Com. v. Fobes, D. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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