J-S65033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT R. GALLAGHER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 843 MDA 2019

Appeal from the Judgment of Sentence Entered May 1, 2019

In the Court of Common Pleas of Susquehanna County Criminal Division 

at No(s): CP-58-SA-0000001-2019

BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED DECEMBER 30, 2019

Appellant, Robert R. Gallagher, appeals from the judgment of sentence 

of a fine of $500.00, which was imposed after conviction at a bench trial for 

operating a motor carrier vehicle in violation of out-of-service criteria.1 We 

affirm on the basis of the trial court opinion.

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 4107(b.1) (“No person shall operate a motor carrier vehicle or 

cause, permit, require or otherwise allow any other person to operate a motor 

carrier vehicle in violation of driver out-of-service criteria or standards 

periodically adopted by the United States Department of Transportation and 

adopted by reference by the department under the provisions of section 6103 

(relating to promulgation of rules and regulations by department). The 

department shall coordinate with the Pennsylvania Public Utility Commission 

in the enforcement of this subsection and 66 Pa.C.S. § 3312 (relating to 

evasion of motor carrier and broker regulations).”).
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In its opinion, the trial court fully and correctly set forth the relevant 

facts and procedural history of this case. See Trial Court Opinion, filed 

June 21, 2019, at 1-4. Therefore, we have no reason to restate them at length 

here. For the convenience of the reader, we briefly note that, on 

November 14, 2018, Corporal Jeffrey Burman of the Pennsylvania State Police 

was working a motor carrier enforcement detail at the Welcome Center/Weigh 

Station in Great Bend Township, Susquehanna County, when Appellant pulled 

in his truck and trailer. Id. at 2. In compliance with the inspection, Appellant 

provided Corporal Burman with his driver’s license, registration of the truck, 

a bill of lading, and a tablet containing an electronic record of his hours of 

service in a duty status log. Id. The corporal noticed that Appellant was 

marked “off duty” in the log from 9:30 that morning until the time of the 

inspection at 3:45 p.m., even though Appellant had been driving a loaded 

trailer when he pulled in for the inspection. Id. at 3. Corporal Burman then 

observed multiple instances where Appellant appeared to be driving based on 

the record of the truck’s physical movement, but Appellant’s duty status log 

indicated that he was not driving. Id. After Appellant was convicted of the 

aforementioned charge and sentenced, he did not file any post-sentence 

motions; he filed a timely direct appeal on May 24, 2019.2

Appellant presents the following issue for our review:

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2 Appellant filed his statement of errors complained of on appeal on June 17, 

2019. The trial court entered its opinion on June 21, 2019.
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Whether the verdict was against the sufficiency of the evidence?

Appellant’s Brief at 4.

Preliminarily, we note that, although not mentioned in his statement of 

questions involved, Appellant argues that “Corporal Burman did not apply the 

correct safe harbor exception for drivers who have current logs for the past 

six days but are not current on the day of the citation.” Id. at 8 (citing 49 

C.F.R. § 395.13(b)(3)).3 However, Appellant raised this argument for the first 

time in his brief to this Court. Failure to raise this claim before the trial court 

results in waiver. 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.”). Accordingly, 

Appellant’s assertion that a “safe harbor exception” applies to his case is 

waived.

Appellant’s remaining contention is that the evidence was not sufficient 

to establish that he presented a false duty status log and that his actions were 

in violation of driver out-of-service criteria. Appellant’s Brief at 7, 9.

This Court’s standard for reviewing sufficiency of the evidence 

claims is as follows:

We must determine whether the evidence admitted at trial, 

and all reasonable inferences drawn therefrom, when 

viewed in a light most favorable to the Commonwealth as 

verdict winner, support the conviction beyond a reasonable 

doubt. Where there is sufficient evidence to enable the trier 

of fact to find every element of the crime has been 

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3 “A driver failing only to have possession of a record of duty status current 

on the day of examination and the prior day, but has completed records of 

duty status up to that time (previous 6 days), will be given the opportunity to 

make the duty status record current.” 49 C.F.R. § 395.13(b)(3).
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established beyond a reasonable doubt, the sufficiency of 

the evidence claim must fail.

The evidence established at trial need not preclude every 

possibility of innocence and the fact-finder is free to believe 

all, part, or none of the evidence presented. It is not within 

the province of this Court to re-weigh the evidence and 

substitute our judgment for that of the fact-finder. The 

Commonwealth’s burden may be met by wholly 

circumstantial evidence and any doubt about the 

defendant’s guilt is to be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that, as a matter 

of law, no probability of fact can be drawn from the 

combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 

2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 

(Pa.Super. 2012)).

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal 

brackets omitted).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Jason J. Legg, 

we conclude that Appellant’s issue merits no relief. The trial court opinion 

comprehensively discusses and properly disposes of that question. See Trial 

Court Opinion, filed June 21, 2019, at 4–6 (finding: Corporal Burman credibly 

testified that, following an inspection of Appellant’s duty status log, he found 

numerous inconsistencies between Appellant’s log entries and his physical 

locations at the time of the entries; Appellant’s explanation that the errors in 

the electronic log were due to a malfunction of his tablet “is not convincing 

particularly where he testified that he failed to perceive those errors for two 

days”; “the Commonwealth, through the credible testimony of [Corporal] 

Burman, met its burden of proving beyond a reasonable doubt” that Appellant 
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made “a false report in connection with a duty status”). Consequently, we 

affirm on the basis of the trial court’s opinion. The parties are instructed to 

attach the opinion of the trial court in any filings referencing this Court’s 

decision.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2019