J-S39033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                 Appellee                       :
                                                :
                     v.                         :
                                                :
JAMES ALLEN KINDLER,                            :
                                                :
                 Appellant                      :    No. 1819 WDA 2016

              Appeal from the Judgment of Sentence July 18, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0015585-2015

BEFORE:      BENDER, P.J.E., BOWES, and STRASSBURGER*, JJ.

MEMORANDUM BY STRASSBURGER, J.:                            FILED AUGUST 21, 2017

        James Allen Kindler (Appellant) appeals from the judgment of sentence

imposed following his conviction for the crimes of risking a catastrophe and

dangerous burning. We affirm.

        On November 5, 2015, Appellant was arrested and charged with arson

endangering      property,    failure   to     control   dangerous   fires,   risking   a

catastrophe, and dangerous burning. These charges were related to a fire

set on the property of Forms & Surfaces, an outdoor table and chair

manufacturing business located in Fox Chapel, Allegheny County, earlier that

day. Following a non-jury trial, Appellant was acquitted of arson and failure

to control dangerous fires, but was found guilty of the other two offenses.

On July 18, 2016, Appellant was sentenced to a term of five years’ probation
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S39033-17


for the offense of risking catastrophe.       No further penalty was imposed at

the remaining summary count.           This timely-filed appeal followed.   Both

Appellant and the trial court have complied with the mandates of Pa.R.A.P.

1925.

        On appeal, Appellant raises a single issue for this Court’s review:

whether the evidence presented was insufficient to prove the elements of

risking catastrophe. Appellant’s Brief at 3.

        It is well-settled that

        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 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.

        … 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)

(internal citations omitted).     Credibility of witnesses and the weight of the

evidence produced is within the province of the trier of fact, who is free to

believe all, part, or none of the evidence. Commonwealth v. Scott, 146

A.3d 775, 777 (Pa. Super. 2016).

                                        -2-
J-S39033-17


        The Crimes Code provides that “[a] person is guilty of a felony of the

third degree if he recklessly creates a risk of catastrophe in the employment

of fire, explosives or other dangerous means listed in subsection (a)[1] of this

section.” 18 Pa.C.S. § 3302(b). Additionally,

        [our Supreme] Court has distinguished the two sections of
        [section 3302]:

              Section 3302 attempts to meet two separate and
              distinct societal harms. In paragraph (a) it purports
              to punish for the damage caused by the
              mishandling of certain enumerated highly dangerous
              forces or substances. Paragraph (b) addresses the
              exposure to harm created by the misuse of these
              forces or substances.

        Additionally, [t]he fact that swift and effective governmental
        intervention limited the deleterious effect of [the defendants’]
        reckless conduct does not decriminalize their actions. The fact
        that an actual devastating catastrophe was averted is of no
        moment in assessing [the defendants’] conduct in terms of
        Section 3302(b).


____________________________________________


1
    Subsection (a) provides:

        (a) Causing catastrophe.- - . A person who causes a catastrophe
        by explosion, fire, flood, avalanche, collapse of building, release
        of poison gas, radioactive material or other harmful or
        destructive force or substance, or by any other means of causing
        potentially widespread injury or damage, including selling,
        dealing in or otherwise providing licenses or permits to transport
        hazardous materials in violation of 75 Pa.C.S. Ch. 83 (relating to
        hazardous transportation), materials commits a felony of the
        first degree if he does so intentionally or knowingly, or a felony
        of the second degree if he does so recklessly.

18 Pa.C.S. § 3302(a).



                                           -3-
J-S39033-17


Commonwealth v. Salamone, 897 A.2d 1209, 1213 (Pa. Super. 2006)

(emphasis in original; citations and quotation marks omitted).

      Appellant argues that the Commonwealth’s proffered evidence failed to

show: (1) that a “substantial danger of catastrophic damage or injury was in

fact created” by Appellant’s conduct, and (2) that Appellant realized, but

disregarded, the risk “that there was a substantial probability that his

actions could result in catastrophic damage or injury.” Appellant’s Brief at 3.

      The trial court rejected Appellant’s claim noting that

      [o]ur suggested jury instructions define ‘risk of catastrophe’ as a
      situation capable of causing widespread injury or damage,
      regardless of whether such injury or damage actually occurs.’
      Pa.SSJI (Crim) 15.3302(B). Without question, the widespread
      damage or injury contemplated by the statute was not present.
      However, the collective circumstances showed the situation was
      one which was capable of widespread damage.

Trial Court Opinion, 10/31/2016, at 2.

      At trial, Forms & Surfaces employee, John Nelson, testified that he

observed white smoke when he was driving a fork lift toward the pallet

storage area, known as “the boneyard.” N.T., 7/18/2016, at 8.            As he

approached, Nelson realized that there was a white sedan blocking his

access to the boneyard.     He was unable to maneuver his lift around the

vehicle. Id. at 9. It was at that point that Nelson observed the fire, which

was burning at the base of a stack of approximately six pallets. The stack

was positioned at the front of the boneyard. Id. at 11-13; Commonwealth

Exhibits 3B and 3C.    The trial court took notice that sheets of paper had


                                     -4-
J-S39033-17


been used to ignite the fire and both the paper and the lower pallets in the

stack were singed. Id. at 11-12.               Nelson testified that Appellant was

standing near the sedan.2 When he asked Appellant for help in putting the

fire out, Appellant ignored him and left the scene in his vehicle. Id. at 10.

Nelson alerted other employees to the fire and was able to extinguish it

before emergency services arrived and before it caused any damage to the

other pallets. Nelson testified that “there [were] a lot more pallets” in the

boneyard. Id. at 15.        Indeed, Commonwealth Exhibits 3B and 3C show a

second stack of pallets behind the stack Appellant lit on fire. Further, Nelson

indicated that the main building of Forms & Surfaces was approximately 20

feet away from the location of the fire. N.T., 7/18/2016, at 12-13;

Commonwealth Exhibit 1.

        Following his arrest, Appellant waived his Miranda3 rights and

admitted to officers orally, and in writing, that he had set the fire because he

was “homeless,” “cold,” and “sick and tired of everyone’s nonsense.” N.T.,

7/18/2016, at 20-22.          The responding officer testified that the weather

conditions on the date of the incident were cold and dry and that “there was

a little bit of wind.” Id. at 22.

____________________________________________


2
  It is unclear what, if any, connection Appellant had to Forms & Surfaces
and whether he was permitted to be on the property. However, we note
that he was not charged with trespass.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -5-
J-S39033-17


      Appellant did not testify on his own behalf at trial; however, he called

three character witnesses to testify as to his reputation for being peaceful,

honest, and law-abiding. N.T., 7/18/2016, at 27-43.

      Based on the testimony and photographs presented at trial, we find no

error in the trial court’s determination that the evidence presented was

sufficient to find that Appellant acted recklessly in creating a dangerous

situation with the potential for widespread damage. Contrary to Appellant’s

argument that the fire only affected one pallet that was “placed on the

ground by itself,” Appellant’s Brief at 31, the evidence demonstrated that

Appellant set fire to a stack of pallets, using paper as kindling. The fire was

set in a location called “the boneyard” which was full of pallets, and located

a short distance from a building where workers were manufacturing

furniture.   Appellant positioned his car to block vehicle access to the

boneyard, and when asked to help extinguish the fire, he ignored the

request, got into his car, and fled the scene. All of this occurred on a day

where the weather conditions could have contributed to escalation of the

fire. The trial court, sitting as factfinder, was well within its discretion to find

that Appellant acted recklessly, that his actions created a substantial risk of

catastrophe, and that he consciously disregarded that risk. Scott, 146 A.3d

at 777.

      It is well-established that “the evidence at trial need not preclude

every possibility of innocence, and the fact-finder is free to resolve any


                                       -6-
J-S39033-17


doubts regarding a defendant’s guilt unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be drawn

from the combined circumstances.” Commonwealth v. Hughes, 908 A.2d

924, 928 (Pa. Super. 2006). Here, the evidence was sufficient to support the

trial court’s verdict. Accordingly, Appellant’s claim fails.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2017




                                       -7-
