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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MICHAEL THOMAS MATTHEWS :
:
Appellant : No. 658 MDA 2020
Appeal from the Judgment of Sentence Entered October 31, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0003442-2018
BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 23, 2022
Appellant Michael Thomas Matthews appeals from the judgment of
sentence imposed after a jury found him guilty of arson—danger of death or
bodily injury, aggravated arson—person present inside property, and causing
catastrophe.1 This matter returns to this Court after we remanded for an
amended Anders/Santiago2 brief or an advocate’s brief. Appellant has
obtained new counsel who filed an advocate’s brief challenging (1) the
sufficiency of the evidence concerning his convictions for causing catastrophe
and aggravated arson—person present inside property and (2) the legality of
the separate sentences for arson—danger of death or bodily injury and
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3301(a)(1)(i), 3301(a.1)(1)(ii), and 3302(a), respectively.
2Anders v. California, 386 U.S. 738 (1967); Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009).
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aggravated arson—person present inside property, as well as the trial court’s
imposition of conditions concerning his imprisonment and parole.3 We vacate
the judgment of sentence and remand for further proceedings consistent with
this memorandum.
This Court previously summarized the factual background of Appellant’s
convictions, see Commonwealth v. Matthews, 658 MDA 2020, 2021 WL
2772838, at *1-2 (Pa. Super. filed July 1, 2021) (unpublished mem.), which
we need not restate here as we write for the benefit of the parties.
Procedurally, we note that on October 31, 2019, the trial court sentenced
Appellant to serve an aggregate nine to twenty-seven years’ imprisonment
consisting of three consecutive terms of three to nine years in the state
correctional system. The trial court set special conditions for domestic
violence offenders as part of its sentence.
Appellant timely appealed from the judgment of sentence, and his
previous counsel submitted a petition to withdraw and an Anders/Santiago
brief. This Court denied the petition to withdraw and remanded for the filing
of an amended Anders/Santiago brief or an advocate’s brief. Id. at *10.
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3 Appellant’s present counsel also filed an application in this Court to compel
the Lancaster County clerk of court to transmit a stipulation and trial exhibits
on December 13, 2021. By December 23, 2021, this Court received the
stipulation and all of the trial exhibits in a supplemental record. Therefore,
we dismiss Appellant’s application to compel as moot.
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Following this Court’s remand, Appellant’s present counsel entered her
appearance and filed an advocate’s brief raising four issues that we have
reordered as follows:
1. Was the evidence presented by the Commonwealth insufficient
to prove beyond a reasonable doubt that [Appellant]
committed the offense of causing catastrophe where the
evidence did not establish that [Appellant] intentionally or
knowingly caused widespread injury or damage?
2. Where the fire which endangered persons was not set while
[Appellant’s wife] was present in the house, was the evidence
insufficient to prove beyond a reasonable doubt that
[Appellant] was guilty of aggravated arson?
3. Where the trial court instructed the jury that arson endangering
persons was an element of aggravated arson, should these two
offenses have merged for purposes of sentencing?
4. Did the trial court err in ordering, as a condition of [Appellant]’s
state sentence, that he comply with a lengthy series of
domestic violence conditions, where the court had no
jurisdiction to impose these conditions, as the Pennsylvania
Department of Corrections has exclusive authority over state
prison conditions, and the Pennsylvania Department of
Probation and Parole has exclusive authority over state parole
conditions?
Appellant’s Brief at 7-8 (formatting altered).4
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4 Although present counsel elected to file an advocate’s brief, she did not seek
leave to file a supplemental Pa.R.A.P. 1925(b) statement. Furthermore,
previous counsel filed a statement of her intent to file an Anders/Santiago
brief, see Pa.R.A.P. 1925(c)(4) (subsequently amended eff. Apr. 1, 2022),
and the trial court did not file a Rule 1925(a) opinion. Although we could
remand for the filing of a supplemental Rule 1925(b) statement and Rule
1925(a) opinion, we decline to do so in this case because, as we discuss below,
Appellant’s sufficiency and legality of sentence claims present pure questions
of law. We remind counsel, however, that the failure to include issues in a
(Footnote Continued Next Page)
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Sufficiency of the Evidence
Appellant’s first two issues challenge the sufficiency of the evidence, and
the following principles governs our review:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proof of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all the evidence actually
received must be considered. Finally, the trier of fact while
passing on the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part[,] or none of the
evidence.
Commonwealth v. Bragg, 133 A.3d 328, 330-31 (Pa. Super. 2016) (citation
omitted).
Sufficiency—Causing Catastrophe
Appellant first claims that his conviction for causing a catastrophe must
be vacated. Appellant’s Brief at 25. Appellant argues that a plain reading of
Section 3302(a) requires the Commonwealth to prove that his conduct caused
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Rule 1925(b) statement generally results in the waiver of the issue. See
Pa.R.A.P. 1925(b)(3)(iv); Commonwealth v. Hansley, 24 A.3d 410, 415
(Pa. Super. 2011).
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widespread damage or injury. Id. at 19-23. Appellant asserts that the
Commonwealth failed to present evidence that widespread damage or injury
occurred. Id. at 25. The Commonwealth agrees that relief is due.
Commonwealth’s Brief at 6, 8.
This Court previously outlined the relevant statutes and decisional law
when finding this issue had arguable merit. See Matthews, 2021 WL
2772838, at *6-9. Because the Commonwealth concedes that that Appellant’s
conviction was not sufficiently supported by the evidence, we do not repeat
our prior discussion. We conclude that Appellant is entitled to relief because
the Commonwealth failed to establish that Appellant’s conduct resulted in
widespread damage or injury and, therefore, that Appellant caused a
catastrophe as required by Section 3302(a). See 18 Pa.C.S. § 3302(a).
Therefore, we reverse Appellant’s conviction for causing a catastrophe.5
Sufficiency—Aggravated Arson—Person Present Inside Property
Appellant next claims that the evidence was insufficient to prove his
aggravated arson conviction under Section 3301(a.1)(1)(ii). Appellant’s Brief
at 33. Appellant contends that he started two fires—the first, a minor fire at
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5 Because we vacate Appellant’s conviction for causing a catastrophe, on which
the trial court imposed a consecutive sentence, we vacate the judgment of
sentence as a whole and remand this matter for resentencing. See
Commonwealth v. Steele, 234 A.3d 840, 848 (Pa. Super. 2020) (indicating
that this Court vacated an appellant’s entire sentence because the reversal of
a conviction upset the trial court’s sentencing scheme). We note that aside
from Appellant’s assertion that the charge of violating Section 3302(a) must
be vacated, neither Appellant nor the Commonwealth had addressed whether
a conviction for risking catastrophe pursuant to Section 3302(b) could stand
as a lesser included offense. We decline to address this issue sua sponte.
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the top of the stairs when his wife was inside the home, and the second, the
larger fire in the upstairs bedroom, when his wife was no longer in the home.
Id. at 32. Appellant asserts that the Commonwealth failed to establish that
the first fire “created any risk to anyone.” Id. Appellant emphasizes the
evidence that the first fire resulted in a relatively small burn pattern
underneath the carpet at the top of the stairs and that a first responder
described as small and would not have impeded Appellant from exiting the
home. Id. According to Appellant, it was only the second fire that “resulted
in heavy smoke and significant heat, making it difficult and dangerous for
police [and firefighters] to rescue [him.]” Id. Appellant contends that he set
the second fire “after [his wife] left the house.” Id. (emphasis in original).
The Commonwealth asserts that sufficient evidence supported
Appellant’s conviction for aggravated arson—person present inside property
because Appellant intentionally set fire to his residence when his wife was
inside of the residence.6 Commonwealth’s Brief at 13-14. The Commonwealth
adds that the first fire caused the smoke alarm to activate and damaged the
floor underneath the carpet. Id. at 14. The Commonwealth notes that a fire
investigator testified that the first fire was a “secondary point of origin of the
fire and smoke that engulfed much of the second story of the residence and
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6The Commonwealth also asserts that this Court previously decided this issue
when accepting portions of Appellant’s previous counsel’s Anders/Santiago
brief. Although we previously concluded that this claim was frivolous, we will
address this issue in an abundance of caution due to the more developed
arguments presented by Appellant’s current counsel and the Commonwealth.
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placed first responders in danger” and that “first responders necessarily had
to proceed up the narrow staircase” where Appellant set the first fire. Id. The
Commonwealth concludes that the “evidence admitted at trial when viewed in
the light most favorable to the Commonwealth, was sufficient to establish that
the first fire alone recklessly placed other persons in danger of death or bodily
injury.” Id. at 14-15.
Section 3301 defines arson 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:
(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 . . . .
* * *
(a.1) Aggravated arson.—
(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:
* * *
(ii) he commits an offense under this section which is graded
as a felony when a person is present inside the property at
the time of the offense.
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18 Pa.C.S. § 3301(a)(1)(i), (a.1)(1)(ii).
Instantly, the record reveals the following. Appellant’s wife testified that
during an argument, Appellant began burning papers at the top of the stairway
when she was downstairs in the foyer. See N.T., Trial Vol. 1., 8/26/19, at 67-
68, 71-72. She then called 911, and then exited through the front door of the
home. Id. She did not see Appellant again, but heard a smoke alarm, and
then heard Appellant say that her bedroom was on fire. Id. at 74, 80-81.
Sergeant Eric Schmidt of the Ephrata Police Department responded to
the home within minutes7 of receiving a dispatch and saw “a lot of smoke”
and “a little bit of fire at the top of the” stairway. 8 See id. at 85. Sergeant
Schmidt attempted to go up the stairway to locate Appellant, but he only
“went about half way or three-quarters the way up the stairs” because of the
heavy smoke. Id. After the sergeant retreated and exited the home,
Appellant briefly reappeared. Id. at 88-89. Sergeant Schmidt again entered
the home with firefighters to save Appellant, who, by that point locked himself
in an upstairs bedroom and hid inside a closet. Firefighters then went upstairs,
attacked the fire, and ultimately rescued Appellant, who was hiding in a closet.
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7 The transcript of Appellant’s wife’s 911 call indicates that she was on the
phone for four minutes and fifty seconds, and she states at the end of the call
that “[t]he police are here.” Commonwealth’s Ex. 10 at 4. The wife testified
that Sergeant Schmidt was the first officer to arrive. N.T., Trial Vol. 1.,
8/26/19 at 72.
8 As emphasized by Appellant, Sergeant Schmidt testified that the fire or burn
spot at the top of the stairs would not have impeded Appellant from exiting
the home from upstairs. Id. at 100.
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Pennsylvania State Trooper Colby Shesko testified as an expert in fire
investigation and detection. See N.T., Trial Vol. 2, 8/27/19, at 138. Trooper
Shesko described the burn marks at the top of the stairs as a “secondary
ignition or secondary point of origin.” See id. at 138, 146.
Viewing this record in a light most favorable to the Commonwealth, we
conclude that it was reasonable for the jury to determine that the first fire,
which Appellant set when his wife was inside the home, contributed to the
hazard first responders faced when fighting the fire and rescuing Appellant.
Appellant’s contention that the first fire alone was minor and did not endanger
others rests on speculation and inferences drawn in his favor. See Bragg,
133 A.3d at 330 (reiterating that a review of the sufficiency of the evidence
requires viewing all the evidence in a light most favorable to the
Commonwealth).
Further, even if the first fire did not endanger persons as Appellant
contends, the record demonstrates that Appellant set the second fire within
minutes after the first, and that the first fire was determined to be a secondary
ignition point or point of origin. Under the circumstances of this case, we
conclude that there was sufficient evidence to prove that Appellant set a fire
while his wife was present inside the home, and that the combination of the
first and second fires clearly endangered first responders. For these reasons,
Appellant’s sufficiency of the evidence challenge to his conviction for
aggravated arson—person present inside property fails.
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Legality of Sentence
Appellant, in his third and fourth issues, asserts that the trial court
imposed illegal sentences because the trial court should have merged the
sentences for arson—danger of death or bodily injury and aggravated arson—
person present inside property, and it lacked the authority to impose domestic
violence conditions to his sentence.
The principles governing our review are well settled. “[A] challenge to
the legality of a sentence raises a question of law. In reviewing this type of
claim, our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Muhammed, 219 A.3d 1207, 1211 (Pa. Super. 2019)
(citations omitted).
Legality of Sentence—Merger
Appellant argues that his sentences for arson—danger of death or bodily
injury and aggravated arson—person present inside property should merge
because his aggravated arson conviction included all of the elements of his
arson conviction. Appellant’s Brief at 27. Appellant emphasizes that the trial
court instructed the jury that if it found Appellant guilty of arson, it had to find
Appellant guilty of aggravated arson. Id. at 28-29. According to Appellant,
“because the entire offense of arson endangering persons is an element of
aggravated arson, the offenses must merge for sentencing.” Id. at 27-28.
The Commonwealth responds that Appellant committed two separate
acts: lighting the first fire in the presence of his wife and then lighting the
second fire in the upstairs bedroom. Commonwealth’s Brief at 9-10. The
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Commonwealth continues that it charged “and demonstrated by the evidence
[that Appellant] engaged in multiple, distinct criminal acts and his convictions
for arson—danger of death or bodily injury [and] aggravated arson—person
present insider property were not predicated upon a single criminal act.” Id.
at 10. Therefore, the Commonwealth concludes that a merger analysis of the
elements of the offense is not required and that no relief is due. Id. at 11.
Section 9765 of the Sentencing Code states:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
Our Supreme Court has explained that Section 9765 “prohibits merger
unless two distinct facts are present: 1) the crimes arise from a single criminal
act; and 2) all of the statutory elements of one of the offenses are included in
the statutory elements of the other.” Commonwealth v. Baldwin, 985 A.2d
830, 833 (Pa. 2009). “The preliminary consideration is whether the facts on
which both offenses are charged constitute one solitary criminal act. If the
offenses stem from two different criminal acts, merger analysis is not
required.” Commonwealth v. Healey, 836 A.2d 156, 157-58 (Pa. Super.
2003) (citation omitted).
To determine whether there is a single criminal act, we must examine
the crimes as charged by the Commonwealth. Commonwealth v. Jenkins,
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96 A.3d 1055, 1060 (Pa. Super. 2014); see also Commonwealth v.
Kimmel, 125 A.3d 1272, 1277 (Pa. Super. 2015) (en banc) (considering the
criminal complaint, criminal information, and affidavit of probable cause, and
concluding that the Commonwealth established the factual predicates to avoid
merger); Commonwealth v. Martinez, 153 A.3d 1025, 1032 (Pa. Super.
2016) (stating that because “neither the charging information nor supporting
documents of record describe the operative facts in such a way as to
distinguish the specific conduct underlying the offenses,” we cannot conclude
“that the offenses were based on two discrete criminal acts for purposes of
avoiding merger at sentencing”).
Instantly, we agree with the Commonwealth that Appellant’s argument
concerning the trial court’s jury instruction and the elements of the crimes
lacks merit. As discussed above, the trial evidence established that Appellant
committed separate criminal acts by setting two fires. Therefore, we agree
with the Commonwealth that Appellant’s sentences for arson—danger of death
or bodily injury and aggravated arson—person present inside property do not
merge. See Kimmel, 125 A.3d at 1277; cf. Martinez, 153 A.3d at 1032.
Accordingly, no relief is due.
Legality of Sentence—Domestic Violence Conditions
Appellant last contends that the trial court did not have the authority to
impose domestic violence conditions on his sentences. Appellant’s Brief at 38.
Appellant argues that the parole conditions for his sentences are under the
jurisdiction of the Pennsylvania Department of Corrections and the Board of
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Probation and Parole. Id. at 35-38. The Commonwealth agrees and concedes
that relief is due. Commonwealth’s Brief at 7, 15 (citing Commonwealth v.
Mears, 972 A.2d 1210 (Pa. Super. 2009)).
Initially, we note that this issue is arguably moot. As discussed
previously, Appellant’s conviction for causing a catastrophe cannot stand, and
because the trial court sentenced him to a consecutive sentence for that
offense, we vacate all of the sentences, including the domestic violence
conditions, and remand for resentencing. See Steele, 234 A.3d at 848. In
any event, we agree with Appellant and the Commonwealth that the trial court
lacked the statutory basis to impose conditions on Appellant’s incarceration
and possible parole from a sentence that is within the exclusive jurisdiction of
the Department of Corrections and the Board of Probation and Parole,
respectively. See Mears, 972 A.2d at 1212.
Conclusion
For the foregoing reasons, we vacate Appellant’s conviction for causing
a catastrophe, affirm Appellant’s convictions for arson—danger of death or
bodily injury and aggravated arson—person present inside property. We
further conclude that the trial court did not err in imposing separate sentences
for arson—danger of death or bodily injury and aggravated arson—person
present inside property. Lastly, given our disposition, the trial court’s
imposition of domestic violence conditions is moot at this juncture. In sum,
we affirm in part and reverse in part, Appellant’s convictions as discussed
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herein and vacate the judgment of sentence and remand this matter to the
trial court for resentencing.
Judgment of sentence vacated. Case remanded for resentencing.
Application to compel dismissed as moot. Jurisdiction relinquished.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/23/2022
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