J-S24041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DANIELLE MARIE FALCON                      :
                                               :
                      Appellant                :   No. 1730 WDA 2016

            Appeal from the Judgment of Sentence October 11, 2016
             In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0002450-2013


BEFORE:      PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED MAY 15, 2017

        Appellant Danielle Marie Falcon appeals from the judgment of sentence

entered by the Court of Common Pleas of Westmoreland County after a jury

convicted Appellant of attempted murder, aggravated assault, and recklessly

endangering another person. Appellant contends that there was insufficient

evidence to support her attempted murder conviction and argues that the

trial court erred in allowing the Commonwealth to admit into evidence a

comment that Appellant made on social media. We affirm.

        Appellant was charged with the aforementioned offenses after she

attempted to run over Kaitlin Ruby (“the victim”) with her car.        The trial

court aptly summarized the relevant factual background as follows:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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            On June 18, 2013, [the victim] had plans with Erick Adams
     (hereinafter “Mr. Adams”) and their children. [The victim] stated
     that when they returned to Mr. Adams’ house and saw
     [Appellant] in the driveway, Mr. Adams drove [the victim] to the
     tanning salon instead. [FN1] [The victim] attempted to call Mr.
     Adams to pick her up but when he didn’t answer, she decided to
     walk to his residence. As [the victim] was turning on Buckeye
     Tram Road, she observed Appellant drive past her and then
     complete a U-turn in the middle of the road. At this point,
     Randy Gowton (hereinafter “Mr. Gowton”) offered [the victim] a
     ride, and dropped her off in front of Mr. Adams’ residence. [The
     victim] then observed Appellant’s vehicle directly behind Mr.
     Gowton’s truck. [The victim] recalls hearing Appellant gas her
     vehicle, and as [the victim] looked back, she saw Appellant’s
     vehicle, coming towards her, and then striking her. [The victim]
     remembers being under the vehicle and then lying in the grass
     while attempting to move. As [the victim] watched Appellant’s
     vehicle turn around, she remembers yelling “please stop, don’t
     do this.” At this point, Appellant exited her vehicle, and told
     [the victim] she was going to take her to the hospital. Appellant
     attempted to pick up [the victim] and place her in the vehicle.
     Mr. Gowton returned and stayed with [the victim] until the
     ambulance arrived. [The victim] was then flown by Life Flight to
     a hospital where she stayed for approximately one month.

          [FN1] [The victim] stated that she met Appellant on
          a previous occasion when she went to visit her
          children at Mr. Adams’ residence.

            [The victim] described several injuries that she sustained
     as follows: two deep cuts in both legs, tendon and joint damage
     in her right leg, either tendon or joint damage in her left leg,
     pelvic fractures, a hematoma on her head and on her abdominal,
     a laceration to her right elbow, a laceration on her back, a brush
     burn on her left ankle, and separation of [the victim’s] spinal
     cord from her pelvis. The injuries required two surgeries. For
     the entire hospital stay, [the victim] was confined to a bed and
     was not able to walk. After her hospital discharge, she was
     transferred to a skilled nursing facility, where she completed
     physical therapy and occupational therapy. Later on, when [the
     victim] gave birth to her current husband’s child, she was
     required to have an emergency C-section because her pelvis
     would not entirely expand.        [The victim] stated that she


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     currently has a lot of pain and side effects from the injuries, and
     still requires screws in her pelvis to connect her spine.

           Mr. Gowton corroborated [the victim’s] testimony
     regarding the incident on June 18, 2013. Mr. Gowton testified
     that he was driving down Buckeye Tram Road, saw a woman
     whom he knew to be associated with his neighbor, Mr. Adams,
     and offered her a ride because it started to rain. The woman,
     later identified as [the victim], accepted the ride. While Mr.
     Gowton was driving [the victim] to Mr. Adams’ house, he noticed
     a maroon SUV behind him. When Mr. Gowton approached the
     residence, he pulled over so the SUV could pass, but instead it
     stopped. After [the victim] exited the vehicle and as Mr. Gowton
     was driving away, he looked in his driver side vehicle and
     observed the vehicle driving through the driveway and striking
     [the victim]. [FN2] Mr. Gowton then parked his vehicle, saw his
     neighbor Alex, and ordered him to call 911. When Mr. Gowton
     approached the area of the incident, he observed Appellant
     attempting to place [the victim] into her vehicle. Mr. Gowton
     then pulled [the victim] out of the vehicle, laid her on the
     ground, and stayed with her until the firemen and ambulance
     arrived.

           [FN2] Mr. Gowton testified that the center front part
           of the vehicle struck [the victim].

           [Mr. Adams testified that] [e]arlier on the same date, as
     [he] was returning to his residence on Buckeye Tram Road with
     [the victim] and their two children, he saw Appellant at his
     house and continued to drive past his house, and [took the
     victim] to Sun Kissed Tanning, approximately one-mile from his
     residence. [FN3] Mr. Adams returned home where Appellant was
     waiting, and Appellant collected her belongings that were still at
     the residence. When he left with the children to pick up [the
     victim], he was not able to find [the victim]. Mr. Adams then
     returned home within minutes after receiving a call from his
     neighbor about the incident at his residence. When he returned
     home, he saw [the victim] lying on the ground and Appellant’s
     vehicle in the yard. [FN4] Emergency personnel arrived shortly
     thereafter.

           [FN3] Mr. Adams, Appellant’s ex-boyfriend and
           owner of the residence 271 Buckeye [Tram] Road,
           testified to his previous relationship with Appellant,

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           which commenced a few months prior to the incident
           and ended around June 1, 2013. Mr. Adams stated
           that he told Appellant the he was ending their
           relationship because he still had feelings for [the
           victim]…

           [FN4] Mr. Adams testified that he had video
           surveillance outside of his residence and provided a
           copy of the home surveillance video, which was
           admitted as Commonwealth’s Exhibit 9. The video
           was played for the jury with a time stamp
           commencing at 5:43 p.m.

                                    ***
            Casandra Rowe (hereinafter “Ms. Rowe”) testified as to her
     relationship with [the victim] prior to and at the time of the
     incident. She stated that, around May and June of 2013, [the
     victim] lived with Ms. Rowe. At that time, [the victim] did not
     have her own cellular phone. However, Ms. Rowe did, in fact,
     possess a cellular phone in which [the victim’s] Facebook
     account was added. Ms. Rowe stated that she observed private
     messages on [the victim’s] Facebook account from Appellant.
     Ms. Rowe admitted the she was the one who responded to the
     Facebook messages from Appellant, not [the victim]. [FN5]
     Specifically, Ms. Rowe explained that the initial message was
     sent from Appellant on June 15th and two days later, Ms. Rowe
     sent her last text message at approximately 1:00 a.m. on June
     18, 2013. Appellant then sent [the victim] a message at 8:35
     a.m. on June 18, 2013, the date of the incident, which stated,
     “[y]ou look like a beatup China rag doll bitch I will ‘F’ you up I
     dare you to step to me I F-in dare you bring it.” [FN6]

           [FN5] [The victim] conceded that she was aware that
           Ms. Rowe was sending Facebook messages to
           Appellant but was unaware of the content of those
           messages.

           [FN6] Ms. Rowe also read two messages she sent to
           Appellant, which stated “[O]nce again u need to
           check urself nd realize ur position fall back sideline
           before u find out how quick I can put your ‘A’ there.”
           “But since u are so bold over the Internet, make sure
           you have the same walk when I see u cuz I’m not


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            like ur kind I’ll beat ur trashy frail skeleton body in
            with no second thoughts.”

Trial Court Opinion, 12/20/16, at 1-4 (citations and some footnotes

omitted).

      After the conclusion of the trial, the jury convicted Appellant on all

charges. On October 11, 2016, the trial court sentenced Appellant to seven

and half to fifteen years’ imprisonment on the attempted murder charge.

The remaining charges merged with the attempted murder charge for

sentencing purposes. Appellant filed a timely appeal and complied with the

trial court’s directions to file a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

      Appellant raises two issues for our review on appeal:

      1. Whether the Court of Common Pleas erred in determining the
         jury’s guilty verdict for Criminal Attempt – Homicide was
         supported by sufficient evidence.

      2. Whether the Court of Common Pleas erred in allowing the
         Commonwealth to present vulgar and unduly prejudicial
         evidence regarding [Appellant’s] Facebook messages with
         Casandra Rowe, who pretended to be the victim in this
         matter, in an attempt to provoke conflict with [Appellant].

Appellant’s Brief, at 2 (issues reordered).

      First, Appellant challenges the sufficiency of the evidence supporting

her conviction for attempted murder. Our standard of review is as follows:

            As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the

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      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant's guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

            The Commonwealth may sustain its burden by means of
      wholly circumstantial evidence. Accordingly, [t]he fact that the
      evidence establishing a defendant's participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant's crimes beyond a reasonable doubt,
      the appellant's convictions will be upheld.

Commonwealth v. Tukhi, 149 A.3d 881, 886–87 (Pa.Super. 2016)

(citation omitted).

      Section 901(a) of the Crimes Code provides that an individual can be

convicted of criminal attempt if that person “with intent to commit a specific

crime, … does any act which constitutes a substantial step towards the

commission of that crime.”    18 Pa.C.S. § 901(a).     More specifically, with

respect to attempted murder, this Court has provided the following:

      “For a defendant to be found guilty of attempted murder, the
      Commonwealth must establish specific intent to kill.”
      Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa.Super.
      2004). Therefore, “[i]f a person takes a substantial step toward
      the commission of a killing, with the specific intent in mind to
      commit such an act, he may be convicted of attempted murder.”
      In re R.D., 44 A.3d 657, 678 (Pa.Super. 2012). “The
      Commonwealth may establish the mens rea required for first-
      degree murder, specific intent to kill, solely from circumstantial
      evidence.” Id. Further, our Supreme Court has repeatedly
      determined that “[t]he use of a deadly weapon on a vital part of


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      the body is sufficient to establish the specific intent to kill.”
      Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1009
      (2007); see also Commonwealth v. Cousar, 593 Pa. 204, 928
      A.2d 1025, 1034 (2007) (“a specific intent to kill may be inferred
      from the use of a deadly weapon on a vital part of the victim's
      body”).

Commonwealth v. Tucker, 143 A.3d 955, 964 (Pa.Super. 2016).

      Appellant limits her sufficiency challenge to claim the Commonwealth

failed to prove she intended to kill the victim. While Appellant characterizes

her behavior as “making contact with the victim,” she argues that her

attempt to render aid to the victim after running her over with her vehicle

demonstrates that she did not have intent to kill. Appellant’s Brief at 7. In

addition, she claims her attempt to take the victim to the hospital “would

have been successful, save for the intervention of Randy Gowton, who

removed the victim from the Appellant’s vehicle.” Appellant’s Brief, at 7.

      This argument is disingenuous.      Appellant did not merely “make

contact” with the victim; she mowed the victim down in a forceful collision

with her large SUV. The Commonwealth admitted into evidence surveillance

video footage, taken from three different angles, that shows how Appellant

violently struck the victim with her Ford Explorer and caused the victim’s

body to become trapped under the vehicle.        Yet even after the impact,

Appellant continued to drive, dragging the victim’s body under her vehicle,

seemingly without applying any brake.      There is no doubt that Appellant

employed her SUV as a deadly weapon on a part of the victim’s body, as the

victim’s entire body was crushed under the weight of the vehicle.

Appellant’s attempt to take the victim to the hospital by picking her up and

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laying her in the driver seat did not show that Appellant lacked intent to kill;

it was more indicative of Appellant’s consciousness of guilt.   Accordingly, we

find Appellant’s sufficiency challenge to be meritless.

        Second, Appellant challenges the trial court’s decision to allow the

Commonwealth to admit into evidence messages Appellant sent to the

victim’s Facebook account that were answered by the victim’s friend,

Cassandra Rowe.         In reviewing a challenge to the admission of certain

evidence, our standard of review is as follows:

      [q]uestions regarding the admission of evidence are left to the sound
      discretion of the trial court, and we, as an appellate court, will not
      disturb the trial court's rulings regarding the admissibility of evidence
      absent an abuse of that discretion. An abuse of discretion is not
      merely an error of judgment; rather, discretion is abused when the law
      is overridden or misapplied, or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill-will, as
      shown by the evidence or the record....

Commonwealth v. Richard, 150 A.3d 504, 512 (Pa.Super. 2016) (citation

omitted).

      Specifically, Appellant argues that the trial court abused its discretion

in admitting the following inflammatory statement she sent to the victim’s

Facebook account: “You look like a beatup (sic) China rag doll bitch I will

fuck you up I dare you step into me I Fuckin dare you to bring it.”         N.T.

Trial, 5/2/16 - 5/4/16, at 127. Appellant argues that the admission of this

statement did not have sufficient probative value, was unduly prejudicial to

her defense, and was solely a response to Ms. Rowe, who Appellant claims

incited the conflict.


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      Our rules of evidence provide that a trial court “may exclude relevant

evidence if its probative value is outweighed by a danger of … unfair

prejudice.” Pa.R.E. 403. We agree with the trial court’s conclusion that this

message was highly probative of Appellant’s intent, motive, and absence of

mistake in causing the accident just hours after she sent these threatening

messages. The admission of this statement would refute Appellant’s claim

that she accidentally ran over the victim.

      While Appellant is correct that this statement is prejudicial to the

defense, she has not shown that the statements were unduly prejudicial.

This Court has emphasized that “evidence will not be prohibited merely

because it is harmful to the defendant. This court … is not required to

sanitize   the   trial   to   eliminate   all   unpleasant   facts   from   the   jury's

consideration where those facts are relevant to the issues at hand.”

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super. 2009).                        See

Commonwealth v. Foley, 38 A.3d 882, 891 (Pa.Super. 2012) (exclusion of

evidence on grounds that is prejudicial “is limited to evidence so prejudicial

that it would inflame the jury to make a decision based upon something

other than the legal propositions relevant to the case”).            As Appellant has

not established that the statement in question was so prejudicial as to cause

the jury to decide the case on an improper basis, we find no abuse of

discretion in admitting this statement into evidence.

      For the foregoing reasons, we affirm the judgment of sentence.

      Affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2017




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