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COMMONWEALTH PENNSYLVANIA v. DONALD RAY BLOUGH (01/20/87)

submitted: January 20, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD RAY BLOUGH, APPELLANT



Appeal from the Judgment of Sentence entered February 24, 1986 in the Mercer County Court of Common Pleas, Criminal Division, No. 153 Criminal 1985.

COUNSEL

Thomas Dobson, Mercer, for appellant.

James P. Epstein, District Attorney, Sharon, for Com.

Beck, Kelly and Hoffman, JJ. Hoffman, J., concurred in the result of the Majority Opinion.

Author: Kelly

[ 369 Pa. Super. Page 231]

Defendant, Donald Blough, appeals nunc pro tunc*fn1 from the judgment of sentence imposed upon convictions of arson and related offenses. On appeal, appellant raises two issues: (1) whether the evidence presented was insufficient to sustain the verdict; and (2) whether trial counsel was ineffective in failing to object, on the grounds of spousal immunity, to the testimony of a Commonwealth witness regarding a statement made by appellant's wife.*fn2 We find that the issues raised on appeal are without merit. We therefore affirm.

[ 369 Pa. Super. Page 232]

Following a jury trial, appellant was found guilty of arson by recklessly placing firefighters in danger of death or bodily injury,*fn3 arson committed with the purpose of destroying or damaging an inhabited building or occupied structure of another,*fn4 arson with intent of destroying or damaging property in order to collect insurance proceeds,*fn5 arson by intentionally starting a fire and thereby recklessly placing an inhabited building or occupied structure of another in danger of damage or destruction,*fn6 risking a catastrophe,*fn7 and criminal mischief.*fn8 Post-trial motions were denied, and the court sentenced appellant to three (3) to six (6) years for arson by recklessly placing firefighters in danger of death or potential injury, and six (6) to twelve (12) months for criminal mischief, to be served concurrently. Sentence was not imposed upon the remaining offenses.

I.

Appellant first contends that the Commonwealth presented insufficient evidence to support the convictions. In evaluating this contention, "we view the evidence in the light most favorable to the Commonwealth as verdict winner and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt." Commonwealth v. Griffin, 511 Pa. 553, 559, 515 A.2d 865, 867 (1986); Commonwealth v. Stoyko, 504 Pa. 455, 462, 475 A.2d 714, 718 (1984). Viewed in that light, the record discloses the following.

Prior to January 1985, the appellant and his wife resided in a Sharon, Pennsylvania home which was owned by appellant's wife and her sister. The home was insured against

[ 369 Pa. Super. Page 233]

    fire loss. In January 1985, the gas was disconnected, causing the water pipes to freeze. Appellant and his wife moved into a friend's home temporarily. Appellant hired a neighbor to thaw the pipes and asked him to watch over the home while it was vacant. While working on the home, the neighbor discovered that one of the pipes had broken, causing water damage to the ceiling. The neighbor testified that on January 18, upon viewing the damage and learning that the loss would not be covered by insurance, appellant's wife stated that she would not stay in the house any longer.

On the evening of January 18, between 6:30 and 7:00 p.m., the neighbor received a phone call from appellant, who told him that he need not keep an eye on the house any longer. Commonwealth witness Linda Crocker, who lived in a home located across an alley from appellant's residence, testified that at about 7:00 p.m. she heard the appellant's side door slam. Looking out the window, she saw appellant close the screen door and walk rapidly to his car, which was parked in the street. Appellant got into his car and drove away at a high rate of speed. Ten to fifteen minutes later, Linda Crocker learned from a neighbor that the appellant's house was on fire. Upon arriving, firefighters found a very intense fire in the kitchen; air packs were required because of the dense smoke. Using water hoses, the firefighters put the fire out within a short time after arriving.

As appellant's next-door neighbor Linda Crocker stood viewing the scene, the appellant arrived. She said to appellant, "You were just here." He replied, "Yes, but everything was all right when I left." The Commonwealth produced Detective Frank White; he testified that, during an interview on January 19, 1985, appellant stated that on the night of the fire he remained at a bar from 5:35 p.m. until 7:35 p.m., when he received a call from his wife informing him of the fire.*fn9 The Commonwealth also called Thomas Myers, a friend of appellant's, who recalled that he accompanied appellant to two bars, between 4:30 p.m. and

[ 369 Pa. Super. Page 234]

    approximately 6:00 p.m. Appellant left the second bar at about 6:00 p.m. and returned about forty-five minutes later. He then received a call informing him of the fire.

On January 19, the day after the fire, Chief Paul McSherry of the Sharon Fire Department and Fire Marshall Goeltz of the Heritage Fire Department examined the scene to determine the cause of the fire. Chief McSherry testified that the kitchen was completely gutted, with a hole burned through the kitchen floor between the stove and kitchen sink. The chief testified that fire normally travels upward, toward the ceiling, leaving the floor intact. In this case however, the floor and baseboard were charred; after cleaning the debris from the floor, the chief was able to see a circular pattern, consistent with a flammable liquid being poured and burned. The chief checked all the electrical outlets in the kitchen and found them to be intact. A partially filled container of flammable liquid was discovered on the back porch. In the chief's opinion, "the fire could not have been accidental. It had to be . . . ignited by some unknown person." (N.T. 6/13/85 at 135).

Appellant argues that the evidence against him is only circumstantial in nature. He points out that his companion at the bar, Thomas Myers, testified that appellant left the bar from 6:00 to 6:45 p.m., while Linda Crocker stated that she saw appellant leaving the home at about 7:00 p.m. According to appellant, this inconsistency results in a verdict based upon conjecture. Appellant argues further:

(Appellant's brief at 10).

While a criminal conviction may not be based upon mere surmise or conjecture, the Commonwealth's burden to present sufficient evidence to prove every element of the

[ 369 Pa. Super. Page 235]

    crime beyond a reasonable doubt may be sustained based on wholly circumstantial evidence. Commonwealth v. Potter, 350 Pa. Super. 61, 504 A.2d 243 (1986); Commonwealth v. Shirey, 343 Pa. Super. 189, 494 A.2d 420 (1985). To establish complicity, mere presence at the scene of a crime, like flight from the scene, without more, is not sufficient. Commonwealth v. Rosetti, 322 Pa. Super. 536, 541, 469 A.2d 1121, 1123 (1983). However, those factors combined, along with other direct or circumstantial evidence may provide a sufficient basis for a conviction. See Commonwealth v. Rosetti, supra; Commonwealth v. Wilson, 294 Pa. Super. 101, 439 A.2d 770 (1982).

In the instant case, the Commonwealth established that appellant had a motive for setting fire to the house: money was needed to make major repairs within the home. Further, shortly before the fire was discovered, appellant telephoned a friend whom he had asked to watch the home, and told him he need not keep an eye on it any longer. Appellant was seen leaving the house and speeding away minutes before the fire was discovered.*fn10 Appellant reappeared at the scene, admitting that he had been present a short time before; yet in a statement made to an investigating officer, he denied that he had been present at the house before the fire occurred. A jury could properly infer a consciousness of guilt from this false statement to authorities. Commonwealth v. Hart, 403 Pa. 652, 170 A.2d 850 (1961), cert. denied 368 U.S. 881, 82 S.Ct. 130, 7 L.Ed.2d 81 (1961); Commonwealth v. Snyder, 335 Pa. Super. 19, 483 A.2d 933 (1984). Considering all the testimony ...


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