Com. v. Hay, R.

J-S56043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RANDY LAVERTS HAY,
Appellant No. 1712 MDA 2014
Appeal from the Judgment of Sentence June 4, 2014
in the Court of Common Pleas of Northumberland County
Criminal Division at No.: CP-49-CR-0000693-2011
BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 12, 2015
Appellant, Randy Laverts Hay, appeals from the judgment of sentence
imposed following his jury conviction of arson, risking a catastrophe,
recklessly endangering another person, and criminal mischief. Appellant
challenges the sufficiency and the weight of the evidence. We affirm.
We summarize the facts from the trial court’s opinions and our
independent review of the record. The charges stem from the setting on fire
of the doorway to the (multi-unit) apartment house where Appellant
formerly lived with his ex-girlfriend, Tabitha Castle, and which, at the time of
the fire, she occupied with her new boyfriend, Robert “Knowledge” Blake.
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*
Retired Senior Judge assigned to the Superior Court.
J-S56043-15
There was evidence tending to show that some time before the fire
Tabitha Castle had left the apartment, waited until Appellant left, and then
moved back in with Robert Blake. She changed the locks on the apartment,
barring Appellant. His belongings were still inside the apartment. Appellant
came to the apartment to retrieve his clothes, but Blake refused, testifying
that he told Appellant it was too late and he would have to come back
another time.
Later that night Blake and Castle awoke to the smell of smoke. Blake
testified that he saw Appellant running away. He testified that he knew it
was Appellant even though he only saw him from behind, because they had
been in jail together. (See N.T. Trial, 5/18/12, at 86). Appellant admitted
trying to retrieve his personal items, but denied that he set the fire. (See
id. at 184).
In his final argument, defense counsel essentially argued that Blake
and Castle had set Appellant up, and suggested another motive beyond
romantic rivalry: “And then there’s a dispute over stuff. So I mean maybe
[the] motivation is greed. Maybe it’s not love, or lust, or a broken heart as
they would have you say.” (Id. at 198). Similarly, on appeal, Appellant’s
theory of the case is that Castle and Blake set him up to get him “out of the
picture” to avoid interference in their romantic relationship as well as to
keep his belongings. (Appellant’s Brief, at 16; see also Order, 9/05/14, at
1).
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The jury convicted Appellant of four counts of arson, 18 Pa.C.S.A.
§ 3301(a)(1)(i), (recklessly placing another person in danger); 18 Pa.C.S.A.
§ 3301(a)(1)(ii), (intent to destroy or damage an occupied structure); 18
Pa.C.S.A. § 3301(c)(1)(i), and 18 Pa.C.S.A. § 3301(c)(2), (recklessly placing
an occupied building in danger of damage or destruction); risking a
catastrophe, 18 Pa.C.S.A. § 3302(b); recklessly endangering another
person, 18 Pa.C.S.A. § 2705, (the occupants of apartment #2); and
recklessly endangering another person, 18 Pa.C.S.A. § 2705, (the other
occupants of the apartment building).
On June 4, 2014, the court sentenced Appellant to a term of not less
than three years’ nor more than eight years’ incarceration with credit for
time served. The trial court denied post-sentence motions, including a
challenge to the weight of the evidence, on September 5, 2014. Appellant
timely appealed.1
On appeal, Appellant presents two overlapping questions for our
review, which we reproduce verbatim, to the extent possible.
1. Whether [Appellant] is entitled to acquittal or a new trial
because there was insufficient evidence to support the verdict[?]
The Commonwealth presented no credible testimony or other
evidence of a degree necessary to meet their burden of proof
tying [Appellant] to the act of burning the door frame at 417
Walnut Street, Apartment 2, Sunbury, Pennsylvania. While the
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1
Appellant filed a timely statement of errors on October 27, 2014. See
Pa.R.A.P. 1925(b). The trial court filed a Statement in lieu of Formal
Opinion, on December 23, 2014. See Pa.R.A.P. 1925(a).
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Commonwealth witness, Robert Blake, claimed that he was able
to identify [Appellant] because he saw the back of his bare head
in a dark, unlighted entry way in the predawn hours of February
19, 2011. At the same time a [different] Commonwealth
witness to the same event, Tabitha Castle, did not see
[Appellant] either in the same entry way or running away down
the street in front of the apartment building.
2. Whether [Appellant] is entitled to a new trial as the verdict in
this case is against the weight of the evidence, because there
was no credible testimony which contradicted [Appellant’s] own
testimony, or other evidence of such weight to satisfy the
Commonwealth’s burden of proof tying [Appellant] to the crimes
charged, particularly because there are inconsistencies in the
testimony of the interested witnesses against him in that while
Robert Blake claimed that he was able to indentify [sic]
[Appellant] because he saw the back of [Appellant’s] bare head
in a dark unlighted entry way in the predawn hours of February
19, 2011, while at the same time another Commonwealth
witness to the same event, Tabitha Castle, did not see
[Appellant] either in the same side entry way or running away
down the street in front of the apartment building[?]2
(Appellant’s Brief, at 10-11).3
Preliminarily, we note that although Appellant raises general
challenges to the sufficiency and weight of the evidence for the verdict, he
makes no claim about the specific elements for the particular crimes for
which he was convicted. Instead, in both claims, he makes essentially the
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2
Appellant’s statement fails to comply with Rule of Appellate Procedure
2116, which in relevant part provides that “[t]he statement of the questions
involved must state concisely the issues to be resolved, expressed in the
terms and circumstances of the case but without unnecessary detail.”
Pa.R.A.P. 2116 (emphases added). The insertion or appendage of lengthy
argument to the statement of questions presented is inappropriate and
violates the spirit as well as the letter of the rule.
3
The Commonwealth did not file a brief.
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same argument about inconsistencies in the testimonial evidence.
Specifically, he challenges the identification of him fleeing the scene after
the fire by Robert “Knowledge” Blake.4
Although common items of clothing and general physical
characteristics are usually insufficient to support a conviction,
such evidence can be used as other circumstances to establish
the identity of a perpetrator. Commonwealth v. Minnis, 312
Pa. Super. 53, 458 A.2d 231, 233–34 (1983). Out-of-court
identifications are relevant to our review of sufficiency of the
evidence claims, particularly when they are given without
hesitation shortly after the crime while memories were fresh. Id.
at 234. Given additional evidentiary circumstances, “any
indefiniteness and uncertainty in the identification testimony
goes to its weight.” Id. at 233.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011), appeal
denied, 54 A.3d 348 (Pa. 2012).
Appellant first challenges the sufficiency of the evidence.
Our standard of review of sufficiency claims requires that
we evaluate the record “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.
Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000).
“Evidence will be deemed sufficient to support the
verdict when it established each element of the crime
charged and the commission thereof by the accused,
beyond a reasonable doubt.” Nevertheless, “the
Commonwealth need not establish guilt to a mathematical
certainty,” and may sustain its burden by means of wholly
circumstantial evidence. Significantly, “[we] may not
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4
Accordingly, we deem any challenge to the sufficiency of the evidence
based on the elements of the crimes other than the identification issue and
other issues addressed here, to be waived.
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substitute [our] judgment for that of the factfinder; if the
record contains support for the convictions they may not
be disturbed.”
Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super.
2005) (citations omitted). Any doubt about the defendant’s guilt
is to be resolved by the factfinder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances. See
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
2001).
Commonwealth v. Scott, 967 A.2d 995, 997-98 (Pa. Super. 2009), appeal
denied, 983 A.2d 1248 (Pa. 2009). Similarly,
It is well settled that the evidence must be viewed in the
light most favorable to the verdict winner, in this case the
Commonwealth. Commonwealth v. Rife, 454 Pa. 506, 312
A.2d 406 (1973). It is the province of the factfinder to weigh
the evidence. Commonwealth v. Alston, 461 Pa. 664, 337
A.2d 597 (1975). The factfinder can believe all, part, or none of
the evidence. Commonwealth v. Smith, 457 Pa. 638, 326
A.2d 60 (1974). The test for the sufficiency of the evidence was
set forth in Commonwealth v. Jackson, 466 Pa. 311, 313, 353
A.2d 370, 371 (1976) as follows:
The test for the sufficiency of the evidence is
whether accepting as true all the evidence and all
reasonable inferences therefrom, upon which, if believed,
the fact-finder could properly have based its verdict, it is
sufficient in law to prove beyond a reasonable doubt that
the defendant is guilty of the crime or crimes of which he
has been convicted.
Commonwealth v. Fortune, 451 A.2d 729, 730 (Pa. Super. 1982).
“In order to convict a person of arson, the prosecution must establish
beyond a reasonable doubt that (1) there was a fire, (2) it was maliciously
set, and (3) the defendant was the guilty party.” Commonwealth v.
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Hardcastle, 546 A.2d 1101, 1108 (Pa. 1988), cert. denied, 493 U.S. 1093(1990) (citations omitted).
Here, Appellant’s principal argument on insufficiency is that the
testimony of Castle and Blake is suspect because they wanted to get
Appellant “out of the picture.” (Appellant’s Brief, at 16). He notes there was
no testimony from a fire marshal and posits that because there are “a
number of possible scenarios . . . [t]he only way to dispel any speculation
would have been for the Commonwealth to present the testimony of a fire
marshal.” (Id. at 17). We disagree.
There is no requirement that a fire marshal present evidence to
establish the crime of arson. See Hardcastle, supra at 1108. To the
contrary, purely circumstantial evidence is sufficient to establish the
commission of the crimes charged. See Scott, supra at 997-98. It was the
role of the jury as fact finder to resolve any doubt about Appellant’s guilt.
See id.Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, together with the benefit of all reasonable inferences, we
conclude that there was sufficient evidence for the jury to find that Appellant
was guilty of the crimes charged. It was the role of the jury to weigh the
evidence and assess credibility. Appellant’s first issue does not merit relief.
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Appellant’s second issue challenges the weight of the evidence. “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 assess the credibility of
witnesses. As to these issues, an appellate court cannot substitute its
judgment for that of the finder of fact.” Commonwealth v. Treiber, 874
A.2d 26, 30 (Pa. 2005), cert. denied, 547 U.S. 1076 (2006) (citations
omitted).
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Widmer, 560
Pa. 308, 319, 744 A.2d 745, 751–52 (2000); Commonwealth
v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion. Widmer, 560 Pa. at 319–20,
744 A.2d at 752. Rather, “the role of the trial judge is to
determine that ‘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 justice.’ ” Id. at 320,
744 A.2d at 752 (citation omitted). It has often been stated that
“a new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Brown, 538 Pa. at 435, 648
A.2d at 1189.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. Because the trial
judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
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advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. Commonwealth v. Farquharson, 467 Pa. 50,
354 A.2d 545 (Pa. 1976). One 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.
Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis
added). This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a new trial
based on a challenge to the weight of the evidence is unfettered.
In describing the limits of a trial court’s discretion, we have
explained: The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is not exercised
for the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason, as
opposed to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill-will. Widmer, 560 Pa. at 322,
744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 533 Pa.
441, 447, 625 A.2d 1181, 1184–85 (1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
Here, the jury heard evidence and argument that Blake and Castle had
a motive to get Appellant out of the picture by falsely accusing him of arson.
(See N.T. Trial, at 198). By its verdict, the jury rejected this claim.
Notably, Appellant does not argue that the trial court abused its
discretion in denying the weight claim. Instead, citing the romantic rivalry
over Ms. Castle, Appellant maintains that “[t]hese two witnesses [Castle and
Blake] were very clearly biased.” (Appellant’s Brief, at 19; see also id. at
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18-19). It was the role of the jury to assess credibility and accept all, part,
or none of the evidence. See Treiber, supra at 30.
On independent review, we find that there is support in the record for
the jury verdict. “[We] may not substitute [our] judgment for that of the
factfinder; if the record contains support for the convictions they may not be
disturbed. . . . Any doubt about the defendant’s guilt is to be resolved by the
factfinder unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.” Scott, supra at 998 (citations omitted).
For the same reason, we discern no abuse of discretion in the trial
court’s determination that the jury’s verdict was not so contrary to the
evidence as to shock one’s sense of justice. (See Statement in lieu of
Formal Opinion, 12/23/14, at 3). Appellant’s second claim does not merit
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2015
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