Com. v. Fallon, F.

J-A07023-22
2022 PA Super 92COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANCIS FALLON :
:
Appellant : No. 1011 EDA 2021
Appeal from the Judgment of Sentence Entered March 9, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002198-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.
OPINION BY McLAUGHLIN, J.: FILED MAY 19, 2022
Francis Fallon appeals from the judgment of sentence entered following
his convictions for driving under the influence of alcohol (“DUI”) (general
impairment) and DUI (highest rate of alcohol). 75 Pa.C.S.A. §§ 3802(a)(1)
and 3802(c). He challenges the sufficiency and weight of the evidence. We
affirm.
Police officers arrested Fallon after responding to a home in Delaware
County for a report of a domestic dispute. The court conducted a bench trial
in February 2021.
Officer Michael Wiley testified that at approximately 4 p.m. on June 11,
2020, he was dispatched to a residence in Aston, Pennsylvania for a report of
a domestic dispute involving a firearm. N.T., 2/26/21, at 7. He arrived at the
residence two to three minutes after receiving the call. Id. He testified that
the house was in a residential neighborhood and there was no public
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transportation in the area. Id. at 7 and 10. Officer Wiley testified that Fallon
lived with his mother in Malvern at the time, not at the Aston residence. Id.
at 53-54.
Officer Wiley testified that when he arrived, he saw Fallon seated on the
front porch. Id. at 10-11. He started speaking with Fallon and “detected a
strong odor of an alcoholic beverage emanating from his breath and person.”
Id. at 11. He asked Fallon how he arrived at the residence, and Fallon stated
that “he drove his Chevy Colorado to the residence.” Id. at 14. The officer
“asked him how much he had to drink today,” and Fallon stated that he had
consumed “a six pack.” Id. The car in the driveway was registered to Fallon.
Id. at 24.
Officer Wiley knew one of Fallon’s adult daughters was at the residence
and believed a second daughter also was there. Id. at 15. One of the
daughters was with Fallon on the porch when Officer Wiley arrived and she
“seemed distraught,” that is, “[u]pset, sad, kind of like a confus[ed] look on
her face.” Id. at 16. He had a discussion with the daughter and, based on that
discussion, he administered field sobriety tests on Fallon. Id. at 17-18. Fallon
was unable to complete the horizontal gaze nystagmus test (“HGN”) test
because Fallon moved his head along with his eyes. Id. at 20-21. For the walk
and turn test, Officer Wiley placed Fallon in the instructional position, where
the officer would demonstrate the test and Fallon was to remain in the
instructional position until told to start. Id. at 21. Officer Wiley testified that
Fallon “was unable to remain in the instructional position and was almost
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falling over,” and for Fallon’s “safety,” the officer “stopped the test.” Id.
Officer Wiley also stopped the one-legged-stand test, again because Fallon
was falling over while in the instructional position. Id.
Officer Wiley testified that he did not observe any alcoholic beverages
in the area outside of the house or inside the vehicle. Id. at 22, 35. Based on
Officer Wiley’s training and 10 years of experience, he believed Fallon was
under the influence of alcohol. Id. at 35-36. He based this belief on the “odor
of alcoholic beverage emanating obviously from his breath and person, his
performance of his field sobriety tests or lack thereof, and he was very
unsteady on his feet, and the statements that he made.” Id. at 36.
Officer Wiley took Fallon into custody and searched him incident to
arrest. He found car keys, a cell phone, and a wallet. Id. The keys were for
the car parked in the driveway. Id. Officer Wiley checked the hood of the car,
and it was warm and the vehicle “appeared to have been driven recently.” Id.
On cross-examination, Officer Wiley admitted he never saw the vehicle
move and that, although registered to Fallon, the address on the registration
was the address of the residence in Aston to which the officer had responded.
Id. at 42. He did not see Fallon in the vehicle or observe the keys in the
ignition. Id. at 43. He did not feel the hoods of other cars to determine
whether they were also hot. Id. at 41. Officer Wiley, however, testified he can
tell the difference from when a hood is hot because the sun was beating on it
and when it is hot because the vehicle was recently driven. He explained that
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he “check[s] near the crack of the hood to feel heat emanating out of the
crack of the hood, coming from the engine compartment area.” Id. at 50.
After Fallon’s arrest and booking, officers took him to a hospital where
he consented to a blood test. Id. at 37. The blood draw occurred at 5:18 p.m.
Id. at 104.
An expert in “toxicology and blood recognition of controlled substances
and alcohol,” Dr. Richard Cohn, testified regarding his forensic toxicology
report he prepared regarding the results of the testing of Fallon’s blood. Id.
at 60. Dr. Cohn said the testing showed that Fallon had a blood alcohol
concentration of 0.266 percent. Id. at 71. He testified that
the blood alcohol concentration measured corresponds to an
absorbed circulating pharmacologically active body burden
of alcohol equivalent to approximately 13 alcoholic drinks
where one drink equals one fluid once distilled spirits or four
fluid ounces of wine or 12 fluid ounces of beer for an
individual weighing 155 pounds.
Id. at 72. According to Dr. Cohn, this would indicate Fallon had consumed
more than double the six-pack he admitted drinking (assuming the six-pack
contained 12-fluid-ounce beers). Id. Dr. Cohn testified Fallon would not have
been able to safely operate a vehicle. Id. at 73.
Fallon and the Commonwealth stipulated that Fallon’s “reputation in the
community is for being law abiding.” Id. at 89-90.
The court convicted Fallon of DUI (general impairment) and DUI
(highest rate of alcohol). It sentenced him to 30 days to 6 months’
imprisonment. Fallon filed a post-sentence motion challenging the sufficiency
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and weight of the evidence, which the trial court denied. Fallon timely
appealed.
Fallon raises the following issues:
1. Did the trial court err in finding the Commonwealth
presented admissible, competent and sufficient evidence
that on June 11, 2020 [Fallon] operated a motor vehicle
and at such time of operation [Fallon] was under the
influence of alcohol that rendered him unable to safely
do so, in violation of 75 Pa. C.S.A. § 3802(A)(1) & (C)[?]
2. Did the trial court err in finding the Commonwealth
presented sufficient evidence that on June 11, 2020,
[Fallon] (while intoxicated to a level rendering him
unable to safely operate a motor vehicle) was in “actual
physical control” of the motor vehicle[?]
3. Did the trial court err in finding the verdict was not
against the weight of the evidence?
4. Did the trial court err in finding the Commonwealth
presented sufficient evidence to enable the court, as trier
of fact, to find that every element of every charge alleged
against [Fallon] was proven beyond a reasonable doubt?
5. Did the trial court err in finding the Commonwealth
presented sufficient evidence that the quality, weight and
character of the witnesses [Fallon] presented at trial
outweighed the evidence presented by the
Commonwealth and present sufficient questions of doubt
as to [Fallon’s] guilt in this matter[?]
Fallon’s Br. at 9.
In the argument section of his brief, Fallon claims the court’s reliance
on Fallon’s admission that he operated the Chevy Colorado and drank a six-
pack, absent any other proof of a crime, violated the corpus delicti rule. He
argues there was no evidence other than his statement that he was near the
vehicle, operating it, or sleeping in it; that it was running; or that he was
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walking away from it. Fallon’s Br. at 21. Fallon further claims that alleged
“[c]hain of custody legal errors preclude the Commonwealth from proving [an]
essential element [for DUI (highest rate)] – blood alcohol content.” Id. at 29-
30.1 Fallon also makes a passing claim that the court “erroneously relie[d]
upon inadmissible hearsay warranting reversal[.]” Id. at 21.
Fallon has waived these issues. Although at trial Fallon raised the corpus
delecti rule, objected to the chain of custody, and made hearsay objections,
he did not raise them in his Rule 1925(b) statement1 or appellate brief’s
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1 Fallon raised the following issues in his Rule 1925(b) statement:
1. The [trial court] erred as a matter of law in finding the
record possessed sufficient evidence establishing that on
the date time in question . . . Fallon operated a motor
vehicle and at such time of operation Defendant was under
the influence of alcohol that rendered him unable to operate
a motor vehicle safely.
2. The [trial court] erred in finding the record possessed
sufficient evidence that on the date and specific time in
question (while intoxicated to a level rendering him unable
to safely operate a motor vehicle) defendant was in “actual
physical control” of the motor vehicle.
3. The [trial court] erred as a matter of law in finding the
verdict was not against the weight of the evidence.
4. The [trial court] erred when she found that the
Commonwealth presented sufficient evidence to enable the
court, as trier of fact, to find that every element of every
charge alleged against [Fallon] was proven beyond a
reasonable doubt.
5. The Court erred in not finding the quality, weight and
character of the witnesses [Fallon] presented at trial
outweighed the evidence presented by the Commonwealth
(Footnote Continued Next Page)
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statement of questions involved. He therefore waived them. See Pa.R.A.P.
1925(b)(4)(vii) (“[i]ssues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived”);
Pa.R.A.P. 2116(a) (“[n]o question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby”); In re
M.Z.T.M.W., 163 A.3d 462, 466 (Pa.Super. 2017) (finding an issue waived
where not included in the 1925(b) statement and statement of questions
involved).
In issues one, two, and four, Fallon challenges the sufficiency of the
evidence to support the convictions. He contends the Commonwealth failed to
present sufficient evidence that Fallon was in actual physical control of, or
operated, a motor vehicle while under the influence of alcohol. He points out
that Officer Wiley did not observe Fallon driving the car, know Fallon’s physical
condition before arriving at the location, or know when Fallon consumed the
alcohol. Fallon cites cases which he says show the Superior Court “varies” in
its interpretation of “actual physical control.” Fallon’s Br. at 16. He claims that
in “operation and control” cases, the Commonwealth must prove more than a
defendant being behind the wheel with the motor running. Id. at 18. He claims
____________________________________________
and present sufficient questions of doubt as to [Fallon’s]
guilt in this matter.
Fallon’s Concise Statement of Matters Complained of on Appeal, filed June 15,
2021, at 1-2.
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that in cases where a defendant has been found to be in “actual physical
control” the facts included that the driver was in the car with the car running.
Fallon also argues the Commonwealth did not establish “any temporal
connection” between his sitting on the porch and “if or when he both
consumed alcohol and operated a motor vehicle.” Id. at 22. Fallon claims that
the fact that the hood was warm does not prove the vehicle was recently
driven, noting the officer did not feel other hoods to determine their
temperature and there was no testimony regarding the weather on that day.
Fallon further maintains that even if the Commonwealth established that
he drove the car sometime prior to arrival, there was no testimony regarding
when he drove it. Although the officer testified there were no indicia of alcohol
consumption in or near the car, the testimony did not indicate whether the
police searched the area to determine whether evidence of alcohol was near
the location. He claims the trial court relied on the radio call to determine the
time but had previously sustained a hearsay objection to testimony about the
contents of call.
When reviewing a challenge to the sufficiency of the evidence, we “must
determine whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in a light most favorable to the
Commonwealth as verdict winner, support the conviction beyond a reasonable
doubt.” Commonwealth v. Feliciano, 67 A.3d 19, 23 (Pa.Super. 2013) (en
banc) (quoting Commonwealth v. Stokes, 38 A.3d 846, 853 (Pa.Super.
2011)). “Where there is sufficient evidence to enable the trier of fact to find
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every element of the crime has been established beyond a reasonable doubt,
the sufficiency of the evidence claim must fail.” Id. (quoting Stokes, 38 A.3d
at 853). This standard applies equally where the Commonwealth’s evidence is
circumstantial. Commonwealth v. Patterson, 180 A.3d 1217, 1229
(Pa.Super. 2018).
The DUI-general impairment statute provides that “[a]n 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).
The statute providing for the crime of DUI highest rate of alcohol states,
“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 alcohol concentration in the individual’s blood or breath is 0.16% or higher
within two hours after the individual has driven, operated or been in actual
physical control of the movement of the vehicle.” 75 Pa.C.S.A. § 3802(c).
“The term ‘operate’ requires evidence of actual physical control of either
the machinery of the motor vehicle or the management of the vehicle’s
movement, but not evidence that the vehicle was in motion.”
Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa.Super. 2010) (quoting
Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa.Super.2005)). “The
Commonwealth can establish through wholly circumstantial evidence that a
defendant was driving, operating or in actual physical control of a motor
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vehicle.” Id. (quoting Brotherson, 888 A.2d at 905). Courts review “a
combination of the following factors” to determine “whether a person had
‘actual physical control’ of an automobile: the motor running, the location of
the vehicle, and additional evidence showing that the defendant had driven
the vehicle.” Id. (quoting Brotherson, 888 A.2d at 904). “A determination of
actual physical control of a vehicle is based upon the totality of the
circumstances.” Id. (quoting Brotherson, 888 A.2d at 905).
The trial court concluded the Commonwealth presented sufficient
evidence to support the convictions:
A review of the record in this case unequivocally
demonstrates the court: 1) considered all the evidence
presented at trial, including the testimony of the
Commonwealth witness[es] and the exhibits and the
stipulation [Fallon] had a reputation for being law abiding;
and 2) determined the evidence presented at trial proved
beyond a reasonable doubt [Fallon] was guilty of Driving
Under the Influence. This court, based on the testimony and
evidence presented by the Commonwealth, found the
evidence was sufficient to prove each and every element of
the offenses beyond a reasonable doubt: Officer Wiley
testified [Fallon] admitted to driving the vehicle although he
did not specifically observe [Fallon] driving, the hood of the
car was warm to the touch, there was a strong odor of
alcohol emanating from [Fallon], [Fallon] was unsteady on
his feet and his eyes were red, bloodshot, and glassy, and
[Fallon] was not able to satisfactorily perform the field
sobriety tests. Additionally, this court considered the
testimony of Dr. Richard Cohn concerning the toxicology
report of [Fallon’s] blood analysis and his opinion [Fallon]
was unable to operate safely a motor vehicle. This court
believed the testimony and evidence and did not find them
weak or inconclusive.
This court observed Officer Wiley’s demeanor in the
courtroom and concluded he demonstrated he is prudent,
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reasonable, and cautious in exercising his duties and
responsibilities as a police officer and Officer Wiley made a
reasonable inference [Fallon’s] actions and behavior
constituted Driving Under the Influence. This court also
considered the recent holding in Commonwealth v.
Dirosa, 249 A.3d 586 (Pa. Super. 2021)[,] in which the
evidence was sufficient to establish defendant “drove,
operated or was in actual physical control” of a motor
vehicle while intoxicated based upon the totality of the
circumstances. Specifically[,] the defendant in Dirosa: was
discovered in his car parked outside of a Wawa at 2:30 a.m.;
had improperly parked over the clearly marked lines of a
handicap stall; was passed out and slumped over the
steering wheel with the engine running; and upon being
awakened stated he drank three shots before leaving home.
This court concluded under the totality of circumstances in
[Fallon’s] case, including all the testimony of Officer Wiley
and Dr. Cohn, the evidence was sufficient to establish
defendant “drove, operated or was in actual physical
control" of a motor vehicle while intoxicated. This court
agreed, under the totality of the circumstances and the facts
presented at trial, the Commonwealth proved beyond a
reasonable doubt all elements of the offenses charged and
[Fallon] was guilty.
Trial Court Opinion, filed July 21, 2021, at 14-15.
We agree with the trial court. The Commonwealth presented sufficient
evidence to prove that Fallon drove, operated, or was in actual physical control
of the vehicle while intoxicated. Fallon was at the Aston residence but lived in
another town, Malvern. He admitted having driven to the residence and having
consumed a six-pack of beer. When Officer Wiley arrived, the hood of the car
still was warm, and he did not observe any alcohol on or near the porch or in
the car. The car in the driveway was registered to Fallon and Fallon had the
keys. In addition, the residence was not accessible by public transportation.
Officer Wiley detected a strong odor of alcohol from Fallon and Fallon was
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unable to complete the field sobriety tests. Further, Dr. Cohn testified that
Fallon had a blood alcohol concentration of 0.266, which would indicate he
consumed more than a six-pack of beer. Given the totality of the
circumstances and reviewing the facts in the light most favorable to the
Commonwealth, as verdict-winner, the evidence was sufficient to establish
Fallon drove, operated, or was in actual physical control of the vehicle while
so intoxicated as to be incapable of safely driving and while having a BAC
greater than 0.16.
Fallon cites numerous cases where the defendant was behind the wheel
of a parked car or where the keys were in the ignition, and we found actual
physical control. He relies on those cases to maintain that the evidence here
was inadequate to prove that he was in actual physical control of the vehicle
while intoxicated. However, he cites no cases (or any other authority)
requiring the Commonwealth to prove such facts to establish a DUI. Rather,
courts must consider certain factors, including “additional evidence showing
that the defendant had driven the vehicle,” and the totality of the
circumstances, to determine whether the Commonwealth established the
defendant was driving, operating, or in actual physical control of a vehicle
while intoxicated. See Toland, 995 A.2d at 1246 (quoting Brotherson, 888
A.2d at 904). When we consider the requisite factors and the total
circumstances involved here, we find the evidence sufficient.
In his third and fifth issues, Fallon challenges the weight of the evidence.
He claims the court ignored the absence of factual support and “incredible
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nature of Commonwealth witness’ factual assertions and testimony.” Fallon’s
Br. at 29. He claims the trial court ignored its evidentiary rulings on
inadmissible hearsay,2 ignored the corpus delecti rule, and ignored chain of
custody concerns that Fallon claims should have precluded reliance on the
blood alcohol content.
We review a trial court’s order denying a weight challenge for an abuse
of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
“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.” Id.(citation omitted). A trial court should not grant a new trial on weight grounds
“because of a mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion.” Id. (citation omitted).
“[T]he role of the trial judge is to determine that ‘notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them or to give
them equal weight with all the facts is to deny justice.’” Id. (citation omitted).
Courts have stated that “a new trial should be awarded when the jury’s verdict
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2 The Commonwealth attempted to admit Fallon’s daughter’s statements as
an excited utterance. The officer testified that Fallon’s daughter stated “she
heard banging at the door. She answered the door and Mr. Fallon was standing
there with a pistol in his hand, a firearm.” N.T. at 32. The court ruled this was
not an excited utterance and was inadmissible. The Commonwealth wanted to
admit more of her statement, which it believed would have helped with the
timeline, but the court sustained the objection.
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is so contrary to the evidence as to shock one’s sense of justice and the award
of a new trial is imperative so that right may be given another opportunity to
prevail.” Id. (citation omitted).
The trial court concluded the verdict was not against the weight of the
evidence:
This court did not abuse discretion in finding [Fallon] guilty
and when it denied [Fallon’s] post sentence motion
challenging the weight of the evidence. This court as the
trier of fact listened to all the evidence and testimony of the
witnesses in the case. This court believed the evidence
outlined in the Commonwealth’s case, both direct and
circumstantial, supported the guilty verdict. The testimony
of the law enforcement officer and expert witness, including
[Fallon’s] statements admitting to driving the car and
consuming a six-pack, [Fallon] being in possession of the
keys, the hood of the car warm to the touch, Officer Wiley’s
observations [Fallon] was unsteady on his feet and his eyes
were red, blood shot, and glassy, and [Fallon’s] Blood
Alcohol Content obtained within two hours of the police
arriving at the location, established beyond a reasonable
doubt [Fallon] had driven the vehicle and at the time he
operated the motor vehicle, he was unable to operate it
safely, and he was guilty of Driving Under the Influence. The
court also considered the stipulation concerning [Fallon’s]
reputation for being a law-abiding citizen and concluded this
evidence did not outweigh the evidence presented by the
Commonwealth. This court assessed the witnesses who
testified at trial and observed the evidence presented and
was not persuaded by [Fallon’s] arguments concerning the
weight of the evidence. Specifically[,] the quality, weight,
and character of the witnesses [Fallon] presented,
consisting of the stipulation concerning [Fallon’s] reputation
for being law abiding, which is compelling but in this court’s
opinion did not outweigh the strength of the combination of
facts presented by the Commonwealth. This court concluded
it weighed the facts fairly, and the guilty verdict is supported
by the record. The verdict is not shocking to one’s sense of
justice. The record shows this court exercised reasonable
and sound judgment, properly applied the law, and did not
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commit error or abuse its discretion when it reported its
verdict or in denying [Fallon’s] post sentence motion
challenging the weight of the evidence, and the record is
void of the court showing partiality, prejudice, ill-will, and
bias.
1925(a) Op. at 10-11.
This was not an abuse of discretion. The facts cited by Fallon were not
“so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.” See Clay, 64 A.3d at 1055. That Fallon
believes some evidence improperly was admitted is irrelevant to the weight
claim, particularly where he did not challenge the evidentiary rulings on
appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2022
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