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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ZACHARY METCALF, :
:
Appellant :
: No. 1319 WDA 2016
Appeal from the Judgment of Sentence August 3, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0002112-2015
BEFORE: LAZARUS, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED APRIL 20, 2017
Appellant, Zachary Metcalf, appeals from the Judgment of Sentence
entered in the Beaver County Court of Common Pleas, arising out of a series
of fires that Appellant intentionally set in ten unoccupied structures over a
one-month period. Although the trial court convicted Appellant of more than
a dozen counts of Arson and other related charges, his appeal is limited to
challenging the evidence of his single conviction for Arson Endangering
Persons.1 After careful review, we affirm.
We summarize the relevant facts and procedural history as follows.
Between August 31, 2015, and September 28, 2015, Appellant intentionally
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3301(a)(1).
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set fire to eight unoccupied structures in Beaver Falls, Pennsylvania, and two
unoccupied structures in neighboring White Township, Pennsylvania. See
Agreed Upon Stipulations, Commonwealth’s Exhibit 17. Investigators quickly
determined that the fires were being intentionally set, and began identifying
and patrolling abandoned houses, hoping to determine who was starting the
fires. N.T., 6/20/16, at 68.
On the evening of September 28, 2015, Sergeant Michael Kryder
(“Sergeant Kryder”) was monitoring an abandoned house located at 1919
11th Avenue when he observed Appellant approach the rear of the
residence, glance around, and then enter the residence. Id. at 68, 70.
When Appellant emerged a few minutes later, Sergeant Kryder placed
Appellant in custody and transported him to the station. Once there,
Appellant waived his Miranda2 rights and admitted to intentionally starting
the ten fires in a written and videotaped confession. Id. at 73-75.
According to his written confession to police, Appellant was motivated by a
desire to “try and clean up the community and do away with the abandoned
structures.” Statement Form, dated 9/29/15, Commonwealth’s Exhibit 14.
Appellant was arrested and charged with more than ten counts of
Arson, including one count of Arson Endangering Persons for the fire at 1801
West Avenue. Initially charged in three separate Informations, the three
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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cases were consolidated for trial.3 Appellant waived his right to a jury trial,
and proceeded to a non-jury trial before the Honorable Richard Mancini on
June 20, 2016.
At trial, the parties presented a set of Agreed Upon Stipulations, which
included the dates and locations of all ten fires, as well as the fact that the
fires were intentionally set and the structures were unoccupied. Id. The
parties also stipulated that the unoccupied structures were the “property of
another” and Appellant did not have “authority to defeat or impair” the
property owner’s interest in the structure. Id. The Commonwealth also
introduced Appellant’s written and recorded confessions. See Statement
Form, dated 9/29/15, Commonwealth’s Exhibit 14; Recorded Statement,
Commonwealth’s Exhibit 15.
The trial court found Appellant guilty of one count of Arson
Endangering Persons, ten counts of Arson, and related charges. The trial
court sentenced Appellant to an aggregate term of 4 to 8 years of
incarceration.
Appellant filed a timely appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue for our review, “whether the
Commonwealth presented sufficient evidence to prove beyond a reasonable
3
The instant case, CP-04-CR-0002112-2015, relates to the eight fires that
Appellant set in Beaver Falls. The two other cases, not at issue in the
instant appeal, relate to the fires that Appellant set in White Township.
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doubt that Appellant placed another person in danger of death or bodily
injury to establish the crime of Arson?” Appellant’s Brief at 6.
Evidentiary sufficiency is a question of law; thus, 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 determining whether the
evidence was sufficient to support a verdict, we view the evidence and all
reasonable inferences to be drawn therefrom in the light most favorable to
the verdict winner, the Commonwealth herein. Commonwealth v. Watley,
81 A.3d 108, 113 (Pa. Super. 2013) (en banc).
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.
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
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 and internal quotations omitted).
In his Brief, Appellant only challenges the sufficiency of the evidence
supporting his conviction of Arson Endangering Persons. This offense is
defined, 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 explosion, whether on his own property or on
that of another, and if:
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(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[.]
18 Pa.C.S. § 3301(a)(1)(i).
Appellant avers that the evidence was insufficient to establish that he
placed another person in danger of death or serious bodily injury. This court
recently analyzed a similar claim in Commonwealth v. Bragg, 133 A.3d
328 (Pa. Super. 2016). In Bragg, the defendant was accused of robbing a
PNC Bank before fleeing “towards a residential driveway where a wooden
fence separated the driveway from the backyard of a row home. Appellant
changed his clothes, poured gasoline on the clothes he wore in the robbery,
and lit them on fire.” Id. at 330. At trial, Assistant Fire Marshal Edward
Manko testified that, based on his 25 years of experience, “the fire could
have easily spread throughout the scorched vegetation in that neighborhood
yard, placing all the row homes [located at the end of the yard] in danger.”
Id. at 331. Based on that testimony, we affirmed the defendant’s Arson
Endangering Persons conviction because “he placed another person in
danger of death or serious bodily injury when he started the fire in the
residential driveway.” Id.
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In the instant case, Beaver Falls Fire Chief Mark Stowe (“Chief Stowe”)
testified at Appellant’s trial.4 Chief Stowe has been a firefighter for the City
of Beaver Falls for 33 years, and Fire Chief of Beaver Falls for the last 18
years. N.T. at 19, 21. Chief Stowe responded to each of the eight fires that
Appellant intentionally set in Beaver Falls, including the fire at 1801 West
Avenue. Id. at 20, 28.
Chief Stowe testified that, on September 27, 2015, at 10:38 p.m., his
department was notified of a fire at 1801 West Avenue, Beaver Falls,
Pennsylvania. Id. at 35. Chief Stowe testified that, when they arrived on
scene five minutes later,
[t]he two story framed dwelling [at 1801 West Avenue] was fully
engulfed in flames with a large amount of radiant heat coming
from the structure. Our first end engine arrived on West Avenue
positioned on the front of the structure, and due to the radiant
heat we had to immediately move our engine.
At the same time there was a dwelling, or actually two dwellings,
one located directly across West Avenue. It was being
threatened by the radiant heat, as well as a dwelling located at
1901 West Avenue. It was being threatened by the radiant heat.
4
In his sufficiency claim, Appellant faults the Commonwealth for not calling
an expert witness to testify to the dangers of ambient heat “to a reasonable
degree of professional certainty.” Appellant’s Brief at 10. Appellant also
attempts to distinguish the instant case from Bragg by arguing that the
Assistant Fire Marshal who testified in Bragg rendered an “expert opinion”
while Chief Stowe was not admitted as an expert. However, Chief Stowe did
testify to the danger Appellant’s fire posed to neighboring structures and
their occupants, in language almost identical to that offered in Bragg.
Appellant did not object to this testimony at trial, and does not challenge the
admissibility of Chief Stowe’s testimony on appeal.
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Our first task was to protect those dwellings, both occupied
dwellings.
Id. at 34-35.
Chief Stowe testified that both neighboring structures were “obviously
occupied” and had lights on inside. Id. at 35-36. In addition, the occupants
of one of the residences were on their front porch, screaming and “very
excited because of the heat and danger to their structure.” Id. at 35-36,
44-45. The two neighboring, occupied residences were located
approximately 60 feet away from the “fully engulfed” structure. Id. at 44.
Concerned about danger to the residents and the neighboring structure,
Chief Stowe moved the “frantic, worried” neighbors off of their porch into
their back yard so that they were an additional 50 to 60 feet from the fire.
Id. at 49-50.
Chief Stowe elaborated on the dangers posed by ambient heat to the
occupied residences, explaining that “[a]s the radiant heat is being emitted
from the initial fire building it is heating the nearby structure and fuel. Once
a structure is heated to the point it reaches its ignition temperature,
simultaneous burning will occur of that structure.” Id. at 37-38. In his 33
years of experience, Chief Stowe had seen ambient heat ignite a neighboring
structure on “many occasions.” Id. at 38. He testified that, based on his
experience, he could tell “immediately that the house, the occupied houses
were being threatened” by the ambient heat. Id. at 47. Finally, Chief
Stowe testified that when they arrived on scene, the wind was blowing
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“embers and brands” from the engulfed structure onto one of the
neighboring residences. Id. at 58.
Chief Stowe was “immediately” able to detect the danger to the two
neighboring homes, and so he and members of his department immediately
applied water to the unoccupied structure at 1801 West Avenue and to the
roof and sides of the neighboring structures. Id. at 35, 47, 59. As a result,
they were able to keep the neighboring homes below “ignition temperature”
and prevented the occupied residences from igniting. Id. at 38, 49. Even
with the considerable efforts of the Beaver Falls Fire Department, 1801 West
Avenue was a complete loss, with only the basement remaining when the
Fire Department extinguished the flames. Id. at 33; see also Photograph
of 1801 West Avenue, Commonwealth’s Exhibit 9.
Appellant argues that, although “[C]hief Stowe did mention the
potential risk of radiant heat to other buildings, he did not relate that danger
to another person but a danger to a building.” Appellant’s Brief at 9. This
argument is belied by the evidence presented at trial, where Chief Stowe
clearly testified that the neighboring residences were occupied at the time of
the fire, that the occupied structures were in danger of igniting, and that
Chief Stowe was forced to relocate the residents from the porch into the
backyard because they were in danger from the fire that Appellant had
intentionally set. N.T. at 49-50.
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Appellant also argues “[t]he Commonwealth presented no evidence
and does not appear to make an argument that any person was actually
injured as a result of the fire.” Appellant’s Brief at 9. However, actual injury
is not an element of Arson Endangering Persons. See 18 Pa.C.S. §
3301(a)(1)(i). The Commonwealth was required to prove that Appellant
recklessly placed another person in danger of death or bodily injury. Id.
Unlike the defendant in Bragg, Appellant did more than set a small
pile of clothing on fire. The Commonwealth presented evidence showing
that Appellant entered a residential neighborhood, at night, and intentionally
set fire to an unoccupied structure located in close proximity to other homes.
At 10:30 p.m. it is reasonable to expect that residents may be home and
children may be in bed. In fact, both of the neighboring homes were
“obviously occupied” at the time. By the time the Fire Department
responded to the fire, the unoccupied structure was “fully engulfed” and
threatening both of the neighboring homes, forcing firefighters to evacuate
the area around 1801 West Avenue and apply water to the neighboring
homes. The quick thinking and diligent efforts of Chief Stowe and his
department do not in any way diminish Appellant’s culpability or the
recklessness of his actions.
Based on the foregoing, conclude that the evidence was sufficient to
establish the offense of Arson Endangering Persons.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2017
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