Com. v. Markoski, T.

J-A20023-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THEODORE F. MARKOSKI,
Appellant No. 151 EDA 2015
Appeal from the Judgment of Sentence December 2, 2014
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-SA-0000490-2014
BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 28, 2015
Appellant, Theodore F. Markoski, appeals from the judgment of
sentence entered following his conviction for violating restrictions on use of
highways and bridges. We affirm.
The trial court summarized the underlying facts of this case as follows:
The testimony at trial revealed that [Appellant] was the
operator of a scrap metal truck. On May 7, 2014, [Appellant]
was operating that vehicle traveling from Pottstown to
Phoenixville. When [Appellant] entered Phoenixville, he was
advised that the road on which he normally traveled was closed
due to construction. [Appellant] began to use an “alternate
route” in order to reach the scrap metal yard. In so doing,
[Appellant] began to cross over the Fillmore Street Bridge. This
bridge, which traverses railroad tracks, is posted with a 6,000 lb.
limit.
On this day and time, Officer Bucci of the Phoenixville
Police Department was seated in his patrol car and observed
[Appellant’s] scrap metal truck cross over the bridge. Officer
Bucci testified that he had received training from Pennsylvania
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Department of Transportation and the State Police, and was
certified by the Commonwealth as [a] weight inspector. The
officer testified he had weighed nearly twenty vehicles prior to
the date in question and had with him two portable scales.
Following the observation of [Appellant’s] truck traversing
the bridge, Officer Bucci pulled [Appellant] over and weighed the
vehicle. [Officer Bucci] testified that the scales he used were
certified as accurate and that the weight of the vehicle was
80,000 lbs., with a 3% PennDOT variance allowance.
Trial Court Opinion, 1/29/15, at 1-2.
On May 7, 2014, Appellant was charged with restrictions on use of
highways and bridges, 75 Pa.C.S. §4902(a). On August 18, 2014, Appellant
appeared at a summary trial before a district magistrate and was found
guilty. Thereafter, Appellant appealed and proceeded to a de novo trial in
the Court of Common Pleas of Chester County on December 2, 2014.
Appellant was again convicted of the offense stated above and sentenced to
pay a $21,000 fine, which was based upon the weight of the vehicle. This
timely appeal followed. Both Appellant and the trial court have complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. WHETHER THE EVIDENCE WAS SUFFICIENT TO SHOW THAT
THE BOROUGH OF PHOENIXVILLE HAD ADOPTED AN
ORDINANCE ESTABLISHING A WEIGHT RESTRICTION ON THE
BRIDGE IN QUESTION?
II. WHETHER THE EVIDENCE WAS SUFFICIENT TO ESTABLISH
THAT AN ENGINEERING AND TRAFFIC STUDY WAS CONDUCTED
SHOWING THE NEED FOR ANY WEIGHT RESTRICTION IMPOSED
FOR THE ROAD/BRIDGE IN QUESTION?
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III. WHETHER THE TRIAL COURT ERRED IN ADMITTING
COMMONWEALTH’S EXHIBIT C-4 INTO EVIDENCE?
Appellant’s Brief at 4.
Appellant’s first two issues challenge the sufficiency of the evidence.
When reviewing a challenge to the sufficiency of the evidence, we evaluate
the record in the light most favorable to the Commonwealth as verdict
winner, giving the prosecution the benefit of all reasonable inferences to be
drawn from the evidence. Commonwealth v. Duncan, 932 A.2d 226, 231
(Pa. Super. 2007) (citation omitted). “Evidence will be deemed sufficient to
support the verdict when it establishes each material element of the crime
charged and the commission thereof by the accused, beyond a reasonable
doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d 1029, 1032
(Pa. Super. 2005)). However, the Commonwealth need not establish guilt to
a mathematical certainty, and it may sustain its burden by means of wholly
circumstantial evidence. Id. In addition, this Court may not substitute its
judgment for that of the factfinder, and where the record contains support
for the convictions, they may not be disturbed. Id. Lastly, we note that the
finder of fact is free to believe some, all, or none of the evidence presented.
Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).
In his first issue, Appellant argues that there was insufficient evidence
presented by the Commonwealth to prove beyond a reasonable doubt that
the Borough of Phoenixville adopted an ordinance pertaining to the Fillmore
Street Bridge.
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Appellant was convicted of driving over a bridge with a restricted
weight limit. Section 4902 of the Motor Vehicle Code permits local
authorities to impose restrictions on both highways and bridges, and
provides, in relevant part, as follows:
§ 4902. Restrictions on use of highways and bridges.
(a) Restrictions based on condition of highway or bridge.
(1) The Commonwealth and local authorities with
respect to highways and bridges under their
jurisdictions may prohibit the operation of vehicles
and may impose restrictions as to the weight or size
of vehicles operated upon a highway or bridge only
when they determine by conducting an engineering
and traffic study as provided for in department
regulations that the highway or bridge may be
damaged or destroyed unless use by vehicles is
prohibited or the permissible size or weight of
vehicles is reduced.
75 Pa.C.S. § 4902(a)(1) (emphasis added).
Pursuant to the Motor Vehicle Code, the term “local authorities” is
defined, in pertinent part, as follows:
“Local authorities.” -- County, municipal and other local
boards or bodies having authority to enact laws relating to
traffic.
75 Pa.C.S. § 102.
Although the Commonwealth did not submit a certified copy of the
ordinance restricting the weight on the Fillmore Street Bridge enacted by the
Borough of Phoenixville into evidence, it was not required to do so. Section
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6107 of the Judicial Code permits a court to take judicial notice of local
government ordinances and provides, in relevant part, as follows:
§ 6107. Judicial notice of certain local government
ordinances.
(a) General rule. -- The ordinances of municipal corporations
of this Commonwealth shall be judicially noticed.
(b) Manner of proving ordinances. -- The tribunal may
inform itself of such ordinances in such manner as it may deem
proper and the tribunal may call upon counsel to aid it in
obtaining such information.
42 Pa.C.S. § 6107(a) & (b).
Our review of the record reflects that the trial court took judicial notice
of the applicable Phoenixville ordinance, and the Assistant District Attorney
specifically informed the trial court that the ordinance could be found at
“Section 15 [-] 301 of the Phoenixville Borough Ordinance.” N.T., 12/2/14,
at 51-52. Accordingly, Appellant’s contrary claim lacks merit.
Appellant next argues that the Commonwealth failed to establish that
the necessary engineering and traffic study had been conducted of the
Fillmore Street Bridge as required under 75 Pa.C.S. § 4902(a)(1).
The trial court addressed this challenge to the sufficiency of the
evidence as follows:
A review of the transcript shows that the central focus of
this trial was the issue over “engineering and traffic study.” As
noted above, the reason for the appeal, as advanced by
Appellant is this issue. The statute requires that a study be
provided in order to support roadway limitations, specifically that
a highway or bridge may be damaged unless the use by certain
vehicles is prohibited.
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The Vehicle Code defines engineering and traffic studies
as:
An orderly examination or analysis of physical
features and traffic conditions conducted in
accordance with regulations of the department and
conforming to generally accepted engineering
standards and practices for the purpose of
ascertaining the need or lack of need for a particular
action by the department or local authorities. 75
Pa.C.S.A. Section 102.
In the instant matter, [Appellant] produced Exhibit D-2, a
1995 document entitled “An Engineering Study for Fillmore
Street over the Railroad Tunnel” written by the engineering firm
of Bursich Associates. The document, which was admitted into
evidence, in summary sets forth the results of an engineering
study performed for the Fillmore Street overpass. The document
states that various studies were conducted to evaluate the
roadway’s stability due to a recently-discovered collapse of the
tunnel lining and a portion of the rock mass above the tunnel
lining. The document goes on to spell out what was done as part
of the engineering and traffic study. The document concludes
that based on the information gathered in the study, it seems
the collapse was a localized failure and could remain a viable
tunnel as long as truck usage was prohibited. It goes on to
discuss the fact that they needed to minimize the intensity of the
dynamic loading on the subsurface material and to prevent
future failures.
The Commonwealth introduced Exhibit C-4, which was a
memorandum drafted to the Director of Public Works and copied
to the Solicitor for the Borough of Phoenixville. The Borough
Manager, who authored the memorandum, discussed the study.
The memorandum recites in additional detail that the road could
be open to car traffic only and all truck or vehicles over three
tons should be prohibited. The Borough Manager then directs
the Solicitor to draft for review, and potential adoption by
Borough Council, an ordinance that follows the recommendation
of this engineering and traffic study. There is no dispute that a
local ordinance was adopted, that Fillmore Street in and about
this area was properly posted, and the limitation has been in
effect since approximately 1995.
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[Appellant] argues that these documents, one introduced
into evidence by him and one by the Commonwealth, were
somehow insufficient or did not meet the “definition” of an
engineering and traffic study.
After review of the definition contained [in] the Vehicle
Code and the exhibits that were admitted into evidence, we
concluded that the 1995 Bursich Associates study was an orderly
examination and analysis of the physical features. It was
conducted in accordance with general engineering standards and
practices solely for the purpose of ascertaining whether there
needed to be a restriction on the Fillmore Street tunnel. We
concluded that this engineering and traffic study was done by
the Borough of Phoenixville. The Borough of Phoenixville then
lawfully adopted a weight limitation for the Fillmore Street tunnel
based upon the Bursich Associates engineering and traffic study.
The roadways were properly posted and all notice properly
given.
Trial Court Opinion, 1/29/15, at 3-4. We agree with the trial court’s
determination in this regard and conclude that Appellant’s contrary claim
lacks merit.
Appellant last argues that the trial court erred in admitting into
evidence a 1995 memorandum from the Phoenixville Borough Manager to
the Phoenixville Director of Public Works, which is labeled Exhibit C-4.1
Appellant contends that the memorandum, which makes reference to a
study by Bursich Associates, was inadmissible hearsay and was offered to
prove the matters asserted therein. Before we may address this issue, we
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1
We note the Commonwealth contends Appellant waived this issue for
failure to present it in his Pa.R.A.P. 1925(b) statement. However, our
review of the certified record reflects that Appellant did include the issue on
the second page of his Pa.R.A.P. 1925(b) statement.
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must first consider whether the claim presented by Appellant has been
preserved for appellate review.
Questions concerning the admissibility of evidence lie within the sound
discretion of the trial court, and we will not reverse the court’s decision on
such a question absent a clear abuse of discretion. Commonwealth v.
Maloney, 876 A.2d 1002, 1006 (Pa. Super. 2005). An abuse of discretion is
not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown
by the evidence or the record. Commonwealth v. Cameron, 780 A.2d
688, 692 (Pa. Super. 2001).
Essentially, hearsay has been defined as a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. Pa.R.E. 801(c).
Commonwealth v. Smith, 586 A.2d 957, 963 (Pa. Super. 1991). Hearsay
testimony is not admissible in this Commonwealth, except as provided in the
Pennsylvania Rules of Evidence, by other rules prescribed by the
Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale for
the hearsay rule is that hearsay is too untrustworthy to be considered by the
trier of fact.” Commonwealth v. Bean, 677 A.2d 842, 844 (Pa. Super.
1996).
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Pennsylvania Rule of Appellate Procedure 302(a) provides that “issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.” Pa.R.A.P. 302(a). Likewise, we have long held that claims
not raised before the trial court are waived. See Commonwealth v.
Lopata, 754 A.2d 685, 689 (Pa. Super. 2000) (“A claim which has not been
raised before the trial court cannot be raised for the first time on appeal.”);
Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super. 2006) (citing
Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super. 1987)) (“A
theory of error different from that presented to the trial jurist is waived on
appeal, even if both theories support the same basic allegation of error
which gives rise to the claim for relief.”).
Pennsylvania Rule of Evidence 103 addresses rulings on evidence and
provides, in pertinent part, as follows:
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error
in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the
record:
(A) makes a timely objection, motion to
strike, or motion in limine; and
(B) states the specific ground, unless it
was apparent from the context; . . .
Pa.R.E. 103(a)(1).
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Our courts have held that in order to preserve a challenge to an
evidentiary ruling, a party must make a timely and specific objection to the
admission or exclusion of the evidence. A party’s failure to make a specific
objection deprives the trial court and the opposing party of the opportunity
to either respond to the objection or to alter the course of the questioning
accordingly. Commonwealth v. Willis, 552 A.2d 682, 690 (Pa. Super.
1988). Thus, the failure of a party to make a timely and specific objection to
an evidentiary violation results in a waiver of that ground on appeal.
Appellant is challenging the admission of Exhibit C-4 as a violation of
the rule against hearsay for the first time in his appellate brief. Appellant’s
Brief at 14. Our review of the record reflects that during Appellant’s trial,
Officer Christopher Bucci offered testimony regarding the incident in which
Appellant drove his scrap metal truck over the Fillmore Street Bridge in
violation of the posted weight restriction. N.T., 12/2/14, at 5-32. When the
Commonwealth presented Exhibit C-4 to Officer Bucci, defense counsel
raised the following objection:
[DEFENSE COUNSEL]: Objection, your honor. It’s
nothing. Number one, it’s a copy of a document;
number two, I don’t know that the officer knows who
Mr. Whitman really is. I don’t believe he was
present in 1995, based on his testimony. I don’t
know if he knows who Mr. Pantano was, number two.
This certainly does not amount to a traffic and
engineering study, which is specifically required by
the statute. So I definitely object to that document.
Id. at 18.
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Defense counsel never objected to the admission of Exhibit C-4 on the
theory that it was a violation of the hearsay rule. Therefore, we are
constrained to conclude that such argument by Appellant is waived because
Appellant failed to present the claim to the trial court in the first instance.2
Hence, we cannot reach the merits of this issue because it is waived.
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2
To the extent that Appellant argues that Exhibit C-4 was improperly
admitted because it “had no probative value” and “was irrelevant,”
Appellant’s Brief at 14, we observe that Appellant has failed to properly
develop this claim for appellate review. It is undisputed that the argument
portion of an appellate brief must be developed with pertinent discussion of
the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a).
See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996)
(stating that “[t]he argument portion of an appellate brief must be
developed with a pertinent discussion of the point which includes citations to
the relevant authority”). Where an appellant has failed to cite any relevant
authority in support of a contention, the claim is waived. Commonwealth
v. Luktisch, 680 A.2d 877, 879 n.1 (Pa. Super. 1996). We decline to
review an appellant’s argument that contains no discussion of or citation to
relevant authority. Commonwealth v. Russell, 665 A.2d 1239, 1246 (Pa.
Super. 1995). The argument section of Appellant’s brief addressing his final
issue only includes citation to the Pennsylvania Rules of Evidence relating to
hearsay, and consists of general statements without any citation to relevant
authority supporting an allegation the trial court erred in admitting Exhibit
C-4 because it lacked probative value and was irrelevant. Appellant’s Brief
at 14. Accordingly, because Appellant has not developed any significant
argument relating to this claim of trial court error in the argument section of
his appellate brief, we deem this portion of his discussion to be waived.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2015
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