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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                         :
                                         :
                                         :
 MARILYN PASQUALICHIO,                   :
                                         :
                    Appellant.           :   No. 1595 MDA 2017


       Appeal from the Judgment of Sentence, Entered May 11, 2017,
             in the Court of Common Pleas of Luzerne County,
           Criminal Division at No(s): CP-40-CR-0003907-2015.


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                   FILED DECEMBER 07, 2018

      Marilyn Pasqualichio appeals from the judgment of sentence entered

after a jury convicted her of several counts of arson and criminal mischief.

After careful review, we affirm.

      Pasqualichio lived at a duplex in Plymouth, Pennsylvania for ten (10)

years. Over that time, Pasqualichio fell behind in her rent. In June 2015, her

landlord, Michael Hudak, asked her to move out.            By August 2015,

Pasqualichio had relocated to another residence, but many of her personal

belongings remained at the duplex. Periodically, she returned to the duplex

to move more things out.

      On August 12, 2015, late in the evening, around 11:00 p.m.,

Pasqualichio returned to the duplex and spent the night. She left early the

next morning around 6:00 a.m. Shortly thereafter, a fire broke out at the
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duplex. The tenants on the other side of the duplex, who were all home at

the time, managed to get out, but many of their belongings were ruined.

          Upon investigation of the fire, Trooper Jarocha of the Pennsylvania State

Police concluded that a mattress located in the second floor hallway of

Pasqualichio’s side of the duplex intentionally had been set on fire.

Subsequently, Pasqualichio was charged with one count of arson-danger of

death or bodily injury,1 one count of arson-inhabited building or structure,2

one count of arson endangering property,3 one count of reckless burning,4 and

one count of criminal mischief.5

          Following a jury trial, Pasqualichio was found guilty on all counts. The

trial court sentenced Pasqualicio to an aggregate sentence of twenty-two (22)

months to a maximum of forty-four (44) months of incarceration followed by

five (5) years of probation. Pasqualichio filed post-sentence motion. The trial

court denied Pasqualichio’s request for judgment of acquittal on the grounds

that there was insufficient evidence and that the verdict was against the

weight of the evidence.            The trial court granted Pasqualichio’s request to

modify her sentence, and reduced the term of probation following her

incarceration to one (1) year. Pasqualichio timely appealed and raises the

following three issues:

____________________________________________


1   18   Pa.C.S.A.   §   3301(a)(1)(i).
2   18   Pa.C.S.A.   §   3301(a)(1)(ii).
3   18   Pa.C.S.A.   §   3301(c)(2).
4   18   Pa.C.S.A.   §   3301(d)(2).
5   18   Pa.C.S.A.   §   3304(a)(1).

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      1. Was the Commonwealth’s evidence insufficient to sustain guilty
         verdicts beyond a reasonable doubt on the charges?

      2. Were the verdicts against the weight of the evidence requiring
         a new trial?

      3. Did the court err in denying the Appellant’s request for a jury
         instruction on “consciousness of innocence”?

Pasqualichio’s Brief at 5 (excess capitalization omitted).

      In her first issue, Pasqualichio contends that the Commonwealth

presented insufficient evidence to sustain her convictions for arson and

criminal mischief.

      In reviewing a sufficiency claim, we must consider “‘whether the

evidence admitted at trial, and all the reasonable inferences derived therefrom

viewed in favor of the Commonwealth as verdict winner, supports the jury's

finding of all the elements of the offense beyond a reasonable doubt.’”

Commonwealth         v.   Cash,   137    A.3d   1262,   1269   (2016)    (quoting

Commonwealth v. Smith, 985 A.2d 886, 894-95)).                 Only “where the

evidence offered to support the verdict is in contradiction to the physical facts,

in contravention to human experience and the laws of nature, then the

evidence is insufficient as a matter of law.” Commonwealth v. Widmer,

744 A.2d 745, 751 (Pa. 2000).

      Pasqualichio claims that the Commonwealth presented insufficient

evidence to establish that she was the one who set the fire, and that she did

so willfully and maliciously to support her arson conviction.      Pasqualichio’s

Brief at 14. We disagree.



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     In pertinent part, 18 Pa.C.S.A. section 3301 provides:

     (a) Arson endangering persons.--

     (1) A person commits a felony of the first degree if he intentionally
     starts a fire or causes an explosion, or if he aids, counsels, pays
     or agrees to pay another to cause a fire or explosion, whether on
     his own property or on that of another, and if:

     (i) he thereby recklessly places another person in danger of death
     or bodily injury, including but not limited to a firefighter, police
     officer or other person actively engaged in fighting the fire; or

     (ii) he commits the act with the purpose of destroying or damaging
     an inhabited building or occupied structure of another.

                                     ***

     (c) Arson endangering property.--A person commits a felony
     of the second degree if he intentionally starts a fire or causes an
     explosion, whether on his own property or that of another, or if
     he aids, counsels, pays or agrees to pay another to cause a fire or
     explosion, and if:

                                     ***

      (2) he thereby recklessly places an inhabited building or occupied
     structure of another in danger of damage or destruction; or

                                     ***

      (d) Reckless burning or exploding.--A person commits a
     felony of the third degree if he intentionally starts a fire or causes
     an explosion, or if he aids, counsels, pays or agrees to pay another
     to cause a fire or explosion, whether on his own property or on
     that of another, and thereby recklessly:

                                     ***

      (2) places any personal property of another having a value that
     exceeds $5,000 or if the property is an automobile, airplane,
     motorcycle, motorboat or other motor-propelled vehicle in danger
     of damage or destruction.




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18 Pa.C.S.A. § 3301. The Commonwealth must establish beyond a reasonable

doubt that: 1) there was a fire, 2) it was of incendiary origin, and 3) the

defendant set the fire. Commonwealth v. Ford, 607 A.2d 764, 766 (Pa.

Super. 1992). Direct evidence is not required. “Proof of guilt especially in

arson cases, may be established [through] circumstantial evidence.”

Commonwealth v. Counterman, 719 A.2d 284 (Pa. 1998) (quoting

Commonwealth v. DiNicola, 468 A.2d 1078, 1081 (Pa. 1983). “[A]rson, by

its very nature, is rarely committed in the presence of others, and a refusal to

convict on circumstantial evidence alone would be tantamount to an invitation

to commit the crime.” Commonwealth v. Colon, 399 A.2d 1068, 1073 (Pa.

Super. 1979).

      In     concluding   that   there   was   sufficient   evidence   to   support

Pasqualichio’s convictions for arson, the trial court astutely observed: “not

only was there evidence that the fire in the instant matter was intentionally

set, [Pasqualichio] was not merely a person who could have set the fire, she

was the only person who could have set the fire.” Trial Court Opinion, 1/23/18

at 9. Likewise, our review of the evidence and testimony presented at trial

shows that the evidence was sufficient to support Pasqualichio’s convictions

for arson.

      The Commonwealth presented expert testimony from Trooper Jarocha

of the Pennsylvania State Police, who had twenty-three (23) years of

experience as a fire marshal.




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      Trooper Jarocha opined that the fire was started when someone used

an open flame to ignite the mattresses in the upstairs hallway. In reaching

his conclusion, Trooper Jarocha ruled out all other causes.            He tested

Pasqualichio’s theory that the fire somehow started by a candle which she

accidentally left lit in a box sitting on top of a mattress in the upstairs hallway

for a brief period before she left the house that morning. Although Trooper

Jarocha burned a candle similar to Pasqualichio’s for two (2) hours, much

longer than the ten (10) minutes Pasqualichio said she had left the box

unattended, the temperature of the wax did not get hot enough to ignite the

test mattress.      Moreover, upon inspection of the box that contained the

candle, which Pasqualichio took with her that morning, Trooper Jarocha

observed no damage to the box itself or any of the items in it which were

easily ignitable.

      Trooper Jarocha also considered Pasqualichio’s theory that the fire could

have been electrical. According to Pasqualichio, a light fixture had “popped”

the night before the fire. However, Trooper Jarocha’s inspection revealed no

damage to the electrical outlet near the fire damaged area, no damage to the

light fixture’s bulb, and no sign of any electrical malfunction.

      Finally, Trooper Jarocha conducted a mattress burn test in an

environment similar to that which existed the morning of the fire. Unlike when

the candle was near it, when the mattress was lit with an open flame, the

mattress quickly caught fire and burned violently.




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      Thus, there was evidence that the fire was intentionally set; the

remaining question was who set it.

      The Commonwealth presented evidence that Pasqualichio came to the

duplex the night before the fire. She had not been there for a few weeks, and

it was unusual for her to be there so late in the evening since she had

relocated. She spent the night there, then left in the morning shortly before

the fire broke out. In the early morning hours, Pasqualichio was the only one

in her residence; she admitted this.

      Around 5:30 a.m. the morning of the fire, the neighboring tenant heard

something fall that sounded like glass on Pasqualichio’s side of the duplex.

About fifteen (15) minutes later, he felt an intense heat along the common

wall of the duplex. The fire broke out at the duplex around 6:00 a.m., shortly

after Pasqualichio had left.

      Thus, there was evidence that Pasqualichio was the one who set the fire.

      We therefore find that there was sufficient evidence to establish all the

elements of arson beyond a reasonable doubt.

      Pasqualichio   also      contends   that   the   Commonwealth   presented

insufficient evidence to establish that she had the requisite intent to support

her conviction for criminal mischief.       To sustain a conviction for criminal

mischief, the Commonwealth must prove the following:

         (a)   Offense defined.—A person is guilty of criminal
               mischief if he:

               (1)    Damages     tangible  property  of  another
               intentionally, recklessly, or by negligence in the

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                 employment of fire, explosives, or other dangerous
                 means listed in section 3302(a) of this title (relating
                 to causing or risking catastrophe).

18   Pa.C.S.A.    §   3304(a)(1).    As   discussed   above,   Trooper     Jarocha

unequivocally concluded that the fire was intentionally set.          Moreover,

Pasqualichio was the only one in the residence right before the fire broke out.

      We therefore also conclude that sufficient evidence was presented to

establish the elements of criminal mischief beyond a reasonable doubt.

      In her second issue, Pasqualichio argues that the verdicts were against

the weight of the evidence. When reviewing a challenge to the weight of the

evidence, our standard of review is as follows:

      The essence of appellate review for a weight claim appears to lie
      in ensuring that the trial court's decision has record support.
      Where the record adequately supports the trial court, the
      trial court has acted within the limits of its discretion.

                                      ***

      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. 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. 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.

                                      ***

      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.



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Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations

omitted) (emphasis added). Absent an abuse of discretion, the trial court’s

decision will not be disturbed.    See Commonwealth v. Griffin, 515 A.2d

865, 869 (Pa. 1986).       An abuse of discretion “is not merely an error in

judgment.     Rather, it involves bias, partiality, prejudice, ill-will, manifest

unreasonableness or a misapplication of the law.” Commonwealth v. West,

937 A.2d 516, 521 (Pa. Super. 2007) (citation omitted). By contrast, a proper

exercise of discretion “conforms to the law and is based on the facts of record.”

Id.

        Initially, we note that, although Pasqualichio correctly sets forth this

Court’s standard of review regarding a weight claim, she does not explain how

the trial court abused its discretion in deciding her post-sentence motions.

Rather, Pasqualichio really is asking this Court to determine whether the

verdict was against the weight of the evidence. Given the foregoing standard

of review, we cannot do so.       Notwithstanding this, we have reviewed the

record and the trial court’s analysis of this issue, and conclude that the trial

court did not abuse its discretion in denying Pasqualichio’s weight claims.

        Pasqualichio sets forth three bases in support of her argument that the

verdict was against the weight of the evidence. First, Pasqualichio argues that

the verdict was against the weight of evidence because the evidence failed to

establish beyond a reasonable doubt that she willfully and maliciously set the

fire.   Pasqualichio argues that Mr. Hudak, the owner of the property had

motive to set the duplex on fire. Pasqualichio’s Brief at 19-20, 22.

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      In denying Pasqualichio’s motion on this basis, the trial court correctly

concluded that no motive is required to establish arson, relying on

Commonwealth v. DiNicola, 454 A.2d 1027, 1032 (Pa. Super. 1982),

vacated on other grounds, 468 A.2d 1078 (Pa. 1983). Moreover, the trial

court aptly analyzed Pasqualichio’s argument that the property owner started

the fire, stating “the jury was presented with that theory and evidently chose

to reject it.” Trial Court Opinion, 1/23/18 at 13.

      Next, Pasqualichio argues that the verdict was against the weight of the

evidence because the Commonwealth’s case was overly dependent on Trooper

Jarocha’s opinion, which was based upon a substandard investigation and

questionable tests.   Pasqualichio’s Brief at 22.    In denying Pasqualichio’s

motion on this basis, the trial court dismissed her argument that Trooper

Jarocha was required to offer his opinion beyond a reasonable doubt that the

fire was intentionally set.   The trial court correctly concluded that neither

Pennsylvania Rule of Evidence 702 nor case law require that an expert witness’

opinion be given using this standard.     Further, the trial court stated that

Trooper Jarocha was admitted as an expert witness without objection from

Pasqualichio. Trooper Jarocha explained to the jury how he investigated the

fire and the process he undertook to determine the origin and cause of the

fire, which included consideration of Pasqualichio’s own theories. Trial Court

Opinion, 1/23/18 at 12-13.       Pasqualichio had the opportunity to cross-

examine Trooper Jarocha and undercut his theory, which she attempted to do.

However, again, the weight to be given his testimony, was for the jury to

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determine.    We note that Pasqualichio did not offer her own expert. As the

jury was instructed, it was free to believe all, part or none of the expert

testimony.   Commonwealth v. Watson, 945 A.2d 174, 177 (Pa. Super.

2008).    Here, they chose to believe Trooper Jarocha that the fire was

intentionally set.

      Lastly, Pasqualichio argues that the verdict was against the weight of

the evidence because the evidence was conflicting and created serious

questions requiring a new trial. Pasqualichio’s Brief at 18.

      In denying Pasqualichio’s motion on this basis, the trial court stated that

“the jury evidently chose to accept the testimony of the prosecution’s

witnesses and to disbelieve the witnesses presented by the defense.” Trial

Court Opinion, 1/23/18 at 14.     The trial court instructed the jury on how to

assess the weight of the testimony and evidence.       Moreover, the fact that

there was conflicting evidence is not enough to prevail on a weight claim. The

weight to be accorded conflicting evidence is exclusively for the fact finder,

whose findings will not be disturbed on appeal if they are supported by record.

See Commonwealth v. Kearns, 70 A.3d 881 (Pa. Super. 2013).

      From our review, we find that the trial court thoroughly considered all

of the evidence presented and pertinent legal principles. It logically analyzed

how the jury may have viewed the case. Thus, the trial court’s conclusion

that the verdict was not so contrary to the evidence so as to shock the

conscience of the court was supported by the record in this case.           We,




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therefore, conclude that the trial court properly exercised its discretion in

denying Pasqualichio’s weight claims.

      In her third issue, Pasqualichio argues that the trial court abused its

discretion in denying her request for a “consciousness of innocence” jury

instruction.     Appellant’s Brief at 29.      Because she cooperated with the

investigation into the fire, voluntarily met with, and gave statements and

potential evidence to Trooper Jarocha, the trial court should have given the

following instruction to the jury:

      The absence of flight, willingness to speak to the police and
      general cooperation with the investigation may all be interpreted
      as indicative of the Defendant’s consciousness of innocence. Had
      there been evidence of flight, noncooperation [et cetera] then the
      [inverse] would have been true. Flight for example is generally
      interpreted as evidence of consciousness of guilt. Because none
      of these factors are present, you may choose to interpret this as
      evidence of the [Pasqualichio’s] innocent conscience. You, the
      jury, must ultimately be the judge of the weight of the evidence.

Trial Court Opinion at 15. We disagree.

      “[O]ur standard of review when considering the denial of jury

instructions is one of deference—an appellate court will reverse a court's

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Janda, 14 A.3d 147, 163 (Pa. Super. 2011) (citation

omitted).      “‘It is well-settled that “the trial court has wide discretion in

fashioning jury instructions. The trial court is not required to give every charge

that is requested by the parties[,] and its refusal to give a requested charge

does not require reversal unless the appellant was prejudiced by that refusal.’”


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Commonwealth v. Wise, 2017 PA Super 295, 171 A.3d 784, 787–88 (2017),

reargument denied (Nov. 21, 2017), appeal denied, 186 A.3d 939 (Pa. 2018)

(quoting Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013).

       The rationale behind a consciousness of innocence instruction is that

cooperation with the authorities investigating an incident tends to show that

one is not guilty of a particular charge. In Commonwealth v. Thomas, 54

A.3d 332 (Pa. 2012), our Supreme Court first considered the appropriateness

of a consciousness of innocence instruction.            After reviewing other

jurisdictions’ decisions refusing to apply such a charge, as well as a decision

from this Court refusing to apply an absence of flight instruction, the Court

declined to apply the consciousness of innocence instruction. Id. at 341-43.

The Court did, however, as argued by Pasqualichio, leave the door open for a

trial court to give such instruction at its discretion. Id. at 343 fn. 4 (emphasis

added). However, Pasqualichio’s case is not that case.

       It must be emphasized that the application of a consciousness of

innocence instruction is highly doubtful, generally speaking, in any case. 6

There remains no precedent or rule requiring such a charge and the decision

____________________________________________


6 In Commonwealth v. Selinski, 2016 WL 5745642 (Pa. Super. 2015), this
Court concluded that the trial court did not err in refusing to give a
consciousness of innocence instruction where the defendant, like Pasqualichio,
cooperated with authorities. Further, in adopting the trial court’s opinion, we
agreed with the trial court’s analysis that the Supreme Court in Thomas truly
questioned whether there could be an appropriate case to give such an
instruction.



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of whether to give it continues to be at the trial court’s discretion. Here, the

trial court did not find that a consciousness of innocence instruction was

warranted.    In denying Pasqualichio’s motion on this basis, the trial court

stated that Pasqualichio’s conduct was subject to multiple interpretations, and

consequently, that matter was properly one of argument to the jury rather

than the subject of a jury instruction. Trial Court Opinion, 1/23/18 at 16. All

the factors set forth in Pasqualichio’s proposed charge are all factors that, with

or without such charge, a jury would likely consider in rendering its verdict

along with all of the other evidence and testimony.             There were no

extraordinary circumstances in this case that might possibly persuade a trial

court to give such instruction. Absent that, we cannot conclude that the trial

court abused its discretion in refusing the charge.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/07/2018




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