J-S56043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RANDY LAVERTS HAY,

                            Appellant                No. 1712 MDA 2014


               Appeal from the Judgment of Sentence June 4, 2014
            in the Court of Common Pleas of Northumberland County
                Criminal Division at No.: CP-49-CR-0000693-2011


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 12, 2015

        Appellant, Randy Laverts Hay, appeals from the judgment of sentence

imposed following his jury conviction of arson, risking a catastrophe,

recklessly endangering another person, and criminal mischief.         Appellant

challenges the sufficiency and the weight of the evidence. We affirm.

        We summarize the facts from the trial court’s opinions and our

independent review of the record. The charges stem from the setting on fire

of the doorway to the (multi-unit) apartment house where Appellant

formerly lived with his ex-girlfriend, Tabitha Castle, and which, at the time of

the fire, she occupied with her new boyfriend, Robert “Knowledge” Blake.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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      There was evidence tending to show that some time before the fire

Tabitha Castle had left the apartment, waited until Appellant left, and then

moved back in with Robert Blake. She changed the locks on the apartment,

barring Appellant. His belongings were still inside the apartment. Appellant

came to the apartment to retrieve his clothes, but Blake refused, testifying

that he told Appellant it was too late and he would have to come back

another time.

      Later that night Blake and Castle awoke to the smell of smoke. Blake

testified that he saw Appellant running away. He testified that he knew it

was Appellant even though he only saw him from behind, because they had

been in jail together. (See N.T. Trial, 5/18/12, at 86). Appellant admitted

trying to retrieve his personal items, but denied that he set the fire. (See

id. at 184).

      In his final argument, defense counsel essentially argued that Blake

and Castle had set Appellant up, and suggested another motive beyond

romantic rivalry: “And then there’s a dispute over stuff. So I mean maybe

[the] motivation is greed. Maybe it’s not love, or lust, or a broken heart as

they would have you say.” (Id. at 198). Similarly, on appeal, Appellant’s

theory of the case is that Castle and Blake set him up to get him “out of the

picture” to avoid interference in their romantic relationship as well as to

keep his belongings. (Appellant’s Brief, at 16; see also Order, 9/05/14, at

1).




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       The jury convicted Appellant of four counts of arson, 18 Pa.C.S.A.

§ 3301(a)(1)(i), (recklessly placing another person in danger); 18 Pa.C.S.A.

§ 3301(a)(1)(ii), (intent to destroy or damage an occupied structure); 18

Pa.C.S.A. § 3301(c)(1)(i), and 18 Pa.C.S.A. § 3301(c)(2), (recklessly placing

an occupied building in danger of damage or destruction); risking a

catastrophe, 18 Pa.C.S.A. § 3302(b); recklessly endangering another

person, 18 Pa.C.S.A. § 2705, (the occupants of apartment #2); and

recklessly endangering another person, 18 Pa.C.S.A. § 2705, (the other

occupants of the apartment building).

       On June 4, 2014, the court sentenced Appellant to a term of not less

than three years’ nor more than eight years’ incarceration with credit for

time served.      The trial court denied post-sentence motions, including a

challenge to the weight of the evidence, on September 5, 2014. Appellant

timely appealed.1

       On appeal, Appellant presents two overlapping questions for our

review, which we reproduce verbatim, to the extent possible.

       1. Whether [Appellant] is entitled to acquittal or a new trial
       because there was insufficient evidence to support the verdict[?]
       The Commonwealth presented no credible testimony or other
       evidence of a degree necessary to meet their burden of proof
       tying [Appellant] to the act of burning the door frame at 417
       Walnut Street, Apartment 2, Sunbury, Pennsylvania. While the
____________________________________________


1
  Appellant filed a timely statement of errors on October 27, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Statement in lieu of Formal
Opinion, on December 23, 2014. See Pa.R.A.P. 1925(a).



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        Commonwealth witness, Robert Blake, claimed that he was able
        to identify [Appellant] because he saw the back of his bare head
        in a dark, unlighted entry way in the predawn hours of February
        19, 2011.      At the same time a [different] Commonwealth
        witness to the same event, Tabitha Castle, did not see
        [Appellant] either in the same entry way or running away down
        the street in front of the apartment building.

        2. Whether [Appellant] is entitled to a new trial as the verdict in
        this case is against the weight of the evidence, because there
        was no credible testimony which contradicted [Appellant’s] own
        testimony, or other evidence of such weight to satisfy the
        Commonwealth’s burden of proof tying [Appellant] to the crimes
        charged, particularly because there are inconsistencies in the
        testimony of the interested witnesses against him in that while
        Robert Blake claimed that he was able to indentify [sic]
        [Appellant] because he saw the back of [Appellant’s] bare head
        in a dark unlighted entry way in the predawn hours of February
        19, 2011, while at the same time another Commonwealth
        witness to the same event, Tabitha Castle, did not see
        [Appellant] either in the same side entry way or running away
        down the street in front of the apartment building[?]2

(Appellant’s Brief, at 10-11).3

        Preliminarily,   we    note    that    although   Appellant   raises   general

challenges to the sufficiency and weight of the evidence for the verdict, he

makes no claim about the specific elements for the particular crimes for

which he was convicted. Instead, in both claims, he makes essentially the
____________________________________________


2
  Appellant’s statement fails to comply with Rule of Appellate Procedure
2116, which in relevant part provides that “[t]he statement of the questions
involved must state concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without unnecessary detail.”
Pa.R.A.P. 2116 (emphases added). The insertion or appendage of lengthy
argument to the statement of questions presented is inappropriate and
violates the spirit as well as the letter of the rule.
3
    The Commonwealth did not file a brief.



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same     argument      about    inconsistencies   in   the   testimonial   evidence.

Specifically, he challenges the identification of him fleeing the scene after

the fire by Robert “Knowledge” Blake.4

              Although common items of clothing and general physical
       characteristics are usually insufficient to support a conviction,
       such evidence can be used as other circumstances to establish
       the identity of a perpetrator. Commonwealth v. Minnis, 312
       Pa. Super. 53, 458 A.2d 231, 233–34 (1983). Out-of-court
       identifications are relevant to our review of sufficiency of the
       evidence claims, particularly when they are given without
       hesitation shortly after the crime while memories were fresh. Id.
       at 234.      Given additional evidentiary circumstances, “any
       indefiniteness and uncertainty in the identification testimony
       goes to its weight.” Id. at 233.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011), appeal

denied, 54 A.3d 348 (Pa. 2012).

       Appellant first challenges the sufficiency of the evidence.

             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.” Commonwealth v.
       Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000).

                “Evidence will be deemed sufficient to support the
          verdict when it established each 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
____________________________________________


4
  Accordingly, we deem any challenge to the sufficiency of the evidence
based on the elements of the crimes other than the identification issue and
other issues addressed here, to be waived.



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        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 omitted). Any doubt about the defendant’s guilt
     is to be resolved by the factfinder 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.                  See
     Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
     2001).

Commonwealth v. Scott, 967 A.2d 995, 997-98 (Pa. Super. 2009), appeal

denied, 983 A.2d 1248 (Pa. 2009). Similarly,

           It is well settled that the evidence must be viewed in the
     light most favorable to the verdict winner, in this case the
     Commonwealth. Commonwealth v. Rife, 454 Pa. 506, 312
     A.2d 406 (1973). It is the province of the factfinder to weigh
     the evidence. Commonwealth v. Alston, 461 Pa. 664, 337
     A.2d 597 (1975). The factfinder can believe all, part, or none of
     the evidence. Commonwealth v. Smith, 457 Pa. 638, 326
     A.2d 60 (1974). The test for the sufficiency of the evidence was
     set forth in Commonwealth v. Jackson, 466 Pa. 311, 313, 353
     A.2d 370, 371 (1976) as follows:

               The test for the sufficiency of the evidence is
        whether accepting as true all the evidence and all
        reasonable inferences therefrom, upon which, if believed,
        the fact-finder could properly have based its verdict, it is
        sufficient in law to prove beyond a reasonable doubt that
        the defendant is guilty of the crime or crimes of which he
        has been convicted.

Commonwealth v. Fortune, 451 A.2d 729, 730 (Pa. Super. 1982).

     “In order to convict a person of arson, the prosecution must establish

beyond a reasonable doubt that (1) there was a fire, (2) it was maliciously

set, and (3) the defendant was the guilty party.”       Commonwealth v.




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Hardcastle, 546 A.2d 1101, 1108 (Pa. 1988), cert. denied, 493 U.S. 1093

(1990) (citations omitted).

      Here, Appellant’s principal argument on insufficiency is that the

testimony of Castle and Blake is suspect because they wanted to get

Appellant “out of the picture.” (Appellant’s Brief, at 16). He notes there was

no testimony from a fire marshal and posits that because there are “a

number of possible scenarios . . . [t]he only way to dispel any speculation

would have been for the Commonwealth to present the testimony of a fire

marshal.” (Id. at 17). We disagree.

      There is no requirement that a fire marshal present evidence to

establish the crime of arson.     See Hardcastle, supra at 1108.         To the

contrary, purely circumstantial evidence is sufficient to establish the

commission of the crimes charged. See Scott, supra at 997-98. It was the

role of the jury as fact finder to resolve any doubt about Appellant’s guilt.

See id.

      Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, together with the benefit of all reasonable inferences, we

conclude that there was sufficient evidence for the jury to find that Appellant

was guilty of the crimes charged. It was the role of the jury to weigh the

evidence and assess credibility. Appellant’s first issue does not merit relief.




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     Appellant’s second issue challenges the weight of the evidence. “The

weight of the evidence is exclusively for the finder of fact, who is free to

believe all, part, or none of the evidence, and to assess the credibility of

witnesses.    As to these issues, an appellate court cannot substitute its

judgment for that of the finder of fact.” Commonwealth v. Treiber, 874

A.2d 26, 30 (Pa. 2005), cert. denied, 547 U.S. 1076 (2006) (citations

omitted).

            A motion for a new trial based on a claim that the verdict
     is against the weight of the evidence is addressed to the
     discretion of the trial court. Commonwealth v. Widmer, 560
     Pa. 308, 319, 744 A.2d 745, 751–52 (2000); Commonwealth
     v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
     new trial should not be granted because of a mere conflict in the
     testimony or because the judge on the same facts would have
     arrived at a different conclusion. Widmer, 560 Pa. at 319–20,
     744 A.2d at 752. Rather, “the role of the trial judge is to
     determine that ‘notwithstanding all the facts, certain facts are so
     clearly of greater weight that to ignore them or to give them
     equal weight with all the facts is to deny justice.’ ” Id. at 320,
     744 A.2d at 752 (citation omitted). It has often been stated that
     “a new trial should be awarded when the jury’s verdict is so
     contrary to the evidence as to shock one’s sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail.” Brown, 538 Pa. at 435, 648
     A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

        Appellate review of a weight claim is a review of the
        exercise of discretion, not of the underlying question
        of whether the verdict is against the weight of the
        evidence. Brown, 648 A.2d at 1189. Because the trial
        judge has had the opportunity to hear and see the
        evidence presented, an appellate court will give the
        gravest consideration to the findings and reasons

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         advanced by the trial judge when reviewing a trial court’s
         determination that the verdict is against the weight of the
         evidence. Commonwealth v. Farquharson, 467 Pa. 50,
         354 A.2d 545 (Pa. 1976). One of the least assailable
         reasons for granting or denying a new trial is the lower
         court’s conviction that the verdict was or was not against
         the weight of the evidence and that a new trial should be
         granted in the interest of justice.

      Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis
      added). This does not mean that the exercise of discretion by
      the trial court in granting or denying a motion for a new trial
      based on a challenge to the weight of the evidence is unfettered.
      In describing the limits of a trial court’s discretion, we have
      explained: The term “discretion” imports the exercise of
      judgment, wisdom and skill so as to reach a dispassionate
      conclusion within the framework of the law, and is not exercised
      for the purpose of giving effect to the will of the judge.
      Discretion must be exercised on the foundation of reason, as
      opposed to prejudice, personal motivations, caprice or arbitrary
      actions.     Discretion is abused where the course pursued
      represents not merely an error of judgment, but where the
      judgment is manifestly unreasonable or where the law is not
      applied or where the record shows that the action is a result of
      partiality, prejudice, bias or ill-will. Widmer, 560 Pa. at 322,
      744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 533 Pa.
      441, 447, 625 A.2d 1181, 1184–85 (1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

      Here, the jury heard evidence and argument that Blake and Castle had

a motive to get Appellant out of the picture by falsely accusing him of arson.

(See N.T. Trial, at 198). By its verdict, the jury rejected this claim.

      Notably, Appellant does not argue that the trial court abused its

discretion in denying the weight claim. Instead, citing the romantic rivalry

over Ms. Castle, Appellant maintains that “[t]hese two witnesses [Castle and

Blake] were very clearly biased.” (Appellant’s Brief, at 19; see also id. at



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18-19). It was the role of the jury to assess credibility and accept all, part,

or none of the evidence. See Treiber, supra at 30.

          On independent review, we find that there is support in the record for

the jury verdict. “[We] may not substitute [our] judgment for that of the

factfinder; if the record contains support for the convictions they may not be

disturbed. . . . Any doubt about the defendant’s guilt is to be resolved by the

factfinder 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.” Scott, supra at 998 (citations omitted).

          For the same reason, we discern no abuse of discretion in the trial

court’s determination that the jury’s verdict was not so contrary to the

evidence as to shock one’s sense of justice.                 (See Statement in lieu of

Formal Opinion, 12/23/14, at 3).             Appellant’s second claim does not merit

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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