Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

[U] Commonwealth v. Trice

Superior Court of Pennsylvania

March 12, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ERNEST TRICE Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence March 7, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006441-2010

BEFORE: GANTMAN, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM

GANTMAN, J.

Appellant, Ernest Trice, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for second degree murder, arson, and causing or risking catastrophe.[1] We affirm the convictions, vacate the separate sentence for arson, and affirm the judgment of sentence in all other respects.

The relevant facts and procedural history of this appeal are as follows. On February 22, 2010, Appellant used an accelerant to set fire to a residence at 101 East Collum Street in Philadelphia. The victim was inside the residence at the time of the fire, and he died from smoke inhalation. On March 11, 2010, police interviewed Appellant, who admitted he had started the fire in an attempt to destroy the "stash" of a rival drug dealer. Appellant denied knowing that the victim was inside the residence when Appellant started the fire. On May 20, 2010, the Commonwealth filed a criminal information charging Appellant with multiple offenses related to the arson. Prior to trial, Appellant filed a motion to suppress his statement to police, claiming it was involuntary. Following a hearing, the court denied Appellant's suppression motion.

The parties appeared for trial on January 23, 2012, where Appellant's privately-retained counsel informed the court that Appellant was dissatisfied with counsel's representation and wanted the court to appoint new counsel. After hearing from the parties, the court denied Appellant's request for new, appointed counsel. The court, however, did issue bench warrants for certain defense witnesses, and it continued the matter to provide trial counsel additional time for investigation.

On March 7, 2012, a jury convicted Appellant of second degree murder, arson, and causing a catastrophe. Appellant immediately proceeded to sentencing. For the second degree felony murder conviction, the court sentenced Appellant to life imprisonment without parole. The court also sentenced Appellant to concurrent terms of ten (10) to twenty (20) years' imprisonment for the predicate felony of arson and three and one-half (3½) to seven (7) years' imprisonment for causing a catastrophe. Appellant filed a motion for extraordinary relief on March 12, 2012, challenging the sufficiency and weight of the evidence.[2] The court denied Appellant's post-sentence motion on July 20, 2012.

Appellant timely filed a notice of appeal on August 2, 2012. On January 28, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant subsequently complied with the court's order.

Appellant now raises five issues for our review:
WHETHER THE COURT COMMITTED LEGAL ERROR, WHEN IT DENIED…APPELLANT'S REQUEST FOR NEW COUNSEL TO BE APPOINTED BY THE COURT, AFTER APPELLANT NOTIFIED THE COURT OF HIS LACK OF FUNDS FOR NECESSARY INVESTIGATIONS AND A SIGNIFICANT CONFLICT OF INTEREST REGARDING HIS COUNSEL'S LAW FIRM.
WHETHER THE PROSECUTOR MADE IMPROPER AND PREJUDICIAL REMARKS TO HORRIFY THE JURY, PREVENTING…APPELLANT FROM HAVING A FAIR TRIAL, WHEN THE PROSECUTOR REPEATEDLY CHARACTERIZED THE VICTIM'S BODY AS "BURNED UP" WHEN THE VICTIM ACTUALLY HAD NO BURNS, BUT DIED FROM SMOKE AND SOOT INHALATION.
WHETHER THE COURT ABUSED ITS DISCRETION AND CAUSED SUBSTANTIAL HARM TO…APPELLANT, BY DENYING APPELLANT'S MOTION FOR A MISTRIAL DUE TO TESTIMONY OF WITNESS IRA YOUNG THAT HE WAS "SCARED" (TO TESTIFY).
WHETHER THE COURT ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S MOTION TO SUPPRESS HIS WRITTEN STATEMENT TO PHILADELPHIA HOMICIDE DETECTIVES, WHICH APPELLANT ASSERTS WAS GIVEN UNDER PHYSICAL DURESS.
WHETHER THE VERDICT WAS AGAINST THE WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

(Appellant's Brief at 4).

In his first issue, Appellant maintains his innocence, claiming another individual, Christian Freedman, had committed the crimes. Appellant contends trial counsel had a conflict of interest, because counsel also represented Mr. Freedman's cousin.[3] Moreover, Appellant insists trial counsel did not adequately investigate all potential defense witnesses. Under these circumstances, Appellant concludes the court should have granted his request for new, court-appointed counsel. We disagree.

"The decision whether to appoint new counsel lies within the trial court's sound discretion." Commonwealth v. Wright, 599 Pa. 270, 297, 961 A.2d 119, 134 (2008).

The Sixth Amendment to the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his or her defense. Similarly, Article I, Section 9 of the Constitution of this Commonwealth affords to a person accused of a criminal offense the right to counsel. However, the constitutional right to counsel of one's own choice is not absolute. Rather, the right of an accused individual to choose his or her own counsel, as well as a lawyer's right to choose his or her clients, must be weighed against and may be reasonably restricted by the state's interest in the swift and efficient administration of criminal justice. Thus, while defendants are entitled to choose their own counsel, they should not be permitted to unreasonably clog the machinery of justice or hamper and delay the state's efforts to effectively administer justice.

Commonwealth v. Lucarelli, 601 Pa. 185, 193-94, 971 A.2d 1173, 1178-79 (2009) (internal citations omitted).

"To show an actual conflict of interest, the appellant must demonstrate that: (1) counsel 'actively represented conflicting interests'; and (2) those conflicting interests 'adversely affected his lawyer's performance.'" Commonwealth v. Sepulveda, __ Pa. __, __, 55 A.3d 1108, 1147 (2012) (quoting Commonwealth v. Collins, 598 Pa. 397, 420, 957 A.2d 237, 251 (2008)). "Clients' interests actually conflict when during the course of representation they diverge with respect to a material factual or legal issue or to a course of action." Sepulveda, supra at __, 55 A.3d at 1147 (internal quotation marks omitted).

Instantly, the court scheduled trial for January 23, 2012. At that time, Appellant's privately-retained trial counsel requested a continuance, informing the court that certain defense witnesses had failed to appear. The court asked trial counsel whether he had sent an investigator to locate the witnesses, but counsel indicated he did not have the funds for an investigator. Reluctant to delay the proceedings, the court offered to send a detective out to retrieve the witnesses. Following the court's announcement that it was ready to select jurors, trial counsel asked the Commonwealth if it was willing to make a plea deal. The parties briefly went off the record. Thereafter, the court sent trial counsel to discuss matters with Appellant.

After meeting with Appellant, trial counsel informed the court that Appellant had demanded new, court-appointed counsel. Appellant was adamant about not taking a plea deal and claimed that trial counsel had "done nothing for him…." (See N.T. Hearing, 1/23/12, at 22.) The court responded, "It is too late for that for him. He is just going to play fast and loose with the system. That's just not going to happen." (Id. at 25). Nevertheless, the court conducted an on-the-record hearing regarding Appellant's request.

During the hearing, Appellant complained that trial counsel had failed to find an eyewitness, James Ellis, who would testify that Christian Freedman had committed the crimes at issue.[4] Appellant also alleged that trial counsel had represented Mr. Freedman's cousin. When asked for the name of Mr. Freedman's cousin, Appellant could only provide a nickname, "Cat." Trial counsel informed the court, "Your Honor, if Cat is Kyre Smith, then the answer would be yes. He was a client of my father's and I represented Mr. Smith, as well." (Id. at 34). In light of this information, the court addressed Appellant as follows:

THE COURT: [Trial counsel's] office doesn't represent Mr. Freedman but represents a cousin of Mr. Freedman's…so [Appellant] doesn't want [trial counsel] to represent him because of the connection to a cousin.
How would that affect anything?
[APPELLANT]: My witness [doesn't] feel comfortable with talking with [trial counsel] because he fears that [trial counsel] will tell the person's cousin and something could happen to him.
THE COURT: Your witness is going to testify in open court. First of all, [trial counsel] is an officer of the court, number one. He is duty-bound not to do anything like that.
Two, your witness is going to testify in open court, so whoever happens to be in the courtroom will hear it. So his fear about [trial counsel] hearing it is unfounded.
Your witness is present. He is here and he is ready to testify. That is the witness you wanted and that witness was hard to come by or find and he's here today ready to go.

(Id. at 36). Despite the court's assurances, Appellant continued to complain about new witnesses whom he had learned about only recently. Ultimately, the court denied Appellant's request for new counsel, finding that trial counsel "did everything [Appellant] wanted him to do, " and Appellant had waited too long to make the request. (Id. at 43). The court did grant a continuance to give trial counsel additional time to investigate the possibility of new witnesses. The court also issued bench warrants to secure the appearance of certain witnesses at trial.

On this record, the court properly denied Appellant's eleventh hour request for new counsel. Appellant's assertions failed to demonstrate an "actual" conflict of interest, because trial counsel did not represent Mr. Freedman, and Mr. Ellis appeared and was prepared to testify. See Sepulveda, supra. Additionally, the request for new court-appointed counsel at that juncture of the proceedings served "to unreasonably clog the machinery of justice or hamper and delay the state's efforts to effectively administer justice." See Lucarelli, supra. Consequently, the court did not abuse its discretion in denying the request. See Wright, supra.

In his second issue, Appellant claims the prosecutor repeatedly referenced the victim's "burned up" body. Appellant insists, however, that the evidence revealed the victim did not suffer burns; rather, the victim died from smoke inhalation. Appellant argues the prosecutor's comments "had the effect of hardening the attitude of the jury" and prevented Appellant from receiving a fair trial. (Appellant's Brief at 10). Appellant concludes the prosecutor's comments resulted in undue prejudice, which entitles him to a new trial. We disagree.

"Our standard of review for a claim of prosecutorial misconduct is limited to whether the trial court abused its discretion." Commonwealth v. Harris, 884 A.2d 920, 927 (Pa.Super. 2005), appeal denied, 593 Pa. 726, 928 A.2d 1289 (2007).

In considering this claim, our attention is focused on whether the defendant was deprived of a fair trial, not a perfect one.
Not every unwise remark on a prosecutor's part constitutes reversible error. Indeed, the test is a relatively stringent one. Generally speaking, a prosecutor's comments do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward [the defendant] so that they could not weigh the evidence objectively and render a true verdict. Prosecutorial misconduct, however, will not be found where comments…were only oratorical flair. In order to evaluate whether comments were improper, we must look to the context in which they were made. Finally, when a trial court finds that a prosecutor's comments were inappropriate, they may be appropriately cured by a cautionary instruction to the jury.

Id. at 927 (internal citations omitted). Moreover, "The failure to raise a contemporaneous objection to a prosecutor's comment at trial waives any claim of error arising from the comment." Commonwealth v. Ali, 608 Pa. 71, 88-89, 10 A.3d 282, 293 (2010).

Instantly, the prosecutor's opening statement summarized the evidence it sought to present at trial. Regarding the testimony from Ira Young, the prosecutor stated:

This witness is going to come into this courtroom and he is going to tell you that he was one of the individuals that was living in that property along with some other people and he is going to tell you that he recalls the day of that fire and he remembers just before that fire seeing a man named Keon[5] and just before that fire, Keon was running from that property with something under his shirt and then a couple of days after the fire, he said to him I got my revenge.
So the police asked [Mr. Young], but why would Keon want to burn the property? Why would Keon want to have anything to do with the fire, setting the fire to this property where a man was burned?

(See N.T. Trial, 2/24/12, at 35-36) (emphasis added). Significantly, Appellant did not object to the prosecutor's remarks about the victim suffering burns.

During its case-in-chief, the Commonwealth presented Gordon Roberson, one of the firefighters who investigated the scene after the blaze. On direct examination, Mr. Roberson testified that he arrived at the scene, and police informed him about a body in the front bedroom on the second floor. Mr. Roberson entered the residence, searched the front bedroom, and found the victim's body under a pile of insulation and drywall. Mr. Roberson observed that the body was cold to the touch. At that point, the court interjected and asked Mr. Roberson whether the victim's body suffered burns. Mr. Roberson indicated that it had not. (Id. at 86). On cross-examination, Mr. Roberson reiterated that the victim's body did not have burn marks. (Id. at 89).

Captain James Mullin, who assisted with Firefighter Roberson, also testified about the investigation. On cross-examination, defense counsel asked Captain Mullin about whether there were burns on the victim's body. Captain Mullin answered that he did not see any burns on the extremities. Following the testimony from Captain Mullin, the court permitted the jury to break for lunch. Once the jury exited the courtroom, the court instructed the parties to refrain from using the words "burned up" when describing the victim's body. (Id. at 95).

Here, Appellant's failure to object during the prosecutor's opening statement in that regard constitutes waiver of his prosecutorial misconduct claim on appeal. See Ali, supra. Moreover, the prosecutor did not subsequently refer to any burns. Rather, the court, witnesses, and defense counsel made the references at issue. Therefore, Appellant is not entitled to relief on his second claim.

In his third issue, Appellant asserts Ira Young, the Commonwealth's eyewitness, testified that he feared Appellant and was scared to appear in court. Appellant contends trial counsel moved for a mistrial based on this testimony, but the court denied the motion. Appellant argues Mr. Young's testimony prevented Appellant from receiving a fair trial. Appellant concludes the court erred in denying his motion for a mistrial on this basis. We disagree.

"A motion for a mistrial is within the discretion of the trial court." Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super. 2003). "It is within the trial court's discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion." Id. (internal citations omitted). "[A] trial court may grant a mistrial only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict." Commonwealth v. Bryant, __ Pa. __, __, 67 A.3d 716, 728 (2013) (quoting Commonwealth v. Chamberlain, 612 Pa. 107, 176, 30 A.3d 381, 422 (2011)).

"When reviewing a [t]rial [c]ourt's decision to allow a witness to testify we are guided by the principle that trial judges have broad latitude and discretion in allowing the introduction of evidence…." Commonwealth v. Randall, 758 A.2d 669, 676 (Pa.Super. 2000), appeal denied, 564 Pa. 707, 764 A.2d 1067 (2000). "An attempt [by the Commonwealth] to obtain an explanation as to a possible inconsistent statement by a witness is permissible." Commonwealth v. Mollett, 5 A.3d 291, 309 (Pa.Super. 2010), appeal denied, 609 Pa. 686, 14 A.3d 826 (2011).

Instantly, Ira Young testified that he had moved into 101 East Collum Street approximately two or three weeks before the fire. On the day of the fire, Mr. Young was walking down a nearby street when he saw smoke coming from the vicinity of his house. Approximately twenty feet away from the property, Mr. Young saw Appellant running away from the scene, carrying something under his shirt. A few days later, Mr. Young encountered Appellant, who indicated "he got his revenge, " without further explanation (See N.T. Trial, 3/6/12, at 15.) In an interview with police on March 9, 2010, Mr. Young provided context for Appellant's "revenge" comment, indicating that Appellant "wanted to sell some…weed from the house and the guys that stayed there would not let him and told him he couldn't." (See Interview Record, dated 3/9/10, at 2; Commonwealth's Trial Exhibit C-7.)

On direct examination, Mr. Young indicated he was "nervous" about being in the courtroom and testifying. (See N.T. Trial, 3/6/12, at 29.) Defense counsel objected to Mr. Young's comment, but the court overruled the objection and instructed Mr. Young to answer the prosecutor's questions as best he could. On cross-examination, Mr. Young reiterated he was nervous and confused about what happened on the day of the fire. As cross-examination continued, Mr. Young conceded he could not remember what he told police during their investigation. Before cross-examination concluded, Mr. Young claimed he did not remember seeing Appellant running away from the burning house or hearing the comment about revenge. (Id. at 102).

On redirect, the prosecutor asked Mr. Young about his responses to the questions on cross-examination:

[PROSECUTOR]: Why are you saying you don't remember everything now?
[WITNESS]: I don't know. I am scared. I keep telling you that.
[PROSECUTOR]: Nothing further.

(Id. at 103). The court excused the witness and dismissed the jury for lunch. After the jury exited, trial counsel moved for a mistrial due to Mr. Young's repeated comments about being scared. The court denied the motion, stating:

[Mr. Young] was sitting, for the record, all the way close against the wall near me and would not look out toward [Appellant] who, by the way, I saw [Appellant] glaring at him and I had to look at [Appellant] so that [Appellant] stopped looking at him.
* * *
[Mr. Young's] whole demeanor showed that he was frightened of something, whether it was real, not real. The jury has the right to know there is some reason why he is testifying the way he was and they can decide whether they believe it or not.

(Id. at 105-06). We agree and emphasize that the Commonwealth could question Mr. Young about the reasons for the inconsistencies between his statements on direct and cross-examination. See Mollett, supra. Thus, the court properly denied the motion for a mistrial. See Bryant, supra; Tejeda, supra.

In his fourth issue, Appellant claims the police physically abused him during the March 11, 2010 interview. Specifically, Appellant claims the detective who conducted the interview squeezed Appellant's testicles to obtain the confession. Appellant concludes he provided an involuntary confession while under duress, and the court should have granted his suppression motion. We disagree.

We review the denial of a suppression motion subject to the following principles:

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.
[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Williams, H., 941 A.2d 14, 26-27 (Pa.Super. 2008) (en banc) (internal citations and quotation marks omitted). "Whether a confession is voluntary is a conclusion of law…and conclusions of law are subject to plenary review…." Commonwealth v. Nester, 551 Pa. 157, 160, 709 A.2d 879, 881 (1998) (internal citations omitted). Further, "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

"When deciding a motion to suppress a confession, the touchstone inquiry is whether the confession was voluntary." Nester, supra at 162, 709 A.2d at 882.

Voluntariness is determined from the totality of the circumstances surrounding the confession. The question of voluntariness is not whether the defendant would have confessed without interrogation, but whether the interrogation was so manipulative or coercive that it deprived the defendant of his ability to make a free and unconstrained decision to confess. The Commonwealth has the burden of proving by a preponderance of the evidence that the defendant confessed voluntarily.

Id. at 163, 709 A.2d at 882 (internal citations omitted). When assessing voluntariness under the totality of the circumstances, we examine the following factors:

the duration and means of the interrogation; the physical and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; and any and all other factors that could drain a person's ability to withstand coercion.

Commonwealth v. Roberts, 969 A.2d 594, 599 (Pa.Super. 2009) (quoting Nester, supra at 164, 709 A.2d at 882).

Instantly, fire marshals informed police they had suspected the fire was an arson. After receiving Ira Young's statement, the police wanted to interview Appellant. On March 10, 2010, homicide detectives sent Officer Kyle Cross to find Appellant and bring him in for questioning. Officer Cross picked up Appellant on the 5200 block of Wakefield Street, informing Appellant that detectives wanted to speak with him. Although Appellant was not under arrest, Officer Cross could not remember whether he handcuffed Appellant before placing him in the police vehicle. Officer Cross transported Appellant directly to the homicide unit and escorted him from the vehicle to an interview room.

Appellant arrived at the homicide unit at approximately 8:52 p.m., and Detective Philip Nordo commenced the interview approximately thirty minutes later. Appellant was not handcuffed during the interview, and he sat in a chair across a table from the detective. After Detective Nordo provided Miranda[6] warnings, he explained the circumstances of the current investigation. Specifically, Detective Nordo stated the police were investigating an arson at 101 East Collum Street, an individual had died in the fire, and the police were treating the death as a murder. Detective Nordo testified that he spoke with Appellant for approximately sixty minutes. At the conclusion of the interview, Appellant indicated he "needed some time to think about this." (See N.T. Suppression Hearing, 2/22/12, at 29.) Detective Nordo stepped out of the room and left the police station for the evening. Appellant, however, was not free to go, and he stayed overnight at the homicide unit. Regarding where Appellant spent the night, Detective Nordo stated, "I know he was in the squad-room part of the building, the center part of the building. I just don't know exactly where he is seated, that is what I don't know." (Id. at 35). The detective did not provide any additional details about Appellant's night at the station.

When Detective Nordo returned to the police station the next morning, he learned that Appellant wanted to speak to him. Detective Nordo met with Appellant in another interview room. After asking Appellant whether he needed anything, Detective Nordo re-issued the Miranda warnings. Appellant signed a form indicating he was aware of his rights, and he provided a statement to the detective. Significantly, Appellant admitted setting fire to 101 East Collum Street, but he denied knowing the victim was inside the residence at the time. Appellant confirmed that the police had not forced or threatened him in any way, and the police had not made any promises in exchange for the statement. Detective Nordo also denied having any type of physical confrontation with Appellant.

In response to the Commonwealth's witnesses, Appellant presented Maureen Gay, a nurse at Curran-Fromhold Correctional Facility. Ms. Gay testified that Appellant arrived at the county prison on March 12, 2010, and he completed intake questionnaires. In the questionnaires, Appellant denied suffering any police-related injuries. Nevertheless, Appellant started complaining about testicular pain on March 15, 2010. Appellant informed prison officials that the pain resulted from a detective grabbing Appellant's testicles at the time of arrest. Ms. Gay examined Appellant, but she did not observe any swelling or bruises. Ms. Gay diagnosed Appellant with a urinary tract infection and subsequently treated him with antibiotics.

To the extent Appellant relied on Ms. Gay's testimony to support his claim of physical abuse, the court did not find the abuse allegation credible. (Id. at 150). The record supports the court's conclusion, which we will not disturb. See Clemens, supra. Further, the duration and means of the interviews, as well as the conditions attendant to the interviews, were not so unduly coercive as to give rise to an involuntary confession. Under the totality of the circumstances, the Commonwealth obtained Appellant's independent confession without the use of impermissible coercion. See Nester, supra. Consequently, the court properly denied Appellant's suppression motion.

In his fifth issue, Appellant contends the Commonwealth's evidence against him consisted of his confession and Mr. Young's testimony. Appellant maintains the police coerced the confession, and Mr. Young's testimony was unreliable. Moreover, Appellant complains "the entire case was tainted from the start, " due to trial counsel's purported conflict of interest. (Appellant's Brief at 14). Based upon the foregoing, Appellant concludes the Commonwealth presented insufficient evidence to support the convictions, and the verdict is against the weight of the evidence. We disagree.

To preserve a claim that the evidence was insufficient to sustain a conviction, an appellant must specify the allegedly unproven element(s) in his Rule 1925(b) statement. Commonwealth v. Williams, C, 959 A.2d 1252, 1257-58 (Pa.Super. 2008). The court's review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011). Thus, if a concise statement is too vague, the court may find waiver. Id. "Even if the trial court correctly guesses the issues [the appellant] raises on appeal and writes an opinion pursuant to that supposition, the issue is still waived." Commonwealth v. Heggins, 809 A.2d 908, 911 (Pa.Super. 2002), appeal denied, 573 Pa. 703, 827 A.2d 430 (2003).

Additionally, the following principles apply to our review of a weight of the evidence claim:

The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the…verdict if it is so contrary to the evidence as to shock one's sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435, ] 741 A.2d 666, 672-73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004) (most internal citations omitted).

Section 2502 of the Pennsylvania Crimes Code defines second degree murder as follows:

§ 2502. Murder
* * *
(b) Murder of the second degree.-A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
* * *
(d) Definitions. UAs used in this section the following words and phrases shall have the meanings given to them in this subsection:
* * *
"Perpetration of a felony." The act of the defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.

18 Pa.C.S.A. § 2502(b), (d).

The Crimes Code defines the offense of arson as follows:

§ 3301. Arson and related offenses
(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….

18 Pa.C.S.A. § 3301(a)(1)(i). The Crimes Code also defines the offense of risking a catastrophe as follows:

§ 3302. Causing or risking catastrophe

(a) Causing catastrophe.-A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially widespread injury or damage, including selling, dealing in or otherwise providing licenses or permits to transport hazardous materials in violation of 75 Pa.C.S. Ch. 83 (relating to hazardous materials transportation), commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.

18 Pa.C.S.A. § 3302(a).

Instantly, the jury found Appellant guilty of three separate crimes, but the Rule 1925(b) statement claimed, "The verdict was against the weight and sufficiency of the evidence." (See Rule 1925(b) Statement, filed 3/19/13, at 2.) For his sufficiency challenge, Appellant did not denote the specific unproven elements. Instead, Appellant merely stated the evidence as a whole was insufficient to support the guilty verdict on all counts. We conclude Appellant's sufficiency issue is waived as overly vague. See Hansley, supra.

Regarding the weight claim, the evidence demonstrated that Appellant used an accelerant to set fire to 101 East Collum Street while the victim was inside. To the extent Appellant complains about the reliability of the Commonwealth's evidence, the jury was free to believe all, part, or none of the evidence. See Champney, supra. Further, the trial court denied relief on the weight claim in Appellant's post-sentence motion. (See Order, filed 7/20/12, at 1.) Based upon the foregoing, we see no abuse of discretion in the court's decision to deny relief on Appellant's weight claim.

Nevertheless, we see in the certified record that the court sentenced Appellant to life imprisonment for his second degree felony murder conviction and a concurrent term of ten (10) to twenty (20) years' imprisonment for the arson conviction as the predicate felony. Although Appellant has not challenged this portion of his sentence, we can raise and review an illegal sentence sua sponte. Commonwealth v. Oree, 911 A.2d 169, 172 (Pa.Super. 2006), appeal denied, 591 Pa. 699, 918 A.2d 744 (2007). In light of the Pennsylvania Supreme Court's decision in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), a sentencing court has no authority to impose a sentence for felony murder as well as a sentence for the predicate offense. See also Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986) (restating principle that imposition of separate sentence for underlying felony in felony murder conviction violates Double Jeopardy clause); Commonwealth v. Garnett, 485 A.2d 821 (Pa.Super. 1984) (explaining court erred by imposing twenty to forty years' imprisonment on convictions for burglary, arson, and related offenses, in addition to concurrent terms of life imprisonment imposed for convictions on two counts of second degree murder, where burglary and arson convictions were constituent offenses of felony murders); Commonwealth v. Fortune, 451 A.2d 729 (Pa.Super. 1982) (holding felony murder and predicate offense merge for sentencing purposes).

Here, the sentencing court had no authority to impose a separate sentence for the arson conviction, where the arson constituted the predicate felony for Appellant's felony murder conviction. Accordingly, we affirm the convictions but vacate the separate sentence for the predicate felony of arson, and affirm the judgment of sentence in all other respects.

Judgment of sentence affirmed in part and vacated in part.

Judgment Entered.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.