J-A14024-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OFPENNSYLVANIA

Appellee

v.

AMANDA MARY POTSKO

Appellant No. 1079 MDA 2021

Appeal from the Judgment of Sentence July 13, 2021

In the Court of Common Pleas of Luzerne County

Criminal Division at No: CP-40-CR-0002070-2020

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 20, 2022

Appellant, Amanda Mary Potsko, appeals from the July 13, 2021 

judgment of sentence imposing six months of probation for DUI—highest rate 

of alcohol (75 Pa.C.S.A. § 3802(c)). We affirm. 

The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a) 

opinion:

On March 8, 2020, at approximately 1:33 a.m., Trooper 

Keith Roman (hereinafter “Trooper Roman”) was traveling east on 

the Sans Souci Parkway in Hanover Township when he observed 

a silver Honda Accord, driven by [Appellant], traveling in the same 

direction, in front of him. Trooper Roman followed [Appellant], 

noticing that the vehicle was swerving, had difficulty maintaining 

its lane, crossed over the lane dividers several times, traveled in 

the oncoming lane of traffic, and traveled in both lanes of traffic 

on the double yellow lane divider. Based on the erratic driving, 

Trooper Roman activated his emergency lights and sirens and 

pulled [Appellant] over. Once [Appellant] was pulled over, 

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* Former Justice specially assigned to the Superior Court.
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Trooper Roman made contact with [Appellant], and observed that 

she had glassy, bloodshot eyes; slow, slurred speech; sluggish 

action; and smelled a strong odor of alcohol coming from her. 

Based on Trooper Roman’s observations of [Appellant], he 

decided to conduct field sobriety tests, which consisted of the 

horizontal gaze nystagmus test (hereinafter “HGN test”), walk and 

turn test, and the one-legged stand test. Trooper Roman found 

six indicators present for the HGN test, and several indicators 

present for both the walk and turn and one-legged stand tests. 

Trooper Roman also noticed that [Appellant] had a hard time 

concentrating on multiple tasks at once, following directions, and 

completing the tests. At the conclusion of the tests, Trooper 

Roman determined that [Appellant] was under the influence, 

placed her under arrest for suspicion of DUI, and transported her 

to PSP Wyoming. At PSP Wyoming, Trooper Roman read the DL26A form to [Appellant], after which, [Appellant] signed the form. 

Trooper Michael O’Boyle (hereinafter “Trooper O’Boyle”) 

subsequently had [Appellant] take the BAC test between 3:14 to 

3:19 a.m. on March 8, 2020. The result of [Appellant’s] BAC test 

was 0.164 percent. 

[Appellant] also testified that she was at a restaurant called 

“Six String Saloon” on the Sans Souci Parkway for eight hours, 

arriving at 5:30 p.m. on March 7, 2020, and leaving at 

approximately 1:30 a.m. on March 8, 2020. During her eight 

hours at the restaurant, [Appellant] claims she consumed three 

drinks: a vodka and cranberry with dinner, and one or two beers. 

While she was dancing at the restaurant, an intoxicated patron 

dropped her and spilled beer on her. [Appellant] stated she had 

bloodshot and glassy eyes because she was crying about her exhusband. 

Trial Court Opinion, 10/19/21, at 1-2. 

At the conclusion of a May 26, 2021 bench trial, the trial court found 

Appellant guilty of the aforementioned DUI offense as well as general 

impairment under § 3802(a)(1) of the Vehicle Code. The latter merged for 

sentencing purposes. This timely appeal followed. 

Appellant presents four questions: 
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1. Whether the trial court improperly admitted into evidence and 

then relied in error upon responding Trooper Roman’s pretext 

for conducting the traffic stop which resulted in the arrest and 

conviction of Appellant? 

2. Whether the Court erred in not ruling that the evidence was 

insufficient as a matter of law to establish [Appellant’s] guilt 

beyond a reasonable doubt on the charges? 

3. Whether the Court erred and/or abused its discretion in finding 

[Appellant] guilty of the criminal charges because the Court’s 

verdict was based on insufficient evidence and/or was against 

the weight of the evidence? 

4. Whether the evidence submitted at trial by the Commonwealth 

was insufficient as a matter of law to establish [Appellant’s] 

guilt beyond a reasonable doubt on the charges? 

Appellant’s Brief at 4. 

First, Appellant argues that Trooper Roman’s stop of her vehicle was 

pretextual. We observe that Appellant did not file a pretrial motion to 

suppress evidence gathered during the traffic stop. Rather, Appellant argues 

the trial court erred in admitting into evidence certain portions of Trooper 

Roman’s account of the stop. Appellant’s Brief at 18-19. Appellant however 

lodged no objections during Trooper Roman’s direct testimony on this topic. 

N.T. Trial, 5/26/21, at 7-8. Instead, defense counsel cross examined him at 

length on his observations, apparently challenging his credibility. Id. at 16-

30. Thus, the record fails to reflect that Appellant raised her first issue at 

trial. The Rules of Appellate Procedure prohibit raising an issue for the first 

time on appeal. Pa.R.A.P. 302(a); See Commonwealth v. Arrington, 86 

A.3d 831, 849 (Pa. 2014) (noting that failure to lodge an appropriate objection 
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during trial results in waiver of the issue on appeal); cert. denied, 574 U.S. 

994 (2014). Appellant has waived her first argument. 

Appellant’s three remaining assertions of error challenge the weight and 

sufficiency of the evidence in support of her convictions. We will consider 

Appellant’s sufficiency claim but find that her weight claim is waived.1 

Our standard for reviewing the sufficiency of the evidence is de novo; 

our scope of review is plenary. Commonwealth v. Diamond, 83 A.3d 119, 

126 (Pa. 2013), cert. denied, 135 S. Ct. 145 (2014). We must determine, 

whether the evidence admitted at trial, considered in a light most favorable to 

the Commonwealth as verdict winner, enabled the fact finder to find beyond 

a reasonable doubt that the Commonwealth proved each element of offenses 

for which the fact finder returned a conviction. Commonwealth v. Slocum, 

86 A.3d 272, 275-76 (Pa. Super. 2014). 

In substance, Appellant notes that “Trooper Roman did not explain how 

he knew Appellant’s speech was slurred since he had never heard her speak 

before.” Appellant’s Brief at 21. Thus, according to Appellant, there was no 

sufficient evidence to support a finding that Appellant was incapable of safe 

driving because “[t]he claimed [sic] of slurred speech from someone the 

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1

 Appellant failed to preserve her weight of the evidence challenge in a posttrial or post-sentence motion in accord with Pa.R.Crim.P. 607. Therefore, she 

has waived that argument. See Commonwealth v. Cox, 231 A.3d 1011, 

1018 (Pa. Super. 2020) (noting that failure to comply with Rule 607 results in 

waiver). 
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responding officer had never met before is not evidence.” Appellant’s Brief at 

22. Thus, Appellant’s argument appears to be limited to her conviction under 

§ 7802(a): 

(a) General impairment.--

(1) An individual may not drive, operate or be in actual 

physical control of the movement of a vehicle after imbibing a 

sufficient amount of alcohol such that the individual is rendered 

incapable of safely driving, operating or being in actual physical 

control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1). 

Nowhere does Appellant cite any law that says a police officer’s 

observation of slurred speech is “not evidence” unless the officer has prior 

observations of that person’s speech. Nor does she explain why a trained 

officer should be deemed unable to recognize slurred speech absent prior 

observations of the suspect’s speech. Such a rule would leave few or no cases 

in which a police officer could testify that a person suspected of drunk driving 

was slurring his or her words. Furthermore, Appellant’s argument fails to 

account for the numerous other ways, set forth above, in which Trooper 

Roman’s field sobriety tests revealed evidence of Appellant’s intoxication. See 

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (holding 

that the defendant’s failure of field sobriety tests was provided sufficient 

evidence for his conviction under § 3802(a)). Appellant’s sufficiency of the 

evidence argument fails. 
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In summary, each of Appellant’s arguments is waived and/or lacking in 

merit. We therefore affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2022