J-S46028-18

                                2018 PA Super 305

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 AARON M. MCCOY                            :
                                           :
                    Appellant              :    No. 627 EDA 2017

          Appeal from the Judgment of Sentence January 11, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000366-2016


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

CONCURRING OPINION BY BOWES, J.:                 FILED NOVEMBER 14, 2018

      I concur that the convictions for risking catastrophe and recklessly

endangering another person must be vacated; however, I reach that result on

different grounds than those set forth by my distinguished colleagues. As to

the risking catastrophe charge, I disagree with the Majority’s finding that the

evidence did not establish a risk of widespread damage. The evidence on that

point is somewhat contradictory, but since our standard of review for

sufficiency claims gives all reasonable inferences in favor of the verdict winner,

I believe that element was met. However, I agree with Appellant that the

Commonwealth failed to establish that Appellant recklessly employed

dangerous means capable of causing catastrophic damage.            My reasoning

follows.

      The essential facts are straightforward. Appellant had a small marijuana

growing operation in a closet located in his apartment. He used an ultraviolet
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lamp, suspended in the air above the plants, to provide the necessary heat.

The lamp was covered with some type of sealant. To supply electricity to the

lamp, Appellant used several ordinary extension cords. The cords ran next to

four open water containers, which Appellant used to mist the plants.         The

room was enclosed with tinfoil and contained “ordinary combustibles, which is

paper and wood and it would be easily set on fire.” N.T. Trial, 1/11/17, at 42.

Lieutenant Charles Glover testified as an expert witness in the field of fire

prevention, and opined that “with all the ignition sources in that operation and

the combustibles around, there’s no doubt in [my] mind that is an extreme

fire hazard.” Id. at 47.

      Appellant was convicted of, inter alia, one count of risking a catastrophe.

The statutory language for that crime reads:

      (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
      materials transportation), 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.

      (b) Risking catastrophe.--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) of this section.

18 Pa.C.S. § 3302.




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        Appellant was charged under subsection (b), and therefore the

Commonwealth was required to establish that Appellant (1) recklessly created

(2) a risk of catastrophe (3) through dangerous means as contemplated by

subsection (a).

        At the outset, I note that it is difficult to pin down exactly what the

Commonwealth alleged constituted the dangerous means in this case. As our

Supreme Court has held, “employment of dangerous means” does not require

an inherently dangerous act. Commonwealth v. Karetny, 880 A.2d 505,

517 (Pa. 2005). In Karetny, the defendants operated a nightclub along a

leased pier in Philadelphia. In 1994, portions of the pier collapsed and the

damage was assessed. The defendants employed various stopgap measures

over the years to repair the damage, but consistently declined costly full

repairs. On May 18, 2000, the defendants were informed by an expert that

the pier was in a critical state and predicted it would collapse that evening.

The appellees ignored the warning and kept their business open as usual. As

predicted the pier collapsed that evening, plunging the nightclub and forty-six

people into the river, three of whom were killed. During pre-trial proceedings,

the trial court granted a motion to quash the risking a catastrophe charge,

ruling that the Commonwealth was required to prove “a particular type of an

act.”   Id. at 511.   The Commonwealth appealed and the Court reversed,

holding that the Commonwealth presented a prima facie case. “[T]he totality

of the aforementioned factors would support a jury in finding that appellees’


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conduct and response amounted to ‘employment’ of a means and created the

risk.” Id. at 517.

      Therefore, a broad set of behaviors and acts encompassing a course of

conduct can qualify. Essentially, it is a fill-in-the-blank exercise: “Appellant

created the risk of a catastrophic fire by (blank).”             Consider the

Commonwealth’s argument, distilled to its essence: “When viewed properly,

the evidence amply demonstrated that defendant risked setting a fire in a

dense residential neighborhood by growing marijuana in a closet wrapped in

tinfoil.” Commonwealth’s brief at 5. Thus, the Commonwealth identifies the

dangerous means with reference to the totality of the circumstances involving

the marijuana operation.

      Appellant, on the other hand, argues that the expert testimony “only

established a very small chance of a fire, and no evidence of a requisite risk

of a catastrophe.” Appellant’s brief at 10. He continues:

      Lieutenant Glover had investigated between 4,500 and 5,000 fires
      over an eight year period of time. Over those years, of the several
      thousand fires he had previously investigated, he had only come
      “across a few of them” involving the growing of marijuana. . . .
      That statistic alone suggests a very small risk of growing
      marijuana causing a fire. Further, the very small closet growing
      arrangement of [Appellant] stands in sharp contrast with the few
      marijuana fires he had investigated in the past that, unlike this
      case, involved transformers and irrigation systems.             Most
      significantly, Lieutenant Glover did not testify that any of the few
      marijuana grow fires he had investigated before were
      catastrophic, with widespread damage.

      The expert testimony did not support the necessary finding that if
      a fire had started as a result of [Appellant]’s growing of marijuana
      it would have posed a risk of a catastrophe, an extraordinary

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      disaster. Lieutenant Glover testified that if the marijuana growing
      was monitored and a fire started, it would be a small one that
      could be easily put out quickly. There was no testimony or
      evidence that the marijuana lamp was on when nobody was home
      or that the equipment was otherwise unattended.

Id. at 10-11 (emphasis in original).

      The parties’ arguments are therefore directed at different points in the

causal chain. According to the Commonwealth, the legal analysis picks up

after a fire has started without any discussion of the likelihood that a fire would

actually start due to Appellant’s employment of dangerous means. Next, if a

fire started, there is a risk it will spread to other nearby homes, which would

constitute a catastrophe.      “[T]he word ‘catastrophe’ is intended to be

synonymous with ‘widespread injury or damage.’”             Commonwealth v.

Hughes, 364 A.2d 306, 312 (Pa. 1976). Appellant, however, emphasizes that

the risk of a fire was itself negligible, and, in any case, he notes that there

was no evidence he left the operation unattended. Therefore, even if a fire

started, his behavior was not reckless since he was available to extinguish it.

      The Majority concludes that the grow operation “created a fire hazard,

not the potential for widespread injury or damage.” Majority Opinion at 10.

Therefore, my colleagues appear to accept the Commonwealth’s formulation

that the risk of a fire is the dangerous means employed, but finds that any

actual fire was incapable of causing catastrophic damage.         I find that the

evidence, when drawn in favor of the Commonwealth as verdict winner,

establishes that catastrophic damage was possible. First, Appellant testified



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that his landlord lived downstairs at one point, and therefore actors other than

Appellant were at risk.

      Q. Was anyone else living in that entire house?

      A. No.

      Q. What about below you, anybody living there?

      A. It belonged to the landlord.      He presently lived there for
      approximately two years.

N.T. Trial, 1/1/17, at 63. While these answers are contradictory, the fact-

finder was entitled to credit the more specific answer. Additionally, the expert

testified that the fire could have spread to the neighboring building, which was

approximately six feet away. Accepting that a fire could have been caused by

the grow operation, there was a risk of catastrophic damage.

      Since the Majority limits its analysis to that point for the charge of

risking a catastrophe, I now set forth my own view of why the conviction must

be discharged.     I agree with my colleagues that the Commonwealth

established Appellant’s grow operation was a fire hazard. However, I agree

with Appellant that the Commonwealth failed to prove that he acted recklessly.

      As our Supreme Court stated in Hughes, supra, the conduct

criminalized by § 3302(b) is narrowly-defined.

      [T]he degree of culpability required by Section 3302(b) is very
      specific; a gross deviation from the standard of conduct that a
      reasonable person would observe in the actor’s situation. The
      ‘risk’ proscribed by this legislation is the use of dangerous means
      by one who ‘consciously disregards a substantial and unjustifiable
      risk’ and thereby unnecessarily exposes society to an
      extraordinary disaster.

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J-S46028-18



Id. at 311.

       Determining whether or not the conduct cited by the Commonwealth

met that standard necessarily requires an examination of the “dangerous

means” employed by the offender and how those means were “used.”1 To

____________________________________________


1 As quoted, Appellant notes that Lieutenant Glover testified that only a few
of the thousands of fires he investigated resulted from marijuana growing
operations. The Commonwealth asserts that point is irrelevant, because
regardless of what Lieutenant Glover meant by the term few, “the frequency
of fires started by home grow operations has no bearing on their potential
danger after they have already ignited.” Commonwealth’s brief at 8-9.

This response highlights the differing views of the case. Appellant looks at
the likelihood that a fire would occur, whereas the Commonwealth focuses on
what would happen if a fire started. The Commonwealth’s position appears
to be that Appellant was per se reckless with respect to how his operation was
established.     In Commonwealth v. Mastromatteo, 719 A.2d 108
(Pa.Super. 1998), we held that driving while intoxicated is not per se reckless.
We observed:

       Our reading of the above precedent leads us to conclude that
       driving under the influence of intoxicating substances does not
       create legal recklessness per se but must be accompanied with
       other tangible indicia of unsafe driving to a degree that creates a
       substantial risk of injury which is consciously disregarded.
       Whether, in this context, the unsafe driving results from
       diminished judgment, a more cavalier approach to driving or sheer
       physical incapacitation would seem immaterial, as is the degree
       to which any of these factors is actually related to the consumption
       of alcohol or drugs. What is material is actual reckless driving or
       conduct, for any reason, for it is this conduct which creates the
       peril in question. Since people vary in their response to alcohol
       we believe this is a sound principle.

       Additionally, no statistical evidence has been proffered to support
       the conclusion that driving under the influence alone creates the
       degree of risk legally necessary to convict for reckless



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revisit the point that the Commonwealth starts its analysis from an

assumption that a fire would start, I have some difficulty with the notion that

the source of a fire, i.e. the fact Appellant used an ultraviolet lamp with

improperly graded extension cords which could have overheated and caused

a fire, constitute dangerous means.2 However, Appellant apparently accepts




____________________________________________


       endangerment.

Id. at 1083 (emphasis in original, footnote omitted).

Appellant’s point, which I find soundly stated, is that the fact the
Commonwealth’s expert has rarely encountered a fire stemming from the fire
hazards he identified herein undercuts a finding that Appellant’s operation was
recklessly constructed. As in Mastromatteo, the absence of statistical
evidence demonstrating that Appellant’s use of, inter alia, tinfoil and
household extension cords, is a relevant consideration.

2 The parties both focus on what Appellant was doing with the ultraviolet lamp
and the other items, as opposed to how he used them. The only relevance
the marijuana itself has is Lieutenant Glover’s testimony that the plants, if
dried out, were more apt to burn. The expert, however, did not visit the site
and it is unknown if the plants were actually dried out.

That Appellant used questionable wiring is surely not uncommon; fifteen
minutes spent watching any home renovation television show will showcase
at least one instance of potentially dangerous electrical systems. Ultraviolet
lights are readily available for purchase for a wide variety of uses, and the fact
that better practices exist for their use is not the same as a finding that the
use of ordinary extension cords constitutes the employment of dangerous
means. The risks posed by Appellant’s marijuana growing operation differ in
a significant degree from, for example, the inherent dangers posed by
manufacturing methamphetamine in a clandestine lab. See Commonwealth
v. Hoke, 928 A.2d 300, 305-06 (Pa.Super. 2007) (noting the dangers
involved in home methamphetamine labs; “a simple act of throwing a light
switch . . . could potentially cause the solvents in the atmosphere to ignite
and/or explode”) (quoting trial transcript).

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this point, as discussed supra, and therefore for purposes of the sufficiency

analysis we must do the same.

      Appellant cites Commonwealth v. Simkins, 443 A.2d 825 (Pa.Super.

1982), as analogous to this case.    Simkins was convicted of possession of

amphetamine and risking a catastrophe. A fire started on Simkins’s premises,

which firemen quickly extinguished. While inside, they found evidence that

Simkins was manufacturing amphetamine. Among other items, firemen found

a fifty-five gallon drum of acetone, a volatile and highly flammable chemical.

The drum had a three-inch opening stuffed with towels, and the drum was

less than ten feet from an oil-fired heater. “The Commonwealth contended

that appellant had risked a catastrophe because of the manner in which the

acetone had been stored on the property.” Id. at 827. The Simkins Court

discharged that conviction, holding that the Commonwealth failed to establish

recklessness.

      The Commonwealth’s evidence in the instant case failed to
      establish that appellant’s conduct in storing the acetone as
      described was either reckless or created a potential for an
      “extraordinary disaster.” Rather, the Commonwealth showed a
      negligent storage of acetone which the Commonwealth’s witness
      declined to testify had the potential for “widespread injury or
      damage.” The orbit of danger, the expert said, included only
      appellant and the dwelling in which he had stored the acetone.

            ....

      In the instant case, the risk which the Commonwealth contended
      appellant’s conduct had created was that acetone would ignite.
      This arose because the drum of acetone had been stored in the
      basement, sealed only with paper towels, in proximity to the
      heater.    We conclude that this was insufficient to prove

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       recklessness. There may have been carelessness in the manner
       in which the acetone was stored, but the fact that it had not been
       used in the basement and that, while stored, the container had
       been closed, albeit inadequately, negatived the conclusion
       appellant had acted recklessly in disregard of a risk of
       extraordinary disaster. Moreover, the evidence failed to show that
       ignition of the acetone was likely to cause a catastrophe. Fire
       involving a single residence, unoccupied except by the actor, is
       not the type of widespread damage contemplated by the statutory
       term “catastrophe.”

Id. at 828 (footnote omitted).

       The Commonwealth responds that Simkins is inapposite because its

expert testified that any fire in Appellant’s home would have caused

widespread damage, whereas in Simkins any ignition of the acetone would

have triggered a fire that was limited in scope to the building itself. For the

reasons stated supra, I agree that this is a pertinent distinction; the proximity

of other homes established a potential for widespread damage if a fire started.

The Commonwealth’s response, however, fails to account for the other part of

the quoted discussion regarding recklessness, which was Appellant’s point.

Simkins concluded that Simkins did not recklessly store the acetone,

notwithstanding the potential parade of horribles if the barrel were to tip and

roll into the heater.    3   Thus, the fact any fire would not have resulted in



____________________________________________


3 In this respect, Simkins appears to apply concepts of foreseeability when
dealing with liability premised on a potential fire. Comparably, it is possible
herein that the light would have overheated, thereby causing something to
catch on fire, thereby leading to other items combusting, thereby leading to
catastrophic damage.


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J-S46028-18


widespread damage was simply an alternative basis to hold that the evidence

was insufficient.

       I agree with Appellant that his case is similar to Simkins. Like that

case, Appellant took preventive steps to mitigate the risk of any fire, thereby

negating a finding that he consciously disregarded that risk. See 18 Pa.C.S.

§ 302(b)(3) (“A person acts recklessly with respect to a material element of

an offense when he consciously disregards a substantial and unjustifiable risk

that the material element exists or will result from his conduct.”). Comparable

to the fact that the acetone “container had been closed, albeit inadequately,”

Appellant employed misters to keep the marijuana plants wet, thereby limiting

the possibility identified by the expert, that the plants would dry out and catch

on fire from the lamp. Additionally, there is no evidence that Appellant left

the operation unattended.4         Even if a fire started, Appellant was there to

extinguish it, therefore diminishing the risk that the material element of

“risking a catastrophe” existed. Id. Indeed, as Appellant emphasizes, the

Commonwealth’s expert opined that if the heat lamps are “not used correctly,

they will start a fire.” N.T. Trial, 1/11/17, at 38. There is little evidence that



____________________________________________


4 The Commonwealth notes that Appellant’s testimony on that point was self-
serving, and that the trial court was not required to accept it. That is true,
but the fact the fact-finder was not required to credit his testimony does not
establish that disbelief of his testimony proves the opposite. This is related
to the principle that the disbelief of a defendant’s testimony in a self-defense
case does not, by itself, defeat a self-defense claim.


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the lamps were used incorrectly, aside from the fact that Appellant used the

wrong type of extension cords. The expert also noted: “And a lot of times,

the problem with these, they’re left unattended, so nobody is there if a

fire breaks out.” Id. at 43 (emphasis added). That the operation was left

unattended is not a fact proven by competent evidence, and while the

Commonwealth is entitled to all reasonable inferences, it is not entitled to

inferences that rely upon sheer speculation. Therefore, the Commonwealth

failed to prove that Appellant’s behavior was not reckless, and I concur.5




____________________________________________


5My analysis of recklessness similarly disposes of the conviction for recklessly
endangering another person.

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