Com. v. Matthews, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL THOMAS MATTHEWS :
:
Appellant : No. 658 MDA 2020
Appeal from the Judgment of Sentence Entered October 31, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003442-2018
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED JULY 01, 2021
Appellant Michael Thomas Matthews appeals from the judgment of
sentence imposed after a jury found him guilty of arson—danger of death or
bodily injury, aggravated arson—person present inside property, and causing
catastrophe.1 Appellant’s present counsel has filed a petition to withdraw and
an Anders/Santiago2 brief. For the reason stated herein, we deny present
counsel’s petition to withdraw and direct counsel to submit an amended
Anders/Santiago brief or an advocate’s brief.
A review of the record reveals the following background to this appeal.
On the morning of May 14, 2016, Appellant’s wife (the complainant) called
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3301(a)(1)(i), 3301(a.1)(1)(ii), and 3302, respectively.
2 Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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911 to report a domestic dispute with Appellant at the home they shared with
their two children. While the complainant was on the phone with the
dispatcher, Appellant picked up a pile of papers and set them on fire with a
barbeque lighter. At that time, Appellant was standing at the top of the stairs
to the second floor of the residence, and the complainant was on the first
floor. The dispatcher instructed the complainant to exit the residence, and
she went just outside the front door. The children were not at home during
the incident.
Police officers and firefighters responded to the call. Sergeant Eric
Schmidt of the Ephrata Police Department was among the first responders
and, after talking with the complainant, he entered the home to locate
Appellant. Sergeant Schmidt yelled out Appellant’s name, and the sergeant
eventually heard Appellant respond that he was not coming out and then
heard a door slam and the door lock. Sergeant Schmidt then retreated to the
entranceway of the home because of the heavy smoke. As he stood at the
entrance, he heard Appellant’s voice behind him and the complainant say,
“[T]here he is.” N.T. Trial Vol. 1, 8/26/19, at 88. When the sergeant turned
around, he saw Appellant standing by a door inside the home. According to
the sergeant, Appellant yelled in a sarcastic tone, “[T]here is a fire in here,
better get the fire company.” Id. at 88-89. The sergeant ran back into the
home to get Appellant, but Appellant shut and locked the door.
When firefighters arrived, they saw a fire and a large column of smoke
coming out of the left side of the home. Firefighters sprayed water from the
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outside through a window and a team also entered the home, set up a hose
line up the stairway, and searched the residence along with police officers.
Most of the police officers had to exit the residence due to the smoke, but
Sergeant Schmidt remained by the stairway. Firefighters and the sergeant
eventually broke down an upstairs door, located Appellant in a closet, and
rescued him. Emergency personnel transported Appellant to Lancaster
General Hospital.
A fire investigator stated that the front left bedroom of the home
sustained the most damage. The investigator ruled out electrical sources and
other ignition sources for the fire. He concluded that the fire was mostly likely
caused by “an exterior fuel source or heat source, whether it be a light[,] a
match[,] or some type of open f[l]ame brought to the scene and either taken
away from the scene or destroyed in the fire.” N.T. Trial Vol. 2, 8/27/19 at
157. The investigator also noted that he saw a “secondary” ignition or point
of origin at the top of the stairway. Id. at 146.
On the same day as the incident, Detective Kenneth Lockhart of the
Ephrata Police Department filed a criminal complaint against Appellant. On
August 21, 2019, the Commonwealth filed an amended information charging
Appellant as follows: arson—danger of death or bodily injury for placing in
danger firefighters, police officers and other responders (Count 1); aggravated
arson—person present inside property for starting a fire while the complainant
was inside the residence (Count 2); and causing catastrophe under 18 Pa.C.S.
§ 3302(a) for starting the fire while the complainant was inside, remaining
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inside his home, and requiring rescue (Count 3).3 Elizabeth Low of the Office
of the Public Defender entered her appearance on Appellant’s behalf and
represented Appellant through trial and the filing of post-sentence motions.
Appellant proceeded to a jury trial, at which the Commonwealth
presented the above-summarized evidence. Appellant testified on his own
behalf and asserted that he and the complainant had an argument when the
smoke alarms began to sound. Appellant stated that he went to the bedroom
where he heard and saw the fire start at the foot of the bed. Appellant
admitted that he later saw Sergeant Smith inside the home but locked the
door to the bedroom. Appellant explained that he was “a little out of my head
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3 Specifically, Count 3 of the amended information stated:
COUNT 3 - CAUSING OR RISKING A CATASTROPHE (DV) -
18 PA.C.S.A. 3302(A) - (FELONY 1)
a person did intentionally, knowingly or recklessly cause a
catastrophe by explosion, fire or flood, avalanche, collapse
of building, release of poison gas, radioactive material or
other harmful or destructive force or substance, or by any
other means causing potential widespread injury or
damage; TO WIT: On May 14, 2018 [Appellant] did
intentionally set fire to his own home. Within minutes the
fire [Appellant] had started engulfed the second floor of the
home. [Appellant]’s wife was inside the home when the fire
was intentionally set by [Appellant]. [Appellant] remained
in the home during the fire and had to be located and
rescued by firefighters who were engaged in fighting the
fire. Said offense occurred at Ephrata Borough, Pa
Am. Information, 8/21/19, Ct. 3. As discussed further herein, the
Commonwealth charged, obtained a jury instruction, and a conviction based
solely Section 3302(a), which defines the felony-one offense of causing a
catastrophe and not Section 3302(b), which defines the felony three-offense
of risking catastrophe.
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at the time” but maintained that he was trying to keep the sergeant safe. N.T.
Trial Vol. 2 at 182. Appellant also called the complainant to testify that she
kept aromatherapy oils at the foot of her bed.
On August 27, 2019, the jury found Appellant guilty of all charges. On
October 31, 2019, the trial court sentenced Appellant to serve consecutive
terms of three to nine years’ incarceration on each count, resulting in an
aggregate sentence of nine to twenty-seven years’ incarceration. Appellant
timely filed a post-sentence motion to modify his sentence,4 which the trial
court denied on March 4, 2020.
On April 28, 2020, present counsel, Jade Salyards, Esq., also of the
Office of the Public Defender filed a notice of appeal on Appellant’s behalf,
which we regard as timely pursuant to the March 17, 2020 order of this Court
extending filings deadline due to the COVID-19 emergency. Present counsel
subsequently filed a Pa.R.A.P. 1925(c)(4) statement of her intent to file an
Anders/Santiago brief.
In her Anders/Santiago brief, present counsel identifies the following
issues: (1) the sufficiency of the evidence; (2) merger of sentences; and (3)
weight of the evidence. Anders/Santiago Brief at 8, 12. Present counsel
also lists the following claims that Appellant wishes to raise: (1) trial strategy;
(2) witness bias; (3) the discretionary aspects of his sentence; (4) his lack of
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4 While Appellant filed his post-sentence motion on November 12, 2019, the
motion was timely filed because the tenth day after the imposition of
Appellant’s October 31, 2019 sentence fell on a Sunday, and Monday was the
Veterans’ Day holiday. See 1 Pa.C.S. § 1908.
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motive to start the fire, (5) the qualifications of the fire investigator, who
testified as an expert witness at trial, and (6) the need for a competency
evaluation to support an insanity defense. Id. at 15-21. Appellant has not
filed a response either pro se or with new counsel.5
“When faced with a purported Anders brief, this Court may not review
the merits of any possible underlying issues without first examining counsel’s
request to withdraw.” Commonwealth v. Wimbush, 951 A.2d 379, 382 (Pa.
Super. 2008) (citation omitted). Counsel must comply with the technical
requirements for petitioning to withdraw by (1) filing a petition for leave to
withdraw stating that after making a conscientious examination of the record,
counsel has determined that the appeal would be frivolous; (2) providing a
copy of the brief to the appellant; and (3) advising the appellant that he has
the right to retain private counsel, proceed pro se, or raise additional
arguments that the appellant considers worthy of the court’s attention. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en
banc).
Additionally, counsel must file a brief that meets the requirements
established by the Pennsylvania Supreme Court in Santiago, namely:
(1) provide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
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5 The Commonwealth has not filed a brief in this appeal.
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case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Only after determining that counsel has satisfied these technical
requirements may this Court “conduct an independent review of the record to
discern if there are any additional, non-frivolous issues overlooked by
counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citation and footnote omitted); accord Commonwealth v. Yorgey,
188 A.3d 1190, 1197 (Pa. Super. 2018) (en banc).
Here, present counsel has complied with the procedures for seeking
withdrawal by filing a petition to withdraw, sending Appellant a letter
explaining her appellate rights, and supplying Appellant with a copy of the
Anders/Santiago brief. See Goodwin, 928 A.2d at 290. Moreover, present
counsel’s Anders/Santiago brief complies with the requirements of
Santiago. Present counsel includes a summary of the relevant factual and
procedural history, refers to the portions of the record that could arguably
support Appellant’s claims, and sets forth the conclusion that the appeal is
frivolous. Accordingly, we conclude that present counsel has met the technical
requirements of Anders and Santiago, and we now conduct an independent
review the issues raised in present counsel’s Anders/Santiago brief, but in
an order different than set forth in the brief.
Unpreserved and Non-Cognizable Claims
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As noted above, present counsel identifies appellate issues concerning
(1) the weight of the evidence, (2) his lack of motive to start a fire, and (3)
the expert’s alleged bias toward finding arson. Additionally, Appellant wishes
to challenge trial counsel’s strategy and alleged failure to request a
competency evaluation. For the reasons that follow, we conclude that the
record establishes that these issues were not preserved before the trial court
and therefore cannot be heard by this Court.
First, as to a challenge to the weight of the evidence, Pennsylvania Rule
of Criminal Procedure 607 states that an appellant must request a new trial
based on the weight of the evidence “(1) orally, on the record, at any time
before sentencing; (2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.” Pa.R.Crim.P. 607(A). The failure to raise a
weight-of-the-evidence claim before the trial court results in waiver.
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009);
Commonwealth v. Cox, 231 A.3d 1011, 1018 (Pa. Super. 2020). Because
Appellant did not present a challenge to the weight of the evidence, this issue
cannot be reviewed on appeal. See Sherwood, 982 A.2d at 494.
Appellant’s intended issues regarding his lack of motive and the expert’s
alleged bias are essentially matters affecting the jury’s consideration of the
weight of the evidence. Therefore, we cannot hear these claims because they
were not raised before the trial court.
Lastly, to the extent Appellant disagrees with his counsel’s trial strategy
and the alleged failure to obtain a competence evaluation to support a defense
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of insanity, it is well settled that “as a general rule, a petitioner should wait to
raise claims of ineffective assistance of trial counsel until collateral review.”
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002); see also
Commonwealth v. Holmes, 79 A.3d 562, 563-64 (Pa. 2013) (discussing
exceptions to the general rule stated in Grant). Moreover, present counsel,
who is a public defender, cannot raise the ineffectiveness of another attorney
in the same public defender’s office. Commonwealth v. Spotz, 18 A.3d 244,
329 n.52 (Pa. 2011).
Instantly, Appellant did not preserve claims of his trial counsel’s
ineffectiveness in the trial court. See Holmes, 79 A.3d at 563-64. In any
event, he cannot do so while represented by another attorney from the same
public defender’s office. See Spotz, 18 A.3d at 329 n.52. Therefore, we
discern no basis to consider Appellant’s ineffective assistance of counsel claim
in this direct appeal.
For the foregoing reasons, we conclude that we cannot consider
Appellant’s intended claims for relief concerning the weight of the evidence,
his lack of motive, witness bias, trial strategy, and the lack of a competence
examination. Accordingly, we determine that these claims are frivolous for
the purpose of this appeal.
Sufficiency
Present counsel next identifies claims concerning the sufficiency of the
evidence to convict Appellant for arson—danger of death or bodily injury,
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aggravated arson—person present inside property, and causing catastrophe.
As detailed below, present counsel asserts that each claim is frivolous.
Initially, we note our standard of review:
A claim challenging the sufficiency of the evidence is a question of
law. 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. 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. 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. Kendricks, 30 A.3d 499, 508 (Pa. Super. 2011) (citation
omitted).
Arson
Present counsel asserts that sufficiency-of-the-evidence challenges to
arson—danger of death or bodily injury and aggravated arson—person present
inside property are frivolous because there was ample evidence that Appellant
(1) set a fire that was incendiary in origin, (2) recklessly placed first
responders in danger when he remained inside, and (3) he set a fire while the
complainant was inside the home. Anders/Santiago at 9-10.
Section 3301 defines arson in relevant part, as follows:
(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
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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
* * *
(a.1) Aggravated arson.—
(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:
* * *
(ii) he commits an offense under this section which is graded
as a felony when a person is present inside the property at
the time of the offense.
18 Pa.C.S. § 3301(a)(1)(i), (a.1)(1)(i).
Instantly, a review of the record establishes that Appellant initially
started a fire at the top of the stairs when he began burning papers while the
complainant, his wife, was still inside the home. Furthermore, the
Commonwealth presented testimony that Appellant started a second fire in
the complainant’s bedroom and provided expert evidence that the fire was
started with an external heat source, such as a lighter or match. After the fire
broke out, Appellant remained inside the home despite seeing police officers
and firefighters arrive. When Sergeant Schmidt ran toward him, Appellant ran
further into the burning home and locked the door.
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Having reviewed the record and present counsel’s analysis, we agree
with present counsel’s assessment that sufficiency challenges to the arson—
danger of death or bodily injury as to the officers and firefighters and
aggravated arson—person present inside property as to the complainant are
frivolous.6
Causing Catastrophe
The jury convicted Appellant of causing catastrophe pursuant to 18
Pa.C.S. § 3302(a). Present counsel asserts that a sufficiency challenge to
causing catastrophe is frivolous. Present counsel notes:
A person commits the offense of causing a catastrophe when he
causes a catastrophe by fire, flood, or any other means causing
potentially widespread injury or damage. In order to be convicted
of a felony of the first degree under that subsection, a person must
cause the potential catastrophe intentionally. In order to be
convicted the Commonwealth must prove the following: (1) that
a person causes an event; (2) that event could result in
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6 Counsel also identifies a possible sentencing merger claim concerning the
two arson convictions. See 42 Pa.C.S. § 9765 (stating that “[n]o crimes shall
merge for sentencing purposes unless the crimes arise from a single criminal
act and all of the statutory elements of one offense are included in the
statutory elements of the other offense” and that “[w]here crimes merge for
sentencing purposes, the court may sentence the defendant only on the higher
graded offense”); see generally Commonwealth v. Baldwin, 985 A.2d
830, 833 (Pa. 2009) (stating that merger for sentencing purposes involves the
legality of a sentence, and the standard and scope of review is de novo and
plenary, respectively). However, the record establishes that Appellant
committed several separate acts, igniting a fire at the top of the stairs and
one in the bedroom, and then he attempted to run away from responding
officers and firefighters. Further, arson—danger of death or bodily injury and
aggravated arson—person present inside property, identify different victims,
i.e. officers and firefighters responding to the fire, and those present inside
the property when the fire is started. Accordingly, we agree with present
counsel that the arson offenses do not merge.
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widespread injury or damage; and (3) that person acted either
knowingly, intelligently, or recklessly.
In this case, the Commonwealth presented testimony from [the
complainant] that she witnessed [Appellant] intentionally set fire
to pieces of paper that he threw on the ground, which caused the
fire. The Commonwealth also presented evidence that the house
fire had the potential to spread to other homes in the area. The
Commonwealth additionally presented testimony from officers
who witnessed [Appellant] lock the door and flee upstairs into the
home.
Anders/Santiago Brief at 11 (some capitalization omitted).
The Crimes Code defines causing or risking catastrophe as follows:
§ 3302. Causing or risking catastrophe
(a) Causing catastrophe.—A person who causes a
catastrophe by . . . fire . . . commits a felony of the first degree
if he does so intentionally or knowingly, or a felony of the
second degree if he does so recklessly.
(b) Risking catastrophe.—A person is guilty of a felony of
the third degree if he recklessly creates a risk of catastrophe in
the employment of fire, explosives or other dangerous means
listed in subsection (a) of this section.
18 Pa.C.S. § 3302.
For purposes of background, we note that standard suggested jury
instruction7 defines causing catastrophe by stating that “[a] defendant causes
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7 We emphasize that Appellant does not challenge the trial court’s jury
instruction. Therefore, we need not address the instructions. Our reference
to the standard suggested jury instruction is intended only to provide
background that is necessary for our review of the sufficiency of the evidence
and the elements of causing catastrophe. See Kendricks, 30 A.3d at 508(indicating that this Court will deem the evidence “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”).
(Footnote Continued Next Page)
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a catastrophe by performing some inherently dangerous act . . . and thereby
creates a situation capable of causing widespread injury or damage,
regardless of whether such injury or damage actually occurs.” Pa.SSJI
(Crim) § 15.3302A (emphasis added). The note to the suggested jury
instruction indicates that “the leading case discussing the nature of the
concept of ‘causing a catastrophe’ is Commonwealth v. Hughes, 364 A.2d
306 (Pa. 1976).” The note also cites Commonwealth v. Scatena, 498 A.2d
1314 (Pa. 1985).
In Hughes, the defendant worked for an ink products manufacturer,
and while carrying a pail of a highly flammable solvent from one location to
another, he spilled the solvent along the way. Hughes, 364 A.2d at 308. The
defendant placed the pail on the ground, and then he lit a cigarette. Id. When
he dropped the lit match, his shoes caught fire, and he kicked off his shoes,
which resulted in fire that spread to eight-alarms and caused the death of two
firemen, numerous injuries, extensive property damage, and the evacuation
of neighboring homes. Id. at 308-09.
The Commonwealth in Hughes charged the defendant with two counts
of involuntary manslaughter and one count of risking catastrophe under
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We add that the Pennsylvania Bar Institute publishes the Pennsylvania
Standard Suggested Jury Instructions. Courts have referred to standard
suggested jury instructions as persuasive evidence that a charge is an
accurate reflection of the definitions of offense. See, e.g., Commonwealth
v. Prosdocimo, 578 A.2d 1273, 1276 (Pa. 1990). However, it is well settled
that the standard suggested jury instructions are “not conclusive, but merely
a guide.” Commonwealth v. Clark, 683 A.2d 901, 907 (Pa. Super. 1996).
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Section 3302(b) of the then-newly enacted Crimes Code, but did not charge
under Section 3302(a) for causing catastrophe.8 Id. at 308. The defendant
filed a motion to quash the risking catastrophe charge, which the trial court
granted based on its conclusion that the term “catastrophe” as used in Section
3302 was unconstitutionally imprecise. Id. at 309. Our Supreme Court
reversed.
The Hughes Court initially discussed the statute as a whole, noting:
“Section 3302 attempts to meet two separate and distinct societal harms. In
paragraph (a) it purports to punish [f]or the damage caused by the
mishandling of certain enumerated highly dangerous forces or substances.
Paragraph (b) addresses the [e]xposure to harm created by the misuse of
these forces or substances.” Id. (footnotes omitted) (emphasis added).
The Court then concluded:
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8 At the time our Supreme Court decided Hughes, Section 3302(a) stated:
A person who causes a catastrophe by explosion, fire, flood,
ava[]lanche, collapse of building, release of poison gas,
radioactive material or other harmful or destructive force or
substance, or by any other means of causing potentially
widespread injury or damage commits a felony of the first degree
if he does so intentionally or knowingly, or a felony of the second
degree if he does so recklessly.
Hughes, 364 A.2d at 310 n.5 (citation omitted). Although the General
Assembly has amended Section 3302 since the Hughes decision to include
other highly dangerous forces or substances, the elements of the current
versions of Section 3302(a) and (b) remain substantially similar to the version
of the statute discussed in Hughes.
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[T]he term ‘catastrophe’ is sufficiently precise to designate the
extent of the harm sought to be prevented by this section.
Reading sections (a) and (b) together, it is clear that the forces or
substances intended to be regulated are those which are capable
‘of causing . . . widespread injury or damage’. Thus, construing
Section (b) in accordance with the fair import of its terms the
word ‘catastrophe’ is intended to be synonymous with
‘widespread injury or damage.’ Among the meanings offered
for the word, ‘catastrophe’ in Webster's Third New International
Dictionary (G. & C. Merriam Co. 1966), is ‘an extraordinary
disaster’. Roget's Thesaurus (Garden City Books, Revised
Ed.1936), supplies ‘calamity’ and ‘disaster’ as suitable synonyms.
We believe that the term ‘catastrophe’ as used here conveys not
only a quantitative but a qualitative distinction. The degree of
precision is comparable in our judgment to the well-known
distinction between a simple assault and an aggravated assault.
Id. at 312 (emphasis added).
However, in reversing the trial court’s ruling, the Hughes Court
specifically declined to address Section 3302(a). Id. at 310 (stating that the
Court would “only consider the constitutional challenge that was properly
before the court, i.e., the challenge to Section 3302(b)”). Therefore, focusing
on Section 3302(b), the Hughes Court stated:
[A]n analysis of the section in question the historical note
appended calls attention to the fact that the section has been
taken from the Model Penal Code, Section 220.2. Setting forth
the purpose sought to be accomplished by this provision, the
Comment to the Model Penal Code states:
‘This section introduces a new concept in Anglo-American
penal law. It is patterned on European legislation dealing
with activity creating a ‘common danger.’ Fire, dealt with
by the law of arson, is the prototype of forces which the
ordinary man knows must be used with special caution
because of the potential for wide devastation. Modern
legislation puts explosion, flood, poison gas, and avalanche
in the same category, and modern technological
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development alerts us to possibilities of catastrophe in
mishandling radioactive material.’
It is thus apparent that the legislature recognizing the catastrophic
effects that can result from the reckless use of the enumerated
forces or substances determined to punish under Section 3302(b),
those who would expose the public to an unreasonable risk
because of their reckless handling of these forces or substances.
Id. at 310-11 (footnote omitted).
Similarly, in Scatena, our Supreme Court considered a sufficiency
challenge where the defendant was convicted under Section 3302(b), and not
Section 3302(a). In that case, the defendants poured “hundreds of thousands
of gallons of untreated industrial and chemical wastes into a borehole” which
ultimately released hazardous materials into the Susquehanna River, a “major
waterway in the Luzerne County area serving the population in many
significant ways.” Scatena, 498 A.2d at 1315-16. Once detected in the river,
the Commonwealth began containment efforts, which managed to control the
pollution, although measurable amounts of contaminants persisted for several
months after the incident. Id. at 1316. Following the defendants’ conviction
for risking catastrophe under Section 3302(b), the defendants appealed, and
this Court affirmed.
Our Supreme Court, in Scatena, reversed this Court and affirmed the
defendants’ convictions under Section 3302(b), reiterating that the offense
addressed the exposure to harm created by the misuse of inherently
dangerous forces or substances. Id. at 1316-17 (discussing Hughes). The
Court emphasized that the Commonwealth sufficiently proved its theory that
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the defendant “risked a catastrophe” rather than causing a catastrophe. Id.
at 1317.
The Scatena Court explained:
The fact that swift and effective governmental intervention limited
the deleterious effect of [the defendants’] reckless conduct does
not decriminalize their actions. The fact that an actual
devastating catastrophe was averted is of no moment in
assessing [the defendants’] conduct in terms of Section
3302(b)—exposing society to widespread damage. The
massive discharge of dangerous wastes into the Susquehanna
River which, in spite of immediate detection and vast and
expeditious containment measures, within two days,
contaminated the water way for some [sixty] miles downstream
is conduct that risks a catastrophe.
Id. (emphasis added).
Our review establishes that a conviction for risking catastrophe under
Section 3302(b) does not require the actual occurrence of a catastrophe which
is defined as widespread injury or damage. See Scatena, 498 A.2d at 1317;
Hughes, 364 A.2d at 312. Rather, the focus of Section 3302(b) is the reckless
handling of inherently dangerous forces or substances that expose the public
to an unreasonable risk, regardless of whether a catastrophe actually occurs.
See Scatena, 498 A.2d at 1317; Hughes, 364 A.2d at 310-11.
Here, Appellant was convicted for causing catastrophe under Section
3302(a), which expressly states that “a person who causes a catastrophe
by . . . fire . . . commits a felony[,]” rather than risking catastrophe under
Section 3302(b), which permits a conviction if the person “recklessly creates
a risk of catastrophe[.]” See 18 Pa.C.S. § 3302(a)-(b); see also N.T. Jury
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Trial Vol. 2 at 230 (indicating the jury’s guilty verdict for causing catastrophe);
Information, 7/6/18 (indicating the Commonwealth charged Appellant with
felony-one “causing or risking catastrophe” under Section 3302(a)). For the
above reasons, including the textual differences between Section 3302(a) and
Section 3302(b), we are constrained to respectfully disagree with scholarly
commentary applying the cases concerning Section 3302(b) with equal force
to Section 3302(a). See generally, Pa.SSJI (Crim) § 15.3302A & Note
(discussing Scatena and Hughes).
Further, our research reveals only one published decision expressly
considering Section 3302(a).9 In Commonwealth v. Bostian, 232 A.3d 898,
906 (Pa. Super. 2020), appeal denied, 244 A.3d 3 (Pa. 2021), the trial court
dismissed charges of involuntary manslaughter, recklessly endangering
another person, and causing catastrophe related to a derailment of an Amtrak
commuter train that caused numerous deaths and multiple injuries. Bostian,
232 A.3d at 902-03. This Court reversed, concluding that the Commonwealth
presented a prima facie case that the defendant, who had been the engineer
operating the train, engaged in conduct amounting to recklessness. Id. at
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9 Indeed, a Westlaw search for “3302 & cause & catastrophe” revealed only
one 2013 memorandum decision discussing a charge under 3302(a), and one
2020 memorandum decision discussing the sufficiency of the evidence for
causing a catastrophe. The latter case, Commonwealth v. Morgan, 240
A.3d 206, 2020 WL 5092808 (Pa. Super. filed Aug. 28, 2020) (unpublished
mem.), involved a claim that the defendant did not start the fire that burned
two abandoned buildings, resulted in a risk of a building collapse, and caused
the death of a person in one of the buildings. See Morgan, 2020 WL 5092808at *1-4, 6. Specifically, the defendant in Morgan claimed that another person
started the fire. Id. at *6.
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914. While the Bostian Court reversed the trial court’s ruling, it did not
expressly consider whether the actual injuries and death that occurred in that
case were necessary to sustain the charge for causing catastrophe under
Section 3302(a).
Accordingly, our review of relevant legal authority reveals no settled
basis to hold that a conviction for causing catastrophe under Section 3302(a)
may be sustained without proof of actual widespread injury or damage.
Accordingly, there is at least a colorable basis for Appellant’s challenge to the
sufficiency of the evidence for his conviction for causing a catastrophe under
Section 3302(a) based on the Commonwealth’s failure to prove that the
defendant actually caused a catastrophe. See 18 Pa.C.S. § 3302(a).
Instantly, present counsel defined the elements of the offense under
Section 3302(a) as “knowingly, intelligently [sic], or recklessly” causing an
event that could result in widespread injury or damage. See
Anders/Santiago Brief at 11. Present counsel then refers to portions of the
record indicating that there were other homes near the fire and that Appellant
ran further into the home and locked the door. See id.
For the reasons stated herein, present counsel’s analysis could
demonstrate the frivolity of a sufficiency challenge for risking catastrophe
under Section 3302(b). See Scatena, 498 A.2d at 1317; Hughes, 364 A.2d
at 310-11. However, present counsel’s analysis overlooks the unresolved
issue of whether causing catastrophe under Section 3302(a) actually
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requires the occurrence of a catastrophe.10 Accordingly, we conclude that
there appears to be an issue of arguable merit in this appeal that preclude us
from granting present counsel’s petition to withdraw.
Therefore, we deny present counsel’s petition to withdraw and direct
counsel to file an amended Anders/Santiago brief that shall include a more
thorough consideration of Appellant’s intended challenge,11 or to file an
advocate’s brief.
Petition to withdraw denied with instructions. Panel jurisdiction
retained.
Judge Strassburger did not participate in the consideration or decision
of this case.
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10 Moreover, present counsel’s analysis omits any discussion of the fact that
Appellant’s conviction was for felony-one causing catastrophe and the
reference to recklessness is inapt.
11 Because we have identified one issue warranting further action by present
counsel, we need not consider the remaining discretionary aspect of
sentencing claim addressed in present counsel’s Anders/Santiago brief.
Such a discussion may be moot if present counsel elects to file an advocate’s
brief and/or decides to include that issue on appeal.
If present counsel elects to file an amended Anders/Santiago brief, we note
that counsel must explain and analyze the alleged frivolity of Appellant’s
intended sentencing claim in light of his post-sentence motion and based on
the record. See Santiago, 978 A.2d at 361.
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