J-S31020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                 v.                             :
                                                :
                                                :
    KENNETH WHITE                               :
                                                :
                           Appellant            :    No. 1391 EDA 2017

           Appeal from the Judgment of Sentence December 23, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006576-2016


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                  FILED JUNE 12, 2018

        Kenneth White appeals from his judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after he was convicted, in a

nonjury     trial,    of    aggravated   assault,1   attempted   arson,2   possessing

instruments of crime (“PIC”),3 simple assault,4 and recklessly endangering

another person.5 On appeal, White challenges the sufficiency of the evidence

as to his aggravated assault and attempted arson convictions. After careful

review, we affirm.

____________________________________________


1   18 Pa.C.S.A. § 2702(a)(1).

2   18 Pa.C.S.A. §§ 901(a) and 3301.

3   18 Pa.C.S.A. § 907(a).

4   18 Pa.C.S.A. § 2701(a).

5   18 Pa.C.S.A. § 2705.
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     The trial court cogently set forth the facts of this case as follows:

     On June 17, 2016, at approximately 3:00 [p.m.], Latanya Pressley
     (“Pressley”) and [White] got into an argument about [White’s]
     drinking and medication use. The argument soon escalated.
     Pressley locked herself in the bathroom because she was scared
     for her safety, but [White] kicked in the door. While Pressley
     cowered in the shower, [White] began spraying lighter fluid on the
     curtain, threatening to set her on fire.

     In the meantime, Police Officer Matthew Rivera and backup
     officers responded to a radio call for a disturbance at the
     residence. Upon arriving at the property, Officer Rivera knocked
     on the front door but received no response. When he knocked on
     the front window, Officer Rivera heard a female screaming inside.
     He also heard what sounded like a struggle, including items being
     dropped. When Pressley heard Officer Rivera knocking, she
     pushed [White] and ran downstairs. [White] followed her. He
     opened the door, saw Officer Rivera, slammed the door, and ran
     to the back of the house. Pressley re-opened the door for Officer
     Rivera. She was screaming, crying, shaking hysterically, and
     pointing to [White], repeatedly claiming that [White] had tried to
     set her on fire. Officer Rivera immediately pursued [White], who
     was stopped by backup officers at the rear of the residence, and
     taken into custody.

     As Officer Rivera surveyed the property, he saw the bathroom
     door hanging off its hinges, the furniture in disarray, and the
     shower curtain partially pulled down. He also noticed the “very
     strong” smell of lighter fluid. He saw lighter fluid sprayed on the
     bathroom floor and shower curtain. A bottle of lighter fluid was
     on the bathroom floor, and a lighter was on the floor just outside
     the bathroom. Pressley, herself, also smelled so strongly of lighter
     fluid that Officer Rivera could detect the odor even as she sat in
     the backseat of his patrol car with the windows open on the way
     to her interview with detectives.

     Lieutenant Assistant Fire Marshal Steven McMichael (an expert in
     the field of the causes and origins of fires and explosions) was
     called to the scene, as was a trained, certified accelerant detection
     canine, “Chance.” Chance alerted to lighter fluid in the bottle on
     the bathroom floor and on the bathroom rug.               Lieutenant
     McMichael also observed the lighter on the floor a mere three feet
     from where the lighter fluid bottle was.            Based on these

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       observations and Chance’s response at the scene, Lieutenant
       McMichael concluded that someone had attempted to start a fire
       in the bathroom.

Trial Court Opinion, 8/3/17, at 1-3 (citations to record omitted).

       On October 20, 2016, the Honorable Donna M. Woelpper found White

guilty of the above charges. On December 23, 2016, the court sentenced

White to an aggregate term of 3½ to 12 years’ incarceration, followed by 7

years of probation. Post-sentence motions were denied by the trial court on

April 19, 2017. White filed a timely notice of appeal to this Court, followed by

a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal.6

       White challenges the sufficiency of the evidence as to his aggravated

assault and attempted arson convictions. We begin by noting our standard of

review:

       The standard we apply in reviewing the sufficiency of evidence is
       whether, viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the factfinder to find every element of the crime beyond
       a reasonable doubt. In applying the above test, we may not
       [re]weigh the evidence and substitute our judgment for that of
       the fact-finder.     In addition, we note that the facts and
       circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
       defendant’s guilt may be resolved by the fact-finder unless the
____________________________________________


6 The trial court found that White had waived his sufficiency claims because
he failed to specify in his Rule 1925(b) statement the elements of the offenses
he believes the Commonwealth failed to prove. White has requested that we
either find that he has not waived the claims or, in the alternative, remand for
the filing of an amended Rule 1925(b) statement. Because we believe the
record is sufficient to address White’s claims, we decline to either find waiver
or require a remand and will address the merits of his claims.

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      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the trier
      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Cunningham, 805 A.2d 566, 570–71 (Pa. Super. 2002),

quoting Commonwealth v. Vetrini, 734 A.2d 404, 406–07 (Pa. Super. 1999)

(internal citations and brackets omitted).

      To establish the crime of aggravated assault, the Commonwealth was

required to demonstrate that White intended to inflict serious bodily injury

upon the victim and committed any act constituting a substantial step toward

inflicting such an injury.   18 Pa.C.S.A. § 2702(a)(1); Commonwealth v.

Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc). In order to prove

White committed attempted arson, the Commonwealth was required to prove

that, with intent to commit arson, White did any act which constitutes a

substantial step toward the commission of that crime. See 18 Pa.C.S.A. §

901(a). A person commits arson if he intentionally starts a fire, on his own

property or on that of another, and thereby recklessly places another person

in danger of death or bodily injury. See 18 Pa.C.S.A. § 3301(a). “As intent

is a subjective frame of mind, it is of necessity difficult of direct proof.”

Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. upper. 2005)

(citations omitted). Accordingly, intent may be proven by direct or



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circumstantial evidence and may be inferred from acts, conduct or attendant

circumstances. Id.

      Here, the Commonwealth presented ample evidence to prove both

aggravated assault and attempted arson. Officer Rivera testified that Pressley

repeatedly told him, in the immediate aftermath of the incident, that White

had tried to set her on fire. Officer Rivera stated that, at the time, Pressley

was extremely upset, shaking, and crying hysterically.          Officer Rivera also

testified that he could smell the odor of lighter fluid emanating from Pressley’s

person, in the bathroom, and on White himself. A canine officer also confirmed

the presence of lighter fluid in the bathroom, and both Officer Rivera and

Lieutenant McMichael testified that there was a lighter lying on the floor

directly outside the bathroom. Moreover, Pressley’s statement to police, given

the day of the incident, was admitted into evidence as a prior inconsistent

statement and corroborated Officer Rivera’s version of events.

      White asserts that “[i]t is clear that the trial court in this case disbelieved

Ms. Pressley’s recantation of her statement to the detective and relied upon

that statement” to find White guilty. Brief of Appellant, at 14. White argues

that the verdicts cannot stand because they were based on the trial court’s

disbelief of Pressley’s in-court testimony, rather than on affirmative proof

presented by the Commonwealth. In support of his claim, White relies on

Commonwealth v. Scott, 597 A.2d 1220 (Pa. Super. 1991), in which our

Court held that it is impermissible to substitute trial court’s disbelief of an

appellant’s testimony for presentation by the Commonwealth of evidence

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beyond a reasonable doubt, and Commonwealth v. Brady, 560 A.2d 802

(Pa. Super. 1989), in which we held that a finding by the trial court that an

alleged accomplice was not credible does not support an affirmative inference

of the appellant’s guilt. These cases are inapposite.

      In both Scott and Brady, the Commonwealth failed to present

affirmative evidence of the appellants’ guilt beyond a reasonable doubt.

Rather, the verdicts were based on the disbelief of witnesses’ testimony. In

contrast, here, the Commonwealth presented ample affirmative evidence of

White’s guilt, not only through the testimony of Officer Rivera and Lieutenant

McMichael, but also Pressley’s own statement to police from the day of the

incident.   Accordingly, while the trial court may well have disbelieved

Pressley’s recantation testimony, its verdict was also based on affirmative

evidence of White’s guilt provided by the Commonwealth.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




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