Com. v. Brooks, R.

Opinion

J-S28040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RICHARD BROOKS : : Appellant : No. 992 WDA 2022

Appeal from the Judgment of Sentence Entered March 29, 2022 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0004438-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: September 29, 2023

Appellant Richard Brooks appeals from the judgment of sentence

entered on March 29, 2022, in the Court of Common Pleas of Allegheny County

following his conviction at a non-jury trial on the charge of Driving Under the

Influence – General Impairment (“DUI”). After a careful review, we affirm.

The relevant facts and procedural history are as follows: On February

24, 2021, Appellant was arrested by West Mifflin Borough Police Officer Joseph

Hoffman (“Officer Hoffman”) after a car accident with Alexander Scalise. At

the March 29, 2022 non-jury trial, the Commonwealth presented the

testimony of Mr. Scalise and Officer Hoffman.

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S28040-23

Mr. Scalise testified on direct examination that he was involved in a

crash with Appellant on February 24, 2021. N.T. at 9. He testified that he was

driving on the right-hand sight of a two-lane road, each lane one way.

Appellant pulled out of a gas station through traffic and crossed a double

yellow line in front of Mr. Scalise, leaving no reaction time and resulting in a

collision with Mr. Scalise’s vehicle. N.T. at 9. Mr. Scalise’s vehicle rolled over

Appellant’s vehicle and went up an embankment, struck a telephone poll and

overturned. N.T. at 9-10.

On cross examination, Mr. Scalise estimated that he was driving 35 or

40 miles per hour. N.T. at 11. He said he did not attempt to brake his vehicle

because there was absolutely no time to react to Appellant pulling out in front

of him while in the process of a turn. N.T. at 14. He said it was daylight at the

time of the accident and that it was likely cloudy. While he couldn’t recall if

the road was wet, it was not snowing or storming. N.T. at 12.

Officer Hoffman testified on direct examination that he had been

employed nineteen years and estimated having made 120 DUI arrests at the

time he responded to this incident. N.T. at 16. He responded to the scene of

the crash between Appellant and Mr. Scalise where he observed a Jeep Grand

Cherokee overturned on its driver’s side and a Dodge Ram positioned

eastbound after the impact, both having disabling damage. N.T. at 16. Officer

Hoffman identified Appellant as the operator of the Dodge Ram and Mr. Scalise

-2- J-S28040-23

as the operator of the Jeep Grand Cherokee. N.T. at 17. Appellant had been

making a left turn out of Marathon Gas Station onto Lebanon Church Road

where the collision occurred. N.T. at 17.

Upon making contact with Appellant, Officer Hoffman detected a “very

strong odor of an alcoholic beverage emanating from him.” N.T. at 17.

Appellant stated that he was not injured. N.T. at 17. Officer Hoffman believed

Appellant was under the influence of alcohol that impaired his ability to

operate his motor vehicle that day based on “the accident itself; the violation

committed; [and] . . . the strong odor of alcohol.” N.T. at 18. Officer Hoffman

asked Appellant if he would submit to a field sobriety test to which Appellant

agreed. N.T. at 18.

The first test was the one-legged stand in which Appellant was

instructed to stand on his left leg with his right leg up and count to fifteen.

N.T. at 18. By or before the count of three, Appellant had to put his right foot

back down on the ground for balance. Because Appellant seemed unsteady,

Officer Hoffman did not have Appellant make a second attempt and considered

this a “fail.” N.T. at 19. The second test was the finger to nose test in which

Appellant was instructed to stand with both legs together, tilt his head back,

bring his arms up to shoulder-height, close his eyes, and then touch one index

finger to the top of his nose. N.T. at 19. Appellant confused his left and right

finger more than once during this test, so it was considered a “fail.” N.T. at

-3- J-S28040-23

19. The third test was the walk and turn in which Appellant was instructed to

stand with his arms at his side and walk nine steps heel-to-toe and then return

to the officer in the same line. N.T. at 20. Appellant performed “adequate” on

this test, but because he had failed two out of three, Officer Hoffman still

suspected him of driving under the influence. N.T. at 20. At the scene,

Appellant said he would not consent to a blood draw to determine blood

alcohol content, and after arriving at Jefferson Hospital, Officer Hoffman read

Appellant the “DL-26 form” which explains the legal consequences of not

submitting to a blood draw. N.T. at 20-21. Appellant acknowledged and signed

the form, still declining a blood test. N.T. at 21. Through all of officer

Hoffman’s training and experience, he opined that Appellant was incapable of

safely operating the vehicle due to being under the influence of alcohol based

on the above observations. N.T. at 23.

On cross examination, Officer Hoffman said that Appellant had admitted

to having drank earlier in the evening but could not recall how much earlier

Appellant said he had consumed the drinks. N.T. at 24. Officer Hoffman then

demonstrated the one-legged stand in court for thirteen counts. N.T. at 25-

26. Officer Hoffman then described the damage to the vehicles, indicating that

the Dodge Ram had damage to the front passenger side, and the Jeep was

overturned on the driver’s side. N.T. at 27. He said that no breathalyzer test

was offered because his department always does blood tests. N.T. at 29.

-4- J-S28040-23

The defense called Ed Goldbach, a friend of Appellant who testified that

Appellant had been with him prior to the accident at Mr. Goldbach’s father’s

auto body shop at which Mr. Goldbach is self-employed. N.T. at 31. The auto

body shop is three doors down on the same road, or walking distance, from

the gas station outside of which the accident occurred. N.T. at 31. Mr.

Goldbach testified that he and Appellant are friends, and that Appellant

occasionally works on his truck at Mr. Goldbach’s auto body shop. On the date

of the crash, Mr. Goldbach recalls Appellant being there to work on his truck

for approximately three to four hours and testified that he did not observe

Appellant consume any alcohol while there. N.T. at 32. He testified that

Appellant left with his vehicle and then returned not long after asking for help

and stating his truck had just been hit. N.T. at 32. Appellant and Mr. Goldbach

returned to the scene, but because the police and fire engine were already on

scene, Mr. Goldbach did not help Appellant with the truck on scene. N.T. at

32-33. There was no cross examination of this witness. N.T. at 33.

Appellant testified in his own defense that on February 24, 2021, he had

been at Ed’s Body and Frame working on the front brakes, rotating the tires,

and changing the oil in his truck for approximately five to six hours. N.T. at

38. He testified that he had “a couple of beers during the course of the day”

while at the body shop, specifying that he had two twelve-ounce Miller Light

cans. N.T. at 39. He said he likely had the drinks when “we took a break.” N.T.

at 40. He stated that he was not intoxicated when he left the shop. After

-5- J-S28040-23

finishing his truck, he went to get gas at Marathon Gas Station and had no

problems traveling to or arriving at the gas station. N.T. at 40. Appellant

testified that when leaving the gas station, there was heavy, “bumper-to-

bumper” rush hour traffic, an elderly woman waved him on, and he did not

see anyone when he looked right so he pulled forward and was then struck by

Mr. Scalise’s vehicle. N.T. at 40-41.

Appellant testified about his performance on the field sobriety tests and

said that he made the officer aware that due to a neck injury he sustained in

1984 for which he receives veterans’ disability, he could not do some of the

things he was asked to do, N.T. at 41-42, and that he wasn’t in his right mind

after the accident while doing the tests. N.T. at 43. Appellant admitted that

he refused the blood draw at the hospital because he is “needle phobic” but

stated he would have had no problem had he been offered a breath test. N.T.

at 42. He stated that his mental state after the crash was “anxious, panic,”

and that the next day he had a swollen face and possibly a minor concussion

because his head slammed off his door during the crash. N.T. at 42-43. There

was no cross examination of Appellant. N.T. at 43.

At the conclusion of the trial, the court found Appellant guilty of Driving

Under the Influence and acquitted the defendant of the underlying traffic

violation, Vehicle Turning Left. N.T. at 48. On April 8, 2022, Appellant timely

filed a post-sentence motion which was denied by operation of law on August

-6- J-S28040-23

10, 2022. On August 25, 2022, Appellant timely filed a notice of appeal. On

September 12, 2022, the trial court ordered Appellant to file a Concise

Statement of Errors Complained of on Appeal which Appellant filed on

September 26, 2022. On December 8, 2022, the trial court filed a responsive

opinion. This appeal followed.

In his first issue, Appellant contends the evidence was insufficient to

sustain his conviction for DUI-general impairment.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Brooks, 7 A.3d 852, 856-57 (Pa.Super. 2010). (citations

omitted). Here, viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, we conclude the evidence sufficiently

-7- J-S28040-23

establishes Appellant’s consumption of alcohol substantially impaired his

ability to safely operate the vehicle.

Section 3802(a)(1) of the Vehicle Code provides:

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). In order to prove a violation of this section, the

Commonwealth must show: (1) that the defendant was the operator of a

motor vehicle and (2) that while operating the vehicle, the defendant was

under the influence of alcohol to such a degree as to render him incapable of

safe driving. Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa.Super.

2000). To establish the second element, the Commonwealth must show that

alcohol has

substantially impaired the normal mental and physical faculties required to safely operate the vehicle. Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. Evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, may establish that the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving.

Id. (citations and footnote omitted).

-8- J-S28040-23

Here, it was established by the Commonwealth through the testimony

of Officer Hoffman that Appellant was the operator of the Dodge Ram and Mr.

Scalise was the operator of the Jeep Grand Cherokee. N.T. at 17. Appellant

contends that the Commonwealth did not prove beyond a reasonable doubt

that Appellant’s alcohol consumption impaired his ability to operate his vehicle

safely. We disagree. As the trial court aptly noted, Appellant admitted to

having consumed alcoholic beverages prior to operating his vehicle. Appellant

was involved in a crash which the trial court found was caused after Appellant

pulled out of the gas station “without first ensuring that it was safe to do so.”

Tr. Ct. Op. at 6. The court was free to rely on wholly circumstantial evidence

in coming to this conclusion as the fact-finder. Shortly after the accident,

Appellant emanated a strong odor of alcohol and failed two out of three

sobriety tests. Tr. Ct. Op. at 6. Officer Hoffman’s nearly two decades of

experience led him to believe that Appellant could not safely operate his

vehicle. N.T. at 23. These facts taken together are sufficient to support the

trial court’s conclusions.

Appellant’s reliance on Commonwealth v. Gause, 164 A.3d 532

(Pa.Super. 2017), is not persuasive. The reason for the interaction between

the officer and the appellant in the Gause case was because the officer had

stopped the vehicle because of its malfunctioning taillights. Id. at 535. There

were no indications that the defendant could not operate the vehicle safely,

including no evidence of erratic driving as the officer had been following the

-9- J-S28040-23

defendant. The first indication to the officer that the defendant had been

driving intoxicated was the smell of alcohol coming from the defendant. Id.

Here, the lack of evidence of erratic driving is not because Officer Hoffman

had been following Appellant and observed none, but because Officer Hoffman

did not have the ability to observe Appellant’s driving before the crash. The

reason for the interaction between Officer Hoffman and Appellant was because

the Officer was called to the scene of a crash. Some facts of the Gause case

and this case are analogous in that certain tell-tale signs of impairment were

missing in both appellants, the field sobriety tests were performed by each

appellant with varying levels of success, and both appellants admitted to

consuming some alcohol. Id. But when the analysis calls for a totality of the

circumstances, as here, and the Gause case involves similar circumstances

resulting in insufficient evidence to sustain a conviction while this case

involves similar circumstances as well as a car crash, the fact that the totality

of the circumstances analysis produces the opposite result is sound.

Appellant argues in his brief and reasserts in his reply brief that his DUI

conviction is inconsistent with his acquittal of Vehicle Turning Left. Appellant’s

Br. at 20-21; Appellant’s Reply Br. at 5. Appellant argues that this

inconsistency indicates that the Commonwealth did not prove beyond a

reasonable doubt that he was unable to operate his vehicle safely. Appellant

states, “the Trial Court overlooked the critical fact that it acquitted Mr. Brooks

of Vehicle Turning Left. In other words, the accident was determined to be the

- 10 - J-S28040-23

product of sheer happenstance and bad luck, not the result of Mr. Brooks

unsafe driving.” Appellant’s Br. at 21. However, “an acquittal cannot be

interpreted as a specific finding in relation to some of the evidence[.]”

Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa.Super. 2015). It is well-

settled that “inconsistent verdicts are permissible in Pennsylvania.”

Commonwealth v. States, 938 A.2d 1016, 1025 (Pa. 2007).

Inconsistent verdicts, while often perplexing, are not considered mistakes and do not constitute a basis for reversal. Rather, the rationale for allowing inconsistent verdicts is that it is the jury's sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment. When an acquittal on one count [] is inconsistent with a conviction on a second count, the court looks upon the acquittal as no more than the jury's assumption of power which they had no right to exercise, but to which they were disposed through lenity. Thus, this Court will not disturb guilty verdicts on the basis of apparent inconsistencies as long as there is sufficient evidence to support the verdict.

Talbert, 129 A.3d at 545. We have already determined that there was

sufficient evidence to support the trial court’s verdict regarding the DUI

conviction. See U.S. v. Powell, 469 U.S. 57, 66 (1984) (stating that “an

individualized assessment of the reason for the inconsistency would be based

either on pure speculation, or would require inquiries into the jury's

deliberations that courts generally will not undertake.”); see also

Commonwealth v. Cook, 865 A.2d 869, 877 (Pa.Super. 2004) (“It is well-

settled that juries may render inconsistent verdicts. Pursuant to Pa. R. Crim.

- 11 - J-S28040-23

P. [620],1 judges have the same powers as juries when a jury trial is waived.

Accordingly, a judge, in a non-jury trial, has the power to render inconsistent

verdicts. As such, this Court will not disturb a guilty verdict based on apparent

inconsistencies as long as there is sufficient evidence to support the verdict.”)

Based on the aforementioned, and applying our standard of review, we

conclude the evidence was sufficient to establish Appellant’s consumption of

alcohol substantially impaired his ability to safely operate the vehicle.

In his second claim on appeal, Appellant contends the trial court's

verdict as to the DUI offense is against the weight of the evidence. Specifically,

Appellant argues the trial court's finding that the cause of the February 24,

2022 crash was the result of his consumption of alcohol shocks one's sense of

justice.

When considering challenges to the weight of the evidence, we apply

the following precepts: “The weight of the evidence is exclusively for the finder

of fact, who is free to believe all, none[,] or some of the evidence and to

determine the credibility of the witnesses.” Talbert, 129 A.3d at 545

(quotation marks and quotation omitted). Resolving contradictory testimony

and questions of credibility are matters for the finder of fact. Commonwealth

1 The predecessor to Pa.R.Crim.P. 620, Rule 1101, was renumbered on

March 1, 2000.

- 12 - J-S28040-23

v. Hopkins, 747 A.2d 910, 917 (Pa.Super. 2000). It is well-settled that we

cannot substitute our judgment for that of the trier of fact. Talbert, supra.

Moreover, appellate review of a weight claim is a review of the trial

court's exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this Court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id.

Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Id. at 546 (quotation omitted). Furthermore, “[i]n order for a defendant to

prevail on a challenge to the weight of the evidence, the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court.” Id. (quotation marks and quotation omitted).

Here, the trial court rejected Appellant's weight of the evidence claim,

and we find no abuse of discretion in this regard. We note the trial court was

free to determine the weight of the fact that Appellant admitted to consuming

alcohol that day and smelled of alcohol against the weight of Appellant’s

testimony that he only had two beers. The trial court was free to give no

weight to the testimony of Mr. Goldbach because it found his testimony to not

- 13 - J-S28040-23

be truthful. This is supported by the fact that Mr. Goldbach testified that

Appellant had been in his presence at the auto body shop and did not observe

Appellant drink any beer, yet Appellant admitted that while at Mr. Goldbach’s

he consumed two beers. Also, the trial court was free to draw inferences about

Appellant’s ability to safely operate the vehicle from the testimony describing

the crash and from Officer Hoffman’s testimony of his own observations.

To the extent Appellant requests that we re-weigh the evidence and

assess the credibility of the witnesses presented at trial, we emphasize that it

is a task that is beyond our scope of review. See Commonwealth v. Collins,

70 A.3d 1245, 1251 (Pa.Super. 2013) (stating that “[a]n appellate court

cannot substitute its judgment for that of the finder of fact”). Accordingly, the

trial court’s verdict was not against the weight of the evidence.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/29/2023

- 14 - J-S28040-23

- 15 -