J-S94015-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID ADKINS
Appellant No. 160 MDA 2016
Appeal from the Judgment of Sentence February 24, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003343-2013
BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 21, 2017
David Adkins appeals from the judgment of sentence, entered in the
Court of Common Pleas of Cumberland County, following his convictions for
arson endangering persons,1 arson endangering property,2 and criminal
mischief.3 Upon review, we affirm.
The trial court summarized the relevant facts of this matter as follows:
On March 17, 2013, at the Shippensburg Mobile Estates, a
mobile home park located within Cumberland County, a fire
occurred in the early morning hours that subsequently led to the
arrest and prosecution of [Adkins] on charges of [a]rson
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3301(a)(1)(i).
2
18 Pa.C.S. § 3301(c)(1).
3
18 Pa.C.S. § 3304(a)(1).
J-S94015-16
[e]ndangering [p]ersons, [a]rson [e]ndangering [p]roperty, and
[c]riminal [m]ischief that involved the property known as 116
Shippensburg Mobile Estate, Shippensburg Township, owned by
Cheryl Barrick. Ms. Barrick was or had been the inamorata of
[Adkins] and was just one of many of [Adkins’] perceived
paramours. On the evening of March 16, Ms. Barrick had texted
her male neighbor [with whom Ms. Barrick also had a
relationship] to advise him to the effect that there [was]
somebody going by [his] house that look[ed] suspicious.
On the evening of March 16, 2013, [Adkins] was at a bar with
the adult son (Terrence) of one of his paramours, one [with]
whom he also had a child, and Terrence’s girlfriend (Kady), who
essentially was the designated driver for the evening. At the
conclusion of their night of drinking, [Adkins] instructed Kady to
drive her now[-]highly[-]intoxicated boyfriend Terrence and
himself to the Shippensburg Mobile Estates. [Adkins] directed
her to drive specifically to the Barrick property at which time he
got out of the vehicle and disappeared behind the mobile home.
[Adkins] shortly thereafter reappeared in a hurry to get away
while Kady was attending to her retching boyfriend. Kady drove
away but prior to exiting the mobile home park, [Adkins]
directed her to stop and he turned and looked back at the
Barrick residence, waited and then instructed her to leave.
[Adkins] directed Kady to drive all of them to another
paramour’s home, Kathy, which Kady did and is where Kady
spent the remainder of the early morning hours tending to
Terrence. Kady later asked [Adkins] about the evening and was
specifically directed by [Adkins] that they were not together,
[and that] nothing happened.
Kathy, upon receiving the phone call from [Adkins] that he,
along with Kady and Terrence, were on their way to her
residence, and not wanting confrontation, had her then[-]
companion, David vacate the residence. David did so but stayed
nearby and witnessed the outside interaction. Kathy described
[Adkins’] appearance and odors to the jury as well as his
admission that he was in trouble for [doing] something bad to
the Barrick[s’] residence.
A Shippensburg Mobile Estate resident, Terry Smith, who was
out allowing his dog to relieve itself, witnessed the flames
coming from the mobile home and called 911. Mr. Smith,
knowing that Ms. Barrick had young children and fearing that
they may still be inside the mobile home, attempted a rescue
-2-
J-S94015-16
but found no one inside the burning mobile home. Ms. Barrick
had gone to the home of her cousin who lived down the road.
Ms. Barrick had warned another resident of the mobile home
park that someone was watching the home and that this other
resident should be on notice. The other resident was a male
with whom Ms. Barrick was also involved in relations.
The fire investigation detailed the origin of the fire to be in Ms.
Barrick’s bedroom, specifically at the mattress and box spring
where a kerosene lantern was found in the remnants of the bed
set. Further, the investigation revealed the nature and location
of the fire origin and deemed it arson, the details of the
investigation, and the response of firefighters on the scene. In
addition to the fire investigation, a forensic analyst detailed the
usage of a cell phone, known to belong to [Adkins], on March 16
and 17, 2015, together with its corresponding locations in the
area of the Shippensburg Mobile Estates. A fire expert was
called by defense; the expert could not definitively rule out arson
but challenged the Commonwealth forensic collection techniques
and opined that more investigation was required to deem this an
intentionally set fire.
Trial Court Opinion, 12/28/15, at 2-4.
A jury trial was held beginning on December 1, 2015, after which
Adkins was found guilty of the aforementioned charges on December 5,
2015. The court sentenced Adkins on February 24, 2015, to an aggregate
sentence of 7 to 22 years’ incarceration. Adkins filed timely post-sentence
motions seeking an arrest of judgment, a new trial, a modification of
sentence, and to merge his sentence for arson endangering property with
the sentence for arson endangering persons, all of which were denied on
December 28, 2015.
On January 27, 2016, Adkins filed a timely notice of appeal. The court
ordered him to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), which Adkins filed on March 18, 2016,
-3-
J-S94015-16
following two extensions of time. On appeal, Adkins raises the following
issues for our review:
1. Whether the trial court abused its discretion and misapplied
the law when it failed to grant [Adkins’] motion for arrest of
judgment because the Commonwealth failed to establish a
corpus delecti for the arson charges where the evidence showed
that the cause of the fire was equally consistent with both
accidental and criminal conduct?
2. Whether the trial court abused its discretion when it allowed
the Commonwealth to introduce evidence related to separate
attempted arson charges against [Adkins], when those charges,
upon motion from the Commonwealth, were severed into a
separate trial?
Brief for Appellant, at 7.
Adkins first argues that the Commonwealth failed to establish a corpus
delecti for the crime of arson, and therefore, the trial court improperly
admitted incriminating statements made by Adkins. As this Court has
summarized:
The corpus delecti rule is an evidentiary one. On a challenge to
a trial court’s evidentiary ruling, our standard of review is one of
deference. The admissibility of evidence is solely within the
discretion of the trial court and will be reversed only if the trial
court has abused its discretion. An abuse of discretion is not
merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will
or partiality, as shown by the evidence of record.
Pennsylvania law precludes the admissibility of a confession
absent proof of the corpus delecti, literally the body of a crime.
However, the rule is not a condition precedent to the
admissibility of the statements of an accused. Rather, the rule
seeks to ensure that the Commonwealth has established the
occurrence of a crime before introducing the statements or
confessions of the accused to demonstrate that the accused
-4-
J-S94015-16
committed the crime. The rule was adopted to avoid the
injustice of a conviction where no crime exists.
Only inculpatory statements fall within the scope of the corpus
delecti rule. Before such a statement may be admitted into
evidence, the Commonwealth must establish: 1) a loss has
occurred and 2) the loss occurred as a result of criminal activity.
Only then may the Commonwealth introduce a statement to
show that the defendant is responsible for the loss. For the
purpose of admission, the corpus delecti may be established by a
preponderance of the evidence. Moreover, the Commonwealth
may establish the corpus delecti with circumstantial evidence.
Commonwealth v. Herb, 852 A.2d 356, 362-63 (Pa. Super. 2004)
(quotation marks and citations omitted). Importantly, “the order of proof is
a matter within the realm of (the trial judge’s) judicial discretion which will
not be interfered with in the absence of an abuse thereof.”
Commonwealth v. Smallwood, 442 A.2d 222, 225 (Pa. Super. 1982)
(emphasis added).
As an initial matter, we note that the Commonwealth argues that
Adkins waived the corpus delecti issue by failing to raise the issue in the trial
court. See Pa.R.A.P. 302 (“[I]ssues not raised in the lower court are waived
and cannot be raised for the first time on appeal.”). In Commonwealth v.
Chambliss, 847 A.2d 115 (Pa. Super. 2004), a defendant first
acknowledged the existence of a corpus delecti issue after both the defense
and Commonwealth rested their cases. The trial court ruled that the
objection was untimely, and this Court affirmed, stating: “[a]s Appellant did
not raise any objection to the Commonwealth’s admission of this evidence
during the Commonwealth’s presentation of this evidence, we do not find
that Appellant has properly preserved a challenge to the admissibility of the
-5-
J-S94015-16
confession.” Id. at 121. See Pa.R.E. 103 (appellant may not predicate
claim of error on ruling that admits evidence unless timely objection, motion
to strike or motion in limine appears on record and states specific ground of
objection). Our review of the record shows that Adkins never moved to
suppress the statements prior to trial on the basis of corpus delecti, and he
failed to object to the admission of his statements at trial. Rather, Adkins
first raised the corpus delecti issue in a post-sentence motion. Accordingly,
the corpus delecti issue has been waived.
Even if Adkins had properly preserved a corpus delecti objection, the
claim is without merit because the Commonwealth established the corpus
delecti of arson. Adkins correctly states, “[t]o establish the corpus delecti of
arson, the Commonwealth needed to show (1) that a fire occurred, and (2)
that it had an incendiary origin.” Commonwealth v. Moyer, 419 A.2d 717,
719 (Pa. Super. 1980) (citation omitted). Inculpatory statements are
properly admitted if the Commonwealth demonstrates by a preponderance
of the evidence that the crime in fact occurred. Adkins specifically contends
that the Commonwealth failed to prove that the fire that engulfed Ms.
Barrick’s mobile home was of an incendiary origin before introducing
evidence of Adkins’ inculpatory statements.
Instantly, the Commonwealth offered evidence that the fire at Ms.
Barrick’s home was of an incendiary origin through multiple lay witnesses
and expert witnesses. Eyewitnesses Kady Descheemaeker and Terrence
Wolf placed Adkins at the scene of the crime with his ill-will and motive
-6-
J-S94015-16
absent his inculpatory statements. Fire Chief Clyde Tinner ruled the fire
“intentional” at the time of his investigation and before ever hearing of
Adkins. He also ruled out an “accidental” or “electrical” fire. Dennis
Woodring, a fire and explosives investigator, testified that his K-9 alerted
him to liquid accelerants four times in the area of the bed where it was
determined the fire originated. Trooper Bradley Dunham, the investigating
fire marshal, testified that the fire was caused by direct flame contact on the
bed, but not necessarily a flame from the oil lamp. He also ruled out
unintentional and/or accidental causes such as smoking, candle use, or
electrical issues.
Adkins relies on these investigations and the fact that lab testing was
unable to identify the flammable liquids detected by the K-9 in arguing that
the fire was not intentionally set. However, Jessica Mulhollem, the forensic
scientist who conducted the testing, testified that it is not uncommon for K-
9s to detect liquids consumed by a fire to the point where they cannot be
detected by the lab.
It is important to note that Adkins also offered a qualified expert
witness who testified that he could not determine whether the cause of the
fire was accidental or intentional based on photos of the scene and the lab
reports. However, with regard to the admissibility of evidence, the corpus
delecti rule only requires that the Commonwealth prove that a crime actually
occurred by a preponderance of the evidence, or more simply, that the
Commonwealth prove that “the evidence is more consistent with a crime
-7-
J-S94015-16
than an accident . . . to admit the statements.” Commonwealth v. Reyes,
681 A.2d 724, 729 (Pa. 1996). Because the Commonwealth proved by a
preponderance of the evidence that the crime of arson occurred, the trial did
not abuse its discretion when it admitted Adkins’ inculpatory statements.
Id. Therefore, Adkins’ argument fails.
Adkins’ second claim is that the trial court abused its discretion when it
allowed the Commonwealth to introduce evidence related to a separate
attempted arson charge at a neighbor’s home. As our Supreme Court has
summarized:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations
omitted).
Specifically, Adkins asserts that the trial court erred by admitting into
evidence testimony of Ms. Barrick’s warning to her neighbor about
impending danger and testimony from investigators about the evidence they
collected at the scene from an earlier attempted arson at that neighbor’s
home. The Commonwealth introduced evidence of the separate attempted
arson charge in order to show Adkins’ motive for burning down Ms. Barrick’s
-8-
J-S94015-16
home. The separate attempted arson occurred just hours prior to the fire at
Ms. Barrick’s home, and the victim of the prior act was in a relationship with
Ms. Barrick, sparking Adkins’ anger at the pair. This is further corroborated
by the fact that the fire in Ms. Barrick’s home originated on her bed. As the
trial judge summarized: “how much more symbolic can one get than to burn
the bed of one’s inamorata for perceived infidelity.” Trial Court Opinion,
5/6/16, at 5. Lastly, the two crime scenes are so close to one another that
the two victims’ backyards touch. N.T. Trial, 12/2/14, at 7.
In consideration of Adkins’ timely objection, the trial judge limited the
evidence to testimony only and barred photographs of the attempted arson
scene from being admitted into evidence, explicitly explaining in a sidebar:
“I am trying not to distract the jury from anything.” N.T. Trial, 12/3/14, at
7. Additionally, the trial judge gave the following instructions to the jury
regarding motive:
Motive for the crime of arson and criminal mischief is not an
element of either offense. In filtering the evidence for you, you
may have heard evidence of motive. The Commonwealth does
not have to prove motive. However, you may consider evidence
of motive or lack thereof.
Knowledge of human nature tells us that an ordinary person is
more likely to commit a crime if he had a motive than if he has
none. You should weigh and consider the evidence tending to
show motive or absence thereof with all the other evidence in
deciding whether the Defendant is guilty or not guilty. It is
entirely up to you to determine what weight should be given the
evidence concerning motive.
N.T. Trial 12/5/14, at 69.
-9-
J-S94015-16
As made clear by the record, the evidence of the attempted arson was
limited by the trial judge and that which was introduced was simply to show
Adkins’ motive. We, therefore, conclude that the probative value of the
evidence outweighed any potential for prejudice, and the trial court did not
abuse its discretion in admitting the evidence. Sherwood, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
- 10 -