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COMMONWEALTH PENNSYLVANIA v. RICHARD D. SIMKINS (03/26/82)

filed: March 26, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD D. SIMKINS, APPELLANT



No. 160 March Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, Nos. 348 CA 1977.

COUNSEL

John R. Gailey, Jr., York, for appellant.

Sheryl Ann Dorney, Assistant District Attorney, York, submitted a brief on behalf of Commonwealth, appellee.

Price, Wieand and Lipez, JJ.

Author: Wieand

[ 297 Pa. Super. Page 261]

Richard D. Simkins was convicted by a jury of risking a catastrophe*fn1 and possession of methamphetamine, a violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn2 Post-verdict motions were denied, and Simkins was sentenced to concurrent terms of imprisonment for not less than three nor more than twenty-three months. On appeal, he contends (1) that the evidence was insufficient to sustain the conviction for risking a catastrophe; (2) that the trial court erred in granting a Commonwealth request to extend the time for commencing trial; (3) that the trial court erred in refusing to suppress the Commonwealth's evidence; (4) that the court erred in refusing to sever the two charges for purpose of trial; and (5) that the trial judge erred in allowing evidence which showed the presence in appellant's rented house of substances used in the manufacture of amphetamines. We agree that the evidence did not establish the offense of risking a catastrophe; and, therefore, we set aside and vacate the judgment of sentence for that offense. Appellant's remaining assignments of error lack merit, however, and the judgment of sentence for possessing amphetamines will be affirmed.

On January 12, 1977, a fire occurred at premises leased by appellant in rural York County. Firemen quickly responded, entered the dwelling, and put out the fire. Inside the dwelling they found evidence that the premises had been used for the manufacture of amphetamines. Included among various substances found on the premises were quantities of acetone, a volatile and highly flammable chemical. A fifty-five gallon drum of acetone, having a three inch opening stuffed with paper towels, was discovered in the basement, less than ten feet from an oil-fired heater. In fact, however, the fire had started at or near the sofa in the

[ 297 Pa. Super. Page 262]

    first floor living room and had been extinguished before igniting the acetone or any other chemical substance kept in the house. The Commonwealth contended that appellant had risked a catastrophe because of the manner in which the acetone had been stored on the property.

Risking a catastrophe is a crime which was unknown to the law of Pennsylvania prior to the passage of the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973, 18 Pa.C.S.A. § 3302.*fn3 The offense is defined in 18 Pa.C.S.A. § 3302(b) as a felony of the third degree, if a person "recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means listed in subsection (a) of this section." (Emphasis added.) The offense of risking a catastrophe, it will be observed, can occur only in the employment of fire, explosives or other dangerous means listed in subsection (a).

The forces or substances identified by 18 Pa.C.S.A. § 3302(a), which defines the offense of causing a catastrophe, include: "explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material . . . or by any other means of causing potentially widespread injury or damage . . . ."

Acetone is not one of the forces or substances specifically enumerated by the statute. Therefore, if it is to be a substance whose handling can subject an actor to criminal liability for risking a catastrophe, it must be because the actor's "improper handling [of the substance] is capable of causing widespread devastation." Commonwealth v. Hughes, 468 Pa. 502, 512, 364 A.2d 306, 311 (1976) (footnote omitted) (emphasis supplied).

"The 'risk' proscribed by this legislation is the use of dangerous means by one who 'consciously disregards a substantial and ...


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