Com. v. Davis, D. ( 2022 )

J-A25030-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DENNIS RICHARD DAVIS, II :
:
Appellant : No. 1260 WDA 2020
Appeal from the Judgment of Sentence Entered September 29, 2020
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012677-2019
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: FEBRUARY 4, 2022
Appellant, Dennis Richard Davis, II, appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his bench trial convictions for driving under the influence of a controlled
substance (“DUI”), driving while operating privilege is suspended or revoked,
reckless driving, careless driving, and accidents involving damage to
unattended vehicle or property.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Eric Showers testified that on July 27, 2019, at 8082 Saltsburg Road:
I heard a car, like, something crash into the telephone pole
and a mailbox. So when I looked over, I seen a car going
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(d)(2); 1543(a); 3736(a); 3714(a) and 3745(a),
respectively.
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up the guardrail and the right side of the car hit the back of
my van, which wiped out the doors. And the car went
airborne down into the lot, which hit an apple tree.
And at that time, I went over to the door to make sure
whoever was driving was okay, and that was when
[Appellant] was in the car. I helped him get out of the car.
At that time, he looked [like] he was just, you know, out of
it. I don’t know if it was the wreck and stuff. And after I
got him out of the car, he was just kind of stumbling around
and was just out of it.
(N.T. Trial, 7/9/20, at 4-5).
Within 30 seconds of witnessing this car accident, Mr. Showers
approached the Nissan and found Appellant in the driver’s seat; Appellant was
the sole occupant of the vehicle. (Id. at 10). Mr. Showers explained that it
was impossible for anyone to open the passenger side door of the Nissan
because that door was up against a tree. (Id. at 12).
On cross-examination, Mr. Showers confirmed that he saw Appellant
driving the car, and he specified that:
Well, when I seen the guardrail going through the air, I seen
the person driving, which was him. Like, it was only one
person in the car, because when it was going through the
air, I seen the car, seen through the window and seen the
driver and it ended up in the tree and I ran over –
* * *
When it was going through the air, I could see through
the windows, and I could see the driver in there, which
was the same driver that was in the seat, correct. Because
the car, when I seen it going through the air, I was lower,
and it came down on an angle. So I was able to see the
whole car the whole time.
(Id. at 13-14) (emphasis added).
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The trial evidence further showed that after exiting the Nissan, Appellant
stumbled around, and he appeared to be impaired. (Id. at 7). Appellant
subsequently failed field sobriety tests. (Id. at 18). Appellant admitted that
he was using prescription medicine, but he denied any alcohol consumption.
(Id.) Mr. Showers estimated Appellant’s speed at 10-15 miles above the
posted speed limit. (Id. at 8). Appellant’s driver’s license was suspended at
the time of this crash. (Id. at 21). Appellant told the police officer who
responded to the crash that his girlfriend, Nicole Banichar, had been driving
the Nissan, which she owned. (Id. at 24). The officer then contacted Ms.
Banichar by telephone, and she stated that she was at work at the time of the
accident. (Id. at 25). After this phone conversation, the officer asked
Appellant about the inconsistency concerning his claim that Ms. Banichar
drove the vehicle, but Appellant refused to answer. (Id. at 26).
Appellant testified in his defense that on the day of the accident, Lori
Scofield picked him up so that they could purchase drugs. (Id. at 29).
Appellant stated that while on Saltsburg Road, “Lori drove off the road, and
hit a couple of parked cars.” (Id.) According to Appellant, after driving and
crashing the Nissan, Lori fled on foot. (Id.) Appellant claimed he remained
in the car because he “wasn’t doing anything wrong besides getting high.”
(Id. at 30). Appellant denied telling the officer that Ms. Banichar was driving
the car. (Id.) At the conclusion of trial, the court found Mr. Showers’
eyewitness testimony to be “very convincing,” and concluded that sufficient
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evidence existed to establish Appellant was the driver of the Nissan. (Id. at
36).
On July 9, 2020, the court found Appellant guilty of DUI (controlled
substance) and related driving offenses. The court sentenced Appellant to an
aggregate term of 30 to 180 days’ incarceration on September 29, 2020. On
October 7, 2020, Appellant timely filed two post-sentence motions, one for
reconsideration of his sentence and the other challenging the weight of the
evidence. The court granted Appellant’s post-sentence motion for
reconsideration of his sentence, and it vacated its initial sentencing order. The
court resentenced Appellant to 6 months’ probation, of which 90 days were to
be served on house arrest, and a consecutive 180 days’ probation. On October
29, 2020, the court denied Appellant’s challenge to the weight of the evidence.
Appellant filed a timely notice of appeal on November 18, 2020. The
next day, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant filed a request for an
extension of time to file his Rule 1925(b) statement, on December 9, 2020,
because of COVID-19 and counsel’s inability to discuss the case with
Appellant. The court subsequently granted the request for an extension, and
Appellant filed his Rule 1925(b) statement on April 28, 2021.
Appellant raises the following issue for our review:
Is the evidence sufficient in this case to prove beyond a
reasonable doubt that [Appellant] was the person who drove
the car on the day of the incident?
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(Appellant’s Brief at 9).
Appellant argues the evidence was insufficient to establish his
identification as the driver of the Nissan vehicle to sustain his convictions for
DUI and related traffic offenses. Appellant asserts that Mr. Showers could not
identify him at trial because Appellant had a mask covering a portion of his
face pursuant to COVID-19 protocol. Appellant insists that he did not drive
the Nissan; rather, his friend Lori Schofield was the driver. Further, Appellant
maintains that Mr. Showers’ testimony that he saw the driver of the vehicle
through the window as the vehicle was airborne, was unbelievable. Appellant
concludes that the Commonwealth failed to prove that Appellant was the
driver of the Nissan, and this Court must vacate his judgment of sentence and
reverse his convictions. We disagree.
When examining a challenge to the sufficiency of evidence, our standard
of review is as follows:
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
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above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] 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. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011)).
Eyewitness testimony is not required to establish that a defendant was
driving, operating, or was in actual physical control of a motor vehicle. See
Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa.Super. 2003). Rather,
the Commonwealth can establish through wholly circumstantial evidence that
a defendant was driving, operating or in actual physical control of a motor
vehicle. Id.In determining whether a particular identification was reliable, this Court
has explained that we:
should consider the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of
attention, the accuracy of [his or her] prior description of
the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation. The opportunity of the witness to view the
actor at the time of the crime is the key factor in the totality
of the circumstances analysis.
Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa.Super. 2014).
Additionally, we acknowledge:
Evidence of identification need not be positive and certain
to sustain a conviction. Although common items of clothing
and general physical characteristics are usually insufficient
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to support a conviction, such evidence can be used as other
circumstances to establish the identity of a perpetrator.
Out-of-court identifications are relevant to our review of
sufficiency of the evidence claims, particularly when they
are given without hesitation shortly after the crime while
memories were fresh. Given additional evidentiary
circumstances, any indefiniteness and uncertainty in the
identification testimony goes to its weight.
Commonwealth v. Kinney, 157 A.3d 968, 971 (Pa.Super. 2017) (citations
omitted).
An argument that the finder of fact should have credited one witness’
testimony over that of another witness generally challenges the weight of the
evidence, not the sufficiency of the evidence. Commonwealth v. W.H.M.,
932 A.2d 155, 160 (Pa.Super. 2007) (explaining claim that jury should have
believed appellant’s version of events rather than that of victim goes to
weight, not sufficiency of evidence); Commonwealth v. Wilson, 825 A.2d
710, 713-14 (Pa.Super. 2003) (explaining sufficiency of evidence review does
not include assessment of credibility, which is more properly characterized as
challenge to weight of evidence); Commonwealth v. Gaskins, 692 A.2d
224, 227 (Pa.Super. 1997) (stating credibility determinations are made by
finder of fact and challenges to those determinations go to weight, not
sufficiency of evidence). Further, “any uncertainty in an eyewitness’s
identification of a defendant is a question of the weight of the evidence, not
its sufficiency.” Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa.Super.
2006) (citation omitted).
Our Supreme Court has held that an “appellant’s challenge to the
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sufficiency of the evidence must fail[,]” where an appellant phrases an issue
as a challenge to the sufficiency of the evidence, but the argument that
appellant provides goes to the weight of the evidence. Commonwealth v.
Small, 559 Pa. 423, 434, 741 A.2d 666, 672 (1999). See also
Commonwealth v. Widmer, 560 Pa. 308, 318-320, 744 A.2d 745, 751-752
(2000) (explaining differences between challenge to weight of evidence versus
sufficiency of evidence; distinction is critical; evidence is sufficient to support
verdict when it establishes each material element of crime charged and
commission of crime by accused beyond reasonable doubt; remedy for
successful challenge to sufficiency of evidence is judgment of acquittal;
challenge to weight of evidence concedes there is sufficient evidence to sustain
verdict; remedy for successful challenge to weight of evidence is new trial).
Instantly, Appellant’s underlying claim is that Mr. Showers’ testimony
was unbelievable because it was physically impossible for him to have seen
who drove the Nissan, and because Mr. Showers’ testimony conflicted with
Appellant’s own testimony. Notwithstanding the phrasing of Appellant’s
challenge as attacking the sufficiency of the evidence, Appellant’s claim is
more properly construed as a challenge to the weight of the evidence. See
Wilson, supra; Gaskins, supra.With respect to challenges to the weight of the evidence:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none
of the evidence presented and determines the credibility of
the witnesses. As an appellate court, we cannot substitute
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our judgment for that of the finder of fact. Therefore, we
will reverse a jury’s verdict and grant a new trial only where
the verdict is so contrary to the evidence as to shock one’s
sense of justice. Our appellate courts have repeatedly
emphasized that one of the least assailable reasons for
granting or denying a new trial is the [trial] court’s
conviction that the verdict was or was not against the weight
of the evidence.
Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa.Super. 2007), aff'd, 597
Pa. 344, 951 A.2d 329 (2008) (internal citations and quotation marks
omitted).
Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(internal citations omitted).
Here, the court stated that it did not find Appellant’s trial testimony
credible. (See N.T. Sentencing, 9/29/20, at 5-7). By contrast, the court
found Mr. Showers’ testimony credible, and that Mr. Showers was able to
identify Appellant as the person driving the black Nissan at the time of the
collision. (See N.T. Trial at 36). We will not disturb the trial court’s credibility
findings. See Rabold, supra. Further, the trial court already considered
Appellant’s weight challenge in the post-sentence motion and concluded that
Appellant was not entitled to relief on this claim. We see no reason to disrupt
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the court’s decision to deny Appellant’s weight claim. See Champney,
supra.Moreover, even if Appellant’s issue on appeal implicates the sufficiency
and not the weight of the evidence, the court explained its reasons for
concluding sufficient evidence existed to establish Appellant’s identification as
the driver:
And the issue that he was not the driver becomes the key
question in the case. And in that regard, Mr. Showers’
testimony was that almost an eyewitness, essentially an
eyewitness at the time, his testimony was that there was
only one person in the car, and that it was [Appellant], is
pretty clear, and the immediacy that this occurred all at one
time. [Mr. Showers’] testimony about this event is unusual
since we don’t usually have an eyewitness like this that sees
the event occur.
And I find his testimony to be very convincing. And it
becomes the basis for finding that the [c]ourt would have to
conclude that [it is] convinced beyond a reasonable doubt
that [Appellant] was the operator of the vehicle and that he
was impaired at the time.
(N.T Trial at 36).
Our review of the record shows that Mr. Showers was working nearby
when he heard an initial crash. (See id. at 4). Immediately after hearing the
crash, he saw an airborne car with Appellant in the driver’s seat. (Id. at 5).
Within seconds of witnessing the accident, Mr. Showers approached the car
and observed Appellant as the sole occupant of the vehicle, still sitting in the
driver’s seat. (Id. at 10). As evident by the record, Mr. Showers had
opportunity to view Appellant driving the car during the accident and sitting
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in the driver’s seat immediately thereafter. See Valentine, supra. Based
on the foregoing, we agree with the court that the evidence was sufficient to
establish Appellant’s identity beyond a reasonable doubt. See Kinney,
supra. Viewed in the light most favorable to the Commonwealth as verdict-
winner, the evidence was sufficient to sustain Appellant’s convictions. See
Jackson, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/4/2022
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