J-A15008-15

*

 Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FRANCIS D. LYNCH,

Appellant No. 870 EDA 2014

Appeal from the Judgment of Sentence January 8, 2014

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0003106-2012

BEFORE: BOWES, MUNDY, AND FITZGERALD* JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 07, 2015

Francis D. Lynch appeals from the judgment of sentence of six to 

twelve years incarceration imposed by the trial court after a jury found him 

guilty of homicide by vehicle, homicide by vehicle while driving under the 

influence (“DUI”), DUI—general impairment, and DUI—highest rate.1 We 

affirm.

Appellant, while making a left-hand turn into a driveway with his truck, 

struck and killed Barry Good, who was traveling in the opposite direction on 

his motorcycle. Testing revealed that Appellant’s blood alcohol content 

(“BAC”) was .136%. Testimony at trial established that Appellant consumed 

____________________________________________

1 The trial court also adjudicated Appellant guilty of several summary traffic 

offenses.
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one full beer and a shot of Jagermeister as well as a partial beer at a private 

club, the Owl’s Nest. He then traveled to another bar, the Hanover Inn, 

where he drank two more beers and two additional shots of Jagermeister. 

Appellant left the bar with his girlfriend to travel to a friend’s home for a 

bonfire. In attempting to pull into a driveway that he believed belonged to 

his friend, Appellant struck and killed the victim.

Two friends traveling in a vehicle behind Appellant witnessed the 

accident. They described Appellant’s driving as erratic. Appellant varied his 

speed, swerved in between the lanes of travel, and when making the turn 

did so not by turning in a ninety degree fashion, but by entering the 

opposite lane of travel and driving in that lane at an approximate forty-five 

degree angle in making the turn. After the crash, Appellant asked the owner 

of the driveway in which he had turned if he could relieve himself in the 

driveway. Appellant’s speech was also slurred and he failed field sobriety 

tests.

The Commonwealth presented expert testimony from Dr. Edward 

Barbieri regarding the effects of alcohol on the human body. Dr. Barbieri 

testified that a person with a .BAC of .136% would be substantially impaired. 

In addition, the Commonwealth introduced expert testimony from Corporal 

Charles Burckhardt, an expert in accident reconstruction. According to 

Corporal Burckhardt, Appellant should have been able to see the victim 
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before Appellant turned left. He also opined that the victim was not 

speeding.

During the trial, Juror #10 alerted the trial court that Juror #5 had 

said that she purchased Jagermeister and consumed the drink. According to 

Juror #10, Juror #5 maintained that Appellant did not have a case. Upon 

learning of this information, the court queried Juror #5. Juror #5 admitted 

to purchasing Jagermeister to see if it was 70 proof, but denied drinking it. 

She also acknowledged telling members of the jury that she had made the 

purchase. However, she maintained that she did not make any additional 

comments and expressly denied stating that Appellant did not have a case.

At the conclusion of this questioning, the court then questioned Juror 

#10 on the record. Juror #10 indicated that Juror #11, Alternate Juror #2, 

and Juror #7 may have overheard Juror #5’s reference to buying 

Jagermeister. The court asked Juror #10 if she could remain impartial 

despite hearing Juror #5’s comments. Juror #10 indicated she could be fair 

and impartial. The court then questioned separately Juror #11, Alternate 

Juror #2, and Juror #7. Only Alternate Juror #2 indicated hearing anything 

regarding Jagermeister, but did not hear Juror #5 say that she drank it. 

Rather, Alternate Juror #2 acknowledged hearing Juror #5 joke about 

tasting that drink after the case. 

Appellant then made a motion for a mistrial. The court denied that 

motion, but dismissed Juror #5. The court set forth that, based on her voir 
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dire of the remaining jurors, she believed they could remain fair. The court 

also provided a cautionary instruction and reminded the jury that it must 

reach its verdict based solely on the evidence presented in the courtroom. 

Appellant did not ask that Juror #10 be removed from the panel. 

Thereafter, the jury found Appellant guilty of the aforementioned offenses. 

On January 8, 2014, the court sentenced Appellant to five to ten years 

incarceration on the homicide by vehicle-DUI count and a consecutive term 

of incarceration of one to two years for the homicide by vehicle charge. It 

imposed no further penalty on the remaining charges. The Commonwealth 

subsequently filed a timely post-sentence motion to modify the sentence to 

request that Appellant pay various costs of prosecution. The court granted 

that motion. This appeal ensued. Appellant raises the following issues for 

our consideration.

A. Whether the Commonwealth presented sufficient evidence to 

the jury to prove that Appellant’s intoxication was the direct 

and substantial cause of death.

B. Whether the trial judge erred by not replacing Juror #10 with 

an alternate upon learning that Juror #5 orally indicated that 

she “didn’t think the defense had much of a case” and that 

she purchased alcohol to investigate its alcohol percentage, 

which prejudiced the Appellant so that the jury could not 

render a fair and unbiased verdict.

C. Whether the trial judge erred by not providing a curative 

instruction to Juror #10 which prejudiced the Appellant so 

that the jury could not render a fair and unbiased verdict.

D. Whether the trial judge erred by not conducting voir dire to 

the entire jury panel regarding Juror #5’s statements which 
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prejudiced the Appellant so that the jury could not render a 

fair and unbiased verdict.

E. Whether the trial judge erred by not providing a curative 

instruction to the entire jury panel to disregard Juror #5’s 

statements which prejudiced the Appellant so that the jury 

could not render a fair and unbiased verdict.

F. Whether the trial judge erred by denying a motion for mistrial 

upon learning of Juror #5’s misconduct which prejudiced the 

Appellant so that the jury could not render a fair and 

unbiased verdict.

Appellant’s brief at 4.

Appellant’s initial claim pertains to the sufficiency of the evidence. In 

performing a sufficiency review, we consider all of the evidence admitted, 

even improperly admitted evidence. Commonwealth v. Watley, 81 A.3d 

108, 113 (Pa.Super. 2013) (en banc). We view the evidence in a light most 

favorable to the Commonwealth as the verdict winner, drawing all 

reasonable inferences from the evidence in favor of the Commonwealth. Id. 

The evidence “need not preclude every possibility of innocence and the 

fact-finder is free to believe all, part, or none of the evidence presented.” 

Id. When evidence exists to allow the fact-finder to determine beyond a 

reasonable doubt each element of the crimes charged, the sufficiency claim 

will fail. Id. In addition, the Commonwealth can prove its case by 

circumstantial evidence. Where “the evidence is so weak and inconclusive 

that, as a matter of law, no probability of fact can be drawn from the 

combined circumstances[,]” a defendant is entitled to relief. Id. This Court
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does not “re-weigh the evidence and substitute our judgment for that of the 

fact-finder.” Id. 

Appellant argues that although he was DUI, his intoxication did not 

cause the accident. According to Appellant, he “performed a regular, normal 

turn with irregular and abnormal results.” Appellant’s brief at 19. Appellant 

highlights that none of the three bartenders who served him and testified 

indicated that he was intoxicated. He points out that the passenger in the 

vehicle traveling behind him at the time of the accident testified to slight 

swerving but that Appellant did not cross into the opposing lane of traffic. 

Additionally, Appellant challenges the testimony of the first officer to 

respond, who conducted field sobriety tests. He takes issue with the 

officer’s conclusion that he appeared mentally impaired, despite the officer’s 

observations being related to Appellant’s physical appearance. Appellant 

then points to testimony from several of his own witnesses that he did not 

appear intoxicated or sound incoherent. 

In addition, Appellant contests the expert testimony of Corporal 

Burckhardt. Appellant suggests that his driving was consistent with his own 

explanation that he was lost and looking for the driveway of his friend in a 

dark stretch of road. He asserts that it is significant that “Corporal 

Burckhardt’s expert testimony never concludes that the turn was the 

proximate cause of the accident and was made illegally or incorrectly 

because of intoxication.” Appellant’s brief at 25. 
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The Commonwealth counters that Appellant has only preserved a 

sufficiency challenge to his homicide by vehicle while DUI conviction. It 

notes further that Appellant has only challenged the causation element of 

the crime. In this regard, the Commonwealth asserts that “[e]vidence of 

[Appellant’s] speeding, failure to control his vehicle, the resulting collision, 

his physical instability, and drinking is sufficient to establish causation.” 

Commonwealth’s brief at 12. 

The Commonwealth highlights that Appellant’s BAC was .136% and 

that it provided expert testimony that Appellant’s driving ability would be 

substantially impaired. It adds that there was testimony that immediately 

before the collision Appellant was driving erratically by varying his speed, 

turning his high beams on and off repeatedly, and drifting in his lane. In 

addition, Appellant was slurring his speech immediately after the crash. 

Furthermore, the Commonwealth presented expert testimony from a crash 

reconstructionist that indicated that based on the speed of the vehicles, 

Appellant should have seen the victim before turning into him.

We find that Appellant’s sufficiency claim is utterly without merit. His 

argument hinges on us viewing the evidence in a light most favorable to him 

and giving him the benefit of the inferences. Here, the evidence is not so 

weak and inconclusive that the jury could not determine that Appellant’s 

intoxication caused the traffic accident. Contrary to Appellant’s apparent 

belief, one need not be falling over drunk in order to be impaired behind the 
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wheel. Appellant had a BAC of .136%. He made a left hand turn into a 

motorcycle that he should have been able to see as it approached, and his 

own driving before the incident involved swerving back and forth in his lane 

and varying his speed. Appellant’s attacks on the expert testimony of 

multiple experts goes to the weight of the evidence and not its sufficiency. 

Appellant misapprehends the law governing sufficiency review. He is 

entitled to no relief. 

Appellant’s remaining claims involve the trial court’s handling of Juror 

#5 and that juror’s interaction with other jury members. Appellant presents 

his argument for issues B through F together. Accordingly, we address 

these claims together and find them meritless.

Appellant first asserts that the trial court erred in failing to replace 

Juror #10 after she reported that Juror #5 had told her that she had 

purchased one of the types of alcohol consumed by Appellant to see the 

alcohol content and did not believe that Appellant had a defense. However, 

Appellant did not seek Juror #10’s removal. This claim is therefore waived. 

See Pa.R.A.P. 302(a). Moreover, that juror indicated that she was not 

influenced by Juror #5’s statement and, in fact, was the one responsible for 

bringing Juror #5’s improper behavior to the court’s attention. 

Appellant also submits that the court erred in not submitting a curative 

instruction to Juror #10; however, the court provided a cautionary 

instruction to the entire jury and Juror #10 was obviously aware that she 
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was not to consider outside information since she alerted the trial court of 

Juror #5’s “investigation” in the first instance. Appellant’s claim is devoid of 

merit. 

Next, Appellant claims that the court erred in declining to voir dire the 

entire jury panel. The Commonwealth correctly points out that defense 

counsel expressly stated that there was no need to call each juror back and 

question them. Hence, Appellant’s position is waived. Pa.R.A.P. 302(a). 

Similarly, Appellant’s penultimate issue is waived. Appellant argues that the 

court erred in not providing a curative instruction to the entire jury to 

disregard Juror #5’s statements. The court, however, did instruct the jury, 

after replacing Juror #5, that it was to only consider evidence introduced in 

the courtroom. Counsel did not object to this instruction. 

Finally, Appellant contends that the court erred in denying his request 

for a mistrial based on Juror #5’s actions. The grant or denial of a mistrial is 

within the discretion of the trial court. Commonwealth v. Pope, 14 A.3d 

139, 145 (Pa.Super. 2010). Accordingly, we review such a decision under 

an abuse of discretion standard. Only where the prejudicial event can 

reasonably be said to deprive the moving party of a fair and impartial trial 

should a mistrial be granted. Commonwealth v. Tharp, 830 A.2d 519, 

532 (Pa. 2003). In the instant case, the trial court removed the juror in 

question and conducted voir dire of those jurors who may have overheard 

Juror #5’s statements. These jurors either indicated that they could be 
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impartial or set forth that they did not hear the offending statements. The 

court then reiterated to the jury that it was only to consider the evidence 

introduced. The court did not err in declining to grant a mistrial. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2015