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[U] Commonwealth v. Owens

Superior Court of Pennsylvania

March 10, 2014



Appeal from the Judgment of Sentence of April 26, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No.: CP-40-CR-0003153-2011




Jody Wayne Owens ("Owens") appeals from his April 26, 2013 judgment of sentence. Owens' counsel has filed a petition for leave to withdraw as counsel and an "Anders/Santiago" brief.[1] After review, we grant counsel's petition and affirm the judgment of sentence.

On August 18, 2011, Owens' house was set on fire. Owens was charged with four counts of arson, reckless burning or exploding, and failure to prevent a catastrophe.[2] The third of the four arson counts and the reckless burning count were later withdrawn. A jury trial commenced on February 25 and 26, 2013.

At trial, his neighbor, Joseph Unvarsky, and his friend, Shane Chiverella, testified that Owens was upset with his ex-wife about child support and economic issues arising from the marriage. They both also testified that Owens previously had stated that he did not care if his house burned down. Notes of Testimony ("N.T."), 2/25-26/2013, at 38-39, 115-16. Owens' ex-wife testified that, pursuant to court order, Owens would have to sell the house if he could not re-finance it. He also testified that Owens stated that "he didn't want anyone to enjoy the work that he put into it and that he would sooner see it burn." Id. at 78. She confirmed that the house recently went into foreclosure. Id. at 79. Owens had been served with a child support complaint two days before the fire. Id. at 81. Unvarsky and another of Owens' friends, Bernard Miller, testified that Owens had been drinking on the night of the fire. Id. at 34-35, 86. Owens had damaged the property prior to the fire, including smashing windows, tossing furniture into the yard, and ripping off the screen door. Id. at 43, 54, 111-12.

Miller and Chiverella both were present at the house on the night of the fire and provided accounts of events of the night that were largely consistent with each other. Miller was living with Owens at the time of the fire and saw Owens flip over a kitchen island, punch the countertops, and hit things with a baseball bat. Id. at 87-88. Miller asked Chiverella to come over and try to calm Owens. Id. at 89. Miller testified that, at some point after Chiverella arrived, Owens went upstairs. Chiverella joined Owens upstairs, and Miller followed. Id. at 105-06. Because Owens was swinging the baseball bat, Miller went to the kitchen and was soon followed by Chiverella. Owens was left upstairs alone for approximately one minute, according to Miller. All three then left the residence. Id. at 94. While picking up a pizza, they heard about the fire over a scanner and returned to the house after stopping to get cigarettes at a convenience store. Id. at 95-96.

Chiverella testified that Owens was upstairs alone for five to six minutes. Id. at 112-13. Then, Miller and Chiverella joined Owens. Miller soon went back downstairs because Owens was swinging the baseball bat. Chiverella followed soon after. Id. at 113. Chiverella estimated that Owens was upstairs for three to four minutes before joining them downstairs, whereupon they left the residence. Id. at 114-15.

Owens blamed Chiverella for causing the fire. In his initial police interview immediately after the fire, Owens told police that Chiverella had set the fire by igniting toilet paper. Owens told police that he did not try to stop Chiverella and did not call the fire department. Id. at 165. At trial, Owens testified that Chiverella stayed upstairs after Owens and Miller went downstairs, and that Owens saw Chiverella start the fire in the attic.[3] Id. at 183.

Fifteen firefighters and two paramedics responded to the fire. N.T. at 53. After firefighters extinguished the fire, a fire department investigator conducted an investigation. The investigator testified that the bed in the middle bedroom on the second floor was a point of origin of the fire, that the ignition source was an open flame, and that the bedroom door had been closed. Id. at 56-61. The investigator also found a second point of origin in the attic and found no accidental sources for the fire. Id. at 62-64. He concluded that the attic fire also was started by an open flame, and testified that the retractable ladder to the attic was up when the fire department arrived on scene. Id. at 67-68. 72. A police detective testified that the neighboring house was only four feet from Owens' residence. Id. at 168.

The jury convicted Owens of the three counts of arson and one count of failure to prevent a catastrophe. On April 26, 2013, Owens was sentenced to eighteen to thirty-six months' incarceration on the first count of arson, eighteen to thirty-six months' on the second count of arson, and two to twelve months' on the failure to prevent catastrophe charge. The remaining count of arson merged for sentencing. The court ordered the sentences to run concurrently for an aggregate sentence of eighteen to thirty-six months' incarceration.

This timely appeal followed. The trial court ordered Owens to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Owens' counsel filed a statement in lieu of a concise statement indicating that there were no non-frivolous issues to pursue on appeal. Relying upon counsel's statement, the trial court then filed a statement indicating that it was not filing a Rule 1925(a) opinion.

Counsel has filed an Anders/Santiago brief with this Court, in which counsel asserts that Owens has no non-frivolous issues to pursue on appeal. Counsel also has filed a corresponding petition to withdraw as counsel. This Court first must pass upon counsel's petition to withdraw before reviewing the merits of the underlying issues ...

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