J. A18030/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  v.                      :
                                          :
DANIEL GREGORY FOBES,                     :       No. 1732 MDA 2015
                                          :
                       Appellant          :


         Appeal from the Judgment of Sentence, August 13, 2015,
            in the Court of Common Pleas of Lancaster County
             Criminal Division at No. CP-36-CR-0005059-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STEVENS,* P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED JANUARY 13, 2017

     Daniel Gregory Fobes appeals the judgment of sentence in which the

Court of Common Pleas of Lancaster County sentenced him to serve 6 to

23 months for reckless burning or exploding, criminal mischief, and

conspiracy to commit reckless burning.1

     The facts as recounted by the trial court are as follows:

           The car in question, a Ford Explorer, was bought by
           [appellant’s] co-conspirator, Kim Stretch, but was
           registered in her Husband’s name (John Joseph
           Stretch IV).[Footnote 7] Notes of Trial Testimony
           (“N.T.T.”) at 145, 216. The vehicle was not reliable
           and had many problems. N.T.T. at 206. In late
           April/early May, Ms. Stretch had run into [appellant]
           at a Wawa and [appellant] agreed to help her with

* Former Justice specially assigned to the Superior Court.
1
  18 Pa.C.S.A. § 3301(d)(2), 18 Pa.C.S.A. § 3304(a)(1), and 18 Pa.C.S.A.
§ 903, respectively.
J. A18030/16


            the vehicle. N.T.T. at 112-113. The next day,
            [appellant] was driving the vehicle from Palmyra[,]
            Pennsylvania, at the direction of his co-conspirator
            (Ms. Stretch), to a residence. N.T.T. at 177. On the
            way, Ms. Stretch called her husband and gave
            [appellant] the phone. N.T.T. at 212. [Appellant]
            advised the husband that the vehicle was “shot” and
            that he could “take care of it” and they could report
            it missing. N.T.T. at 213.

                  [Footnote    7]:   She did this to avoid
                  having to   put an ignition interlock on the
                  car, due     to two Driving Under the
                  Influence   Convictions.    N.T.T. at 145-
                  146.

                   They stopped at a gas station where
            [appellant] was observed “doing something in the
            back” where the gas tank was located. N.T.T. at
            158. [Appellant] and Ms. Stretch proceeded to drive
            the car to a remote location. N.T.T. at 182-183.
            When arriving at the remote location, [appellant]
            and his co-conspirator got out of the car. N.T.T. at
            135. [Appellant’s] co-conspirator then noted that
            she had [g]asoline on her leg. N.T.T. at 136-137.
            [Appellant’s] friend, Carol Moore Pyle was following
            [appellant] and Ms. Stretch in a separate car. N.T.T.
            at 181.     When Ms. Pyle arrived at the remote
            location, [appellant] urged her to turn her car around
            and, as she did, Ms. Pyle heard a “boom.” N.T.T. at
            182-183. [Appellant] and his co-conspirator then
            got into Ms. Pyle’s car, accompanied by a smell of
            gasoline.    N.T.T. at 183-184.      [Appellant] then
            instructed Ms. Pyle to “get it, get out of here, hit it,
            go.”    N.T.T. at 183.    Ms. Pyle observed flames
            coming from the vehicle and [appellant] then stated
            that this was the second vehicle that he has
            successfully blown up. N.T.T. at 185. [Appellant]
            then attempted to contact his co-conspirator the
            next day to “call it through to insurance.” N.T.T. at
            187-188.

Trial court opinion, 12/7/15 at 4-5.



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      On October 29, 2014, a criminal complaint was filed which charged

appellant with the crimes for which he was convicted.     On May 14, 2015,

following a trial, the jury returned guilty verdicts on all charges.       On

August 13, 2015, the trial court imposed the sentence set forth above.

      On August 24, 2015, appellant filed a post-sentence motion and

alleged that the evidence was insufficient to support the convictions and that

the convictions were against the weight of the evidence.      The trial court

denied the motion on September 10, 2015.

      On appeal to this court, appellant raises the following issues for this

court’s review:

            1)     Did the lower court err when it found that the
                   evidence was sufficient to support convictions
                   for Reckless Burning; Criminal Mischief; and
                   Conspiracy to Commit Reckless Burning, where
                   all of the elements of the crimes charged,
                   specifically that the     item burned (an
                   automobile) was “property of another” was not
                   established?

            2)     Did the lower court abuse its discretion in
                   determining that the jury’s verdict was not
                   against the weight of the evidence, where the
                   un-contradicted [sic] trial testimony was that
                   the   vehicle   in   question    was  “in-fact”
                   Kimberly Stretch’s property, and that the
                   alleged complainant John Stretch was not the
                   “actual owner” but was the “registered owner”
                   only to help Kimberly Stretch avoid having to
                   comply with mandatory ignition interlock
                   conditions?

Appellant’s brief at 5.




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      Initially, appellant contends that the evidence was insufficient to

support his convictions.

                  A claim challenging the sufficiency of the
            evidence is a question of law. Commonwealth v.
            Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
            (2000). In that case, our Supreme Court set forth
            the sufficiency of the evidence standard:

                  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.
                  Commonwealth v. Karkaria, 533 Pa.
                  412, 625 A.2d 1167 (1993). 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. Santana, 460 Pa.
                  482, 333 A.2d 876 (1975).           When
                  reviewing a sufficiency claim the court is
                  required to view the evidence 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.
                  Chambers, 528 Pa. 558, 599 A.2d 630
                  (1991).

            Id. at 319, 744 A.2d at 751.

Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).

      Section 3301(d)(2) of the Crimes Code provides:

            (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


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                   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.

18 Pa.C.S.A. § 3301(d)(2).

     Appellant does not argue that the evidence was insufficient to support

a determination that he either intentionally started a fire or caused an

explosion and placed an automobile in danger of damage or destruction.

Appellant argues that because Kimberly Stretch (“Mrs. Stretch”) purchased

the Ford Explorer that was burned, paid to maintain it, and took on the

responsibility for its care and upkeep, the Ford Explorer was not the

“property   of   another”   but   was   the   property   of   his   co-conspirator,

Mrs. Stretch, even though John Stretch IV (“Mr. Stretch”) was the registered

owner of the vehicle.

     Mrs. Stretch testified that she purchased the Ford Explorer at the end

of January 2014 with her own money. (Notes of testimony, 5/13/15 at 103-

104, 106.) At the time, Mrs. Stretch and Mr. Stretch were married but were

thinking about separating. (Id. at 106-107.) Mrs. Stretch admitted that the

Ford Explorer was registered in Mr. Stretch’s name.                 (Id. at 107.)

Mr. Stretch corroborated Mrs. Stretch’s testimony. Mr. Stretch admitted that


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the Ford Explorer was registered in his name to avoid the requirement of

installing an ignition interlock device because Mrs. Stretch had two

convictions for driving under the influence due to her drug use. (Notes of

testimony, 5/14/15 at 216.)

      Based on this testimony, appellant argues that because the Ford

Explorer was “actually owned” by Mrs. Stretch, he and Mrs. Stretch did not

burn the property of another under Section 3301(d)(2).      He argues that

Mr. Stretch was merely “the registered” owner and did not actually pay for,

maintain, or operate the Ford Explorer.

      While the record evidence confirms that Mrs. Stretch did purchase the

Ford Explorer and assumed responsibility for it, the fact that the Ford

Explorer was registered in Mr. Stretch’s name cannot be ignored.

      Section 3301(j) of the Crimes Code, 18 Pa.C.S.A. § 3301(j), defines

“property of another” as “[a] building or other property, whether real or

personal, in which a person other than the actor has an interest which the

actor has no authority to defeat or impair, even though the actor may also

have an interest in the building or property.”

      The trial court examined Section 3301(j) and concluded:

            Here, a person other than the actor had an interest
            in which [appellant] had no authority to defeat or
            impair. That interest was the car being registered
            solely to John Stretch, an interest unique to
            Mr. Stretch. This interest cannot be impaired by
            anyone else because Mr. Stretch was the sole
            registered owner of the vehicle.     In order for
            [appellant’s] argument to succeed, one would have


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            to disregard the legal significance of being the
            registered owner of an automobile.          This is an
            assertion the Court is unwilling to accept.

Trial court opinion, 12/7/15 at 6.

      The trial court correctly did not ignore the significance of Mr. Stretch’s

ownership interest.     Regardless of whether Mrs. Stretch had an interest in

the Ford Explorer, Mr. Stretch also had an interest which neither appellant

nor Mrs. Stretch could defeat or impair. It is worth noting that, while the

cases cited by appellant address the possibility of an owner besides the

registered or legal owner, they do not stand for the proposition that the

registered or titled owner has no interest in the property in question.

Mr. Stretch’s status as the registered owner of the Ford Explorer is

significant. This court concludes that the evidence was sufficient to warrant

a conviction for reckless burning or exploding.

      With respect to the conviction for criminal mischief, appellant

essentially makes the same argument.

      Section 3304(a)(1) of the Crimes Code provides:

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



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18 Pa.C.S.A. § 3304(a)(1).

      Once again, the key term is “property of another.”        As the record

reflects, the Ford Explorer was registered to Mr. Stretch, who was not a

party to the destruction of the vehicle, and appellant does not challenge the

evidence that he set fire to the vehicle, the evidence was sufficient to prove

criminal mischief.

      With respect to conspiracy, appellant argues that Mrs. Stretch could

not conspire to burn her own car. Conspiracy is defined in Section 903 of

the Crimes Code:

            A person is guilty of conspiracy with another person
            or persons to commit a crime if with the intent of
            promoting or facilitating its commission he:

            (1)      agrees with such other person or persons
                     that they or one or more of them will
                     engage in conduct which constitutes such
                     crime or an attempt or solicitation to
                     commit such crime; or

            (2)      agrees to aid such other person or
                     persons in the planning or commission of
                     such crime or of an attempt or
                     solicitation to commit such crime.

18 Pa.C.S.A. § 903.

      Evidence was presented that Mrs. Stretch and appellant agreed to

commit the crime of recklessly burning the car.           While the crime of

conspiracy requires an overt act to sustain a conviction, see 18 Pa.C.S.A.

§ 903(e), the burning of the car constituted an overt act.      As appellant’s




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argument again rests on his faulty reasoning that Mr. Stretch did not have

an ownership interest in the Ford Explorer, his argument fails.

      Appellant next contends that the jury’s verdict was against the weight

of the evidence.

                   [T]he 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 determine the credibility
                   of the witnesses.       An appellate court
                   cannot substitute its judgment for that of
                   the finder of fact . . . thus, we may only
                   reverse the lower court’s verdict if it is so
                   contrary to the evidence as to shock
                   one’s sense of justice. Moreover, where
                   the trial court has ruled on the weight
                   claim below, an appellate court’s role is
                   not to consider the underlying question
                   of whether the verdict is against the
                   weight of the evidence . . . rather,
                   appellate review is limited to whether the
                   trial court palpably abused its discretion
                   in ruling on the weight claim.

            Commonwealth v. Kim, 888 A.2d 847, 851
            (Pa.Super. 2005) (citations and quotations omitted).
            A motion for a new trial based on a challenge to the
            weight of the evidence concedes the evidence was
            sufficient to support the verdict. Commonwealth v.
            Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

      Appellant asserts that the jury’s verdict shocked one’s sense of justice

because Mrs. Stretch was the actual owner of the Ford Explorer rather than

Mr. Stretch. As this court has already determined that this argument is not




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valid, it is clear that the trial court did not abuse its discretion when it denied

appellant’s motion for a new trial based on the weight of the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/13/2017




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