J-S28040-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD BROOKS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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. 

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* Former Justice specially assigned to the Superior Court.
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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 
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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 
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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.
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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 
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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-tobumper” 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 
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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 
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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).
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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 
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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 
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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 wellsettled 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 wellsettled that juries may render inconsistent verdicts. Pursuant to Pa. R. Crim. 
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P. [620],1judges 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 

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

March 1, 2000.
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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 
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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
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