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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
ZACHARY METCALF,                           :
                                           :
                         Appellant         :
                                           :     No. 1319 WDA 2016

             Appeal from the Judgment of Sentence August 3, 2016
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0002112-2015

BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                              FILED APRIL 20, 2017

        Appellant, Zachary Metcalf, appeals from the Judgment of Sentence

entered in the Beaver County Court of Common Pleas, arising out of a series

of fires that Appellant intentionally set in ten unoccupied structures over a

one-month period. Although the trial court convicted Appellant of more than

a dozen counts of Arson and other related charges, his appeal is limited to

challenging the evidence of his single conviction for Arson Endangering

Persons.1 After careful review, we affirm.

        We summarize the relevant facts and procedural history as follows.

Between August 31, 2015, and September 28, 2015, Appellant intentionally



*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3301(a)(1).
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set fire to eight unoccupied structures in Beaver Falls, Pennsylvania, and two

unoccupied structures in neighboring White Township, Pennsylvania.       See

Agreed Upon Stipulations, Commonwealth’s Exhibit 17. Investigators quickly

determined that the fires were being intentionally set, and began identifying

and patrolling abandoned houses, hoping to determine who was starting the

fires. N.T., 6/20/16, at 68.

        On the evening of September 28, 2015, Sergeant Michael Kryder

(“Sergeant Kryder”) was monitoring an abandoned house located at 1919

11th Avenue when he observed Appellant approach the rear of the

residence, glance around, and then enter the residence.       Id. at 68, 70.

When Appellant emerged a few minutes later, Sergeant Kryder placed

Appellant in custody and transported him to the station.         Once there,

Appellant waived his Miranda2 rights and admitted to intentionally starting

the ten fires in a written and videotaped confession.         Id. at 73-75.

According to his written confession to police, Appellant was motivated by a

desire to “try and clean up the community and do away with the abandoned

structures.” Statement Form, dated 9/29/15, Commonwealth’s Exhibit 14.

        Appellant was arrested and charged with more than ten counts of

Arson, including one count of Arson Endangering Persons for the fire at 1801

West Avenue.     Initially charged in three separate Informations, the three



2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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cases were consolidated for trial.3 Appellant waived his right to a jury trial,

and proceeded to a non-jury trial before the Honorable Richard Mancini on

June 20, 2016.

      At trial, the parties presented a set of Agreed Upon Stipulations, which

included the dates and locations of all ten fires, as well as the fact that the

fires were intentionally set and the structures were unoccupied.     Id.   The

parties also stipulated that the unoccupied structures were the “property of

another” and Appellant did not have “authority to defeat or impair” the

property owner’s interest in the structure.    Id.   The Commonwealth also

introduced Appellant’s written and recorded confessions.      See Statement

Form, dated 9/29/15, Commonwealth’s Exhibit 14; Recorded Statement,

Commonwealth’s Exhibit 15.

      The trial court found Appellant guilty of one count of Arson

Endangering Persons, ten counts of Arson, and related charges.        The trial

court sentenced Appellant to an aggregate term of 4 to 8 years of

incarceration.

      Appellant filed a timely appeal.     Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      On appeal, Appellant raises a single issue for our review, “whether the

Commonwealth presented sufficient evidence to prove beyond a reasonable

3
  The instant case, CP-04-CR-0002112-2015, relates to the eight fires that
Appellant set in Beaver Falls. The two other cases, not at issue in the
instant appeal, relate to the fires that Appellant set in White Township.



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doubt that Appellant placed another person in danger of death or bodily

injury to establish the crime of Arson?” Appellant’s Brief at 6.

      Evidentiary sufficiency is a question of law; thus, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Diamond, 83 A.3d 119, 126 (Pa. 2013).            In determining whether the

evidence was sufficient to support a verdict, we view the evidence and all

reasonable inferences to be drawn therefrom in the light most favorable to

the verdict winner, the Commonwealth herein. Commonwealth v. Watley,

81 A.3d 108, 113 (Pa. Super. 2013) (en banc).

      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence. Significantly, we may not
      substitute our judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)

(citations and internal quotations omitted).

      In his Brief, Appellant only challenges the sufficiency of the evidence

supporting his conviction of Arson Endangering Persons.        This offense is

defined, in relevant part, as follows.

      (a) Arson endangering persons.-- (1) A person commits a felony
      of the first 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 if:




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              (i) 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[.]

18 Pa.C.S. § 3301(a)(1)(i).

     Appellant avers that the evidence was insufficient to establish that he

placed another person in danger of death or serious bodily injury. This court

recently analyzed a similar claim in Commonwealth v. Bragg, 133 A.3d

328 (Pa. Super. 2016). In Bragg, the defendant was accused of robbing a

PNC Bank before fleeing “towards a residential driveway where a wooden

fence separated the driveway from the backyard of a row home. Appellant

changed his clothes, poured gasoline on the clothes he wore in the robbery,

and lit them on fire.”    Id. at 330. At trial, Assistant Fire Marshal Edward

Manko testified that, based on his 25 years of experience, “the fire could

have easily spread throughout the scorched vegetation in that neighborhood

yard, placing all the row homes [located at the end of the yard] in danger.”

Id. at 331.     Based on that testimony, we affirmed the defendant’s Arson

Endangering Persons conviction because “he placed another person in

danger of death or serious bodily injury when he started the fire in the

residential driveway.” Id.




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      In the instant case, Beaver Falls Fire Chief Mark Stowe (“Chief Stowe”)

testified at Appellant’s trial.4 Chief Stowe has been a firefighter for the City

of Beaver Falls for 33 years, and Fire Chief of Beaver Falls for the last 18

years. N.T. at 19, 21. Chief Stowe responded to each of the eight fires that

Appellant intentionally set in Beaver Falls, including the fire at 1801 West

Avenue. Id. at 20, 28.

      Chief Stowe testified that, on September 27, 2015, at 10:38 p.m., his

department was notified of a fire at 1801 West Avenue, Beaver Falls,

Pennsylvania. Id. at 35. Chief Stowe testified that, when they arrived on

scene five minutes later,

      [t]he two story framed dwelling [at 1801 West Avenue] was fully
      engulfed in flames with a large amount of radiant heat coming
      from the structure. Our first end engine arrived on West Avenue
      positioned on the front of the structure, and due to the radiant
      heat we had to immediately move our engine.

      At the same time there was a dwelling, or actually two dwellings,
      one located directly across West Avenue.          It was being
      threatened by the radiant heat, as well as a dwelling located at
      1901 West Avenue. It was being threatened by the radiant heat.




4
  In his sufficiency claim, Appellant faults the Commonwealth for not calling
an expert witness to testify to the dangers of ambient heat “to a reasonable
degree of professional certainty.” Appellant’s Brief at 10. Appellant also
attempts to distinguish the instant case from Bragg by arguing that the
Assistant Fire Marshal who testified in Bragg rendered an “expert opinion”
while Chief Stowe was not admitted as an expert. However, Chief Stowe did
testify to the danger Appellant’s fire posed to neighboring structures and
their occupants, in language almost identical to that offered in Bragg.
Appellant did not object to this testimony at trial, and does not challenge the
admissibility of Chief Stowe’s testimony on appeal.



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      Our first task was to protect those dwellings, both occupied
      dwellings.

Id. at 34-35.

      Chief Stowe testified that both neighboring structures were “obviously

occupied” and had lights on inside. Id. at 35-36. In addition, the occupants

of one of the residences were on their front porch, screaming and “very

excited because of the heat and danger to their structure.”      Id. at 35-36,

44-45.     The    two   neighboring,    occupied   residences    were   located

approximately 60 feet away from the “fully engulfed” structure. Id. at 44.

Concerned about danger to the residents and the neighboring structure,

Chief Stowe moved the “frantic, worried” neighbors off of their porch into

their back yard so that they were an additional 50 to 60 feet from the fire.

Id. at 49-50.

      Chief Stowe elaborated on the dangers posed by ambient heat to the

occupied residences, explaining that “[a]s the radiant heat is being emitted

from the initial fire building it is heating the nearby structure and fuel. Once

a structure is heated to the point it reaches its ignition temperature,

simultaneous burning will occur of that structure.” Id. at 37-38. In his 33

years of experience, Chief Stowe had seen ambient heat ignite a neighboring

structure on “many occasions.” Id. at 38. He testified that, based on his

experience, he could tell “immediately that the house, the occupied houses

were being threatened” by the ambient heat.         Id. at 47.    Finally, Chief

Stowe testified that when they arrived on scene, the wind was blowing


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“embers and brands” from the engulfed structure onto one of the

neighboring residences. Id. at 58.

      Chief Stowe was “immediately” able to detect the danger to the two

neighboring homes, and so he and members of his department immediately

applied water to the unoccupied structure at 1801 West Avenue and to the

roof and sides of the neighboring structures. Id. at 35, 47, 59. As a result,

they were able to keep the neighboring homes below “ignition temperature”

and prevented the occupied residences from igniting. Id. at 38, 49. Even

with the considerable efforts of the Beaver Falls Fire Department, 1801 West

Avenue was a complete loss, with only the basement remaining when the

Fire Department extinguished the flames. Id. at 33; see also Photograph

of 1801 West Avenue, Commonwealth’s Exhibit 9.

      Appellant argues that, although “[C]hief Stowe did mention the

potential risk of radiant heat to other buildings, he did not relate that danger

to another person but a danger to a building.” Appellant’s Brief at 9. This

argument is belied by the evidence presented at trial, where Chief Stowe

clearly testified that the neighboring residences were occupied at the time of

the fire, that the occupied structures were in danger of igniting, and that

Chief Stowe was forced to relocate the residents from the porch into the

backyard because they were in danger from the fire that Appellant had

intentionally set. N.T. at 49-50.




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      Appellant also argues “[t]he Commonwealth presented no evidence

and does not appear to make an argument that any person was actually

injured as a result of the fire.” Appellant’s Brief at 9. However, actual injury

is not an element of Arson Endangering Persons.            See 18 Pa.C.S. §

3301(a)(1)(i).   The Commonwealth was required to prove that Appellant

recklessly placed another person in danger of death or bodily injury. Id.

      Unlike the defendant in Bragg, Appellant did more than set a small

pile of clothing on fire.   The Commonwealth presented evidence showing

that Appellant entered a residential neighborhood, at night, and intentionally

set fire to an unoccupied structure located in close proximity to other homes.

At 10:30 p.m. it is reasonable to expect that residents may be home and

children may be in bed.        In fact, both of the neighboring homes were

“obviously occupied” at the time.        By the time the Fire Department

responded to the fire, the unoccupied structure was “fully engulfed” and

threatening both of the neighboring homes, forcing firefighters to evacuate

the area around 1801 West Avenue and apply water to the neighboring

homes.    The quick thinking and diligent efforts of Chief Stowe and his

department do not in any way diminish Appellant’s culpability or the

recklessness of his actions.

      Based on the foregoing, conclude that the evidence was sufficient to

establish the offense of Arson Endangering Persons.

      Judgment of Sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/20/2017




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