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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    STEVE MICHAEL KRCELICH                     :
                                               :
                       Appellant               :   No. 959 WDA 2018

          Appeal from the Judgment of Sentence Entered April 12, 2018
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0000279-2017


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 24, 2018

        Steve Michael Krcelich (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of two counts of arson, three

counts of aggravated arson, and one count each of reckless burning,1

conspiracy to commit criminal mischief,2 and insurance fraud.3 On appeal,

Appellant challenges the sufficiency of the evidence. We affirm.

        On August 4, 2016, approximately 75 firefighters responded to a

structure fire at an apartment building in Republic, Fayette County. N.T. Trial,

Day 1, 4/2/18, at 25-26. Two firefighters were treated for heat exhaustion

____________________________________________


1   18 Pa.C.S.A. § 3301(d)(1).

2   18 Pa.C.S.A. §§ 903(a), 3304(a)(1).

3   18 Pa.C.S.A. § 4117(a)(2).
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and dehydration; one of them also suffered smoke inhalation. Id. at 32, 35.

As a result of the fire, the apartment building was condemned and all 14

tenants were displaced. N.T. Trial, Day 2, 4/3/18, at 16, 28. The commercial

building next door also sustained severe water and smoke damage.           N.T.,

4/2/18, at 43.

        The Pennsylvania State Police investigated the fire and authorities

charged William Ward, who lived in the apartment building, with intentionally

starting the fire by lighting a mattress in a storage area of the building. N.T.,

4/3/18, at 161. Ward eventually told the police that Appellant, who resided

in another apartment in the same building, offered him $5,000 to start the

fire.   See id. at 164.      Consequently, Appellant was charged with the

aforementioned crimes.

        In the interim, Appellant filed insurance claims totaling $32,800 under

his renters policy with Allstate. N.T., 4/3/18, at 38-39, 43. Within a couple

days of the fire, Allstate paid Appellant $2,000, but following its own

investigation, concluded that Appellant conspired with Ward to cause the fire.

Id. at 44-45, 63. Allstate denied Appellant’s claim, but did not recover the

$2,000 from him. Id. at 44, 63.

        Appellant’s case proceeded to a four-day jury trial commencing on April

2, 2018. The owner of the apartment building testified that Appellant collected

rent on the owner’s behalf and had a key to a locked storage room, to which

the other tenants did not have access. N.T., 4/3/18, at 17. Ward testified


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that in July of 2016, he was addicted to “pills” and heroin.       Id. at 127.

Appellant told Ward that he previously “burned down” a trailer, for which he

received insurance money, and offered Ward $5,000 to set fire to the

apartment building. Id. at 128. Ward agreed and the two men discussed

their plan over the course of two and half weeks. Id. at 129. On August 4,

2016, Appellant gave Ward the key to a locked storage room, and Ward used

a lighter to set fire to a mattress in that room. Id. at 132-133. At the time

of Appellant’s trial, Ward had pled guilty to his related charges and was

awaiting sentencing.4 Id. at 124. He acknowledged that he was offered a

sentence of 6 to 12 years in exchange for his testimony against Appellant. Id.

        At trial, the Commonwealth played telephone conversations between

Ward and Appellant, which were recorded with Ward’s cooperation. In these

conversations, Ward referred to Appellant’s promise to pay him $5,000 to set

the fire, and requested the money so that Ward could pay his attorneys fees.

N.T. 4/3/18, at 87, 91, 112, 113, 118-119.            Pertinently, in the first

conversation, Appellant responded “Yeah,” when Ward said, “[Y]ou told me

you’d give me $5,000 for this.” Id. at 87. Appellant, however, also told Ward

that he did not have any money and that Allstate had not given him any

money. In a final conversation, Appellant said “I just gotta wait man. When

I get the fuckin’ money you’ll have the money to pay your attorney . . .” Id.



____________________________________________


4   The notes of testimony do not specify Ward’s convictions.

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at 115.

      Appellant testified in his defense, denying that he offered Ward money

or that he knew what Ward did. N.T. Trial Days 3 & 4, 4/4/18, at 28, 43.

Appellant stated that on the day of the fire, Ward visited him and was upset

because of bed bug bites on his body. Id. at 20. Ward also asked for the key

to the storage area because he did maintenance work at the apartment. Id.

at 22. After Ward took the key and left, Appellant heard someone yell that

there was smoke, the fire alarm sounded, and Appellant saw smoke. Id. at

23. Appellant knocked on everyone’s door and warned them to leave. Id. at

24.

      The jury found Appellant guilty of all eight offenses, which arose under

seven different subsections of the Crimes Code. Appellant was convicted of:

arson/bodily    injury,   §    3301(a)(1)(i);    arson/inhabited      building,

§ 3301(a)(1)(ii);   two   counts    of    aggravated   arson/bodily     injury,

§ 3301(a.1)(1)(i); aggravated arson/person present inside the property, §

3301(a.1)(1)(ii); reckless burning, § 3301(d)(1); conspiracy to commit

criminal mischief, §§ 903, 3304(a)(1); and insurance fraud, § 4117(a)(2).

      On April 12, 2018, the trial court sentenced Appellant to: (1) 36 to 72

months for one count of arson; (2) a consecutive term of 3 to 24 months for

insurance fraud; and (3) two concurrent terms of 42 to 84 months for the two

counts of aggravated arson. Appellant did not file any post-sentence motions.

      Four days after sentencing, on April 16, 2018, Appellant’s privately-


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retained counsel sought, and was granted, leave to withdraw from

representation. The trial court appointed the Fayette County Public Defender’s

Office to represent Appellant, and on May 17, 2018, current counsel filed a

notice of appeal on Appellant’s behalf. The trial court then directed Appellant

to file a Pa.R.A.P. 1925(b) statement, and Appellant complied, raising a single

issue challenging the sufficiency of the evidence. On June 15, 2018, this Court

quashed Appellant’s appeal as untimely on the basis that the notice of appeal

was filed more than 30 days after sentencing. Superior Court Order, 739 WDA

2018 (filed Jun. 15, 2018); see Pa.R.A.P. 903(a). Appellant then successfully

filed a petition with the trial court to reinstate his direct appeal rights nunc pro

tunc, and this timely appeal followed. The trial court has filed a “Statement

in Lieu of Opinion.”

      On appeal, Appellant purports to challenge the sufficiency of the

evidence for all of his convictions, stating as follows:

      WAS THE EVIDENCE LEGALLY AND FACTUALLY INSUFFICIENT TO
      SHOW THAT [APPELLANT] COMMITTED THE CRIMES?

See Appellant’s Brief at 7.

      Preliminarily, we note:

      The Rules of Appellate Procedure require that appellants
      adequately develop each issue raised with discussion of pertinent
      facts and pertinent authority. See Pa.R.A.P. 2119. It is not this
      Court’s responsibility to comb through the record seeking the
      factual underpinnings of an appellant’s claim. Further, this Court
      will not become counsel for an appellant and develop arguments
      on an appellant’s behalf. It [is an appellant’s] responsibility to
      provide an adequately developed argument by identifying the
      factual bases of his claim and providing citation to and discussion

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      of relevant authority in relation to those facts. [If he] has failed
      to do so, [his] issue waived.

      . . . In order to develop a claim challenging the sufficiency of the
      evidence properly, an appellant must specifically discuss the
      elements of the crime and identify those which he alleges the
      Commonwealth failed to prove. [If he] has failed to do so . . . he
      has waived this claim for lack of development.

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)

(citations omitted). We further note that a claim that the Commonwealth’s

evidence was incredible goes to the weight, not the sufficiency, of the

evidence. Id.

      As stated above, Appellant was convicted of eight counts, arising under

seven different subsections of our Crimes Code.        Although the argument

section of Appellant’s brief properly sets forth, generally, the Commonwealth’s

evidentiary burden at trial and this Court’s standard of review, the sole

reference to Appellant’s eight crimes appears in the statement of the case:

“Appellant was charged with Arson, et al.” Appellant’s Brief at 8. Appellant

does not address that he was charged and convicted under two different

subsections of the arson statute, and he fails to mention his other six

convictions. Appellant also fails to articulate the statutory elements of any of

his crimes, or identify which particular elements were allegedly unproven.

Further, Appellant does not include, contrary to the requirements of Pa.R.A.P.

2117(a)(4), “[a] closely condensed chronological statement . . . of all the facts

which are necessary to be known in order to determine the points in

controversy[.]” See Pa.R.A.P. 2117(a)(4). Accordingly, we are constrained

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to conclude that Appellant’s challenge to the sufficiency of the evidence for all

of his convictions is waived. See Samuel, 102 A.3d at 1005.

      However, even if Appellant had properly preserved a sufficiency claim,

we would find it to be meritless. First, he avers that “the only evidence” was

testimony from Appellant’s “alleged co-defendant” that Appellant “was going

to pay the co-defendant if he set the place on fire.” Appellant’s Brief at 13.

This argument ignores that the Commonwealth played recorded telephone

conversations between Appellant and Ward, in which Ward referenced

Appellant’s promise to pay Ward $5,000 to set fire to the building, and that

rather than denying such a claim, Appellant merely responded that he did not

have the money to give to Ward. See N.T. 4/3/18, at 87, 91, 112, 113, 115,

118-119. We would agree with the trial court that Ward’s testimony, together

with recorded telephone conversations, established that Appellant committed

both counts of arson at § 3301(a)(1)(i) and (ii) by “agree[ing] to pay another

to cause a fire or explosion,” “recklessly plac[ing] another person in danger of

. . . bodily injury, including . . . a firefighter,” and “commit[ting] the act with

the purpose of destroying or damaging an inhabited building;” committed

aggravated arson/bodily injury under § 3301(a.1)(1)(i) by “agree[ing] to pay

another to cause a fire or explosion [on property] of another, and . . . thereby

attempt[ing] to cause, or intentionally, knowingly or recklessly causes bodily

injury to another person, including . . . a firefighter;” and committed insurance

fraud at § 4117(a)(2) by “knowingly and with the intent to defraud [his]


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insurer . . . presents . . . a claim that contains any false, incomplete or

misleading information”). See also Trial Court’s Statement in Lieu of Opinion,

7/2/18, at 2-5.

      In addition, the Commonwealth presented evidence to show that

Appellant committed arson of an inhabited structure under § 3301(a.1)(1)(ii)

(person “agrees to pay another to cause a fire or explosion, whether on his

own property or on that of another, and . . . when a person is present inside

the property”); aggravated arson with a person present inside the property at

§ 3301(a.1)(1)(ii) (“person . . . agrees to pay another to cause a fire or

explosion, whether on his own property or on that of another, and . . . a person

is present inside the property at the time of the offense); reckless burning

under § 3301(d)(1) (“person . . . agrees to pay another to cause a fire or

explosion, whether on his own property or on that of another, and thereby

recklessly . . . places an uninhabited building or unoccupied structure of

another in danger of damage or destruction”); and conspiracy to commit

criminal mischief under §§ 903(a) (person “agrees with such other person . . .

that . . . one or more of them will engage in conduct which constitutes [a]

crime”) and 3304(a)(a) (person “damages tangible property of another

intentionally, recklessly, or by negligence in the employment of fire . . . ”).

      In sum, our review of Appellant’s remaining arguments reveals that no

relief would be due.    Appellant summarily asserts that Ward “did not say

anything about [Appellant] until he was charged and hoped for a better deal.”


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Appellant’s Brief at 12-14. This challenge to the veracity of Ward’s testimony

goes to the weight of the Commonwealth’s evidence, not its sufficiency. See

Samuel, 102 A.3d at 1005. We would find this particular claim waived for

Appellant’s failure to raise it before the trial court.         See Pa.R.Crim.P.

607(A)(1)-(3) (claim that the verdict was against the weight of the evidence

shall be raised before or after sentencing). In any event, Ward acknowledged

at trial that he had pled guilty to related charges and “was offered” a lower

sentence of 6 to 12 years of imprisonment in exchange for his testimony.

N.T., 4/3/18, at 17. The jury, sitting as the finder of the fact, is free to believe

Ward’s testimony and weigh it accordingly. See Commonwealth v. Talbert,

129 A.3d 536, 544 (Pa. Super. 2015) (“[T]he jury, which passes upon the

weight and credibility of each witness’s testimony, is free to believe all, part,

or none of the evidence.”).

      For the foregoing reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2018




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