J-S62035-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DAVID WAYNE HYNSON

                          Appellant                   No. 3477 EDA 2013


          Appeal from the Judgment of Sentence September 26, 2013
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0002742-2013


BEFORE: ALLEN, J., OLSON, J., and OTT, J.

MEMORANDUM BY OTT, J.:                            FILED OCTOBER 30, 2014

        David Wayne Hynson appeals from the judgment of sentence entered

September 26, 2013, in the Delaware County Court of Common Pleas. The

trial   court   imposed   an   aggregate   sentence   of   eight   to   16   years’

imprisonment, followed by two years’ probation, after Hynson was convicted,

by a jury, of arson and related charges for setting a car on fire. On appeal,

Hynson challenges the sufficiency of the evidence, and the legality of his

sentence. For the reasons set forth below, we affirm in part, vacate in part,

and remand the case for resentencing.

        The facts underlying Hynson’s conviction are well known to the parties,

and aptly summarized in the trial court’s opinion. See Trial Court Opinion,

3/26/2014, at 2-5. Therefore, we need only briefly reiterate them here. In

the early morning hours of January 11, 2013, Hynson, accompanied by his
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girlfriend, Samantha Rigby, set fire to a car, owned by Desiree Schulz, which

was parked under a deck attached to Schulz’s home.1 Specifically, Hynson

doused the car with gasoline then tossed a lit piece of paper on the trunk.

Hynson and Rigby started the fire in retaliation for an argument Rigby had

with Schulz, who was her landlord.             Fortunately, Schulz and her seven-

month-old daughter, who were sleeping in the attached house at the time,

escaped without injury.

       Hynson was subsequently arrested and charged with attempted

murder,    arson    (endangering       persons),   arson   (endangering   property),

criminal conspiracy, PIC, recklessly endangering another person (REAP) (two

counts), and causing a catastrophe.2 Jury selection for trial began on July

25, 2013.     At the close of the Commonwealth’s case-in-chief on July 30,

2013, Hynson moved for a judgment of acquittal on the charge of attempted

murder, which the trial court granted. See N.T., 7/30/2013, at 108. Later

that day, the jury returned a verdict of guilty on all charges, with the

exception of causing a catastrophe. On September 26, 2013, the trial court
____________________________________________


1
  We note that Rigby was also charged in connection with the fire. She
entered a guilty plea on July 16, 2013, to charges of criminal conspiracy,
reckless burning, and possessing instruments of crime (PIC). See N.T.,
7/29/2013, at 133; Delaware County Court of Common Pleas, Criminal
Docket 1670-2013. Thereafter, Rigby testified for the Commonwealth at
Hynson’s trial.
2
  18 Pa.C.S. §§ 2501, 3301(a)(1)(i), 3301(c), 903, 907, 2705, and 3302(a),
respectively.




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imposed a sentence of five to 10 years’ imprisonment for arson-endangering

persons, two to four years’ imprisonment for criminal conspiracy, one to two

years’ imprisonment for PIC, and one year of probation for each count of

REAP. The court directed all sentences to run consecutively for an aggregate

term of incarceration of eight to 16 years, followed by two years’ probation.

       On October 7, 2013, both Hynson and the Commonwealth filed timely

motions for reconsideration of sentence.3, 4 While the motions were pending,

and while he was represented by retained counsel, Hynson filed a pro se

notice of appeal on October 30, 2013. On November 1, 2013, the trial court

entered an order purporting to deny the notice of appeal as moot, since the

post-sentence motions were still pending, and Hynson was still represented

by counsel.5      The trial court conducted a hearing on the post-sentence

motions on November 13, 2013. At the beginning of the hearing, Hynson’s




____________________________________________


3
  Although the motions were filed on the eleventh day following sentencing,
the tenth day, October 6, 2013, was a Sunday. 1 Pa.C.S. § 1908.
4
  Hynson requested a reduction in his term of incarceration based upon
mitigating factors. The Commonwealth sought the imposition of a
mandatory minimum term of 10 to 20 years’ incarceration for Hynson’s
conviction of arson pursuant to 42 Pa.C.S. § 9714(a)(1).         See id.
(mandatory minimum 10 year term for “second strike” conviction).
5
  This Court later dismissed that appeal as duplicative. See Docket No.
2993 EDA 2013, Order, 12/24/2014 (“This appeal is hereby dismissed as
duplicative of the appeal docketed at No. 3477 EDA 2013.”).



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counsel withdrew his motion for reconsideration. The trial court later denied

the Commonwealth’s motion.6

        Hynson thereafter filed a pro se notice of appeal on December 13,

2013.    Counsel was appointed to represent Hynson on direct appeal.           On

January 9, 2014, the trial court ordered Hynson to file a concise statement

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b).            After

receiving an extension to time, Hynson complied with the court’s directive

and filed a concise statement on February 28, 2014.

        In his first issue, Hynson challenges the sufficiency of the evidence

supporting his conviction of PIC.          Specifically, he argues the gasoline he

used to start the fire was not an “instrument of crime.”           Hynson asserts

“[t]he gasoline [he purchased] was simply utilized to help carry out the

arson rather than being the actual instrument of the arson.” Hynson’s Brief

at 13. Further, he contends that because the gasoline “was employed only

as a means to facilitate the commission of the crime of arson[,]” it was not

an “instrument of crime” as defined by the statute.

        When considering a challenge to the sufficiency of the evidence,

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6
  Although the trial court did not explain the basis of its ruling, we note the
Commonwealth did not provide Hynson, before the sentencing hearing, with
the requisite notice of its intent to seek the imposition of the mandatory
minimum term. See 42 Pa.C.S. § 9714(d) (“[R]easonable notice of the
Commonwealth’s intention to proceed under this section shall be provided
after conviction and before sentencing.”).




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      [w]e 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. Where there
      is sufficient evidence to enable the trier of fact to find every
      element of the crime has been established beyond a reasonable
      doubt, the sufficiency of the evidence claim must fail.

Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010) (internal

citations omitted), appeal denied, 14 A.3d 826 (Pa. 2011).

      In order to secure a conviction for PIC, the Commonwealth must prove

the defendant “possesse[d] any instrument of crime with intent to employ it

criminally.”   18 Pa.C.S. § 907(a).      The statute defines an “instrument of

crime,” in relevant part, as “[a]nything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for

lawful uses it may have.” 18 Pa.C.S. § 907(d).

      Hynson    relies   on   this   Court’s   decision   in   Commonwealth   v.

Williams, 808 A.2d 213 (Pa. Super. 2002), for support of his argument on

appeal.   In Williams, a panel of this Court held that a walkie-talkie the

defendant used to facilitate drug sales was not an “instrument of crime” for

purposes of a conviction under Section 907. The Williams panel explained:

      Instantly, the walkie-talkie was used during the course of the
      drug sales, as a truck might be used in the course of a theft to
      transport stolen property, to help carry out the criminal
      offense. We hold that the mere use of an item to facilitate a
      crime does not transform the item into an instrument of crime
      for purposes of the PIC statute.

Id. at 215 (emphasis supplied). The Williams Court distinguished the facts

before it from those presented in Commonwealth v. Vida, 715 A.2d 1180



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(Pa. Super. 1998), appeal denied, 736 A.2d 604 (Pa. 1999), where this

Court found that a paint stick the defendant used to paint graffiti on a lamp

pole was an “instrument of crime” under Section 907(d). The Williams

Court explained that in Vida, “the stick itself was the instrument whereby

the criminal mischief (graffiti) was committed.” Williams, supra, 808 A.2d

at 215.

      Here, the trial court found the gasoline Hynson used to accelerate

Schulz’s car was an “instrument of crime” as defined in the statute.

      [Hynson] purchased the gasoline in order to commit arson.
      [Hynson] deliberately doused Schulz’s car with gasoline and then
      threw a lit piece of paper on top of the car. [Hynson] bypassed
      using the gasoline for any of its lawful uses, and instead, used it
      for criminal purposes. The argument that gasoline, when used
      to commit arson, cannot be an instrument of crime is without
      merit.

Trial Court Opinion, 3/26/2014, at 8.

      We agree with the trial court’s conclusion. Unlike the walkie-talkie in

Williams, here, the gasoline was not used merely to facilitate the crime.

Rather, much like the paint stick in Vida, the gasoline “was the instrument

whereby the [arson] was committed.”        Williams, supra, 808 A.2d at 215

(emphasis supplied). Therefore, Hynson’s challenge to the sufficiency of the

evidence fails.

      Next, Hynson contends the trial court imposed an illegal sentence

because both sentences imposed for REAP should have merged with the

sentence imposed for arson (endangering persons).



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      A claim that the trial court imposed an illegal sentence by failing
      to merge sentences is a question of law. Accordingly, our
      standard of review is plenary. The Pennsylvania legislature
      passed a statute governing merger, which states:

            No crimes shall merge for sentencing purposes
            unless the crimes arise from a single criminal act and
            all of the statutory elements of one offense are
            included in the statutory elements of the other
            offense.    Where crimes merge for sentencing
            purposes, the court may sentence the defendant
            only on the higher graded offense.

Commonwealth v. Schmohl, 975 A.2d 1144, 1149 (Pa. Super. 2009),

quoting 42 Pa.C.S. § 9765.       “The statute’s mandate is clear. It prohibits

merger unless two distinct facts are present: 1) the crimes arise from a

single criminal act; and 2) all of the statutory elements of one of the

offenses   are   included   in   the    statutory   elements   of   the   other.”

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

      Here, Hynson was convicted of one count of arson (endangering

persons) and two counts of REAP.         A person may be convicted of arson

(endangering persons) if, inter alia,

      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 if … he thereby recklessly places another person in danger of
      death or bodily injury, including but not limited to a firefighter,
      police officer or other person actively engaged in fighting the
      fire[.]




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18 Pa.C.S. § 3301(a)(1)(i).    A person is guilty of REAP if “he recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S. § 2705.

     In the present case, the trial court agrees that the sentence for one

count of REAP should have merged with the sentence for arson-

endangering persons.      However, relying on this Court’s decision in

Commonwealth v. Glass, 50 A.3d 720 (Pa. Super. 2012), appeal denied,

53 A.3d 774 (Pa. 2013), the court maintains the sentence for the second

count of REAP should not merge. We agree.

     In Glass, the defendant was convicted of one count of arson and three

counts of REAP, after setting fire to his own house and endangering his wife

and two children.   Id. at 724.   At sentencing, the trial court merged the

sentence for one count of REAP with the sentence for arson, but imposed

consecutive sentences for the remaining two counts of REAP.      Id. at 732.

On appeal, a panel of this Court affirmed concluding that, while a conviction

of arson (endangering persons) required the jury to find the defendant

“recklessly placed another person in danger of death or bodily injury,” in

that case, the defendant’s actions placed three people in danger.        Id.

Therefore, the Court concluded only one count of REAP merged for

sentencing purposes.

     The same is true in the present case. Although Hynson’s conviction of

one count of REAP should have merged with his conviction of arson, we find,


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pursuant to the decision in Glass, that his other conviction of REAP, for

seven month old child should not have merged. Accordingly, we vacate the

judgment of sentence and remand for resentencing.7

       Judgment of sentence affirmed in part, and vacated in part.        Case

remanded for resentencing consistent with this decision.           Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2014




____________________________________________


7
   We note the Commonwealth argues that, pursuant to the merger statute,
the crimes of arson (endangering persons) and REAP do not merge for
sentencing purposes. The Commonwealth emphasizes REAP requires that
the defendant place another person “in danger of death or serious bodily
injury.”    18 Pa.C.S. § 2705.       However, arson (endangering persons)
requires only that the defendant place another person “in danger of death or
bodily injury[.]” 18 Pa.C.S. § 3301(a)(1)(i). Therefore, it contends, one
could intentionally set a fire to a car parked in a fireproofed garage of a
fireproofed building, and place a person in danger of only bodily injury, by
smoke inhalation, but not in danger of serious bodily injury, as required for a
conviction of REAP. See Commonwealth’s Brief at 22. The Commonwealth,
however, does not discuss this Court’s decision in Glass, supra, which
relates to multiple victims, and which we find to be dispositive.




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