J-A25030-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

DENNIS RICHARD DAVIS, II 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

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 verdictwinner, 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