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July 25, 1979


No. 1180 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Somerset County at No. 106 Criminal 1977, Criminal Division.

Before Price, Hester, and Montgomery, JJ. Price, J., concurred in the result.

Per Curiam:

Judgment of sentence affirmed based on the lower court opinion of Judge Norman A. Shaulis.

PRICE, J., concurred in the result.



No. 106 Criminal 1977

For Commonwealth: Frederick F. Coffroth, Esq. District Attorney

For Defendant: Wilbert H. Beachy, III, Esq. Public Defender

Before: COFFROTH, P.J. and SHAULIS, J.

Hearing: April, 1978

At a non-jury trial (Shaulis, J.) on January 6, 1978, defendant Curtis Gene Valentine was found guilty of Arson in violation of Crimes Code § 3301(a), Risking Catastrophe in violation of § 3302(b), and a summary offense of Criminal Mischief in violation of § 3304. See the Crimes Code, Act No. 334 of December 6, 1972, P.L. 1482; 18 P.C.S. § 101 et seq. Basically, the evidence presented showed that defendant had fabricated and detonated an explosive device which damaged a county bridge in Quemahoning Township on March 27, 1977. The Court on banc now has for consideration defense motions for new trial and in arrest of judgment.

We will discuss the grounds asserted in each of the five paragraphs of the motions. The first two paragraphs to be discussed raise procedural points, which had been decided against defendant when initially raised before trial. The remaining three paragraphs involve the substantive definitions of the crimes for which defendant has been convicted.

A. Compliance with Local Rules of Court:

Defense counsel argues that this case was listed for trial in then August 1977 term of court in violation of local rules of court. A short review of these rules and the facts of the case will be necessary for our resolution of this point.

Under the local rules in effect at the time, the District Attorney was responsible for compiling a list of untried cases shortly before the start of each scheduled term of court. This list was called by the Court en banc at a General Arraignment Day, the first Monday of the trial term. There was a second call of undisposed cases at a deferred or Special Arraignment Day, the third Thursday of the trial term. The final schedule of cases to be actually tried, trials beginning the fourth Monday of the term, was developed from cases left after these two calls of the list.

In order to implement this procedure, local Rule 4-101 provided that the District Attorney must give defendant notice at least 10 days before arraignment and local Rule 4-201 provided that either the District Attorney or defendant could request the Court to hold arraignment at some time other than the General Arraignment Day.*fn1 It is these two Rules in Particular which defendant asserts were not followed here.

This case was not listed on the original trial list for the August Term issued before the August 1, 1977 General Arraignment Day. Sometime after the Information was filed on August 5, the District Attorney issued a supplemental trial list on which this case did appear. On August 12, defense counsel filed a "Motion to Strike from the Trial Schedule for the August Term, Trials Commencing August 22," because of the absence of the case from the original list. Argument was heard on this motion on the Special Arraignment Day, August 18; at that time, while preserving his rights under the motion, defendant did appear and was arraigned. On August 22, at the final call of the list, the Court (Shaulis, J.) dismissed defendant's motion to strike, and the parties agreed to schedule a non-jury trial anytime before September 28, the 180th day from the filing of the complaint.

We have reconsidered defense counsel's arguments and still find then unpersuasive. The purpose of Chapter 4 of the Rules of Court was to develop and maintain an orderly system for conducting arraignment and arriving at a meaningful trial schedule. The rules emphasized notice to a defendant that his case would be called and that he must appear to be arraigned. While the record does not disclose when defendant received notification that his case was on the list, it must have been sometime between August 5 and August 12. If defendant received notice before August 8, he would have received notice at least 10 days before being told to appear for arraignment at the August 18 Special Arraignment Day, and there would be no violation of Rule 4-101.

Even if defendant did not received 10 days notice, we find no basis for reversal here. While we cannot condone disregard of our Rules of Court, our concern when a rule is alleged to have been violated must focus upon the prejudice to the parties. We find that defendant suffered no prejudice as a result of the procedure employed in this case. See generally, 10 P.L.E. Courts § 56. Accordingly, we conclude there is no merit in paragraph 5 of the post-trial motions.

B. extension of Time for Commencement of Trial:

Defense counsel argues that this case must be dismissed because defendant was not tried within 180 days of the filing of the complaint as required by Pa. R. Crim. P. 1100(a)(2). We hold there is no violation of Rule 1100 as two extensions of time were properly granted to the Commonwealth under Rule 1100(c).

After a hearing on September 15, 1977, the Court (Cofforth, P.J.) granted an extension "until November 4, 1977, the last day of the next term;" and after a hearing on November 2, 1977, the Court (Shaulis, J.) granted an extension "until January 16, 1978, the last day of the next term." All of the procedural requirements of Rule 1100(c) were met for these extensions: the applications to extend were timely filed, there was a full hearing before each extension was granted, and the extensions were for a specific period of time. See: Com. v. Shelton, 469 Pa. 8 (1976); Com. v. Mayfiled, 469 Pa. 214 (1976). The real issue created by these extensions is whether or not the Commonwealth was unable to proceed despite dur diligence.

At the two hearings on the applications to extend the Commonwealth presented extensive testimony, subject to defense cross-examination, concerning its inability to locate an eyewitness, a juvenile who was involved in this incident with defendant. We have been able to find only one case involving an extension under Rule 1100(c) where the Commonwealth cannot locate a witness it considers essential to the prosecution. See, Com. v. Laughman, 75 D & C 2d 7 (Adams Co. 1975), where the extension was granted; the opinion does not reveal who the witness was or why he was unavailable.

We need not repeat any of the testimony from the hearings in this case. The testimony satisfied us that the absence of the juvenile witness was not the result of any lack of diligence by the Commonwealth. It has long been recognized that a continuance in order to secure a material witness is within the discretion of the court. See, e.g.: Com. v. Scott, 469 Pa. 258 (1976); Com.v. Smith, 442 Pa. 265 (1971). This principle is applicable here, and we conclude there is no merit in paragraph 4 of the post-trial motions.

C. Arson:

At common law, arson was the willful burning of another's dwelling or related structure. 3 P.L.E. Arson & Burning, § 1; see also the repealed Penal Code of 1939, 18 P.S. §§ 4905-4909, 18 P.C.S. Appendix. Modern enactments broaden the offense to cover personal injury and damage to one's own property as well as property of another and further recognize that damage may be caused by explosives as well as fire. Model Penal Code, Comments to § 220.1 (Tent. Draft No. 11, 1966 pg. 34-35). Our Crimes Code follows this modern trend by creating an offense of arson for endangering persons in § 3301(a) and an offense for endangering property in § 3301(b).

Defendant here was found guilty of arson as defined in § 3301(a). This section reads:

"A person commits a felony of the first degree if he intentionally starts of fire or causes an explosion, whether on his own property or on that of another, and thereby recklessly places another person in danger of death or bodily injury." [Emphasis added.]

Defense counsel argues that the conviction of arson is against the weight and sufficiency of the evidence in that the element of "recklessness" has not been shown*fn2 and that no other person was placed in danger.

In looking at the language of $3301(a), defense counsel stresses the words "places another person." The argument is that the use of the indicative mood "places" here in $3301(a), when compared with the subjunctive mood "places or may place" in other sections such as $2705 (recklessly endangering another person) means that there must be actual danger rather than potential danger to support an arson conviction. This argument ignores the power of a fact-finder to conclude that there was actual danger here and that it was only fortuitous that no person was actually killed or injured.

A review of the evidence here shows that defendant and his co-actor (the previously referred-to juvenile witness, who was subject to a delinquency petition under the Juvenile Act for his role in the incident) were approximately twenty feet from the device when it exploded. We do not accept defense counsel's proposition that no one was placed in danger; the evidence supports the fact-finder's conclusion that the juvenile, twenty feet from an explosive of unknown potential, was in fact placed in danger as prohibited by § 3301(a).*fn3

Here we have an 18 year old defendant, a high school junior at the time, who obtained some unknown explosive substance and constructed a bomb. He had no knowledge of how powerful the blast would be; only a few fragments of the shell of the "bomb" were recovered. As stated above, a fact-finder could easily conclude that defendant and the juvenile were lucky to escape uninjured.*fn4 We hold defendant's actions were reckless; his actions did constitute a "gross deviation from the standard of conduct that a reasonable person would observe in the situation" as defined by § 302(b)(3) and applied to § 3301(a). We conclude there is no error in the arson conviction as asserted in paragraph 1 of the post-trial motions.

D. Catastrophe:

Defense counsel also argues that the conviction of risking catastrophe is against the weight and sufficiency of the evidence in that the element of recklessness has not been shown. We will not separately analyze this element of culpability again here; what was said above regarding recklessness applies here as well.

Defense counsel raises two other points concerning risking catastrophe which we will discuss in depth here. First, defense counsel argues that there was no proof of catastrophe in the sense of widespread harm or injury; thus, we must attempt to define "catastrophe." Second, defense counsel argues that defendant was charged with Causing Catastrophe under § 3302(a) but found guilty of Risking Catastrophe under § 3302(b); thus, we must determine if Risking Catastrophe is a lesser included offense of Causing Catastrophe.

1) The only case involving a discussion of "catastrophe" of which we are aware is Com. v. Hugues, 468 Pa. 502 (1976), where the Court specifically held that the terms "risk" and "catastrophe" were sufficiently defined to overcome defendant's challenge to § 3302(b) as being unconstitutionally void for vagueness.

As we read Hughes, the Court did not intend to give an exhaustive definition of "catastrophe;" rather the Court held that it is possible to determine the type of actions which would constitute the crime of risking catastrophe even though § 3302(b) does not list any specific actions by name. In so doing, the Court engages in the purposive interpretation proposed by §§ 104 and 105 of the Crimes Code. The Court suggests that the statute is not vague when one considers the entire statute, rather than individual words.

The Court stated that:

"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." 468 Pa., at 513. Further the Court said:

"... (Construing) Section (b) in accordance with the fair import of its terms the word 'catastrophe' is intended to be synonymous with 'widespread injury or damage." 468 Pa., at 514.

As with the conflict between actual and potential danger we encountered above with arson, defense counsel here presents us with the choice of judging actions by hindsight instead of foresight. If we were to use hindsight, we must agree that there was no " extraordinary " disaster. The actual results of our defendant's act pale in comparison with those of the defendant in Hughes; Hughes was responsible for a conflagration in which two firemen were killed, 42 people were injured and 109 residents were evacuated from their homes -- Hughes, at 507. But this comparison does not mean that Valentine did not risk a catastrophe. Indeed, we wonder if the Court's use of the phrase "extraordinary" is misleading; are we to conclude that this choice of words in discussing catastrophe permits and actor to cause or risk an "ordinary" disaster? We think not.

The Court in Hughes stated that there is both a quantitative and qualitative distinction in the use of the word catastrophe. The Court suggested that just as fact-finders have been able to distinguish between simple assault and aggravated assault, the fact-finder will be able to discern conduct that creates a risk of catastrophe. 468 Pa. at 514.

Looking again at the facts of this case, the nearest house was approximately 200 yards from the bridge although the occupants were not home when the explosion occurred. There was evidence that the nearby creek is often used for swimming activity by local residents. The trial judge's view of the scene, requested by defendant showed that cars approaching the bridge could not be seen from defendant's position when he detonated the device. We hold that the fact-finder was justified in finding that the risk of injury or harm created by defendant was widespread.

Merely because defendant had the good fortune of actually causing less damage than he could have caused does not acquit him of the crime. We conclude there is no error in the risking catastrophe conviction as asserted in paragraph 1 of the post-trial motions.

2) It is well settled in Pennsylvania that a defendant may be found guilty of a lesser offense included within the crime charged. Com. v. Garcia, Pa. , 378 A.2d 1199, 1202 (1977) (citations omitted). He Pennsylvania Supreme Court analyzed the doctrine of lesser included offense at great length in two recent cases: Com. v. Polimeni, Pa. , 378 A.2d 1189 (1977) and Com. v. Garcia, Pa. , 378 A.2d 1199 (1977). In these two cases, the Court adopted the Model Penal Code test for leasser included offense. See: Garcia, 378 A.2d at 1205 and Polimeni, 378 A.2d at 1193,*fn5 .

Model Penal Code § 1.07(4) reads

"A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:

(a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or

(c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission."

Applying this Model Penal Code § 1.07(4) test to Risking Catastrophe and Causing Catastrophe, we hold that Risking Catastrophe under $330(b) is a lesser included offense of Causing Catastrophe under § 3302(a). This conclusion is fortified by statements of the Court in Com. v. Hughes, supra. There, the Court states that § 3302(a) purports to punish for the damage caused by the mishandling of dangerous forces while § 3302 (b) purports to punish for the exposure to harm. 468 Pa., at 508. Risking Catastrophe differs from Causing Catastrophe in that risking harm involves a less serious injury to the public interest than does causing the harm, see M.P.C. § 107(4)(c), supra. We conclude there is no merit to paragraph 2 of the post-trial motions.

E. Merger of Offenses:

The doctrine of merger raises essentially the same question as the doctrine of lesser included offenses. Com v. Ackerman, 239 Pa. Super. 187, 191, n.4 (1976). Merger recognizes that one should not be punished twice for the same act. The basic principle is that if one crime necessarily involves another, the two offenses merge; the test is whether all of the essential elements of the lesser offense are included in the greater. See Com. v. Whearty, 34 Som. L.J. 65, 79-80 (1977) and cases cited there.

As we noted earlier, the Arsor conviction here is based upon the endangering another person provision of $3301(a). The conviction for Risking Catastrophe here is not based upon the potential harm to defendant himself or the juvenile; it is based upon the risk or possibility of further harm to other persons in the area and damage to the bridge and surrounding property. Thus, we find that the essential elements of Risking Catastrophe are not based upon proof of the same facts as Arson, nor is it a crime based upon an injury to the same person, property, or public interest as arson. In this case, we hold that Risking Catastrophe does not merge into Arson.

We do find merit in paragraph 3 of the post-trial motions to the extent that the conviction for Criminal Mischief is based upon the damage to the bridge. Thus, we hold that Criminal Mischief does merge into Risking Catastrophe in this case.

F. Conclusion

After a thorough review of counsel's arguments and the law, we find no permit in defendant's motions for new trial and in arrest of judgment, with the exception that the summary offense of Criminal Mischief shall merge into the conviction for Risking Catastrophe. Defendant shall be sentenced for Arson under § 3301(a) and for Risking catastrophe under § 3302(b).

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