J-S47027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL JOHN KILLIANY

                            Appellant                No. 1578 MDA 2015


             Appeal from the Judgment of Sentence May 11, 2015
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0001492-2013


BEFORE: SHOGAN, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                             FILED JULY 21, 2016

       Appellant Michael John Killiany appeals from the judgment of sentence

entered in the Lackawanna County Court of Common Pleas, following his

jury trial convictions for arson (endangering persons), arson (inhabited

building or structure), insurance fraud, and recklessly endangering another

person (“REAP”).1 We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On February 25, 2013, Nicole Everetts purchased property at 59 Belmont

Street in Carbondale, Pennsylvania (“the property”) at a Lackawanna County

tax sale for $3,200.00. N.T., 2/12/15, at 206, 212. Before the judicial tax

sale, Appellant owned the property for several years. Id. at 231. He was
____________________________________________


1
   18 Pa.C.S. §§ 3301(a)(1)(i), 3301(a)(1)(ii), 4117(a)(2), and 2705,
respectively.
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aware of the judicial tax sale but remained living in the home on the

property.   N.T., 2/13/15, at 116.

     On May 4, 2013, Ms. Everetts received a letter apprising her of several

code violations for which she was responsible as the new owner of the

property.   N.T., 2/12/15, at 223.     She went to the property with her

husband and began to clean up the yard.       Id. at 228.   Appellant’s adult

daughter, Jessica Killiany, arrived at the property and was very angry to see

the Everetts there.    Id. at 230.    When she realized the Everetts had

purchased the property at a judicial tax sale and were cleaning to correct

code violations, Jessica began to help clean. Id. When Appellant arrived at

the property, he was very angry, yelled at the Everetts, and told them that

they stole his house from him. Id. at 231. Jessica allowed the Everetts to

walk through the interior of the home on the property. Id. at 232.

     Later that day, Ms. Everetts sent Appellant a letter advising him that

he had until May 11, 2013 to remove animal feces, trash, and debris from

the interior of the home. Id. at 248. The letter stated that if he complied

with Ms. Everetts request, he would be allowed to rent the property for

$600.00 per month, but if he did not comply with the request, he would be

evicted and would be required to remove all of his personal belongings from

the property by May 17, 2013. Id. Jessica secured new housing for herself

and her father and apprised Appellant of this. N.T., 2/13/15, at 79.

     Appellant told his neighbor, Mark Galaydick, that he wanted his house

to be uninhabitable before the new neighbors acquired it. N.T., 2/12/15, at

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153. He talked about shorting out the electric by putting a penny in the fuse

box or infesting his home with cockroaches. Id. He told his neighbor that it

would be “something to see 50 foot flames shooting up” from the house, and

that if he could not have the house, nobody would.           Id. at 153-54.

Appellant also mentioned, to no one in particular, at a nearby Turkey Hill

convenience store that he would “torch” his home before allowing “them” to

take it. Id. at at 136.

      On May 9, 2013, around 2:30 a.m., firefighter Thomas Francis

Brennan received a call that the house on the property was on fire. N.T.,

2/11/15, at 45, 52. Twenty-one firefighters reported to the scene. Id. at

64. Appellant told State Trooper Steven Kaneski that, when the fire began,

he was sitting at his computer on the first floor of the home when he heard

his dog bark at the basement door. N.T. 2/12/15, at 92. Upon opening the

door to the basement, which he had not entered in weeks, he heard a loud

bang and smelled smoke.      Id.   Appellant’s neighbor, Mr. Galaydick, was

alerted of the fire by a neighbor who lived below him.           Id. at 159.

Firefighters told Mr. Galaydick and his family to leave their home because

ammunition in the basement of the property was exploding as a result of the

fire. Id. at 161. Mr. Galaydick saw Appellant sitting in a Red Cross Tent

across the street with his dogs.    Id. at 164.    Appellant, who was fully

dressed, cocked his head and said in a tone Mr. Galaydick perceived to be

cocky, “What a ‘F’ ing coincidence.”      Id. at 169.   Later that morning,

Appellant stated in the Turkey Hill that he was glad “the bitch burnt.” Id. at

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140. The next day, Appellant filed a claim with Allstate Insurance Company,

where he had the house insured for $138,000.00, plus $70,000.00 for

personal property. Id. at 196-199.

        On February 13, 2015, a jury convicted Appellant of two counts of

arson (endangering persons) and one count each of arson (inhabited

building or structure), insurance fraud, and REAP.       On May 11, 2015, the

court    sentenced    Appellant   to   consecutive   terms   of   12-36   months’

incarceration for each of his three arson convictions. The court imposed a

sentence of 1-2 months’ incarceration for insurance fraud, and 1-2 months’

incarceration for REAP, to be served concurrently with the other period of

incarceration. On May 21, 2015, Appellant filed a post-sentence motion. On

August 26, 2015, the court granted Appellant’s post-sentence motion in

part, finding that Appellant’s conviction for arson (inhabited building or

structure) merged with his convictions for arson (endangering persons) for

sentencing purposes.      The court re-sentenced Appellant to an aggregate

sentence of 2-6 years’ incarceration.

        On September 14, 2015, Appellant filed a notice of appeal.            On

September 16, 2015, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

and he timely complied on October 7, 2015. On October 14, 2015, the trial

court issued a Pa.R.A.P. 1925(a) opinion, in which it incorporated its orders

of August 26, 2015 and February 10, 2015.

        Appellant raises the following issues for our review:

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         1. WAS THE VERDICT ON ALL CHARGES CONTRARY TO
         THE WEIGHT OF THE EVIDENCE PRESENTED TO SUPPORT
         A FINDING OF GUILT BEYOND A REASONABLE DOUBT
         RELATIVE TO PROOF OF THE ELEMENTS OF EACH
         CHARGE, COUNTS 1-3 & 5-6, IN PARTICULAR THAT
         APPELLANT CAUSED OR STARTED THE FIRE?

         2. DID THE TRIAL COURT ERR AND/OR ABUSE ITS
         DISCRETION IN FAILING TO ORDER DISCLOSURE OR
         GRANT LEAVE TO INSPECT THE REPORTS OF THE
         PENNSYLVANIA STATE POLICE AND/OR CARBONDALE
         POLICE DEPARTMENT CONCERNING AN INVESTIGATION
         INTO AN ARSON AT 37 BELMONT STREET, CARBONDALE,
         PA PURSUANT TO PENNSYLVANIA RULE OF CRIMINAL
         PROCEDURE 573 AND THEN EXCLUDING THIS EVIDENCE
         FROM USE AT TRIAL WHERE IT BORE HIGHLY
         DISTINCTIVE SIMILARITIES TO THE OFFENSES FOR
         WHICH APPELLANT STOOD TRIAL, THEREBY DEPRIVING
         APPELLANT OF AN ADEQUATE DEFENSE AND A FAIR
         TRIAL?

         3. DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION
         IN ALLOWING TROOPER CASTALDI TO TESTIFY, ON
         REBUTTAL, OVER THE OBJECTION OF COUNSEL, TO AN
         ORAL STATEMENT OF APPELLANT WHERE THE SAME
         NEITHER CONSTITUTED REBUTTAL NOR WAS IT
         DEMONSTRATIVE OF AN INCONSISTENT STATEMENT IN
         VIOLATION OF PA.R.E. 613?

Appellant’s Brief at 3.

      In his first issue, Appellant claims the verdict was against the weight of

the evidence, because the only evidence presented against him was

circumstantial and the only testimony of his admission was not disclosed

until two years after the fire. We disagree.

      We review challenges to the weight of the evidence as follows:

            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 determine the credibility of the

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            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 741 A.2d 666, 672–73
         (Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42
         (U.S.2000)]. 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. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal

denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted).

      This Court has recognized that “a true weight of the evidence

challenge concedes that sufficient evidence exists to sustain the verdict but

questions   which     evidence   is   to    be   believed.”    Commonwealth v.

Thompson, 106 A.3d 742, 758 (Pa.Super.2014). Accordingly, “[o]ne 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.”

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

should not grant a new trial due to “a mere conflict in the testimony or

because the judge on the same facts would have arrived at a different

conclusion.”    Id.      Instead,     the   trial   court   must   examine   whether

“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


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justice.” Id. Only where the jury verdict “is so contrary to the evidence as

to shock one’s sense of justice”2 should a trial court afford a defendant a

new trial. Id.

       Here, the verdicts are not so contrary to the evidence as to shock

one’s sense of justice. Appellant admitted to feeling angry about losing his

house at a judicial tax sale and telling neighbors that he would set fire to the

house so that nobody else would be able to live in it.          He was the only

person in his home at the time of the fire.             He denied entering the

basement, so he could not have set the fire that started there by accident.

The fire ignited a few days before he needed to clean the house to avoid

eviction, and he filed an insurance claim the next day. His daughter had

secured him another place to live at that time. Further, he seemed cocky

after the fire, joked about what a coincidence the fire created, and stated

that he was glad the house had burned.           The trial court did not abuse its

discretion in denying Appellant’s challenge to the weight of the evidence.

       Next, Appellant challenges a trial court evidentiary ruling. He claims

the court erred in failing to admit evidence of arson in another home in his

neighborhood. He claims that evidence of this incident would establish that

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2
  When “the figure of Justice totters on her pedestal, or when the jury’s
verdict, at the time of its rendition, causes the trial judge to lose his breath,
temporarily, and causes him to almost fall from the bench, then it is truly
shocking to the judicial conscience.” Commonwealth v. Cruz, 919 A.2d
279, 282 (Pa.Super.2007) (internal citations omitted).



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someone other than Appellant started the fire and the court erred in its

exclusion of it. Again, we disagree.

      “The admission of evidence is solely within the discretion of the trial

court, and a trial court’s evidentiary rulings will be reversed on appeal only

upon an abuse of that discretion.” Commonwealth v. Woodard, 129 A.3d

480, 494 (Pa.2015) (quoting Commonwealth v. Reid, 99 A.3d 470, 493

(Pa.2014)). “An abuse of discretion may not be found merely because an

appellate court might have reached a different conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

or such lack of support so as to be clearly erroneous.” Commonwealth v.

Hairston, 84 A.3d 657, 664-65 (Pa.2014), cert. denied sub nom. Hairston

v. Pennsylvania, ___ U.S. ___, 135 S. Ct. 164, 190 L. Ed. 2d 118 (2014)

(citing Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa.2007)); Grady v.

Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa.2003).

      The admissibility of evidence “depends on relevance and probative

value. Evidence is relevant if it logically tends to establish a material fact in

the case, tends to make a fact at issue more or less probable or supports a

reasonable    inference   or   presumption     regarding    a   material   fact.”

Commonwealth v. Levanduski, 907 A.2d 3, 13 (Pa.Super.2006) (en

banc), appeal denied, 919 A.2d 955 ([Pa.]2007) (quoting Commonwealth

v. Drumheller, 808 A.2d 893, 904 ([Pa.]2002), certiorari denied, 539 U.S.

919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003)).


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         “It is well established that evidence which tends to show
         that the crime for which an accused stands trial was
         committed by someone else is relevant and admissible.”
         Commonwealth v. McGowan, 635 A.2d 113, 115
         (Pa.1993). In this regard, “the defense may introduce
         evidence that someone else committed a crime which
         bears a highly detailed similarity to the crime with which
         the defendant is charged.” Id. (citing with approval
         Commonwealth           v.    Rini,    427     A.2d   1385
         ([Pa.Super.]1981)).

Commonwealth v. Weiss, 81 A.3d 767, 806-07 (Pa.2013).

      Evidence of the other similar crime must be

         so nearly identical in method as to earmark [it] as the
         handiwork of the accused. Here much more is demanded
         than the mere repeated commission of crimes of the same
         class, such as repeated burglaries or thefts. The device
         used must be so unusual and distinctive as to be like a
         signature ....

         In addition, the Supreme Court has indicated that
         remoteness is a factor which must also be considered in
         determining the similarity of the crimes… [W]e therefore
         find the following factors to be relevant in determining
         whether evidence of the other uncharged offense or bad
         act is admissible: (1) the time lapse between the
         commission of the two crimes; and (2) the resemblance
         between the methodologies of the two crimes.

Commonwealth v. Nocero, 582 A.2d 376, 378-79 (Pa.Super.1990)

(internal quotations and citations omitted) (emphasis in original).

         This court has previously held that where two separate
         crimes are committed within one hour in the same
         geographic area, evidence of the uncharged crime is
         admissible. However, where there is a time lapse of
         several years or months between the time that the
         offenses were committed, then evidence of the other crime
         has been held to be inadmissible.

Id. (internal citations omitted).

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      Here, the trial court denied Appellant’s motion to compel the

production of the arson investigation report of another home, because it

would not lead to admissible evidence. The trial court reasoned:

         Based upon the in camera review of the PSP investigative
         materials, the arson which occurred at 37 Belmont Street
         does not bear a highly detailed similarity to the arson with
         which [Appellant] is charged. The lapse of time between
         the commission of the two arsons was slightly more than
         six months… Furthermore, the methodologies employed
         (i.e., ignition of ignitable liquid poured in the area vs. open
         flame ignition on available combustible material) are not
         so nearly identical in method with the device used, so
         unusual and distinctive as to be like a signature or the
         handiwork of the same individual.

Trial Court Order, filed February 12, 2015, at 5-6 (internal quotations and

citations omitted).

      We see no abuse of discretion in the trial court’s refusal to admit

evidence of the arson committed in an unoccupied structure, six months

after the fire at the property.

      In his final issue, Appellant argues the trial court erred by allowing

rebuttal or impeachment evidence following his testimony, because he never

denied a statement for which he was impeached.                 Again, Appellant

challenges the trial court’s evidentiary ruling.

      “The general rule is that a prior inconsistent statement of a declarant

is admissible to impeach the declarant.” Commonwealth v. Henkel, 938

A.2d 433, 442 (Pa.Super.2007) (citing Commonwealth v. Brady, 507 A.2d

66, 68 (Pa.1986)).     “In order to do so, there must be evidence that the


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statement was made or adopted by the witness whose credibility is being

impeached.”      Commonwealth       v.    Brown,    448   A.2d   1097,   1102

(Pa.Super.1982) (internal citation omitted).

     Appellant argues that upon cross-examination, he told the prosecutor

that he could not remember exactly what he told Trooper Castaldi during his

three interviews, and that Trooper Castaldi’s testimony could be right. He

claims that because he never denied making the statement to Trooper

Castaldi, the court should not have allowed Trooper Castaldi to impeach him

with a prior inconsistent statement.     At trial, defense counsel objected to

Trooper Castaldi’s testimony, which followed Appellant’s testimony, because

it was not impeachment testimony and should have been presented in the

Commonwealth’s case in chief.

     The trial court reasoned:

        [Appellant] testified in his own defense, and denied having
        provided a particular version of events during his interview
        by Trooper William Castaldi. In an effort to rebut that
        unanticipated denial by [Appellant], the Commonwealth
        presented the testimony of Trooper Castaldi who briefly
        testified regarding the statement that [Appellant] provided
        to him, and which varied from [Appellant’s] trial testimony
        relative to the sequence of events immediately prior to the
        fire. Defense counsel objected to the presentation of
        Trooper Castaldi’s rebuttal testimony, but that objection
        was overruled on the ground that the Commonwealth
        could not have known, prior to the trial testimony of
        [Appellant], that [Appellant] would deny having made the
        proffered statement to Trooper Castaldi.

        The Commonwealth is permitted to present rebuttal
        testimony to contradict evidence that is offered by the
        defense.   Since [Appellant] did not testify during the

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           preliminary hearing in this case, the Commonwealth did
           not learn until [Appellant’s] trial testimony that he was
           disputing the contents of the statement that he provided to
           Trooper Castaldi. Consequently, it was not an abuse of
           discretion to permit the Commonwealth to offer Trooper
           Castaldi’s rebuttal testimony to contradict the sequence of
           events that [Appellant] offered at trial.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed October 14, 2015, at 4-5

(citations to the record omitted).

        Even if Appellant’s claim had merit and the court erred by admitting

the impeachment testimony, the error was harmless.3

        Here,   for   the    reasons     previously   stated,   the   evidence   was

overwhelming that Appellant committed the crime, even without Trooper

Castaldi’s testimony. Further, Appellant admitted at trial that he might have

made inconsistent statements to Trooper Castaldi, so the Commonwealth’s

presentation of these inconsistent statements did not prejudice him.


____________________________________________


3
    An error is harmless where:

           (1) the error did not prejudice the defendant or the
           prejudice was de minimis; or (2) the erroneously admitted
           evidence was merely cumulative of other untainted
           evidence which was substantially similar to the erroneously
           admitted evidence; or (3) the properly admitted and
           uncontradicted evidence of guilt was so overwhelming and
           the prejudicial [e]ffect of the error so insignificant by
           comparison that the error could not have contributed to
           the verdict.
Commonwealth v. Green, 76 A.3d 575, 582 (Pa.Super.2013) (internal
citation omitted).




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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