March 10, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JODY WAYNE OWENS, Appellant
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
BEFORE: MUNDY, J., WECHT, J., and FITZGERALD, J. [*]
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. 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. The third of the four arson counts and the reckless burning count were later withdrawn.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. 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 presented by Owens. Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders, counsel must file a brief that meets the requirements established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts, with citations to the record;
(2) refer to anything in the record that counsel believes arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is frivolous; and
(4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361.
Counsel is required to provide a copy of the Anders brief to Owens. Counsel also must send Owens a letter that advises him of his right to "(1) retain new counsel to pursue the appeal; (2) proceed pro se on appeal; or (3) raise any points that the appellant deems worthy of the court's attention in addition to the points raised by counsel in the Anders brief." Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super. 2007).
A review of counsel's brief demonstrates that she has complied with all of Santiago's requirements. The brief includes a summary of the case's history. See Owens' Brief at 2-6. Counsel has identified the only issues that counsel believes could be raised, and has discussed why those issues are frivolous. Id. at 6-8. Counsel also has provided a letter to Owens that advised Owens that he could obtain new counsel, proceed pro se, or raise additional issues with this Court. Letter, 10/15/2013. Counsel attached the letter to the petition.
Based upon our review of the Anders/Santiago brief and counsel's motion to withdraw, we conclude that counsel has complied substantially with Santiago. Having so concluded, we now must conduct our own review of the record to determine whether the case is wholly frivolous. Santiago, 978 A.2d at 354.
Owens challenges the sufficiency of the evidence to support each of his four convictions. The relevant statutory sections are as follows:
(a) Arson endangering persons.--
(1) A person commits a felony of the first degree if he intentionally starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, whether on his own property or on that of another, and if:
(i) he thereby recklessly places another person in danger of death or bodily injury, including but not limited to a firefighter, police officer or other person actively engaged in fighting the fire; or
(ii) he commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another.
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(c) Arson endangering property.--A person commits a felony of the second degree if he intentionally starts a fire or causes an explosion, whether on his own property or that of another, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion, and if:
* * *
(2) he thereby recklessly places an inhabited building or occupied structure of another in danger of damage or destruction
18 Pa.C.S.A.§§ 3301. Failure to prevent a catastrophe is defined as:
A person who knowingly or recklessly fails to take reasonable measures to prevent or mitigate a catastrophe, when he can do so without substantial risk to himself, commits a misdemeanor of the second degree if:
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(2) he did or assented to the act causing or threatening the catastrophe. 18 Pa.C.S.A. § 3303.
The testimony set forth above was sufficient, when viewed in the light most favorable to the Commonwealth, for the jury to conclude that Owens intentionally started a fire and that the responding firefighters, if not others, were put in danger of death or bodily injury. The Commonwealth may prove its case by wholly circumstantial evidence. Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007). The fire investigator determined that the fire was intentionally started in the attic and an upstairs bedroom. Miller and Chiverella both testified that Owens was upstairs alone prior to the fire starting. That evidence was sufficient for the jury to find Owens started the fire. Fifteen firefighters responded to the fire and were in danger from it. This suffices to find Owens guilty pursuant to section 3301(a)(1)(i).
Having shown the evidence was sufficient to prove Owens intentionally started the fire, there also was sufficient evidence to demonstrate that Owens intended to damage an inhabited structure. Witnesses testified that Owens destroyed the house prior to the fire. The jury further could have found intent from his statement that he would rather see the house burn than someone else have it. Thus, the evidence suffices as to section 3301(a)(1)(ii).
With regard to the third count of arson, section 3301(c)(2), the Commonwealth was required to prove that, by setting the fire, Owens put another's residence in danger. The Commonwealth satisfied that burden by proving how close Owens' neighbor's house was located to Owens' house. The neighbor testified that, on the night of the fire, he was worried that his house would be damaged and that he told the firefighters that he saw smoke toward the back of his house. N.T. at 38. Thus, the jury had a sufficient basis from which to conclude that the neighbor's house was in danger from the fire.
The evidence was also sufficient for the final count. Owens confessed to the police that he did not call the fire department after he saw the fire start. This sufficed to allow the jury to conclude that Owens placed an occupied structure in danger by failing to take reasonable measures to prevent a catastrophe. Therefore, we agree with Owens' counsel that his sufficiency issues are frivolous.
We have conducted an independent review of the record, and we are convinced that no non-frivolous issues exist. Therefore, we affirm the judgment of sentence and grant counsel's petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
Fitzgerald, J. concurs in the result.