J-A07023-22

2022 PA Super 92

COMMONWEALTH OF PENNSYLVANIA

v.

FRANCIS FALLON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 sixpack, 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,2ignored 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 

____________________________________________

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