the traffic stop which resulted in the arrest and
conviction of Appellant?
2. Whether the Court erred in not ruling that the evidence was
insufficient as a matter of law to establish [Appellant’s] guilt
beyond a reasonable doubt on the charges?
3. Whether the Court erred and/or abused its discretion in finding
[Appellant] guilty of the criminal charges because the Court’s
verdict was based on insufficient evidence and/or was against
the weight of the evidence?
4. Whether the evidence submitted at trial by the Commonwealth
was insufficient as a matter of law to establish [Appellant’s]
guilt beyond a reasonable doubt on the charges?
Appellant’s Brief at 4.
First, Appellant argues that Trooper Roman’s stop of her vehicle was
pretextual. We observe that Appellant did not file a pretrial motion to
suppress evidence gathered during the traffic stop. Rather, Appellant argues
the trial court erred in admitting into evidence certain portions of Trooper
Roman’s account of the stop. Appellant’s Brief at 18-19. Appellant however
lodged no objections during Trooper Roman’s direct testimony on this topic.
N.T. Trial, 5/26/21, at 7-8. Instead, defense counsel cross examined him at
length on his observations, apparently challenging his credibility. Id. at 16-
30. Thus, the record fails to reflect that Appellant raised her first issue at
trial. The Rules of Appellate Procedure prohibit raising an issue for the first
time on appeal. Pa.R.A.P. 302(a); See Commonwealth v. Arrington, 86
A.3d 831, 849 (Pa. 2014) (noting that failure to lodge an appropriate objection
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during trial results in waiver of the issue on appeal); cert. denied, 574 U.S.
994 (2014). Appellant has waived her first argument.
Appellant’s three remaining assertions of error challenge the weight and
sufficiency of the evidence in support of her convictions. We will consider
Appellant’s sufficiency claim but find that her weight claim is waived.1
Our standard for reviewing the sufficiency of the evidence is de novo;
our scope of review is plenary. Commonwealth v. Diamond, 83 A.3d 119,
126 (Pa. 2013), cert. denied, 135 S. Ct. 145 (2014). We must determine,
whether the evidence admitted at trial, considered in a light most favorable to
the Commonwealth as verdict winner, enabled the fact finder to find beyond
a reasonable doubt that the Commonwealth proved each element of offenses
for which the fact finder returned a conviction. Commonwealth v. Slocum,
86 A.3d 272, 275-76 (Pa. Super. 2014).
In substance, Appellant notes that “Trooper Roman did not explain how
he knew Appellant’s speech was slurred since he had never heard her speak
before.” Appellant’s Brief at 21. Thus, according to Appellant, there was no
sufficient evidence to support a finding that Appellant was incapable of safe
driving because “[t]he claimed [sic] of slurred speech from someone the
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1 Appellant failed to preserve her weight of the evidence challenge in a post-
trial or post-sentence motion in accord with Pa.R.Crim.P. 607. Therefore, she
has waived that argument. See Commonwealth v. Cox, 231 A.3d 1011,
1018 (Pa. Super. 2020) (noting that failure to comply with Rule 607 results in
waiver).
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responding officer had never met before is not evidence.” Appellant’s Brief at
22. Thus, Appellant’s argument appears to be limited to her conviction under
§ 7802(a):
(a) General impairment.--
(1) An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after imbibing a
sufficient amount of alcohol such that the individual is rendered
incapable of safely driving, operating or being in actual physical
control of the movement of the vehicle.
75 Pa.C.S.A. § 3802(a)(1).
Nowhere does Appellant cite any law that says a police officer’s
observation of slurred speech is “not evidence” unless the officer has prior
observations of that person’s speech. Nor does she explain why a trained
officer should be deemed unable to recognize slurred speech absent prior
observations of the suspect’s speech. Such a rule would leave few or no cases
in which a police officer could testify that a person suspected of drunk driving
was slurring his or her words. Furthermore, Appellant’s argument fails to
account for the numerous other ways, set forth above, in which Trooper
Roman’s field sobriety tests revealed evidence of Appellant’s intoxication. See
Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (holding
that the defendant’s failure of field sobriety tests was provided sufficient
evidence for his conviction under § 3802(a)). Appellant’s sufficiency of the
evidence argument fails.
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In summary, each of Appellant’s arguments is waived and/or lacking in
merit. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2022
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