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COMMONWEALTH PENNSYLVANIA v. TODD CHARLES DIAMOND (05/23/88)

submitted: May 23, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
TODD CHARLES DIAMOND, APPELLANT



Appeal from the Judgment of Sentence of September 10, 1986 in the Court of Common Pleas of Lebanon County, Criminal Division, at Nos. 324, 1892 and 885, 1983.

COUNSEL

Thomas K. Wynne, Lebanon, for appellant.

Thomas S. Long, Assistant District Attorney, Lebanon, for Com., appellee.

McEwen, Hoffman and Hester, JJ.

Author: Hoffman

[ 376 Pa. Super. Page 487]

This appeal is from the judgment of sentence for risking a catastrophe, 18 Pa.C.S.A. § 3302(b). Appellant contends that (1) the evidence was insufficient to support the verdict because the Commonwealth did not prove (a) that appellant was the person who started the fire, and (b) that appellant's conduct "was capable of causing injury or damage so widespread as to constitute an extraordinary disaster"; (2) the court erroneously instructed the jury regarding the elements of the crime of risking a catastrophe; (3) the court erred in refusing to suppress statements that appellant made to the officer who investigated the fire; and (4) the court erred in failing to allow credit towards appellant's sentence for time he had already served. For the reasons that follow, we vacate the judgment of sentence and remand the case for proceedings consistent with this Opinion.

On February 24, 1982, a fire was discovered in a cell in the Trusty section of the Lebanon County Prison. Appellant, who was incarcerated in the prison at the time of the fire, was later charged with risking a catastrophe. On July 21, 1982, appellant pleaded guilty to the charge. Appellant was thereafter sentenced to an eleven-and-one-half-to-twenty-three-month term of imprisonment, to be served concurrently with the term he was then serving. No appeal was taken from this judgment of sentence.

On December 13, 1984, appellant filed a petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S.A. §§ 9541-9551, seeking, inter alia, to withdraw his guilty plea. On October 1, 1985, following a hearing and the filing of briefs, the PCHA court issued a Memorandum and Order granting appellant leave to withdraw his guilty plea, and the case was later listed for trial. On January 6, 1986, a hearing

[ 376 Pa. Super. Page 488]

    was held on appellant's motion to suppress statements that he had made to the officer who investigated the fire. The motion was denied, and, following a jury trial, appellant was found guilty of risking a catastrophe. Post-trial motions were filed and denied, and on September 10, 1986 appellant was sentenced to a five-to-twelve-month term of imprisonment, to be computed from that date and to run concurrently with any other sentence appellant was serving. A timely Motion for Reconsideration of Sentence Credit was filed and denied, and appellant then filed a timely notice of appeal with this Court.

On January 14, 1987, we dismissed the appeal because appellant failed to file a brief. Appellant then filed his second petition under the PCHA, alleging that trial counsel was ineffective for failing to file an appellate brief. On March 26, 1987, the PCHA court granted appellant's petition for relief, and he was given thirty days to file a notice of appeal nunc pro tunc. This timely appeal followed.

Appellant first contends that the evidence was insufficient to support the conviction for risking a catastrophe*fn1 because the Commonwealth did not prove (a) that appellant was the person who started the fire, and (b) that appellant's conduct "was capable of causing injury or damage so widespread as to constitute an extraordinary disaster." Brief for Appellant at 12. After carefully reviewing the record and the briefs submitted by the parties, we conclude that the lower court has properly disposed of these contentions in its opinion.

Appellant next contends that the trial court erroneously instructed the jury regarding the elements of the crime of risking a ...


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