Com. v. Talley, Q.

J-S21011-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

QUINTEZ TALLEY,

                           Appellant                  No. 28 EDA 2014


            Appeal from the Judgment of Sentence November 21, 2013
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0003711-2009


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                               FILED MAY 07, 2015

       Quintez Talley appeals from the judgment of sentence of three to six

years imprisonment that the trial court imposed after a jury convicted

Appellant of arson, risking a catastrophe, institutional vandalism, reckless

endangerment, and failure to prevent a catastrophe.        Appellant contends

that the evidence was insufficient to support his conviction for failure to

prevent a catastrophe. The Commonwealth and this Court agree with that

position.     Accordingly, we reverse the conviction for failure to prevent a

catastrophe and sentence imposed thereon. As this decision does not affect

the sentence imposed, we do not order a new sentencing proceeding.

       The trial court provided a summary of the evidence presented against

Appellant:



*
    Retired Senior Judge assigned to the Superior Court.
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               Through the testimony of four correctional officers and a
        fire department captain the Commonwealth established that on
        October 23, 2008, shortly before 7:00 p.m., while a prisoner in
        the Philadelphia Detention Center, [Appellant] began yelling and
        screaming obscenities and threats, apparently in resentment for
        the fact that a scheduled visit he was supposed to have had
        been cancelled. He then started flooding his cell block by
        clogging the toilet in his cell and running the water. When the
        guards shut off the water from outside the cell he threatened to
        burn the place down and then set fire to various flammable
        items in his cell using a light fixture which he apparently had
        pulled from the wall and broke in order to do so. As a result of
        the fire and smoke that were emanating from his cell, three
        other inmates in the cell block began complaining about being
        affected and had to be evacuated and given medical attention for
        slight smoke inhalation. When the guards opened the cell the
        defendant refused orders to cease what he was doing and get
        down on the floor and was subdued with pepper spray and
        removed from his cell while some of the guards extinguished the
        fire. While no one actually saw him set anything on fire, since
        the cell door was solid as opposed to bars, he was the only one
        in the cell. The fire department captain who had arrived after
        the fire was extinguished and conducted an investigation
        testified that the light fixture was the apparent ignition source.

Trial Court Opinion, 7/2/14, at 2-3. Three inmates were taken to a medical

facility to determine if they suffered from smoke inhalation, but they did not

require treatment.     The fire did not spread beyond Appellant’s cell and

consisted of a paper fire.    There was no structural damage caused to the

cell.

        After Appellant was convicted of the above-described crimes, the case

proceeded to sentencing.       On November 21, 2013, Appellant received a

sentence of three to six years imprisonment on the arson conviction, and


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concurrent sentences on all his remaining crimes.     In this ensuing appeal,

Appellant raises one issue: “Was the evidence in support of the charge for

Failure to Prevent a Catastrophe, 18 Pa.C.S.A. Sec. 3303(2), insufficient to

support   Defendant’s     conviction   because   no   catastrophe   occurred?”

Appellant’s brief at 4.

      The elements of failure to prevent a catastrophe are set forth in 18

Pa.C.S. § 3303, which provides in relevant part:

      A person who knowingly or recklessly fails to take reasonable
      measures to prevent or mitigate a catastrophe, when he can do
      so without substantial risk to himself, commits a misdemeanor of
      the second degree if:

            ....

            (2) he did or assented to the act causing or
            threatening the catastrophe.

18 Pa.C.S. § 3303.

      As our Supreme Court has observed, the offense of failing to prevent a

catastrophe is markedly different from the crime of risking a catastrophe.

“[A] person can be guilty of risking a catastrophe even where no catastrophe

occurs, while a person can be guilty of failure to prevent a catastrophe only

where the catastrophe actually occurs[.]” Commonwealth v. Karetny, 880

A.2d 505, 522 (Pa. 2005).        Our High Court also noted that the term

“‘catastrophe’ is intended to be synonymous with ‘widespread injury or

damage.’” Id. at 514 (citation omitted).


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      Herein, the evidence fails to sustain a finding that Appellant actually

caused widespread injury or damage when he lit the fire in his cell. His cell

was undamaged, and no one was injured.           While Appellant undoubtedly

risked causing such injury or damage by his actions, the small trash fire was

extinguished by the prison guards before any property damage or physical

injuries occurred.    Hence, we concur, as does the Commonwealth, that,

since no catastrophe occurred herein, Appellant’s conviction under 18

Pa.C.S. § 3303 is infirm.

      Appellant received a two-year probationary term on this crime that

was concurrent with the three-to-six year jail term imposed upon the arson

offense. Thus, our decision herein has no effect on the sentencing scheme,

and   we   do   not     need   to   order   a   new   sentencing   proceeding.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 2006) (citations

omitted) (“If our disposition upsets the overall sentencing scheme of the trial

court, we must remand so that the court can restructure its sentence plan.

By contrast, if our decision does not alter the overall scheme, there is no

need for a remand.”).

      The conviction for failure to prevent a catastrophe under 18 Pa.C.S. §

3303 is reversed and the judgment of sentence of two year’s probation

imposed thereon is vacated. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/2015




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