J. S10036/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. S10036/20
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.)
-2-
J. S10036/20
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
-3-
J. S10036/20
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
-4-
J. S10036/20
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).
-5-
J. S10036/20
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
-6-