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COMMONWEALTH PENNSYLVANIA v. JAMES H. DYKES (04/25/88)

filed: April 25, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES H. DYKES, APPELLANT



Appeal from the judgment of Sentence of July 14, 1987, in the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 3632/36 JULY TERM 1984.

COUNSEL

Irene H. Cotton, Philadelphia, for appellant.

Peter J. Ainsworth, Assistant District Attorney, Philadelphia, for Com., appellee.

Tamilia, Hoffman and Hester, JJ. Hoffman, J., concurs in the result.

Author: Hester

[ 373 Pa. Super. Page 260]

This is a direct appeal from a judgment of sentence. Appellant was convicted by a jury of involuntary manslaughter, risking a catastrophe, recklessly endangering another person, and arson endangering persons. He was sentenced to a total of sixteen to thirty-two years imprisonment. Appellant complains of several trial court errors, ineffective assistance of counsel and improper sentencing. As we find appellant's claims to be meritless, we affirm.

Following appellant's conviction on January 31, 1986, he filed timely post-trial motions. On February 18, 1986, appellant filed a pro se motion for a new trial along with a motion for withdrawal of counsel in which he alleged trial counsel's ineffectiveness. Appellant's counsel was permitted to withdraw and present counsel was appointed on May 27, 1986. Thereafter, supplemental post-trial motions were

[ 373 Pa. Super. Page 261]

    filed. On February 17, 1987, the trial court held a hearing on appellant's ineffective assistance claims. The trial court denied those claims as well as his post-trial motions and imposed sentence on July 14, 1987. Appellant filed a motion to modify his sentence on July 24, 1987, and was denied relief on September 1, 1987. This timely appeal followed.

The evidence established that on June 13, 1984, shortly after 5:00 a.m., appellant set fire to a brick rowhouse. The Philadelphia Fire Department responded, and while they were fighting the fire, the first and second floor of the structure collapsed trapping several firemen in the basement. Due to the conflagration and the building's collapse, one of the fire-fighters, Joseph Konrad, was killed. Prior to this fire,*fn1 the structure, located next door to appellant's home, had been vacant and was in disrepair for some time. Since people could enter the building freely, it was frequently used as a "hang-out" for young people. Due to appellant's disgust with the condition and the use of the property located next door, he suggested to his friend, Michael Glinka, that they burn the place. The two men retrieved a red can of what they believed was combustible fluid*fn2 from appellant's basement to use in setting the fire. As appellant climbed the fence bordering the properties, Glinka handed him the can. Shortly thereafter, appellant returned to his home and told Glinka that the fluid in the can would not burn, but that he had used paper to set mattresses aflame. Within moments of appellant's return, the structure was ablaze.

Appellant raises nine allegations for our review: 1) whether the evidence was sufficient to support the verdict for involuntary manslaughter; 2) whether the evidence was sufficient to support the verdict for arson endangering persons; 3) whether the jury charge regarding accomplice testimony was adequate; 4) whether the standard charge for reasonable doubt is erroneous and prejudicial; 5) whether the jury charge was inadequate in failing to discuss

[ 373 Pa. Super. Page 262]

"direct result" as used in the involuntary manslaughter statute; 6) whether trial counsel was ineffective for failing to adequately attack the Commonwealth's witness' credibility; 7) whether his aggregate sentence is illegal; 8) whether the sentence is illegal or an abuse of discretion since the reasons stated are inadequate to explain the gross departure from the sentencing guidelines; and 9) whether the trial court abused its discretion by imposing an unduly harsh sentence.

Appellant's first two arguments raise a sufficiency of the evidence question. Our standard for reviewing the sufficiency of the evidence is well established.

[W]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt . . . . The Commonwealth may sustain its burden 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 trial record must be evaluated and all evidence actually received must be considered . . . Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted.)

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

Specifically, appellant alleges that the evidence was insufficient to support his conviction for involuntary manslaughter since the Commonwealth failed to prove that his act of setting the structure on fire caused Joseph Konrad's death. Although appellant concedes that the Commonwealth established that he set fire to the abandoned structure, he now argues that someone else, who reported that a woman might be ...


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