J-S15020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DONALD M. THOMAS, JR.                      :   No. 1221 WDA 2019

                 Appeal from the Order Entered July 10, 2019
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0002270-2017

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD M. THOMAS, JR.                      :
                                               :
                       Appellant               :   No. 1250 WDA 2019

        Appeal from the Judgment of Sentence Entered March 26, 2019
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0002270-2017


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 14, 2020

        This is a cross-appeal from the judgment of sentence entered on March

26, 2019, following Donald M. Thomas, Jr.’s (“Thomas”) jury trial convictions




____________________________________________


*   Former Justice specially assigned to the Superior Court.
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for aggravated arson,1 arson endangering persons,2 arson endangering

property,3 criminal mischief,4 risking a catastrophe,5 recklessly endangering

another person (“REAP”),6 and simple assault.7          Upon review, we affirm

Thomas’s convictions, but we are constrained to vacate the judgment of

sentence and remand for resentencing.

        The trial court accurately summarized the facts and procedural history

of this case as follows.

        At approximately 2:08 [a.m.] on July 21, 2017, Patrolman Kevin
        Reese of the Rochester Borough Police Department was
        dispatched to 225 West Madison Street[, Rochester,
        Pennsylvania] for a report of a structure fire; multiple officers
        responded. Upon their arrival[,] the officers observed [that all of]
        the residents of the structure had evacuated except for two
        individuals[, Jim Hubler and Debbie Garret,] who were stranded
        on the front porch roof yelling for help. The officers [helped] the
        two off of the roof; however, [Debbie Garret] was injured in the
        process and complained of rib pain.

        Multiple fire departments responded to the blaze, and in the
        process of fighting the fire, two firefighters were injured and a
        ladder truck was damaged.


____________________________________________


1   18 Pa.C.S.A. § 3301(a.1).

2   18 Pa.C.S.A. § 3301(a).

3   18 Pa.C.S.A. § 3301(c).

4   18 Pa.C.S.A. § 3304.

5   18 Pa.C.S.A. § 3302(b).

6   18 Pa.C.S.A. § 2705.

7   18 Pa.C.S.A. § 2701.

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     After the fire [was] extinguished, Deputy Fire Marshall, Trooper
     Luke Nelson[] of the Pennsylvania State Police[,] investigated the
     cause of the fire[.] [He] preliminar[ily] conclu[ded] [] that the
     fire was likely incendiary in nature.

     Through their [subsequent] investigation . . . the Rochester Police
     learned that Tanasia Kirk, Andre Goosby, and Drevon Goosby all
     resided at the 225 West Madison Street location on the second
     floor. Peggy Kirk, Tanasia Kirk’s mother, [] also resid[ed] there
     on an intermittent basis. [Further investigation revealed] that
     Peggy Kirk’s ex-boyfriend, [Thomas], [] recently threatened to
     burn her belongings and [previously] sent [Peggy Kirk] a picture
     via text message of [her] belongings on a barbecue grill.

     Given this information, the Rochester Police interviewed [Thomas]
     on August 24, 2017[,] at the police station. During the interview,
     [Thomas admitted] to threatening [Peggy] Kirk and sending the
     photograph, but he denied any involvement in setting the fire and
     claimed he was at home in Beaver Falls[, Pennsylvania] that night.

     On September 14, 2017, a search warrant was served on
     [Thomas’s] cell[ular] [tele]phone carrier, T-Mobile, for [Thomas’s]
     cell[ular] [tele]phone data. The location data of [Thomas’s]
     cell[ular] [tele]phone revealed that he was not in Beaver Falls
     prior to the fire. This information prompted another interview of
     [Thomas].

     On October 28, 2017, [Thomas] was again interviewed. In the
     interview, [Thomas] admitted to setting the fire. [Thomas] told
     the interviewers that he and [Peggy] Kirk [were] fighting and he
     went to the residence, found a gas can outside, entered the
     residence and poured gas inside and [set the fire]. [Thomas
     admitted] the same in a written statement, which he signed.
     Following his confession, [Thomas] was charged on November [9],
     2017, with multiple counts of [a]rson, among other related
     charges.

     [On March 15, 2018, Thomas filed an omnibus pre-trial motion
     seeking] to have his confession suppressed[.] [He claimed that
     his statement was the] product of undue coercion. Following a
     hearing [on April 3, 2018, the trial court denied Thomas’s motion
     on April 5, 2018.]

     At trial, the Commonwealth introduced [testimony and] evidence
     from the charging officer, [Patrolman Keven Reese,] the Fire
     Marshal[, Trooper Luke Nelson], the residents of the

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      structure — significantly, [Andre] Goosby, Tanasia Kirk, and
      Peggy Kirk — and [Detective] Patrick Young of the Beaver County
      Detective[s’] office who performed the location data analysis on
      [Thomas’s] cell[ular] [tele]phone.

      Through their testimony, the Commonwealth put forth evidence
      that the fire was intentionally set, that [Thomas] was in the
      general vicinity of the residence around the time the fire started,
      [that Thomas] was fighting with one of the residents and
      threatened to burn her belongings, and [that Thomas] confessed
      to setting the fire.

      [Thomas] also testified at trial. He denied starting the fire and
      claimed . . . that [his] confession was obtained through coercion.
      When asked about his location data that placed him in the vicinity
      of the fire[,] he claimed [that] he was [] driven to a storage unit
      by a friend [] after playing pool in New Brighton[, Pennsylvania].

Trial Court Opinion, 10/4/19, at 1-3.

      On January 11, 2019, the jury convicted Thomas of the aforementioned

crimes. On March 26, 2019, the trial court sentenced Thomas to 22 to 50

years’ incarceration. Thomas filed a post-sentence motion on March 27, 2019,

and a supplemental post-sentence motion on April 2, 2019, which requested

that the trial court reconsider his sentence. The trial court held a hearing on

the post-sentence motion on June 25, 2019. Thereafter, on July 10, 2019,

the trial court issued an order modifying Thomas’s sentence to 14 ½ to 35

years’ incarceration. Trial Court Order, 7/10/19, at 1. The trial court denied

all other matters raised in Thomas’s post-sentence motion. Id.

      Both Thomas and the Commonwealth filed notices of appeal on August

8, 2019. On August 12, 2019, the trial court issued an order directing the

Commonwealth to file a concise statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b). See Trial Court Opinion, 10/4/19, at 6, n. 17.


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Similarly, on August 15, 2019, the trial court issued an order instructing

Thomas to file a 1925(b) statement. The parties timely complied. The trial

court issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 4, 2019.

Ultimately, this Court consolidated Thomas’s and the Commonwealth’s

appeals. Order, 1/2/2020, at 1.

       Thomas raises the following issues on appeal:8

        I.    Whether [Thomas’s] conviction[s] should be reversed because the
              Commonwealth failed to present sufficient evidence to prove
              beyond a reasonable doubt that [Thomas] was guilty of the
              crimes[?]

       II.    Whether [Thomas’s] conviction[s], assuming that sufficient
              evidence [was] presented, should be reversed because the guilty
              verdict rendered contradicts the weight of the evidence presented
              by the Commonwealth at trial[?]

      III.    Whether the trial court erred in the denial of [Thomas’s]
              suppression motion[?]


Thomas’s Brief at 8.

       The Commonwealth raises the following issue on appeal:

       Whether the [s]entencing [c]ourt abused its discretion by
       changing a 22 to 50 year sentence to 14 ½ to 35 years without
       justification and in violation of 42 Pa.C.S.A. § 9721(b) and
       Pa.R.Crim.P. 704(C)(2)?

Commonwealth’s Brief at 4.

       We first address Thomas’s appellate issues. In his first issue, Thomas

argues that the Commonwealth presented insufficient evidence to support his
____________________________________________


8 We have altered the order of Thomas’s issues for clarity and ease of
discussion. See Thomas’s Brief at 8.

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various convictions. Thomas’s Brief at 10-14. Essentially, Thomas claims that

the Commonwealth did not present “direct physical or testimonial evidence”

that “placed [Thomas] at the scene of the [crimes]” and, as such, he is entitled

to relief.9 Id. at 13. We disagree.

       Our standard of review regarding the sufficiency of the evidence is as

follows:

       The standard we apply in reviewing the sufficiency of evidence is
       whether, viewing all the evidence admitted at trial in the light
       most favorable to the verdict winner, there is sufficient evidence
       to enable the fact[-]finder to find every element of the crime
       beyond a reasonable doubt. In applying the above test, we may
       not weigh the evidence and substitute our judgment for that of
       the fact-finder.   In addition, we note that the facts and
       circumstances established by the Commonwealth may not
       preclude every possibility of innocence. Any doubts regarding a
       defendant's guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
       proving every element of the crime beyond a reasonable doubt by
       means of wholly circumstantial evidence. Moreover, in applying
       the above test, the entire record must be evaluated and all
____________________________________________


9 Ordinarily, when challenging the sufficiency of the evidence on appeal, an
appellant waives his claims when he fails to specify which elements of each of
the individual crimes were not sufficiently proven. See Commonwealth v.
Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (“[W]hen challenging the
sufficiency of the evidence on appeal, the [a]ppellant's 1925 statement must
‘specify the element or elements upon which the evidence was insufficient’ in
order to preserve the issue for appeal.”) (citation omitted). In both his
1925(b) statement and his issue presented on appeal, as set forth above,
Thomas did not specify what elements were not established and generally
challenged all of his convictions. Accordingly, we could find this issue waived.
Herein, however, Thomas’s sufficiency challenge is based upon his claim that
the Commonwealth failed to establish that he was, in fact, the perpetrator of
the various crimes. Accordingly, we decline to find this issue waived due to
lack of preservation for appeal.

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      evidence actually received must be considered. Finally, the trier
      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1014–1015 (Pa. Super. 2002)

(citations omitted).

      Herein, the evidence, when viewed in the light most favorable to the

Commonwealth, demonstrated that Thomas went to the residential building

and started the fire. First, Peggy Kirk testified and explained that she and

Thomas were romantically involved, but that she ended the relationship in

June 2017.    N.T. Trial, 1/8/19, at 62.    After ending the relationship, Kirk

explained that Thomas engaged in violent behavior toward her, especially

after he witnessed her spending time with another man. Id. at 62 and 65.

Kirk then testified about a text message she received from Thomas in which

he sent a picture of her belongings on a grill and threatened to set it on fire.

Id. at 66. Next, Detective Young testified as an expert in cellular telephone

technology.   During his testimony, he provided a “detailed analysis of the

location data[,] conclusions of location[,] and possible routes of travel that

placed [Thomas] in the area [of the residential building] at or around the time

of the fire.” Trial Court Opinion, 10/4/19, at 10, n. 22; see also N.T. Trial,

1/9/19, at 60-75.

      Lastly, Detective Jeffrey Lizzi of the Rochester Borough Police testified

at Thomas’s trial. Detective Lizzi explained that on October 27, 2018, Thomas




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confessed and provided a written statement, admitting that he started the

fire. Specifically, Detective Lizzi stated:

      In speaking to [] Thomas[,] he advised me that he went to the
      [residential] building that evening, [that he] was fighting with
      Peggy Kirk[.] [Thomas stated that when h]e [went to the
      residential building, h]e [] found [a] gasoline [can] along the
      neighbor’s house, took the gasoline can, brought it into the
      [residence,] poured it onto the floor, on the stairs, threw a
      cigarette on there, [but it did not] light[, so] he used a match and
      it ignited.

N.T. Trial, 1/9/19, at 85. Trooper Luke Nelson, a Deputy Fire Marshal who

testified as an expert in fire investigation during Thomas’s trial, confirmed that

Thomas’s description of the fire “100 percent correlated with the evidence [he]

saw at the scene on the morning of the fire.” Id. at 101. Based upon the

foregoing, we conclude that there was sufficient evidence to sustain Thomas’s

convictions.

      Next, Thomas claims that his convictions were against the weight of the

evidence. Thomas, however, failed to challenge the weight of the evidence in

an oral or written motion prior to sentencing or in his post-sentence motion.

See Commonwealth v. Bryant, 57 A.3d 191, 196–97 (Pa. Super. 2012)

(explaining that the “[f]ailure to challenge the weight of the evidence

presented at trial in an oral or written motion prior to sentencing or in a

post-sentence motion will result in waiver of the claim.”). Furthermore, in

support of his claim on appeal, Thomas simply states that he “testified [o]n

his own behalf that he had nothing to do with these crimes.” Thomas’s Brief

at 19. Thomas offers no further argument. See Commonwealth v. Plante,

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914 A.2d 916, 924 (Pa. Super. 2006) (explaining that the “failure to develop

an argument with citation to, and analysis of, relevant authority waives the

issue on review.”) (citation omitted). Due to the aforementioned deficiencies,

we conclude that Thomas waived this issue on appeal.10

       Lastly, Thomas contends that the trial court erred in denying his motion

to suppress. Specifically, Thomas claims that his confession was made “under

duress” and was a product of the officer’s “coercion.” Thomas’s Brief at 16.

Thomas, however, failed to include this argument in his concise statement.

As such, this claim is also waived. See Pa.R.A.P. 1925(b)(4)(vii).

       We now address the Commonwealth’s claim that the trial court erred in

modifying Thomas’s sentence. Per the Commonwealth, the trial court abused

its discretion because it failed to state its reasons for modifying Thomas’s

sentence on the record and, as such, violated both 42 Pa.C.S.A. § 9721(b)
____________________________________________


10Even if not waived, we would conclude that the jury’s verdict was not against
the weight of the evidence. The trial court explained:

       The Commonwealth presented extensive circumstantial evidence
       proving [Thomas’s] guilt[.] While there was no eyewitness
       testimony that placed [Thomas] at the scene, there was extensive
       testimony regarding [Thomas’s] motive and opportunity.
       Additionally, and most significantly, in this case [Thomas’s] signed
       confession was admitted into evidence. [Thomas] did testify that
       he made that statement under duress, but the jurors apparently
       did not find [Thomas] credible in that assertion.

Trial Court Opinion, 10/4/19, at 13. As the trier of fact, the jury was “free to
believe all, part, or none of the evidence and to determine the credibility of
the witnesses.” Commonwealth v. McCloskey, 835 A.2d 801, 809 (Pa.
Super. 2003). Accordingly, based upon our standard of review, we conclude
that the jury’s verdict was not against the weight of the evidence.


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and Pa.R.Crim.P. 704(C)(2). This claim implicates the discretionary aspects

of sentencing, which is not appealable as of right.     Rather, an appellant

challenging the sentencing court's discretion must invoke this Court's

jurisdiction by satisfying a four-part test.      See Commonwealth v.

Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).

         [W]e conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly preserved
         at sentencing or in a motion to reconsider and modify
         sentence, see Pa.R.Crim.P. [720]; (3) whether appellant's
         brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
         there is a substantial question that the sentence appealed
         from is not appropriate under the Sentencing Code, 42
         Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted; brackets in original).    “If the appeal satisfies each of these

prerequisites, we may accept it and proceed to the substantive merits of the

case.”   Commonwealth v. Flowers, 149 A.3d 867, 870–871 (Pa. Super.

2016).

     Herein, the Commonwealth preserved its challenge at the sentencing

hearing as well as the June 25, 2019 hearing on Thomas’s post-sentence

motion, filed a timely notice of appeal, and included a Rule 2119(f) statement

in its appellate brief. See Pa.R.Crim.P. 721(A)(2) (“Sentencing issues raised

by the Commonwealth at the sentencing proceeding shall be deemed

preserved for appeal whether or not the Commonwealth elects to file a motion

to modify sentence on those issues.”); see also Pa.R.Crim.P. 721(B)(2)(a)(i).


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Moreover, an allegation that the trial court failed to offer specific reasons for

a sentence raises a substantial question. See Commonwealth v. Dunphy,

20 A.3d 1215, 1222 (Pa. Super. 2011). As such, the Commonwealth met the

“threshold requirements” that enable us to exercise jurisdiction and we may

“accept the appeal and proceed to the merits.” Flowers, 149 A.3d at 872.

      Our standard of review in sentencing matters is well-settled:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

(citation omitted).

      Section 9721(b) of the Sentencing Code requires a trial court, “[i]n

every case,” to “make as a part of the record, and disclose in open court at

the time of sentencing, a statement of the reason or reasons for the sentence

imposed.”    42 Pa.C.S.A. § 9721(b).       Notably, this applies when a court

modifies an individual’s sentence. Id. As this Court previously explained:

      Requiring the sentencing court to state its reasons at that time
      provides a procedural mechanism for the aggrieved party both to
      attempt to rebut the court's explanation and inclination before the
      sentencing proceeding ends, and to identify and frame substantive
      claims for post-sentence motions or appeal. Therefore, [] it is not
      sufficient for the trial court to state its reasons in a post-sentence
      Rule 1925(a) opinion. The reasons must be given “in open court
      at the time of sentencing.” 42 Pa. C.S. § 9721(b).


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      [...A]lthough a sentencing court need not undertake a lengthy
      discourse for its reasons for imposing a sentence, ... the record as
      a whole must reflect the sentencing court's consideration of the
      facts of the crime and character of the offender. A discourse on
      the court's sentencing philosophy, as it applies to the defendant
      before it, is not required. [...T]he reasons must reflect the judge's
      consideration of the sentencing code, the circumstances of the
      offense and the character of the offender.

Flowers, 149 A.3d at 875–876 (Pa. Super. 2016) (case citations, original

brackets, and most quotations omitted).

      Here, upon review of the certified record, the trial court did not place its

reasons for modifying Thomas’s sentence on the record. The trial court held

a hearing on Thomas’s post-sentence motion on June 25, 2019.               At the

hearing, Thomas requested the court to run his sentence for aggravated arson

concurrently with his sentence for arson. N.T. Post-Sentence Motion Hearing,

6/25/19, at 5-6. In response, the court stated that it would take “this matter

under advisement.” Id. at 17. Subsequently, on July 10, 2019, the trial court

issued an order modifying Thomas’s sentence. The trial court provided the

following explanation:

      Following review of all matters of record, and with consideration
      for the factors set forth in 42 Pa.C.S.[A.] §9721(b), the [trial
      c]ourt has determined that 14 ½ years to 35 years of incarceration
      is an appropriate aggregate sentence.

Trial Court Order, 7/10/19, at 1. Hence, the trial court abused its discretion

by failing to state its reasons for the modification of Thomas’s sentence on the

record. Accordingly, we affirm Thomas’s convictions, but are constrained to

vacate Thomas’s judgment of sentence and remand for resentencing.



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      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2020




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