J. S09007/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA       :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
                v.                 :
                                   :
DONALD W. QUEER,                   :         No. 376 WDA 2014
                                   :
                     Appellant     :


      Appeal from the Judgment of Sentence, September 12, 2001,
         in the Court of Common Pleas of Westmoreland County
             Criminal Division at No. CP-65-CR-0000294-2000



COMMONWEALTH OF PENNSYLVANIA       :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
                v.                 :
                                   :
DONALD W. QUEER,                   :         No. 377 WDA 2014
                                   :
                     Appellant     :


      Appeal from the Judgment of Sentence, September 12, 2001,
         in the Court of Common Pleas of Westmoreland County
             Criminal Division at No. CP-65-CR-0000293-2000



COMMONWEALTH OF PENNSYLVANIA       :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
                v.                 :
                                   :
DONALD W. QUEER,                   :         No. 378 WDA 2014
                                   :
                     Appellant     :


      Appeal from the Judgment of Sentence, September 12, 2001,
         in the Court of Common Pleas of Westmoreland County
             Criminal Division at No. CP-65-CR-0000292-2000
J. S09007/15




BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED JULY 10, 2015

     Appellant     appeals   from   the   judgment   of   sentence   entered

September 12, 2009, following appellant’s various convictions related to

three separate arsons. Finding no merit in the issues on appeal, we affirm.

     This court previously recounted the procedural history of this case

during appellant’s appeal of the order dismissing appellant’s fourth petition

filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541 to 9546:

                  The procedural history of this case is as
           follows. On June 7, 2001, a jury found Appellant
           guilty of numerous counts of arson and related
           offenses. On September 12, 2001, Appellant was
           sentenced to an aggregate term of no less than 29
           and 1/3 nor more than 58 and 2/3 years’
           imprisonment at a state correctional institution.
           Appellant’s post-sentence motions were denied on
           January 14, 2002, and no direct appeal was filed.
           On July 2, 2002, Appellant filed his first
           post-conviction petition, which was denied on
           February 24, 2003. This Court affirmed that order
           on April 7, 2004. On August 13, 2004, Appellant
           filed his second PCRA petition. The PCRA court
           dismissed this second petition as untimely in an
           order entered on March 22, 2005, and Appellant did
           not appeal this order. On April 11, 2005, Appellant
           filed his third PCRA petition in which he requested,
           for the first time, reinstatement of his direct appeal
           rights. The PCRA court reinstated Appellant’s direct
           appeal rights on August 3, 2005.           This Court
           quashed Appellant’s appeal nunc pro tunc from the
           judgment of sentence on May 17, 2006, holding that


                                    -2-
J. S09007/15


            the PCRA court did not have jurisdiction to order the
            reinstatement of direct appeal rights. Our Supreme
            Court denied Appellant’s petition for allowance of
            appeal on September 29, 2006.

                  Appellant filed the instant PCRA petition, his
            fourth, on November 8, 2006.       The PCRA court
            dismissed the petition on December 12, 2006.

Commonwealth v. Queer, Nos. 147, 148, and 149 WDA 2007, unpublished

memorandum at 2-3 (Pa.Super. filed December 12, 2007).

      This court went on to affirm the dismissal of his fourth PCRA petition

on the basis of untimeliness.     Thereafter, appellant turned to the United

States District Court for the Western District of Pennsylvania for relief, filing

a petition for writ of habeas corpus on April 1, 2008.          Ultimately, the

federal court granted relief, ordering the District Attorney of Westmoreland

County to petition the appropriate court to reinstate appellant’s direct appeal

rights. This timely appeal ensued.

      Appellant raises the following issues on appeal:

            I.     WHETHER THE EVIDENCE WAS INSUFFICIENT
                   TO SUSTAIN THE VERDICTS AT ALL THREE
                   CASES?

            II.    WHETHER DEFENDANT SHOULD BE GRANTED
                   A NEW TRIAL BASED UPON TRIAL COUNSEL'S
                   FAILURE TO REQUEST AN ALIBI INSTRUCTION
                   ON ALL CASES?

Appellant’s brief at 6.

      Preliminarily, we note that we cannot review appellant’s second issue,

pertaining to an allegation of ineffective assistance of counsel, on direct



                                      -3-
J. S09007/15

appeal.   It is well-settled that such claims must await collateral review.

Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013). Consequently,

we will not review appellant’s second issue.

      As for appellant’s first issue, pertaining to the sufficiency of the

evidence as to his various convictions, we find no error with the trial court’s

holding. After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, it is our

determination that there is no merit to the question raised on appeal.

Judge John E. Blahovec’s meticulous, 15-page opinion, filed on January 14,

2002, comprehensively discusses and properly disposes of the sufficiency of

the evidence question presented. We will adopt it as our own and affirm on

that basis.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2015




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                  fN THE COURT OF COlVI!YION PLEAS
              VlESTIYIORELAND COUNTY, PENNSYLV.ANIA
                         CRJMl.L"{AL DIVISION

 COtvlMON\VEALTH          OF PENNSYLVANIA                )
                                                         )   292 C 2000
                vs.                                      )   293 C 2000
                                                         )   294 C 2000
 DONALD W. QUEER                                         )

                                     OPINION OF COURT

        The above captioned cases are before the Court for disposition of the Defendant's

 Post Sentence Motions.      TI1e criminal information at case number 292 C 2000 charged

 the Defendant as follows:

               Count I: .Arson in violation of 18 Pa. c.s.«. §330 l (a)( l )(t).
               Count 2: Arson in violation of 18 Pa.C.S.A.. §330 I (a)(l }(ii).
               Count.Jr Arson in violation of L8 P_a.C.S.A .' §33()l(c)(2).,     ·
               Count 4: Criminal Conspiracy in violation of 18 Pa.C.SA. §90J(a)( I).
               Count 5: Recklessly Endangering Another Person in violation of
                         18 Pa.CS.A. §2705.                        .    .      .
               Count 6: Recklessly Endangering Another Person in violation of
                         18 Pa.CS.A. §2705.
               Count 7: Criminal Mischief in violation of 18 P.a,C.S.A. §3J04(a)(I ).

These charges stem from a house fire (Piper Residence) in Cook Township, Latrobe,

Pennsylvania on February 28. 1999. · The criminal information at case number 293 C

2000 charged the Defendant as follows:

              Count I:    Arson in   violation of 18 Pa.C.S.A. §-3301 (a)(l )Ci).
              Count 2:    Arson in   violation of 18 Pa.C.S.A. §330l(d)(lJ.       ·
              Count J:    Arson in   violation of 18 Pa.C.S.A. §330 l (d)(:2).
              Count d:    Criminal   Mischief in violationofl8 Pa.C.S.A. §3304(a)(l).
              Count: 5:   Criminal   Solicitation in violation of 18 Pa.~.S.A. §902(a).

These charges stem from a fire at the Auto Haven, Inc. located on Stare Route 30 in

Deny Township in Westmoreland Countv, on March 14.' 1999.           The criminal information

at case number 294 C 2000 charged the Defendant as follows:


                                     ATTltCHMENT A
                                                                                      Circulated 06/17/2015 03:58 PM




                Count    t·   Arson in violation of 18 Pa.C.S.A.   §330l(a)(l)(i).
                Count    2:   Arson in violation of 18 Pa.CS.A.    §330l(a)(l)(ii).
                Count    3:   Arson in violation of 18 Pa.C.S.A.   §330 l(c)(2).
                Count    4:   Arson in violation of 18 Pa.C.S.A.   §330l(d)(2).
                Count    5: Criminal Solicitaucn of 18 Pa.C.S.A. §902(a).

These charges stem from a mobile home fire (Loveridge residence) in De1Ty Township.

Westmoreland County on April 9, 1999. All three cases were consolidated along wtth

case number 5l 9 C 2000 (arson related charges) and bis cc-defendant, David Ferguson's,

five cases.

        A jury trial at the above captioned cases began 011 May 29. 200 I and ended on

June 7. 2001    The Defendant was acquitted at case number 519 C 2000 bur was found

guilty at the abo~e captioned cases at all counts.      Sentencing occurred on. September 12.

200 I and the Defendant received the following sentence:

       292 C 2000        Count 1: Not less than 10 nor more than 20 years incarceration
                                  at the Bureau of Corrections.
                        Count 2: No further sentence.
                        Count 3: Merges with Count 2.
                        Count 4: Not less than 3 nor more than 6 years incarceration at
                              · the Bureau of Corrections consecutive' to Count l.
                        Count 5: Merges with Count · l.
                        Count 6: Merges with Count L

       293 C 2000       Count 1: Not less than 2 nor more than 4 years incarceration at
                                 the Bureau of Corrections consecutive to 292 C 2000.
                        Count 2: No further sentence.
                        Count 3: No further sentence.
                        Count 4: merges with Count 3.
                        Count 5: Not less than 16 months nor more than 32 months
                                    incarceration consecutive to Count l.

      294 C '.:WOO      Count 1: Not Jess than l O nor more than 20 years incarceration
                                 at the Bureau of Corrections consecutive to 293 C 2000.
                        Count 2: No further sentence.
                        Count 3: Merges with Count 2.
                        Count 4: Merges with Count 2.
                        Count 5: Not less than 3 nor more than 6 years incarceration at the
                                 Bureau of Corrections consecutive to Count l. .



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          At the sentencuig    hearing on September      12, 200 I, the Defendant requested that

  new counse! be appointed co represent      rum   in   furure proceedings.   This Court ordered

  trial counsel co file post sentence motions to roll the appeal statute.      New counsel was

  appointed after trial counsel, filed post sentence motions on September !4, 200 l

         New counsel was instructed to file supplemental post sentence motions and

 supply a brief in support of said motions to the Court. By Court Order, dated November

 29. 200 J. counsel was reminded of the l'.20-dn.y time constraints of Rule 720(3)(a).

 Pa.Rule.Crim.Proc.,    and again was ordered to submit to the Court supplemental motions

 and an accompanying brief. The 120-day time limit bas been reached without this Court

 receiving anything additional from counsel.

        This Opinion will address the original post sentence motions               filed by trial

 counsel. The Defendant filed the following two motions:

                ( l)          The Defendant avers that the Commonwealth failed to
                              establish. with sufficient evidence, the Defendant's guilt
                              beyond a reasonable doubt at all counts at the above captioned
                              cases.
                (2)           TI1e Defendant avers that the Court's sentence went outside
                              the applicable aggravated ranges of sentencing and that the
                              same was excessive and therefore requests reconsideration of
                              sentence.

        The standard of review in determining            the sufficiency of the evidence. is

"whether. accepting as true all of the evidence, be it direct or circumstantial, and all

reasonable inferences   arising therefrom upon which, if believed, the trier of facts could

properly have based the verdict, it is sufficient in law co prove beyond a reasonable doubt

that he defendant is guilty of the crime or crimes of which he bas been convicted."

(Citations omined) CommonweaJth v. Malone, 281 A.2d 866~ 867 (Pa. 1971)




                                              3
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             The Defendant at. the above captioned cases was charged with arson In v iolation

  of 18 Pa CS .l... §3301(a)(1)(i).                (a)(l)(ii). (c)(2), and (d)(2).   These sections read as

  follows.

             (a) Arson endangering persons.

                      ( l) A person commits a felony of the first degree if he intentionally Starrs
                           a fire or causes an explosion, or if he aids, counsels. pays or agrees to
                           pay another to cause a fire or explosion. whether on his own property
                           or on that of another, and if:
                                   he thereby recklessly places another person in danger of death
                                   or bodily injury. including bur not limited to a firefighter.
                                   police officer OT other person actively engaged in fighting the
                                    fire; or
                             11.    he commits the act with the purpose of destroying or damaging
                                    an inhabited building or occupied structure of another.

 18 Pa.C.S.A. §330 I (a)( I )(i) and (ii) .    .
         (b) Arson endangering property .

               ._    A person commits a felony of the second degree if he intentionally starts a
                     fire OT causes an · explosion, whether on his own property or that of
                     another. or if he aids, counsels, pays or agrees to pay another to cause a
                     fire or explosion, and if:
                     (2) he thereby recklessly places an inhabited building or occupied
                         structure of another in danger of damage or destruction;

 18 Pa.CS.A. §J30l(c)(2).

        (d) Recklessly burning or exploding.

                      A person commits a felony of the third degree if he intentionally starts a
                      fire or causes an explosion, or if he aids, counsels, pays or agrees to pay
                      another to cause a fire or explosion. whether on his own property or on
                      that of another, and thereby reck.Jessly:                             ·
                    · ( 1) places an uninhabited buildrng or unoccupied structure of another in
                           danger of damage or destructioo;or
                      (2) places any personal property of another having a value chat exceeds
                           $5,000 or if the property is an -automobile, airplane, motorcycle
                           motorboat   orother motor-propelled vehicle in danger of damage or
                           destruction.

18 Pa.C.S.A. §J30l(d)(l)           and (2).



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  ln order to convict a person oi arson, the prosecution            must establish beyond a reasouable

  doubt chat (I) there was a fire, (2) it was maliciously set. and (3) the defendant was the

  guilty parry Commonwealth v. Hardcastle.               546 A.2d l 101,       1108 (Pa. 1988).

            AI case number        291 C 2000 (Piper Fire) the Commouwealth                        presented   the

 following evidence:          Pam Piper testified that in the early morning hours of February :2S,

  1999 she was at home with her daughter, daughter-in-law,                 so11. and boyfriend.       She heard

 a loud noise like chat of an explosion. At first she thought something was thrown through

 her glass window.       Her daughter yelled that there was a fire. (Trial Transcript. pp. 229·

 232).

          Miss Piper also testified that tbe evening before the fire, on February 27. l 999,

 around 8:00 p.m. that a white truck with a zigzag design on the side pulled                           into her

 driveway.     Ano th er vehicle. pull yd in beside the truck. There were three men; one in the

 truck and two in the other vehicle.           The man got of the truck and spoke to one of the

 individuals   in the other car.         After· a short period of time.          the vehicles both te.ft her

driveway.      At trial she identified     the Defendant's      truck as. the truck in her driveway on

February 27, 1999. (Trial Transcript,          pp. 239-245).
                                                                           .
                                                                           ,
         Trooper     Leslie     Myers,     a fire marshal       for the Pennsylvania          State     Police.

investigated    the fire at the Piper residence.          Trooper Myers testified that he found two

Molotov cocktails at the Piper residence.          The first was m a beer bottle found in the yard.

The bottle coruauied a liquid that smelled like gasoline and had a piece of ctoth as a wick

through the cop of the bottle        The second one was a Gold Schlagger bottle that contained

BBs and gunpowder.       (Trial Transcript. pp. 313-315, 331-332).




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            Trooper Myers aJso testified rhar the dryer vent     111   the back of the house had been

  burnt.     What appeared co have been a warer bottle was actually in the vent and had

  melted. The bottle smelled like gasoline. (Trial Transcript. pp. 318-324). Near the dryer

  vent was located the fuel ptpe for the oil rank for the furnace. The lid for, the oil rank had

  been removed.        There was a wick on the ground and matches i11 the pipe. (Trial

 Transcript, p. 326). The Trooper concluded that the fire had been intentionally set by use

 of the Molotov cocktails and incendiary devices placed in tile dryer vent and the oil

 tank's fuel pipe. (Trial Transcript, p. 336).

           Connie Knauer, the ex-fiance of David Ferguson. the Defendant's co-defendant.

 testified that she heard the Defendant tell Ferguson that he knew someone who wanted a

 house burned and would pay money for it. The Defendant, Ferguson, and Don Phillips

 left together to go see the house on Piper Ridge. The Defendant took bis truck while the

 other two went in Ferguson's red tirebird.          Miss Knauer identified the Defendants truck

 as tilt: same one seen by Miss Piper on February 27. 1999.                 She also overheard the

 Defendant cell Ferguson that he was waiting for the money to pay for the job. (Trial

Transcript, pp. 711-715).

           Miss Knauer also testified that she knew what a Molotov cocktail was because

she had seen them at Ferguson's apartment and had seen Ferguson making them. She

had also helped Ferguson siphon gas out of one of bis vehicles on the nigbc of the fire at

the Piper residence.     Ferguson also told Miss Knauer that he had emptied out shotgun

shells to be used for the fire on the Ridge. (Trial Transcript, pp. 732-736).

        Donald Phillips tesnfied that he overheard the Defendant tell Ferguson char he

needed' him to do a job: Toe Defendant indicated that he would show him where to go.




                                                 6
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       Ferguson then asked Phillips co go for a nde. Ferguson drove his red Carnaro and the

       Defendant took his truck. Phillips idenufied the Defendant s truck as the same! truck seen

       by Miss Piper. (Trial Transcript. pp. 777-781 ). Phillips testified that they went up on the

       Ridge and took some back roads and stepped at the end of dead end street,               There was a

       house on the comer.         The Defendant and Ferguson exited their vehicles and Phillips

       heard the Defendant tell Ferguson that that was the house. (Trial Transcnpt, pp 78~-

       785).

               Phillips testified chat he went co Ferguson's house.       While there Ferguson pulled

      out a beet bottle with gasohne in it. Ferguson then asked how to rake a shotgun shell

      apart,   The gunpowder obtained was placed in the gasoline.             Ferguson also grabbed a ·

      Golden Schlager    bottle.       Phillips took Ferguson back to the Ridge.      Ferguson crawled

      under the trailer and when he came out handed Phillips a Budweiser beer bottle with o

      wick hanging our of it. Phillips gave Ferguson a lighter and Ferguson used the lighter to
i.
      light another bottle chat he threw at the house and ii caught fire.          Phillips   dropped his

     bottle in the yard. They went back to Ferguson's place and Ferguson commented that he

     could not wait lo get paid. (Trial Transcript, pp. 785-794).

               This Court finds that this evidence        was sufficient to convict   the Defendant of

     arson m violation of 18 PaC.S.A. §330J(a)(l)(i)(ii)            and (c)(.2) has charged at 292 C

     2000.     The evidence clearly es~ablishes that there was a fire, that the fire was

     intentionally set. and that the Defendant was responsible for the fire. The Defendant may

     not have been the torch but he acquired someone co burn the house and showed him

     where co find the house.




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          At   this case number the Defendant was also charged with two counts of

  Recklessly Endangering Another Person in violation of 18 Pa.C.S A. §2705                A person

  commits a misdemeanor of the second degree if be recklessly engages in conduct which

  places or may place another person       111   danger of death or senous bodily injury.       l8

  Pa.C.S.A. §2705.     The evidence sufficiently established that the Defendant ordered the

  burning of the Piper Residence. The evidence further established tbat th.is occurred in the
                                                                                 .
 early morning hours when Pam Piper and her family were at home.                     Anyone of the

 occupants of the house could have been killed or suffered serious bodily injury.

        The Defendant was also charged with one count of Criminal Mischief                A person

 is guilty of criminal mischief if be:

                 {l) damages tangible property of another intentionally, recklessly. or by
                     negligence in the employment of fire, explosives, or other dangerous
                      means listed in section 3302(a) of this title (relating to causing or
                      risking catastrophe).

 The evidence, as stated above, clearly established that the fire was intentionally set and

 that the Piper residence suffered damage due to the fire.            Criminal       mischief was

sufficiently established.

        Finally the Defendant was also charged with one count ·of Criminal Conspiracy in

violation of 18 Pa.C.S.A. §903(a)( l ). This section is as follows:

                (a)   A person rs guilty of conspiracy with another person or persons to
                      commit a crime if with the intent of promoting or facilitating res
                      commission he
                        (1) agrees with such other person or persons that they or one or
                            more of them will engage .in conduct which constitutes such
                            crime or an attempt or solicitation to commit such crime;

18 Pa,C.S.A    §903(a)( l).   The evidence presented by the Commonwealth included the

testimony of two individuals,      Miss Knauer and Mr. Phillips. who overheard the




                                                 8
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            Defendant talking to Ferguson about buming a house on the Ridge. Phillips offered the

           testimony that he drove up to the Ridge with Ferguson and the Defendant and overheard

           the Defendant telling Ferguson which house. The Defendant's truck was identified by

           Miss Piper as the truck she saw in her driveway the evening before the fire.               Phillips

           testified as      TO   lus part in the fire at the Piper residence. This evidence was sufficient to

           establish that the Defendant conspired with Ferguson to bum the Piper residence.

                     AT case number 293 C 1000 (Auto Haven Fire) the Commonwealth presented the

           following evidence:           Trooper Leslie Myers testified that on March 14, 1999 thar he was

          instructed to respond to the Auto Haven Dealership on State Rome 30 in Latrobe.

          Pennsylvania.           He observed a green Jaguar had been burnt out. Specifically the Jaguar's

:.. · .   inside passenger compartment had sustained most of the damage.' A vehicle next to the

 ·,       Jaguar was also ds .rnaged 25 well as the carport that the vehicles were parked under.

          (Trial Transcript, pp. 346 -348).

                     Trooper Myers testified that the point of origin in the Jaguar w2.s the from seet

          and that i1: his opinion the fire had been intentionally set. There was an AMC Eagle that

          was also badly burnt The Trooper found a piece of cloth down the gas tank of the

          vehicle.      It    W2S    his opinion cha.. the tire that damaged the AMC Eagle had beer.

          intentionally set as we!l.         Also found was an Isuzu Trooper that had been damaged by       cl


          fire.   A partially burnt wick was found in the ¥as cap area of the vehicle.            Again. the

          Trooper indicated that the fire had been intentionally set. (Trial Transcript, pp. 350-359).

                     Connie Knauer         testified that the Defendant believed that the Auto Haven

          dealership had "screwed him over on a car."              The Defendant had stated char he didn't

          want them in business anymore.                Knauer indicated that the Defendant told this to




                                                              9
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  Ferzuson
        -                               -                                    -
                   She drove with Ferzuson to the Auto Haven on the nizht of rhe fire. Ferzuson
                                                                                                    -
  left be:    in   the car and advised her to wait for a period of rime and then leave if be did not

  come back. When Ferguson came back co the car be was unsure whether or nor be bad

  been successful starting- the fire, so he drove back around. Knauer testified that she saw a

  small flame under one of the vehicles under the tank. Ferguson again parked his car and

 went back to t~e Auto Haven. He returned shortlv and they drove back home. Knauer

 also helped siphon gasoline out of Ferguson's one vehicle on the night of the Auto Haven

 fire (Tnal Transcript, pp.716-721, ?34).

             Mr Shawn Sprock testified that the Defendant asked him and Ferguson to burn

 down the Auto Haven because he was upset with a vehicle that be obtained from the

 dealership. After the Auto Haven fire, Sprock testified that he saw the Defendant give

 Ferguson $200.00.           Ferguson at that point told the Defendant to let him know the next

time he need a job done. (Trial Transcript, pp. 605-606).

            Thrs evidence     sufficiently established arson as charged at this case number         The

evidence established           that a fire had occurred, that the tire was intenuouatly and

maliciously set. and that the Defendant ordered the fire to be sec. Tbe fire was set with

the use of an incendiary device. The Auto Haven was an uninhabited building owned by

another and damaged by the fire. There were also a nwnber of vehicles damaged                  in   the

fire.       Th.is evidence     sufficiently   established   Arson iri violation   of t8 PaC S.A

§330t(a)(!)(i), (d)(l), and (d)(2).

            At this case number the Defendant was also charged with Criminal Solicitation in

violanon of 18 Pa.C.S.A §902(a).

                     A person is guilty of solicnation to commit a crime if wuh the intent of
                     promoting or facilirating its commission he commands, encourages or


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                   requesrs   another person Lo engage   10   specific conduce which would
                   consutute such crime or an attempt co comrmt sucb crime or wluch
                   establish bis complicity ia its commission or attempted commission.

  18 Pa.C S A. §903(a)        The evidence presented by the Commonwealth was that the

  Derendant asked Ferguson to bum down the Auto Haven because he was unhappy with

  the vehicle that he bought from the dealership.   The Defendant wanted the Auto Haven

 out of business    This evidence sufficiently established chat the Defendant comm med the

 crime of criminal sohcitation.

         Finally at this case number the Defendant is charged with Criminal Mischief in

 violation of l 8 Pa.C.S.A §3304(a)( I).   As defined above, criminal mischief occurs when

 one damages the tangible property of another by means of fire or explosives. In this case

 the evidence established that the Defendant requested that Ferguson bum down the Auto

 Haven. Ferguson used incendiary devices in the vehicles, which resulted in a fire. The

 evidence was sufficient to establish that the Defendant committed criminal mischief

        At case number 294 C 2000 (Loveridge Fire) the Commonwealth presented the

 following testimony: Jacquelyn Loveridge testified that she lived in her trader with her

son. Gerald, and her boyfriend.     On April 9, 1999 everyone was at home. Her son was

sleeping in his room and she was in her room with her boyfriend. She heard a "pop"

noise and then her room began to fill up with smoke. All three got out of the trailer and

that they saw flames when they got outside. (Trial Transcript pp. 170-174).

       Miss Loveridge also testified that she knew the Defendant because they bad lived

together for a period of four years. She also identified the Defendant s truck,      (Trial

Transcript. pp 176. 17S- l 79).    Gerald Loveridge testified that he was ar home on the

evening of April 9, 1999 asleep. He woke up and smelled smoke. He initially walked




                                            Il
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         our co the living room and saw smoke and then returned to his bedroom.             In the bedroom

         he reached for bis shoes chat were on the grate of the register and      it   looked hke the grate

         was melting on the bortom of his shoes. He returned co the living room and was told by

         hi: mother's boyfriend to go om tae from door. (Tti31 Transcript. P?· 2J2-213).

         Trooper Kevin Karwarsky testified chat the fire was the fire was concentrated uudernearh

         the trailer.   He found no problems with the underground electrical sen/lee or the breaker

        panel. These items suffered no fire damage in or around them and they had nothing to do

        with the tire. The fire had come up from underneath the trailer through the ductwork

        underneath the boy's bedroom. The fire went up through the ve~t in the boy's bedroom

        and the flames came in contact with the side of the boy's bed. The mattress and box

·:,·    spring were damaged          The Trooper testified that the fire was intentionally started with

        the available combustibles underneath the trailer. (Trial Transcript, pp. 459-469).
v..              Miss Loveridge kept holiday decorations in a cardboard cylinder under rhat pan

        of the trailer. (Trial Transcript. p. 169). The owner of the trailer, Mr. Merle Ray, testified

        that the trailer had no electrical problems and thar tt was valued at .$5,000.00. (Trial

       Transcript, pp. '.210-122).     Trooper Myers also testified that the fire was intentionally set.

       (Trial Transcript. pp. 360-363).

                Connie Knauer testified that she overheard the Defendant telling Ferguson that be

       wanted his ex-wife's trailer burned.        The three of them drove past the trailer and the

       Defendant pointed it out. Knauer identified the Loveridge trailer as the trailer pointed om

       by the Defendant.      A week or two later Knauer went back to the trailer with Ferguson.

       Aga.m she remained in the car at Fergusons request and did not see what Ferguson did

       when he left the car. Knauer further testified thar the Defendant was upset that the fire




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  had been set with people inside. He bad nor wanted anyone to get hurt. (Tnal Transcript.

  pp. -r·  -,-) .
      /_J-/_/


          This evidence was sufficient: co establish arson as charged at this case number.

  The evidence      presented   showed       that there was indeed    a fire, chat the fire was

  mtentionally ser in disregard for whether or not people were inside, and the Defendant

  asked Ferguson lo set the tire for him. The trailer was also valued at S5.000.00. The

 evidence was sufficient to convict the Defendant of Arson in violation of l 8 Pa.CS.A

 §330l(a)( l )(i)(ii). (c)(2), and (d)(2).

         At this case number the Defendant was also charged with Criminal Solicitanon in

 violation of 18 Pa.C.S.A. §902(a). As stared above. cnminai solicitation occurs if one

 "commands, encourages or requests". another engage in an activity that would constitute a

 crime. The evidence presented by the Commonwealth was that the Defendant wanted tne

 Loveridge trailer burned down. that be asked Ferguson. to do the job, and that he took

 Ferguson to the location and identified which trailer he was talking about The evidence

was sufficient co convict the Defendant of criminal solicitation.

        Next the Defendant seeks reconsideration            of sentence and in support thereof

contends that the sentence was excessive and outside the applicable aggravated ranges of

sentencing    The Defendant was sentenced to l O to 20 years incarceration at count l at

292 C 2000 (Piper      Fire) and count l at 294 C 2000 (Loveridge Fire).          Both of these

counts were first-degree felonies.           A person convicted of a first-degree felony may be

sentenced to incarceranon for a period up ro 20 years. 18 PaC.S.A. § l l 03(1). This Court

considered the presentence investigation in reference to the above captioned cases. the




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 different counts.     the sentencing guidelines. and the law of merger.          (Sentencing

 Transcript. p. l 8)

         This Court placed on the record the belief that the evidence in these cases was

 overwhelming as for as guilt. Also placed on the record was the belief under common

 law, that certain crimes. including arson, were considered "tremendously serious onerous

 offenses against humanity." (Sentencing Transcript, pp. l 8-20).        This Cou11 could nor

 imagine anything worse than setting an occupied structure on fire in the middle of the

 night. Such action lacked any grounds for mitigation and deserved a maximum sentence.

 (Sentencing Transcript. p.20).

        This Court also filed a Written Statement of Reasons ·for Deviation from the

Sentencing Guidelines on September 12. 2001.         (Please see attachments). The reasons

 included the fact that the Defendant paid someone else to set.the fires, the fires were set

at night and that the residences were occupied at the time of the fires. Five people were

home when the Piper residence was caught on fire and three people were home when the

Loveridge trailer was caught on fire. No consideration was given to the value of their

lives. The
       .                                                             .
           actions of the Defendant could have resulted in eight potential homicides.

        It is further evident by the record that this Court took in to consideration the

sentencing guidelines.     At case number 292 C 2000 the Defendant also received a

sentence at count 4 (Criminal Conspiracy). The standard range applicable at this counr

was twelve to twenry-four months with thirty-six months being the aggravated range.

The Defendant received a sentence of three to six years at this count. The same standard

range applied at count 5 (Criminal Solicitation)      at case number 294 C 2000.         Tbe

Defendant received a sentence of three to six years at this count.




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          Finally a: count 1 (Arson) and count 5 (Criminal Solicitaticc) at case number 293

 C ~000 the Defendant received a sentence within tbe standard range. At count l the

 standard range was twelve lo twenry-four months and the Defendant received a sentence

 of rwo to four years. A.: count 5 the standard range was nine to sixteen rnoaths and the

 Defendant recei ved a sentence of sixteen to thirty-two months.     TI1e sentencing imposed.

 on the Defendant a: the above captioned cases was appropriate.

          For the reasons set forth above, this Court finds that the Defendant's appeal lacks

 rnent.


                                                 BY THE COURT:




                                                 Date·ro
Attest:


Clerk of Courts

cc: Leo Ciaramitaro, ADA
    Ron E. Valasek. Esq.




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