J-S46028-18
2018 PA Super 305
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON M. MCCOY :
:
Appellant : No. 627 EDA 2017
Appeal from the Judgment of Sentence January 11, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000366-2016
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
CONCURRING OPINION BY BOWES, J.: FILED NOVEMBER 14, 2018
I concur that the convictions for risking catastrophe and recklessly
endangering another person must be vacated; however, I reach that result on
different grounds than those set forth by my distinguished colleagues. As to
the risking catastrophe charge, I disagree with the Majority’s finding that the
evidence did not establish a risk of widespread damage. The evidence on that
point is somewhat contradictory, but since our standard of review for
sufficiency claims gives all reasonable inferences in favor of the verdict winner,
I believe that element was met. However, I agree with Appellant that the
Commonwealth failed to establish that Appellant recklessly employed
dangerous means capable of causing catastrophic damage. My reasoning
follows.
The essential facts are straightforward. Appellant had a small marijuana
growing operation in a closet located in his apartment. He used an ultraviolet
J-S46028-18
lamp, suspended in the air above the plants, to provide the necessary heat.
The lamp was covered with some type of sealant. To supply electricity to the
lamp, Appellant used several ordinary extension cords. The cords ran next to
four open water containers, which Appellant used to mist the plants. The
room was enclosed with tinfoil and contained “ordinary combustibles, which is
paper and wood and it would be easily set on fire.” N.T. Trial, 1/11/17, at 42.
Lieutenant Charles Glover testified as an expert witness in the field of fire
prevention, and opined that “with all the ignition sources in that operation and
the combustibles around, there’s no doubt in [my] mind that is an extreme
fire hazard.” Id. at 47.
Appellant was convicted of, inter alia, one count of risking a catastrophe.
The statutory language for that crime reads:
(a) Causing catastrophe.--A person who causes a catastrophe
by explosion, fire, flood, avalanche, 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, including selling, dealing in or
otherwise providing licenses or permits to transport hazardous
materials in violation of 75 Pa.C.S. Ch. 83 (relating to hazardous
materials transportation), 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.
-2-
J-S46028-18
Appellant was charged under subsection (b), and therefore the
Commonwealth was required to establish that Appellant (1) recklessly created
(2) a risk of catastrophe (3) through dangerous means as contemplated by
subsection (a).
At the outset, I note that it is difficult to pin down exactly what the
Commonwealth alleged constituted the dangerous means in this case. As our
Supreme Court has held, “employment of dangerous means” does not require
an inherently dangerous act. Commonwealth v. Karetny, 880 A.2d 505,
517 (Pa. 2005). In Karetny, the defendants operated a nightclub along a
leased pier in Philadelphia. In 1994, portions of the pier collapsed and the
damage was assessed. The defendants employed various stopgap measures
over the years to repair the damage, but consistently declined costly full
repairs. On May 18, 2000, the defendants were informed by an expert that
the pier was in a critical state and predicted it would collapse that evening.
The appellees ignored the warning and kept their business open as usual. As
predicted the pier collapsed that evening, plunging the nightclub and forty-six
people into the river, three of whom were killed. During pre-trial proceedings,
the trial court granted a motion to quash the risking a catastrophe charge,
ruling that the Commonwealth was required to prove “a particular type of an
act.” Id. at 511. The Commonwealth appealed and the Court reversed,
holding that the Commonwealth presented a prima facie case. “[T]he totality
of the aforementioned factors would support a jury in finding that appellees’
-3-
J-S46028-18
conduct and response amounted to ‘employment’ of a means and created the
risk.” Id. at 517.
Therefore, a broad set of behaviors and acts encompassing a course of
conduct can qualify. Essentially, it is a fill-in-the-blank exercise: “Appellant
created the risk of a catastrophic fire by (blank).” Consider the
Commonwealth’s argument, distilled to its essence: “When viewed properly,
the evidence amply demonstrated that defendant risked setting a fire in a
dense residential neighborhood by growing marijuana in a closet wrapped in
tinfoil.” Commonwealth’s brief at 5. Thus, the Commonwealth identifies the
dangerous means with reference to the totality of the circumstances involving
the marijuana operation.
Appellant, on the other hand, argues that the expert testimony “only
established a very small chance of a fire, and no evidence of a requisite risk
of a catastrophe.” Appellant’s brief at 10. He continues:
Lieutenant Glover had investigated between 4,500 and 5,000 fires
over an eight year period of time. Over those years, of the several
thousand fires he had previously investigated, he had only come
“across a few of them” involving the growing of marijuana. . . .
That statistic alone suggests a very small risk of growing
marijuana causing a fire. Further, the very small closet growing
arrangement of [Appellant] stands in sharp contrast with the few
marijuana fires he had investigated in the past that, unlike this
case, involved transformers and irrigation systems. Most
significantly, Lieutenant Glover did not testify that any of the few
marijuana grow fires he had investigated before were
catastrophic, with widespread damage.
The expert testimony did not support the necessary finding that if
a fire had started as a result of [Appellant]’s growing of marijuana
it would have posed a risk of a catastrophe, an extraordinary
-4-
J-S46028-18
disaster. Lieutenant Glover testified that if the marijuana growing
was monitored and a fire started, it would be a small one that
could be easily put out quickly. There was no testimony or
evidence that the marijuana lamp was on when nobody was home
or that the equipment was otherwise unattended.
Id. at 10-11 (emphasis in original).
The parties’ arguments are therefore directed at different points in the
causal chain. According to the Commonwealth, the legal analysis picks up
after a fire has started without any discussion of the likelihood that a fire would
actually start due to Appellant’s employment of dangerous means. Next, if a
fire started, there is a risk it will spread to other nearby homes, which would
constitute a catastrophe. “[T]he word ‘catastrophe’ is intended to be
synonymous with ‘widespread injury or damage.’” Commonwealth v.
Hughes, 364 A.2d 306, 312 (Pa. 1976). Appellant, however, emphasizes that
the risk of a fire was itself negligible, and, in any case, he notes that there
was no evidence he left the operation unattended. Therefore, even if a fire
started, his behavior was not reckless since he was available to extinguish it.
The Majority concludes that the grow operation “created a fire hazard,
not the potential for widespread injury or damage.” Majority Opinion at 10.
Therefore, my colleagues appear to accept the Commonwealth’s formulation
that the risk of a fire is the dangerous means employed, but finds that any
actual fire was incapable of causing catastrophic damage. I find that the
evidence, when drawn in favor of the Commonwealth as verdict winner,
establishes that catastrophic damage was possible. First, Appellant testified
-5-
J-S46028-18
that his landlord lived downstairs at one point, and therefore actors other than
Appellant were at risk.
Q. Was anyone else living in that entire house?
A. No.
Q. What about below you, anybody living there?
A. It belonged to the landlord. He presently lived there for
approximately two years.
N.T. Trial, 1/1/17, at 63. While these answers are contradictory, the fact-
finder was entitled to credit the more specific answer. Additionally, the expert
testified that the fire could have spread to the neighboring building, which was
approximately six feet away. Accepting that a fire could have been caused by
the grow operation, there was a risk of catastrophic damage.
Since the Majority limits its analysis to that point for the charge of
risking a catastrophe, I now set forth my own view of why the conviction must
be discharged. I agree with my colleagues that the Commonwealth
established Appellant’s grow operation was a fire hazard. However, I agree
with Appellant that the Commonwealth failed to prove that he acted recklessly.
As our Supreme Court stated in Hughes, supra, the conduct
criminalized by § 3302(b) is narrowly-defined.
[T]he degree of culpability required by Section 3302(b) is very
specific; a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation. The
‘risk’ proscribed by this legislation is the use of dangerous means
by one who ‘consciously disregards a substantial and unjustifiable
risk’ and thereby unnecessarily exposes society to an
extraordinary disaster.
-6-
J-S46028-18
Id. at 311.
Determining whether or not the conduct cited by the Commonwealth
met that standard necessarily requires an examination of the “dangerous
means” employed by the offender and how those means were “used.”1 To
____________________________________________
1 As quoted, Appellant notes that Lieutenant Glover testified that only a few
of the thousands of fires he investigated resulted from marijuana growing
operations. The Commonwealth asserts that point is irrelevant, because
regardless of what Lieutenant Glover meant by the term few, “the frequency
of fires started by home grow operations has no bearing on their potential
danger after they have already ignited.” Commonwealth’s brief at 8-9.
This response highlights the differing views of the case. Appellant looks at
the likelihood that a fire would occur, whereas the Commonwealth focuses on
what would happen if a fire started. The Commonwealth’s position appears
to be that Appellant was per se reckless with respect to how his operation was
established. In Commonwealth v. Mastromatteo, 719 A.2d 108
(Pa.Super. 1998), we held that driving while intoxicated is not per se reckless.
We observed:
Our reading of the above precedent leads us to conclude that
driving under the influence of intoxicating substances does not
create legal recklessness per se but must be accompanied with
other tangible indicia of unsafe driving to a degree that creates a
substantial risk of injury which is consciously disregarded.
Whether, in this context, the unsafe driving results from
diminished judgment, a more cavalier approach to driving or sheer
physical incapacitation would seem immaterial, as is the degree
to which any of these factors is actually related to the consumption
of alcohol or drugs. What is material is actual reckless driving or
conduct, for any reason, for it is this conduct which creates the
peril in question. Since people vary in their response to alcohol
we believe this is a sound principle.
Additionally, no statistical evidence has been proffered to support
the conclusion that driving under the influence alone creates the
degree of risk legally necessary to convict for reckless
-7-
J-S46028-18
revisit the point that the Commonwealth starts its analysis from an
assumption that a fire would start, I have some difficulty with the notion that
the source of a fire, i.e. the fact Appellant used an ultraviolet lamp with
improperly graded extension cords which could have overheated and caused
a fire, constitute dangerous means.2 However, Appellant apparently accepts
____________________________________________
endangerment.
Id. at 1083 (emphasis in original, footnote omitted).
Appellant’s point, which I find soundly stated, is that the fact the
Commonwealth’s expert has rarely encountered a fire stemming from the fire
hazards he identified herein undercuts a finding that Appellant’s operation was
recklessly constructed. As in Mastromatteo, the absence of statistical
evidence demonstrating that Appellant’s use of, inter alia, tinfoil and
household extension cords, is a relevant consideration.
2 The parties both focus on what Appellant was doing with the ultraviolet lamp
and the other items, as opposed to how he used them. The only relevance
the marijuana itself has is Lieutenant Glover’s testimony that the plants, if
dried out, were more apt to burn. The expert, however, did not visit the site
and it is unknown if the plants were actually dried out.
That Appellant used questionable wiring is surely not uncommon; fifteen
minutes spent watching any home renovation television show will showcase
at least one instance of potentially dangerous electrical systems. Ultraviolet
lights are readily available for purchase for a wide variety of uses, and the fact
that better practices exist for their use is not the same as a finding that the
use of ordinary extension cords constitutes the employment of dangerous
means. The risks posed by Appellant’s marijuana growing operation differ in
a significant degree from, for example, the inherent dangers posed by
manufacturing methamphetamine in a clandestine lab. See Commonwealth
v. Hoke, 928 A.2d 300, 305-06 (Pa.Super. 2007) (noting the dangers
involved in home methamphetamine labs; “a simple act of throwing a light
switch . . . could potentially cause the solvents in the atmosphere to ignite
and/or explode”) (quoting trial transcript).
-8-
J-S46028-18
this point, as discussed supra, and therefore for purposes of the sufficiency
analysis we must do the same.
Appellant cites Commonwealth v. Simkins, 443 A.2d 825 (Pa.Super.
1982), as analogous to this case. Simkins was convicted of possession of
amphetamine and risking a catastrophe. A fire started on Simkins’s premises,
which firemen quickly extinguished. While inside, they found evidence that
Simkins was manufacturing amphetamine. Among other items, firemen found
a fifty-five gallon drum of acetone, a volatile and highly flammable chemical.
The drum had a three-inch opening stuffed with towels, and the drum was
less than ten feet from an oil-fired heater. “The Commonwealth contended
that appellant had risked a catastrophe because of the manner in which the
acetone had been stored on the property.” Id. at 827. The Simkins Court
discharged that conviction, holding that the Commonwealth failed to establish
recklessness.
The Commonwealth’s evidence in the instant case failed to
establish that appellant’s conduct in storing the acetone as
described was either reckless or created a potential for an
“extraordinary disaster.” Rather, the Commonwealth showed a
negligent storage of acetone which the Commonwealth’s witness
declined to testify had the potential for “widespread injury or
damage.” The orbit of danger, the expert said, included only
appellant and the dwelling in which he had stored the acetone.
....
In the instant case, the risk which the Commonwealth contended
appellant’s conduct had created was that acetone would ignite.
This arose because the drum of acetone had been stored in the
basement, sealed only with paper towels, in proximity to the
heater. We conclude that this was insufficient to prove
-9-
J-S46028-18
recklessness. There may have been carelessness in the manner
in which the acetone was stored, but the fact that it had not been
used in the basement and that, while stored, the container had
been closed, albeit inadequately, negatived the conclusion
appellant had acted recklessly in disregard of a risk of
extraordinary disaster. Moreover, the evidence failed to show that
ignition of the acetone was likely to cause a catastrophe. Fire
involving a single residence, unoccupied except by the actor, is
not the type of widespread damage contemplated by the statutory
term “catastrophe.”
Id. at 828 (footnote omitted).
The Commonwealth responds that Simkins is inapposite because its
expert testified that any fire in Appellant’s home would have caused
widespread damage, whereas in Simkins any ignition of the acetone would
have triggered a fire that was limited in scope to the building itself. For the
reasons stated supra, I agree that this is a pertinent distinction; the proximity
of other homes established a potential for widespread damage if a fire started.
The Commonwealth’s response, however, fails to account for the other part of
the quoted discussion regarding recklessness, which was Appellant’s point.
Simkins concluded that Simkins did not recklessly store the acetone,
notwithstanding the potential parade of horribles if the barrel were to tip and
roll into the heater. 3 Thus, the fact any fire would not have resulted in
____________________________________________
3 In this respect, Simkins appears to apply concepts of foreseeability when
dealing with liability premised on a potential fire. Comparably, it is possible
herein that the light would have overheated, thereby causing something to
catch on fire, thereby leading to other items combusting, thereby leading to
catastrophic damage.
- 10 -
J-S46028-18
widespread damage was simply an alternative basis to hold that the evidence
was insufficient.
I agree with Appellant that his case is similar to Simkins. Like that
case, Appellant took preventive steps to mitigate the risk of any fire, thereby
negating a finding that he consciously disregarded that risk. See 18 Pa.C.S.
§ 302(b)(3) (“A person acts recklessly with respect to a material element of
an offense when he consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his conduct.”). Comparable
to the fact that the acetone “container had been closed, albeit inadequately,”
Appellant employed misters to keep the marijuana plants wet, thereby limiting
the possibility identified by the expert, that the plants would dry out and catch
on fire from the lamp. Additionally, there is no evidence that Appellant left
the operation unattended.4 Even if a fire started, Appellant was there to
extinguish it, therefore diminishing the risk that the material element of
“risking a catastrophe” existed. Id. Indeed, as Appellant emphasizes, the
Commonwealth’s expert opined that if the heat lamps are “not used correctly,
they will start a fire.” N.T. Trial, 1/11/17, at 38. There is little evidence that
____________________________________________
4 The Commonwealth notes that Appellant’s testimony on that point was self-
serving, and that the trial court was not required to accept it. That is true,
but the fact the fact-finder was not required to credit his testimony does not
establish that disbelief of his testimony proves the opposite. This is related
to the principle that the disbelief of a defendant’s testimony in a self-defense
case does not, by itself, defeat a self-defense claim.
- 11 -
J-S46028-18
the lamps were used incorrectly, aside from the fact that Appellant used the
wrong type of extension cords. The expert also noted: “And a lot of times,
the problem with these, they’re left unattended, so nobody is there if a
fire breaks out.” Id. at 43 (emphasis added). That the operation was left
unattended is not a fact proven by competent evidence, and while the
Commonwealth is entitled to all reasonable inferences, it is not entitled to
inferences that rely upon sheer speculation. Therefore, the Commonwealth
failed to prove that Appellant’s behavior was not reckless, and I concur.5
____________________________________________
5My analysis of recklessness similarly disposes of the conviction for recklessly
endangering another person.
- 12 -