Com. v. Wise, W.

J-S09024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WESLEY WISE :
:
Appellant : No. 1145 EDA 2021
Appeal from the Judgment of Sentence Entered February 11, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0003063-2019.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED JULY 5, 2022
Wesley Wise appeals from the judgment of sentence imposed after the
trial court found him guilty of arson and criminal mischief.1 Upon review, we
affirm.
On March 26, 2019, Wise was arrested and charged with multiple
offenses, which arose from the following facts as set forth by the trial court:
Ms. Owens testified that on January 12, 2019, she resided in a
two-story, three-bedroom home at 5835 Warrington Avenue,
Philadelphia, Pennsylvania. She lived at the premises with two
other adults — [Wise] and Mr. Bowe. The residents' three
bedrooms were on the home's second floor, which they reached
by stairs ascending from the downstairs dining room. [Wise]
occupied the rear bedroom located approximately 10 feet beyond
the top of the stairs. Ms. Owens occupied the middle bedroom,
and Mr. Bowe occupied the master bedroom at the end of the
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3301(a) and 3304(a).
J-S09024-22
hallway. A bathroom was located between the middle and master
bedrooms. Ms. Owens saw [Wise] earlier in the day, around 2:00
p.m., entering the upstairs bathroom. Around 5:30 p.m., Ms.
Owens went downstairs from her middle bedroom and entered the
kitchen with her two visiting grandchildren, ages eight (8) and one
(1). Around fifteen (15) minutes later, while preparing food at the
microwave, Ms. Owens saw [Wise] walk through the dining room
with a bag and exit the premises through the front door.
Around twenty (20) minutes later, Ms. Owens heard a smoke
alarm and Mr. Bowe came running "down the steps saying the
little room was on fire." Ms. Owens attempted to go upstairs to
extinguish the fire with a pot of water, but the stairway was too
[smoky] and she could not reach the second floor. Ms. Owens
therefore evacuated the residence with her coughing
grandchildren and called police once they were safely outside.
Mr. Bowe testified that around 6:45 p.m., he was awakened from
sleep due to smoke coming from [Wise’s] room. Wise’s door was
closed but smoke infused the entire upstairs. Mr. Bowe checked
the upstairs rooms for people and tried extinguishing the fire with
water obtained from the bathroom, "but the heat was too intense"
and Mr. Bowe was coughing intensely. He therefore went
downstairs, saw Ms. Owens in the kitchen with her grandchildren,
and ultimately evacuated the home. Mr. Bowe could not resume
occupancy of the home until three (3) to six (6) months after the
fire.
Ms. Berry, who is Mr. Bowe's sister, lived two blocks away from
the property. She testified that her two daughters owned the
home but that she determined who lived in the residence. Ms.
Berry verbally negotiated with [Wise] about the terms of his
occupancy, and [Wise] paid Ms. Berry in food stamps. However,
before the fire, they "started having little arguments" because
[Wise] was late on his rent payments. After three (3) months of
dilatory payments, Ms. Berry verbally told [Wise] he could no
longer reside in the home and must leave the premises by January
12, 2019 (i.e., the day of the fire). Ms. Berry also testified that
the fire caused between $ 5000 and $ 7000 in property damage.
The Commonwealth lastly presented the testimony of the Fire
Marshal, Lieutenant McMichael, whom the parties stipulated is "an
expert in the field of arson investigation." Lieutenant McMichael
prepared an investigative report explaining, inter alia, that around
fifty (50) firefighters were dispatched to the property around 6:50
-2-
J-S09024-22
p.m. Lieutenant McMichael himself arrived around 7:45 p.m.,
after the fire was extinguished. His inspection of the property
revealed that the fire originated "[i]nside the closet on the
northwest corner" of [Wise’s] room. In that area, there were no
"competent ignition sources" that inadvertently could have caused
the fire. The fire was not caused by the heater, the power strip,
a heat gun sitting on the table, defective outlets, the radiator, the
home's breaker, or any other electrical appliance.
After eliminating any other possible cause of the fire, Lieutenant
McMichael "determined it was a fire started by human hand." The
ignition source was "an open flame" — i.e., a match or a lighter.
On the same night as the fire, Lieutenant McMichael called
[Wise’s] cellular phone and advised him that he was investigating
the fire and needed to ask [Wise] some questions, including
whether [Wise] was smoking or using candles in his room. [Wise]
replied that he was neither smoking nor using candles in the room.
Lieutenant McMichael then asked for [Wise’s] location so they
could speak face-to-face, but [Wise] refused to disclose his
whereabouts. Lieutenant McMichael also asked [Wise] whether
he started the fire, and according to Lieutenant McMichael, [Wise]
replied: "You can't put this on me, I wasn't there. You can't put
it on me. You can't put me in two places at once because I have
a good story."
Ms. Minnis testified that she was 76 years-old and resided at 1337
South 20th Street, Philadelphia, Pennsylvania. She had known
[Wise] around fifty (50) years because he is friends with her four
sons. Ms. Minnis testified that [Wise] came to her home around
8:00 a.m. on the day of the fire, which did not ignite until 10-12
hours later. According to Ms. Minnis, [Wise] at some point
received a phone call from his sister advising there was "a fire or
something at his house." [Wise] purportedly was shocked and
responded, "You're kidding me."
Trial Court Opinion, 8/13/21, at 2-5 (citations and footnotes omitted).
Based on this evidence, the trial court found Wise guilty of arson and
criminal mischief; he was acquitted of all other charges. On February 11,
2021, the court sentenced Wise to 5 to twelve 12 years’ incarceration followed
-3-
J-S09024-22
by 3 years’ probation for arson and 5 years’ concurrent probation for criminal
mischief. Wise filed a post-sentence motion, which the court denied.
Wise filed this timely appeal. Wise and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
On appeal, Wise raises the following two issues:
1. Was [] the evidence insufficient to sustain the verdicts of guilt
on the charges of arson and criminal mischief as the
Commonwealth's contradictory evidence of a timeline of [Wise]
being at the scene of the fire (7:40 p.m. vs 5:30 p.m. vs 5:45
p.m.) in relation to when smoke was first smelled - 6:45 p.m.,
establishes that [Wise] could not have started the fire, and [was]
any finding of guilt on such weak circumstantial evidence the
product of conjecture and speculation that cannot be the basis of
a guilty verdict?
2. Did [] the trial court abuse its discretion in [denying Wise's]
post-sentence motion for a new trial, as the verdict was so
contrary to the weight of the evidence as to shock one's sense of
justice, where the testimony was vague, inconsistent and
incredible?
Wise’s Brief at 4.
In his first issue, Wise claims that the evidence was insufficient to
convict him of arson and criminal mischief. Specifically, Wise claims that
evidence was merely circumstantial. Although Wise acknowledges that
circumstantial evidence may establish a crime here, he believes the evidence
was insufficient to establish that he was the one who set the fire, as opposed
to the other individuals who lived there. Wise maintains that the only evidence
that possibly implicates him was Ms. Owens’ testimony, which was
-4-
J-S09024-22
inconsistent as to the timing of the events that evening and whether she tried
to put out the fire. Wise’s Brief at 11.
In reviewing a sufficiency of the evidence claim, this Court:
must determine whether the evidence admitted at trial, as well as
all reasonable inferences drawn therefrom, when viewed in the
light most favorable to the verdict winner, are sufficient to support
all elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted). However, “the inferences must flow from facts and circumstances
proven in the record and must be of such volume and quality as to overcome
the presumption of innocence and satisfy the jury of an accused's guilt beyond
a reasonable doubt.” Commonwealth v. Scott, 597 A.2d 1220, 1221 (Pa.
Super. 1991). “The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail even under
the limited scrutiny of appellate review.” Id. “Because evidentiary sufficiency
is a question of law, our standard of review is de novo and our scope of review
is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013).
In pertinent part, 18 Pa.C.S.A. section 3301 provides:
(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 explosion, whether on
his own property or on that of another, and if:
-5-
J-S09024-22
(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
(ii) he commits the act with the purpose of destroying or damaging
an inhabited building or occupied structure of another.
18 Pa.C.S.A. § 3301(a)(1). Accordingly, the Commonwealth must establish
beyond a reasonable doubt that: 1) there was a fire, 2) it was of incendiary
origin, and 3) the defendant set the fire. Commonwealth v. Ford, 607 A.2d
764, 766 (Pa. Super. 1992). Direct evidence is not required. “‘[P]roof of guilt
especially in arson cases, may be established [through] circumstantial
evidence.’” Commonwealth v. Counterman, 719 A.2d 284 (Pa. 1998)
(quoting Commonwealth v. DiNicola, 468 A.2d 1078, 1081 (Pa. 1983).
“[A]rson, by its very nature, is rarely committed in the presence of others,
and a refusal to convict on circumstantial evidence alone would be tantamount
to an invitation to commit the crime.” Commonwealth v. Colon, 399 A.2d
1068, 1073 (Pa. Super. 1979).
To sustain a conviction for criminal mischief, the Commonwealth must
prove that the defendant damaged “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).” 18 Pa.C.S.A. § 3304(a)(1).
Contrary to Wise’s claim, our review of the evidence and testimony
presented at trial and the inferences drawn therefrom shows that the evidence
-6-
J-S09024-22
was sufficient to establish that Wise was the one who started the fire and to
convict him of both crimes.
Indisputably, an individual started the fire with an open flame in Wise’s
bedroom closet; no one except Wise had been in there. Wise, who was evicted
as of the day of the fire, left the house carrying a bag; he was the only one
who had a reason to start the fire. Not long after he left, the smoke alarm
went off; this is evident despite the varying times reflected in the record. Ms.
Owens and Mr. Bowe risked their lives and tried to extinguish the fire but had
to evacuate, along with Ms. Owens’ two young grandchildren. The trial court
evidently did not believe Ms. Minnis’ testimony that Wise was at her house
since early on the day of the fire.
Ms. Owens and Mr. Bowe remained at the scene of the fire. However,
Wise refused to return for questioning when asked by Lieutenant McMichael.
Further, when Lieutenant McMichael asked Wise if he started the fire, he did
not deny it, and became defensive telling him, “you can’t put this on me, you
can’t put me in two places at once. . . . I have a good story.” Notably, Ms.
Owens, Mr. Bowe, and Ms. Berry all denied starting the fire, but Wise was the
only one with a motive.
From this evidence, the trial court, as finder of fact, could reasonably
infer that Wise was the one who started the fire, doing so before he left the
house. This is so despite the inconsistent testimony regarding the timeline of
events that day. The cumulative evidence and the inferences that can be
drawn therefrom view in the light most favorable to the Commonwealth as the
-7-
J-S09024-22
verdict winner were sufficient to sustain Wise’s conviction for arson and
criminal mischief.
In his second issue, Wise claims that the trial court erred in denying his
motion for a new trial on the basis that the verdict was against the weight of
the evidence. Again, Wise maintains that the evidence failed to establish that
he was the one that started the fire. Ms. Owens’ testimony was too
inconsistent and contradictory to place him at the house near the time the fire
started. Wise therefore claims the trial court erred. Wise’s Brief at 23.
When reviewing a challenge to the weight of the evidence, our standard
of review is as follows:
The essence of appellate review for a weight claim appears to lie
in ensuring that the trial court's decision has record
support. Where the record adequately supports the trial
court, the trial court has acted within the limits of its
discretion.
***
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. 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. 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.
***
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.
-8-
J-S09024-22
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
omitted) (emphasis added). Absent an abuse of discretion, the trial court's
decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d
865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law.” Commonwealth v. West,
937 A.2d 516, 521 (Pa. Super. 2007). By contrast, a proper exercise of
discretion “conforms to the law and is based on the facts of record.” Id.Initially, we observe that, typically, a weight claim is filed after a jury
trial in the hope that the trial court judge who, like the jury, had an opportunity
to hear the evidence and observe the demeanor of the witnesses, “will
conclude that the verdict was so contrary to what it heard and observed that
it will deem the jury's verdict such a miscarriage of justice and trigger the
court's time-honored and inherent power to take corrective action.” Criswell
v. King, 834 A.2d 505, 512 (Pa. 2003). Here, however, a non-jury trial was
held. Although weight of the evidence claims have been addressed in non-
jury cases, there is a logical inconsistency in asking a trial judge to conclude
that his non-jury decision shocked his own conscience. Notwithstanding this,
we consider whether the trial court's decision was an abuse of discretion.
Not surprisingly, the trial court concluded that its non-jury verdict was
not against the weight of the evidence. In reaching its decision, the trial court
thoroughly reviewed the evidence presented to support Wise's convictions. It
further explained:
-9-
J-S09024-22
The . . . testimony supports a weighty inference that [Wise]
ignited the fire in his room before leaving the premises.
Moreover, [Wise] exaggerates the time discrepancy in the
testimony. Ms. Owens testified that she came downstairs and
went to the kitchen around 5:30 p.m., and that she saw [Wise]
leaving the premises around fifteen minutes later (i.e., around
5:45 p.m.). Twenty minutes after that (i.e., around 6:05), Mr.
Bowe came downstairs and alerted Ms. Owens to the fire in
[Wise’s] room. After attempting unsuccessfully to ascend the
stairs to pour water on the fire, Ms. Owens evacuated the home
with her two young grandchildren. She then flagged down a
neighbor and called the police. Firefighters were dispatched to
the property around 6:50 p.m.
Ms. Owens was exposed to a fire that imperiled both herself and
her grandchildren. Any imprecision or minor inconsistencies in
her testimony regarding the timing of the hazardous event does
not outweigh the testimony, and reasonable inferences therefrom,
establishing [Wise’s] guilt. [Wise’s] challenge to the weight of the
evidence is therefore meritless.
Trial Court Opinion, 8/13/21, at 8-9 (citations omitted). It is evident that the
trial court chose to believe the evidence presented by the Commonwealth and
the logical inferences derived therefrom. “[T]he finder 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.
Roberts, 133 A.3d 759, 767 (Pa. Super. 2016).
Based upon our review of the record, and the trial court's rationale for
denying Wise’s motion, we conclude that the trial court did not abuse its
discretion in finding that the verdict was not against the weight of the
evidence.
Judgment of sentence affirmed.
- 10 -
J-S09024-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/5/2022
- 11 -