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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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.

____________________________________________

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