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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT TALECKI, :
:
Appellant : No. 2796 EDA 2014
Appeal from the Judgment of Sentence August 19, 2014,
Court of Common Pleas, Chester County,
Criminal Division at No. CP-15-SA-0000268-2014
BEFORE: BOWES, DONOHUE and STABILE, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 11, 2015
Robert Talecki (“Talecki”) appeals pro se from the judgment of
sentence entered on August 19, 2014 by the Court of Common Pleas,
Chester County, finding him guilty of five summary traffic offenses. For the
reasons set forth herein, we affirm.
A brief summary of the relevant facts and procedural history follows.
On January 9, 2014, Christopher McNulty (“McNulty”) was driving on the
Route 30 bypass in Chester County during rush hour. Talecki merged onto
Route 30 and began tailgating McNulty. McNulty testified that Talecki was so
close that he could not see Talecki’s bumper in his mirror.
Talecki then moved into the right lane behind another vehicle, before
passing that vehicle on the right shoulder. Talecki thereafter came across
two lanes of traffic and cut in front of McNulty’s car, requiring McNulty to
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slam on his brakes and go into the grassy median to avoid a collision. After
McNulty returned to the road, Talecki slammed on his breaks in an attempt
to get McNulty to rear end him. McNulty subsequently called 911.
As McNulty was on the phone with police dispatch, McNulty observed
Talecki weave in and out of traffic, changing lanes frequently, in the middle
of rush hour traffic. McNulty followed Talecki as he exited Route 30, and
came to a stop sign where a gas station was located on the left side of the
road. Instead of driving to the next stop sign and turning left into the
parking lot, Talecki drove his truck over the cement median to cross the
road and enter the gas station’s parking lot.
Trooper Jeffrey Smith (“Trooper Smith”) of the Pennsylvania State
Police received a call from dispatch at approximately 4:45 p.m. By the time
Trooper Smith arrived at the gas station Talecki was reported to be at, both
Talecki and McNulty were gone. Trooper Smith obtained McNulty’s contact
information and called him. McNulty gave Trooper Smith Talecki’s license
plate number and direction of travel. After running Talecki’s information in
the database, Trooper Smith obtained an address associated with Talecki
and went there. Upon arrival, Trooper Smith observed Talecki’s truck in the
driveway, which matched the tag and description given by McNulty.
Trooper Smith spoke with Talecki, who initially denied being involved
in an incident on Route 30. Talecki then informed Trooper Smith that he
was driving behind a vehicle that was going 55 miles per hour, which was
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too slow, and flashed his lights at him and passed him. While speaking with
Talecki, Trooper Smith detected alcohol on his breath and asked Talecki to
submit to field sobriety tests. Talecki refused, stating that he had a bad
knee. An unidentified police officer arrived at the scene with a breathalyzer.
Talecki submitted to being breathalyzed, the results of which indicated a .04
blood alcohol content. Trooper Smith concluded his investigation and issued
five traffic citations to Talecki for following too closely, 75 Pa.C.S.A. §
3310(a), disregarding traffic lanes, 75 Pa.C.S.A. § 3309(1), reckless driving,
75 Pa.C.S.A. § 3736(a), careless driving, 75 Pa.C.S.A. § 3714(a), and
improper pass on the right – off road, 75 Pa.C.S.A. § 3304(a)(2).
On May 8, 2014, Magisterial Justice John R. Bailey held a hearing and
found Talecki guilty on all counts. On June 2, 2014, Talecki filed a notice of
appeal from summary criminal conviction to the Chester County Court of
Common Pleas. The trial court held a hearing on August 19, 2014 and
issued guilty verdicts on all counts.
On September 17, 2014, Talecki filed a timely notice of appeal to this
Court. In his concise statement of errors complained of on appeal pursuant
to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Talecki
alleges the following:
1. No physical evidence was presented by the
Commonwealth.
2. Commonwealth’s witness, whom [Talecki] has
been identified as the perpetrator (sic), has
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substantially changed his testimony from the
testimony presented before Magisterial Justice
John R. Bailey with no collaboration of any other
witness or physical evidence.
3. The Pennsylvania State Police trooper testifying
on behalf of the Commonwealth was not the
actual trooper on duty on Route 30 around the
time of the alleged incident. Further, he has
provided testimony that is hearsay.
See Talecki’s Concise Statement of Matters Complained of on Appeal.1
For his first issue on appeal, Talecki argues that the Commonwealth
failed to present physical evidence to support its case. Talecki’s Brief at 16.
Talecki states that aside from McNulty, there were no other witnesses and
no other complaints made to the police. Id. at 13. Talecki further asserts
that “Given the number of cameras and vehicles on the roadway at the time
there should be at least one piece of collaboration.” Id. at 12-13, 16. In
essence, Talecki challenges the weight of the evidence presented at the
hearing.
1
On March 13, 2015, this Court issued a memorandum affirming the
judgment of sentence after we determined that Talecki failed to provide a
transcript of the hearing at which Talecki’s guilt was determined, and thus,
waived all his issues for our review. See Commonwealth v. Talecki, 2796
EDA 2014 (Pa. Super. March 13, 2015) (unpublished memorandum). On
March 25, 2015, Talecki filed a motion for reconsideration, claiming that he
ordered and paid for the transcript on August 18, 2014, and sent a copy to
the Chester County Clerk of Courts. The Clerk of Courts notified this Court
that they received the transcripts on December 22, 2014, but mistakenly
failed to supplement the record because the record had already been
transmitted to this Court in November 2014. We subsequently granted
Talecki’s motion for reconsideration on April 30, 2015. We now address the
merits of Talecki’s claims.
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After reviewing the record, we conclude that Talecki waived this issue
for appellate review. Rule 607 of the Pennsylvania Rules of Criminal
Procedure provides that “a weight of the evidence claim must be preserved
either in a post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing.” Pa.R.Crim.P. 607. “Failure to challenge the
weight of the evidence presented at trial in an oral or written motion prior to
sentencing or in a post-sentence motion will result in waiver of the claim.”
Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa. Super. 2012) (citing
Commonwealth v. Bond, 985 A.2d 810, 820 (Pa. 2009)). In this case,
Talecki did not file a post-sentence motion. Moreover, Talecki did not
preserve this issue in an oral or written motion prior to sentencing.
Accordingly, this issue is waived and we will not address the merits of
Talecki’s claim.2
For his second issue on appeal, Talecki argues that McNulty
“substantially changed his testimony from the testimony [he] presented
before Magisterial Justice John R. Bailey.” See Talecki’s 1925(b) Statement.
2
Even if Talecki preserved this issue for appeal, the trial court held, and we
agree, that “the Commonwealth was not required to present any physical
evidence” and further concluded that “the testamentary evidence introduced
by the Commonwealth at trial was sufficient to find [Talecki] guilty of all
motor vehicle violations charged.” Trial Court Opinion, 10/22/14, at 2.
McNulty’s testimony, which the trial court accepted as credible, see N.T.,
8/19/14, at 43-44, established every element of every offense with which
Talecki was charged.
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Talecki, however, fails to present any argument in his brief to support his
assertion. As this Court has held:
When briefing the various issues that have been
preserved, it is an appellant's duty to present
arguments that are sufficiently developed for our
review. Commonwealth v. Gould, 912 A.2d 869,
873 (Pa. Super. 2006). The brief must support the
claims with pertinent discussion, with references to
the record and with citations to legal authorities.
Id.; Pa.R.A.P. 2119(a), (b), (c). Citations to
authorities must articulate the principles for which
they are cited. Pa.R.A.P. 2119(b).
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007). “This
Court will not act as counsel and will not develop arguments on behalf of an
appellant.” Id.; Gould, 912 A.2d at 873. Accordingly, this issue is waived
and we may not review the merits of the claim.
For his third issue on appeal, Talecki presents two arguments claiming
that Trooper Smith’s testimony at the hearing was improper. First, Talecki
claims that Trooper Smith was not the trooper on duty on Route 30 at the
time of the alleged incident and did not personally observe the incident.
Second, Talecki argues that the trial court erred by allowing Trooper Smith
to introduce hearsay testimony during the August 19, 2014 hearing.
Talecki’s Brief at 16. Talecki argues that Trooper Smith’s testimony
regarding the breathalyzer results was improper because he did not
administer the test and Talecki did not have the opportunity to cross-
examine the officer who did administer the test. Id. at 14. Talecki further
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argues that there was no physical evidence or direct testimony as to the test
results, and that he was not permitted to review any evidence regarding the
test results.3 Id. at 14.
Talecki, however, did not object to the introduction of Trooper Smith’s
testimony at any point during the hearing, and did not file a motion to strike
or motion in limine to preserve this issue for appellate review. It is well
established that “[w]ith respect to evidentiary rulings, “Error may not be
predicated upon a ruling that admits [] evidence unless … a timely objection,
motion to strike[,] or motion in limine appears of record, stating the specific
ground of objection, if the specific ground was not apparent from the
context.’” Commonwealth v. Parker, 104 A.3d 17, 28 (Pa. Super. 2014);
Pa.R.Evid. 103(a)(1). As a result, we conclude that this issue is waived.
See 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.”).
Judgment of sentence affirmed.
3
We note that Talecki was never charged with any alcohol related offense.
Moreover, the Commonwealth never used Trooper Smith’s testimony
regarding the breathalyzer test and the results of the test to establish
Talecki’s guilt of the offenses with which he was charged. Rather, Trooper
Smith’s testimony simply provided a description of the circumstances of his
interaction with Talecki. Thus, it is unclear why Talecki challenged Trooper
Smith’s testimony in this regard.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2015
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