Com. v. Campbell, G. ( 2018 )

J-A14010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GRIFFIN T. CAMPBELL :
:
Appellant : No. 1810 EDA 2016
Appeal from the Judgment of Sentence January 8, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001793-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 05, 2018
Appellant, Griffin T. Campbell, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
trial convictions for thirteen counts of recklessly endangering another person,
six counts of involuntary manslaughter, and one count each of aggravated
assault and causing a catastrophe.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues for our review:
DID THE DELIBERATE FAILURE OF THE DISTRICT
ATTORNEY TO PRESERVE AND PREPARE A DETAILED
INVENTORY OF ALL OF THE PERSONAL, BUSINESS, AND
____________________________________________
1 18 Pa.C.S.A. §§ 2705; 2504; 2702; and 3302, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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RELATED MARKET STREET WEST DEMOLITION AND
DEVELOPMENT DOCUMENTS OF THE IMMUNITY WITNESS—
ARCHITECT PLATO MARINAKOS, AND PROVIDE THAT
DETAILED LIST AND ALL NAMED RECORDS, AND E-DATA TO
THE CRIMINAL DEFENSE COUNSEL FOR APPELLANT—
CONSTITUTE A VIOLATION OF THE BRADY[2] RULE AND
DENY APPELLANT MATERIAL EXCULPATORY EVIDENCE AND
IMPEACHMENT EVIDENCE AGAINST THE KEY
COMMONWEALTH WITNESS?
DID THE DENIAL OF THE TRIAL COURT TO PERMIT DEFENSE
COUNSEL TO CALL WITNESSES UNDER SUBPOENA AND
AVAILABLE TO TESTIFY DENY APPELLANT A FAIR AND
IMPARTIAL TRIAL?
DID THE [TRIAL] COURT COMMIT REVERSIBLE ERROR BY
ITS RESTRICTIONS ON APPELLANT’S EXPERT WITNESS
TESTIMONY OF CLIFTON FORDHAM, REGISTERED
ARCHITECT?
WAS THE 15 TO 30 YEAR STATE CORRECTIONAL SENTENCE
IMPOSED BY THE [TRIAL] COURT EXCESSIVE, PUNITIVE,
AND IN CONTRADICTION TO THE JURY VERDICT OF
INVOLUNTARY MANSLAUGHTER A MISDEMEANOR OF THE
FIRST DEGREE?
DID BOTH THE SECRET TACIT AGREEMENT BETWEEN
RICHARD BASCIANO AND THOMAS SIMMONDS AND THE
OFFICE OF THE DISTRICT ATTORNEY NOT TO TESTIFY
UNTIL AFTER THE CRIMINAL CONVICTION OF APPELLANT
AND THE SUBSEQUENT CRIMINAL INDICTMENT AND
CONVICTION OF THE FORMER DISTRICT ATTORNEY, SETH
WILLIAMS, DENY APPELLANT A FAIR TRIAL?
WAS THE SUPERVISION OF THE MARKET STREET COLLAPSE
CRIMINAL GRAND JURY INVESTIGATION BY FRANK FINA,
ESQ.—AN ACTIVE PARTICIPANT IN THE “PORNGATE
SCANDAL”—A VIOLATION OF APPELLANT’S
CONSTITUTIONAL DUE [PROCESS] RIGHTS TO A FAIR AND
RACE NEUTRAL PROSECUTION?
____________________________________________
2 Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
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(Appellant’s Brief at 8-9).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Glenn B.
Bronson, we conclude Appellant’s first, second, third, fifth, and sixth issues
merit no relief. The trial court opinion comprehensively discusses and properly
disposes of those issues. (See Trial Court Opinion, filed March 10, 2017, at
2-3; 10-17) (finding: (pp. 2-3) initially, Appellant’s Rule 1925(b) statement
consists of narrative of Appellant’s complaints with several headings; format
of concise statement does not comport with Pa.R.A.P. 1925(b)(4); to extent
Appellant raises additional claims not addressed in court’s opinion, those
claims are waived for vagueness in concise statement; (1) (pp. 13-14)
Appellant failed to identify in his post-sentence motions or concise statement
those records of architect Plato Marinakos which Commonwealth allegedly
failed to disclose and were favorable to Appellant; Brady does not obligate
Commonwealth to secure evidence for Appellant but only to turn over
exculpatory evidence in its possession; (2) (pp. 12-13) court did not
categorically bar any witnesses who participated in investigations; rather,
court set forth restrictions on introduction of hearsay evidence, absent
applicable hearsay exception; Appellant could present evidence relevant only
to criminal charges against him and his culpability, and results of
investigations by properly qualified experts would be admitted only if they led
to opinions relevant to Appellant’s culpability; court excluded hearsay
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testimony or evidence directed solely to culpability of people not on trial and
irrelevant to charges against Appellant; court did not preclude Appellant from
calling any witnesses on his list for whom he proffered relevant, admissible
evidence; (3) (p. 15) record belies Appellant’s claim; court ruled in limine that
anything in Appellant’s expert’s report that pertained to architect Plato
Marinakos’ culpability was admissible and could be covered in full by
Appellant’s expert; court permitted defense to present freely any evidence of
culpability of any witness testifying at trial because culpability of witness could
arguably give rise to proper claim that witness was biased; because
Commonwealth called Mr. Marinakos as witness, court did not bar Appellant’s
expert’s opinion regarding Mr. Marinakos’ culpability; (5) (pp. 16-17)
Appellant offered no evidence to support his allegation of “tacit agreement”;
at hearing to set briefing schedule for Appellant’s post-sentence motions, both
prosecuting attorneys in this case categorically denied any such agreement;
defense counsel did not contend that prosecutors were being dishonest;
instead, defense counsel relied solely upon fact that two witnesses asserted
5th Amendment right to remain silent at Appellant’s trial but then testified in
civil depositions after Appellant’s trial; absent some offer of proof, Appellant
failed to establish “act by government” caused loss of those witnesses’
testimony at Appellant’s trial; further, Appellant does not indicate how those
witnesses would have provided material or favorable evidence to defense; (6)
(pp. 10-12) Appellant failed to raise claim of selective prosecution in pre-trial
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motion to dismiss, so this claim is waived; moreover, Appellant cannot show
that anyone not prosecuted was similarly situated to Appellant; other
Caucasian men involved in demolition project did not share Appellant’s
responsibilities as sole demolition contractor to supervise and direct day-to-
day operations of demolition worksite; prosecutor’s decision not to pursue
charges against those individuals is not basis for valid selective prosecution
claim; notwithstanding former ADA Fina’s supervision of grand jury
proceedings and involvement in exchange of racially offensive e-mails,
Appellant does not dispute that former ADA Fina’s role was limited to grand
jury investigation or that former District Attorney Seth Williams made ultimate
charging decisions in this case; Appellant has not alleged racial bias by Seth
Williams; even if Appellant’s averments of racial hostility regarding former
ADA Fina were correct, they would not have supported Appellant’s selective-
prosecution claim or entitled him to relief). Therefore, as to Appellant’s first,
second, third, fifth, and sixth issues, we affirm on the basis of the trial court’s
opinion.
In his fourth issue, Appellant argues the sentence the court imposed is
more consistent with one for a third-degree murder conviction than one for
involuntary manslaughter. Appellant claims the court ignored his prior record
score of one, which was not for a violent crime, and the jury’s acquittal on the
third-degree murder charges. Appellant insists the sentence of 15 to 30 years
was excessive and a de facto life sentence, given Appellant’s age and life
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expectancy. Appellant contends the trial court should also reconsider its
sentence in light of the verdict in Appellant’s civil trial, which took place after
Appellant’s criminal trial and sentencing, demonstrating Appellant was the
least culpable civil defendant.3 As presented, Appellant’s claim implicates the
discretionary aspects of sentencing. See Commonwealth v. Archer, 722
A.2d 203 (Pa.Super. 1998) (en banc) (holding claim that court misapplied
sentencing guidelines implicates discretionary aspects of sentencing);
Commonwealth v. Berry, 785 A.2d 994 (Pa.Super. 2001) (explaining
allegation that court failed to consider specific mitigating factor implicates
discretionary aspects of sentencing); Commonwealth v. Cruz-Centeno,
668 A.2d 536 (Pa.Super. 1995), appeal denied, 544 Pa. 653, 676 A.2d 1195(1996) (stating claim that court imposed excessive and unreasonable
sentence without considering mitigating factors challenges sentencing court’s
discretion).
Challenges to the discretionary aspects of sentencing do not entitle an
____________________________________________
3 Within his sentencing issue, Appellant also appears to contest the sufficiency
of the evidence to sustain his aggravated assault conviction, claiming the
Commonwealth failed to prove that crime beyond a reasonable doubt and in
light of the jury’s acquittal on the third-degree murder charges. Nevertheless,
Appellant cites no law regarding the relevant standard and scope of review of
sufficiency claims, the elements for aggravated assault, or inconsistent
verdicts. Therefore, this precise claim is waived. See Commonwealth v.
Knox, 50 A.3d 732 (Pa.Super. 2012), appeal denied, 620 Pa. 721, 69 A.3d
601 (2013) (reiterating failure to cite to legal authority to support argument
results in waiver of claim on appeal). Further, the trial court thoroughly
explained its rationale for rejecting this claim in its opinion. (See Trial Court
Opinion at 17-23).
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appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910(Pa.Super. 2000). Before we review a discretionary aspect of sentencing
claim:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial question
as to the appropriateness of the sentence under the Sentencing Code.
Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.
2119(f). “The requirement that an appellant separately set forth the reasons
relied upon for allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial court’s
evaluation of the multitude of factors impinging on the sentencing decision to
exceptional cases.” Commonwealth v. Williams, 562 A.2d 1385, 1387
(Pa.Super. 1989) (en banc) (emphasis in original) (internal quotation marks
omitted). Failure of the defendant to include the requisite Rule 2119(f)
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statement constitutes waiver of a challenge to the discretionary aspects of a
sentence if the Commonwealth objects to omission of the statement.
Commonwealth v. Bruce, 916 A.2d 657 (Pa.Super. 2007), appeal denied,
593 Pa. 754, 932 A.2d 74 (2007).
Instantly, Appellant failed to include the requisite Rule 2119(f)
statement in his appellate brief, and the Commonwealth objected to this
omission. Consequently, Appellant’s challenge to the discretionary aspects of
his sentence is waived.4 See Pa.R.A.P. 2119(f); Bruce, supra. Accordingly,
we affirm Appellant’s other issues on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/18
____________________________________________
4Further, the trial court thoroughly explained its sentencing rationale in its
opinion. (See Trial Court Opinion at 23-25).
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Received
Circulated 08/20/2018 03:45 PM
MAR 10 2017
Office of Judidal Realld8 IN TIIB COURT OF COMMON PLEAS
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CRIMINAL TRIAL DIVISION
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7917725061
OPINION
BRONSON, J. March 10, 2017
On October 19, 2015, following a jury trial before this Court, defendant Griffin Campbell
was convicted of one count of causing a catastrophe (18 Pa.C.S. § 3302), six counts of
. .
involuntary manslaughter (18 Pa.C.S. § 2504), thirteen counts of recklessly endangering another
person ("REAP") (18 Pa.C.S. § 2705), and one count of aggravated assault (18 Pa.C.S. § 2702).1
On January 8, 2016, the Court imposed an aggregate sentence of fifteen to thirty years
incarceration in state prison. Defendant filed post-sentence motions, which the Court denied on
May 13, 2016.
On January 26, 2017, in response to an order of the Court, defendant filed a Concise
Statement of Errors Complained of on Appeal ("Statement of Errors") pursuant to Pa.RAP.
1925(b). The Statement of Errors begins with eight numbered paragraphs that state defendant's
intention to file motions based upon newly discovered evidence. Under the Rules of Criminal
Procedure, "[a] post-sentence motion for a new trial on the ground of after-discovered evidence
must be filed promptly after such discovery." Pa.R.Crim.P. 720(C). Moreover, "after-discovered
evidence discovered during the direct appeal process must be raised promptly during the direct
I
Defendant was found not guilty of one count of conspiracy to cause a catastrophe (18 Pa.C.S. § 903), and six
counts of third degree murder (18 Pa.C.S. § 2502).
appeal process, and should include a request for a remand to the trial judge." Pa.R.Crim.P. 720
comment. As of the date of this Opinion, defendant has not filed a motion based on after-
discovered evidence, and has not sought a remand from the Superior Court for a hearing.
Accordingly, the averments in the Statement of Errors regarding newly discovered evidence are
not addressed further in this Opinion.2
The remaining paragraphs of the Statement of Errors, which are not numbered, consist of
a narrative of defendant's complaints with several headings. While the Court believes that this
format does not comport with the mandates of Pa.R.A.P. 1925(b), the Court has attempted to
glean defendant's claims from this pleading.3 Having done so, the Court believes that defendant
is claiming the following errors on appeal: 1) the Court erred in failing to dismiss the jury panel
as the panel was tainted by pre-trial publicity; 2) the Court erred in ruling that privately retained
counsel was required to pay for grand jury notes of testimony; 3) the Court erred in denying
defendant's motion to dismiss due to selective racial prosecution; 4) the Court failed to
investigate racial hostility by Frank Fina, the assistant district attorney who supervised the grand·
jury investigation; 5) the Court erred in prohibiting defendant from presenting numerous
witnesses, including officials who could testify to fact finding investigations of the collapse, such
as the Mayor, City Controller, and Inspector General of the City of Philadelphia; 6) the
Commonwealth failed in its affirmative duty to secure and produce all records of Plato
Marinakos, the architect working for the owner of the collapsed property, who had been
immunized by the Commonwealth; 7) the Commonwealth wrongfully withheld discovery from
2
Defendant did file, on March 2, 2017, a document entitled "Petition of Grffin [sic] Campbell to the Post
Conviction Relief Unit of the Office of the District Attorney .... " Although filed with the Clerk of this Court, this
petition sought relief only from the District Attorney, requesting that District Attorney Seth Williams take action on
this case prior to the expiration of his term in office. Petition at 128.
3
The Rule requires that the claims on appeal be set forth in a concise and non-redundant manner. Pa.R.A.P.
1925(b)(4). .
2
defendantregarding the fact finding investigations of various officials, and the Court erred in
failing to conduct an investigation into this matter; 8) the Court erred in restricting the testimony
of Clifton Fordham, an architect retained as an expert by the defense; 9) the Court failed to
investigate a secret, tacit agreement between the Commonwealth and witnesses Richard
Basciano (owner of the collapsed property) and Thomas Simmonds (property manager for
Basciano), pursuant to which these witnesses asserted the Fifth Amendment and refused to
testify at defendant's trial, but immediately thereafter testified freely in civil dispositions
regarding the collapse; 10) the jury's verdict for aggravated assault regarding victim Mariya
Plekan was not supported by sufficient evidence, and was 'inconsistent with the jury's other
verdicts; 11) the Court's sentence was excessive; and 12) the Court erred in denying all of
defendant's motions and objections noted on the record at all pre-trial hearings, motions, trial,
and post-trial motions.4 Concise Statement of Errors Complained of on Appeal ("Statement of
Errors") at unnumbered pages 2-7. For the reasons set forth below, defendant's claims are
without merit and the judgment of sentence should be affirmed. ·
I. FACTUAL BACKGROUND
At trial, the Commonwealth presented the testimony of Philadelphia Police Detective
Paul Guercio, Philadelphia Police Officers John Taggert and Robert Flade, FBI Agent William
Schute, Philadelphia Fire Department Chief John O'Neill, Delaware State Chief Medical
Examiner Dr. Gary Collins, Philadelphia Deputy Chief Medical Examiner Dr. Albert Chu, Plato
Marinakos, Timothy Lotspeich, Darryl Alston, Eric Sullivan, Nadine White, Rodney Geddis,
Felicia Hill, Albert McCarthy, John Higgins, Richard Roberts, Sarah Carle, Mariya Plekan,
4Defendant's claims have been reorganized and, in some cases, combined for ease of analysis. To the extent that
defendant seeks to raise claims in addition to those set forth above, they are waived for vagueness. See
Commonwealth v. Cannon, 954 A.2d 1222, 1228 (Pa. Super. 2008) (where a defendant makes a vague and
generalized objection on appeal that leaves the trial court to guess at his claims, those claims are deemed to have
been waived).
3
Rosemary Kreutzberg, Sean Benschop, Tynisha Gregory-Benschop, David Peraza, Kadiatu
Conteh, Robert Coleman, Maggie Davis, Nancy Winkler, Margarita Agosto, Ralph Pomponi,
and Nicholas DeJesse. Defendant testified on his own behalf and presented the testimony of
Philadelphia Police Officer Gary Harrison, Clifton Fordham, John Doherty, Scott Mulderig,
Perry Cocco, Frank Parker, Esther Jones-Woodrit, Elizabeth Minter, and Michelle Holden.
Viewed in the light most favorable to the Commonwealth as the verdict winner, the evidence
established the following.
Richard Basciano was the owner of a group of properties located on the 2100 and 2200
blocks of Market Street in Philadelphia. In 2011, Basciano, and his property holding company
STB, hired architect Plato Marinakos to assist in the development of that area. N.T. 10/1/15
(Vol. 1) at 19-23. Around September of 2012, Basciano enlisted the aid of Marinakos to
accomplish the demolition of several buildings as part of the development project. N. T. 10/1/15
(Vol. 1) at 25-28.
In order to find a demolition contractor, Marinakos solicited bids from four companies
that he had worked with before, including defendant's company. N.T. 10/1/15 (Vol. 1) at 28-30,
33-34. Defendant was, by far, the lowest bidder, and was hired. N.T. 10/1/15 (Vol. 1) at 40-49.
In May 2013, defendant began demolition of the buildings on the 2100 block, including the
building located at 2136 Market Street, which formerly housed a Hoagie City restaurant ("the
Hoagie City building"). N.T. 10/1/15 (Vol. 1) at 91-97. The HoagieCity building was a four-
story structure that shared a wall with the Salvation Anny Thrift Store immediately to its west
(the shared ''western wall"). The Salvation Anny Thrift Store was not owned by Basciano and
was still an ongoing business. N.T. 10/1/15 (Vol. 1) at 19�20; 10/6/15 at 161-162, 176, 186-187.
4
As the demolition contractor, defendant was in control of the means and methods of
demolition. N.T. 10/1/15 (Vol. 1) at 57-59; 10/2/15 at 49; 10/5/15 at 193; 10/6/15 at 67; 10/7/15
at 72, 79; 10/8/15 at 56, 103; 10/9/15 at 20. Defendant was also fa charge of on-site safety. N.T.
10/1/15 (Vol. 1) at 62.
As defendant worked to demolish the Hoagie City building, defendant ordered the
removal of the horizontal floor joists, which defendant then resold for salvage, leaving the
building without lateral support. N.T. 10/1/15 (Vol. 1) at 96, 98�100, 107; 10/5/15 at 193;
10/6/15 at 16-18, 27-28; 10/7/15 at 194-196, 199-200. By removing the joists, defendant also
removed the ability for workers to take the building down by hand, as the internal floors were
now left without support. N.T. 10/5/15 at 183; 10/6/15 at 25; 10/8/15 at 59; 10/9/15 at 36.
Defendant was told multiple times that removing the joists was rendering the building unsafe.
N.T. 10/6/15 at 30-32, 39-40.5
In an attempt to continue demolition without using the internal floors, defendant sought
permission from the Salvation Army to continue the demolition work from the Salvation Army
building roof, but this permission was denied. N.T. 10/15/15 at 256-258, 274-275. Without
access to the Salvation Army roof, defendant informed Marinakos that he would have to tear the
building down from the inside, and so the demolition would be harder. N.T. 10/2/15 at 17.
Defendant could have rented a "high reach" to effectuate the demolition, but chose not to due to
costs.6 N.T. 10/2/15 at 21-25; 10/6/15 at 34, 36-37; 10/8/15 at 62-65.
Defendant hired co-defendant Sean Benschop in April to assist with the demolition. N.T.
10/2/15 at 49; 10/8/15 at 51-55. Benschop owned an excavator used in the demolition. N.T.
5
Buildings adjacent to occupied structures require top-down, floor by floor, hand demolition. N. T. 10/7/15 at 24-
25; 10/7/15 at 184-188, 201-202, 221, 260; 10/9/15 at 32-35.
6
A high reach is a mechanically lifted platform that enables construction workers to reach otherwise inaccessible
locations in order to complete their tasks.
5
10/8/15 at 45, 51-53, 208. While the Hoagie City building was being demolished, and after it
had been gutted, Benschop told Campbell that defendant would need a high reach in order to
knock down the building's western wall. N.T. 10/8/15 at 57-58, 61-62.
On June 2, 2013, defendant ordered Benschop to demolish the front wall of the Hoagie
City building with his excavator, removing one of the two walls supporting the western wall and
leaving the western wall almost completely free standing. N.T. 10/5/15 at 250; 10/6/15 at 73;
10/8/15 at 68-69. On that day, Benschop voiced concerns about the western wall, and defendant
indicated that he would take care of it. N.T. 10/5/15 at 220-221. On June 3, 2013, no demolition
work was done due to rainy weather. N.T. 10/1/15 (Vol. 1) at 113; 10/2/15 at 47.
Demolition work on the western wall continued on June 4, 2013, and included the partial
removal of the eastern wall by Benschop and the excavator. N.T. 10/8/15 at 75-77. Although
Benschop told defendant that it was dangerous to use the excavator at that time, defendant
directed Benschop to continue to use it. N.T. 10/8/15 at 75-78. That day, Marinakos visited the
site to take pictures and, seeing the freestanding western wall, told defendant, "You have to take
this wall down immediately." N.T. 10/1/15 (Vol. 1) at 113-119; 10/2/15 at 26-29. Defendant
told Marinakos that defendant would take care of it, and that he had men coming that night to get
up on the Salvation Anny roof to lower the wall. N.T. 10/2/15 at 28; 10/8/15 at 78, 80.
That night, defendant had several workers go up on the Salvation Army roof work on
removing parts of the wall. N.T. 10/6/15 at 75-80. These workers also informed defendant that
the wall was unsecure. N. T. 10/6/15 at 81-82. They were not able to significantly lower the
unsupported portions of the wall. N.T. 10/8/15 at 81. At this time, the wall was in an imminent
state of collapse and a gust of wind could have knocked it down. N.T. 10/9/15 at 46, 50.
6
On the morning of June 5, 2013, demolition work at the site continued. N.T. 10/5/15 at
223-226. Although the unsupported wall loomed over the Salvation Army building, the thrift
store remained open for business. N.T. 10/6/15 at 161-162, 176, 186-187. Defendant called
Marinakos and falsely stated that the wall had been taken down. N.T. 10/2/15 at 36-37.
That same morning, defendant ordered Benschop to work on demolishing the eastern
wall with a pry tool in the jaws of the excavator. N.T. 10/1/15 (Vol. 2) at 37; 10/7/15 at 35;
10/8/15 at 82-83. Benschop began working on the eastern wall as directed and, at approximately
10:41 a.m., the western wall collapsed· and fell onto the Salvation Army building, collapsing the
roof into the store. N.T. 10/2/15 at 37-38; 10/5/15 at 226-231; 10/8/15 at 86-87. Immediately
after the collapse, defendant called Marinakos and told him to come to the scene. N.T. 10/2/15
at 37-38: Defendant also told Marinakos that the excavator was being used, that it hit the
western wall, and that the western. wall had collapsed. N.T. 10/2/15 at 3 9-40.
Rescue workers and emergency personnel arrived and attempted to search the
construction pile for survivors. N.T. 10/1/15 (Vol. 2) at 19; 10/7/15 at 145-160. The rescue
operation continued throughout the day and into the next morning. N.T. 10/1/15 (Vol. 2) at 20;
10/7/15 at 145-160. Defendant later called Marinakos and apologized for the collapse. N.T.
10/2/15 at 45. Benschop, who was injured in the collapse, was transported to the hospital by
another co-worker. N.T. 10/5/15 at 223-224, 243; 10/8/15 at 88-89.
As a result of the collapse, Kimberly Finnegan, Juanita Harmon, Roseline Conteh, Borbor
Davis, Ann Bryan, and Mary Simpson were killed. N.T. 10/1/15 (Vol. 2) at 21-23, 75-78, 81-84,
94-101. The collapse seriously injured Mariya Plekan, resulting in a year-long hospital stay,
multiple surgeries, and the amputation of both her legs. N.T. 10/1/15 (Vol. 2) at 23; 10/8/15 at
24-32. Rosemary Kreutzberg was trapped in the rubble, resulting in three days of
7
hospitalization. N.T. 10/8/15 at 35-39. The collapse also placed numerous other people at risk
as they were on or near the site at the time of the collapse. N.T. 10/6/15 at 166-168, 177-181,
187-192. Emergency medical personnel also assisted pedestrians who were off to the side of the
street at the time of the collapse. N.T. 10/1/15 (Vol. 2) at 15-16, 25-26, 28-30.
Following the collapse, defendant informed Marinakos that the excavator was being used
in the demolition just prior to the collapse. N.T. 10/2/15 at 39-40. However, in defendant's
initial interview with OSHA investigator Sarah Carle, defendant denied that the excavator was in
use at the time of the collapse. N.T. 10/7/15 at 286-287. Defendant did ultimately admit to
Carle that the excavator was running and was being used in demolition at the time. N.T. 10/7/15
at 287.
II. DISCUSSION
A. Jury Tainted by Pretrial Publicity
Defendant asserts that the Court "should have dismissed the entire [jury] panel" as the ·
unfavorable media attention generated by this case polluted the jury pool and rendered the panel
unable to render a neutral, fair, and unbiased verdict. Statement of Errors at unnumbered pages
2-3. However, defendant did not, at any time prior to trial or during jury selection, make a claim
that the jury pool was tainted and that the jury panel should be dismissed. Accordingly, this
claim is waived, See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal."); Commonwealth v. Miller, 80 A.3d 806, 811 (Pa.
Super. 2013) .
. B. Requirement to Pay for Grand Jury Notes of Testimony
Defendant next claims that, prior to the commencement of trial, defense counsel
requested a copy of the notes of testimony from the grand jury proceedings in this matter, and
8
that the Court erred in requiring that defendant pay for the notes in order to receive them.
Statement of Errors at unnumbered pages 3-4. This claim should be rejected for two reasons.
First, at no time did defendant request that he be provided with the notes free of charge.
While the Court did state that only court-appointed counsel was entitled to notes of testimony
without paying for them, defendant's privately retained counsel never argued that he was entitled
to have the government pay for the notes due to defendant's inability to afford them. To the
contrary, counsel advised the Court that because key grand jury witnesses had given extensive
depositions in the civil suit arising out of the collapse, and since counsel had the transcripts of all
of those depositions, 'and the exhibits from those depositions, he believed that he had sufficient
material for an effective defense without the grand jury transcripts. N.T. 9/21/2015 at 34-36.
Defendant cannot properly claim that the Court erred in denying a request that was never made.
See Miller, 80 A.3d at 811.
Second, the record establishes that any claim premised upon defendant's lack of access to
the notes was explicitly waived. The Court held an extensive ex parte colloquy with defendant
and defense counsel prior to trial to address trial counsel's election to forego ordering some of
the grand jury notes. N.T. 9/21/15 at 27-38. During this colloquy, defense counsel described in
detail his reasons for going forward without ordering the notes, including, as stated above,
counsel's access to the extensive discovery from the related civil case. N. T. 9/21/2015 at 34-36.
The Court then advised defendant that if he was not satisfied to proceed without the notes, the
Court would permit defendant to present a claim that he could not afford his defense, that he was
entitled to court-appointed counsel and all of the notes free of charge, and that the case should be
continued. N.T. 9/21/2015 at 37. Defendant declinedthat invitation and elected to proceed to
trial, leading the Court to find that defendant had made "a knowing, intelligent, and voluntary
9
relinquishment of his right to have court-appointed counsel and the documents paid for by the
Commonwealth." N.T. 9/21/2015 at 37. Neither defendant nor his counsel contested that
finding. N.T. 9/21/2015 at 37-38.
Accordingly, the record demonstrates that defendant and his privately retained counsel
made a joint strategic decision to proceed to trial without some of the grand jury notes, and that
defendant waived anyclaim based his failure to secure those notes. No relief is due.
C. Motion to Dismiss due to Selective Racial Prosecution
Defendant claims that he was denied his constitutional rights due to selective prosecution.
He premises this claim on the fact that he and co-defendant Benschop, both of whom are
African-American, were the only people to be criminally prosecuted for the collapse, while
numerous other culpable parties, all of whom were Caucasian, were not prosecuted. Statement
of Errors at unnumbered page 3.
It is well-established that a claim of selective prosecution is waived if it is not raised in a
pre-trial motion to dismiss. Commonwealth v. Butler, 601 A2d 268, 270-71 (Pa. 1991).
Defendant first raised his claim of selective prosecution in a post-verdict motion for
extraordinary relief. Accordingly, this claim is waived. Id.Even if defendant had properly preserved his claim, he would still not be entitled to
relief. To establish a defense of selective prosecution, the defendant must prove that: 1) other
similarly situated individuals were not prosecuted for similar conduct; and 2) that the decision to
prosecute the defendant was based on an impermissible ground such as race, religion, the
exercise of some constitutional right, or any other arbitrary classification. Commonwealth v.
Olavage, 894 A.2d 808, 811 (Pa. Super. 2006) (citing Commonwealth v. Mulholland, 702 A.2d
1027 (Pa. 1997). Defendant must establish that he was prosecuted for an invalid reason, not that
10
another guilty-party was not prosecuted. Commonwealth v. Childress, 799 A.2d 805, 811 (Pa.
Super. 2002).
Here, defendant cannot demonstrate that anyone who was not prosecuted was similarly
situated to the defendant. The defendant averred that the following white males shared
culpability for the collapse: "Plato Marinakos - Project Achitect, Richard Basciano - Owner,
\\"QVY1Q.� StmJl"IPf\d.s·..property Manager, Frank Cresci- Comptroller ofSTB, Alexander Wolfington
-Exclusive Real Estate Broker for the Project." Defendant's Post Verdict Motion Pursuant to
Pennsylvania Rules of Criminal Procedure 704(b) for Extraordinary Relief - Selective Racial
Prosecution During the Investigating Grand Jury Investigation and Indictment Process and the
Tacit Agreement Not to Indict Richard Basciano,'Jho-r,,fl.C. Simmonds and Frank Cresci at ,r 7.
None of these men shared defendant's responsibility, as the sole demolition contractor, to
supervise and direct the day-to-day operation of the demolition worksite. Where, as here, the
persons not charged had a distinct and different role in the events at issue, the prosecutor's
decision not to pursue charges against those persons cannot be the basis for a valid selective
prosecution claim. Olavage, 894 A.2d at 811.
· Accordingly, defendant's selective prosecution claim is both waived and without merit.
No relief is due.
D. Failure to Investigate Racial Hostility by Frank Fina
Defendant further asserts that the Court erred by dismissing, without judicial
investigation, defendant's post-trial motion alleging racial hostility by Assistant District
Attorney Frank Fina, who led the grand jury investigation into the collapse. Statement of Errors
at unnumbered page 7. This claim is without merit.
11
It is true that Assistant District Attorney Fina supervised the investigating grand jury that
recommended charges against defendant. It is also true that Fina was allegedly involved in the
exchange of racially offensive emails. However, the Commonwealth averred, and defendant did
not dispute, that Fina's role was limited to his involvement in the grand jury investigation. It is
undisputed that Seth Williams, the District Attorney, made the charging decisions in this case.
Defendant has not, at any time, alleged racial bias on the part of Mr. Williams.
Accordingly, assuming arguendo that defendant's averments regarding Fina were correct,
they would not have supported defendant's selective prosecution claim, nor otherwise have
entitled defendant to relief. Therefore, the Court properly denied defendant's request to conduct
a 'judicial investigation" into the email exchanges involving Fina.
E. Prohibiting Defendant from Calling Witnesses at Trial
Defendant alleges that several investigations of the collapse were conducted by a variety
of officials, including the Mayor, the City Controller, the City Inspector General, and others. He
contends that the Court erred in barring him from calling witnesses to present the findings of
these investigations. Statement of Errors at unnumbered pages 4-5.
Defendant's claim incorrectly describes the ruling of the Court. After receiving
defendant's witness list, the Commonwealth moved in limine to exclude numerous public
officials that were included on that list who may have had involvement in an investigation of the
collapse. The Court did not categorically bar any witnesses who participated in the
investigations. Instead, it set forth the following restrictions.
First, the Court stated defendant would not be permitted to put on evidence unless it
complied with the rules of evidence. Therefore, hearsay would not be admissible absent an
applicable exception to the hearsay rule. N.T. 7/24/i"J,InS· at 41-54. For example, the Mayor
12
would not be permitted to be called as a witness to testify to the things that his Staff had reported
to him about the collapse, and which he may have commented on in a press conference. That
would be hearsay. N.T. 7/24/·tt,\S « 39-41.
Second, the Court would only permit evidence relevant to the criminal charges against
the defendant. Evidence of the culpability of other people and organizations would only be
admitted if relevant to defendant's own culpability. Therefore, any evidence of the culpability of
any witnesses called at trial would be admitted, since the arguable culpability of a witness could
give rise to a proper claim that the witness was biased. N.T. 7/24/20\( at 44. Also, evidence
that anyone had interactions with the defendant in a manner that might affect his mental state
would be allowed, such as what an L&I inspector or OSHA inspector may have done, or failed to
have done, after coming to the site and meeting with defendant. All such evidence would be
admissible. N.T. 7/24:f 10,� a.t 54.
Third, the results of investigations by properly qualified experts would be admitted if
they led to .opinions relevant to defendant's culpability
. in this case. Also, any regulations that
were in effect, or any policies and practices that may have been known by defendant would be
admitted as well. N.T. 7/24/ 1,.olS at 41-42. All that was excluded was hearsay or evidence
directed solely to the culpability of people and organizations not on trial that did not have
relevance to the criminal charges against defendant. N.T. 7/24/:'JAIS at 54-56.
The Court did not preclude defendant from calling any witnesses on his list for whom he
proffered relevant, admissible evidence. Accordingly, no relief is due.
F. Failure to Secure and Produce Records ofPlato Marinakos
Defendant asserts that the Commonwealth failed in its "clear affirmative duty to secure
and produce all of [Marinakos '] records, documents, emails and all discovery relating to the
13
Market Street Collapse" once Marinakos was granted immunity, and that the Court failed to
correct this error. Statement of Errors at unnumbered page 5. In his post-sentence motions,
defendant argued that the failure of the Commonwealth to produce this material was a violation
of Brady v. Maryland, 373 U.S. 83, 87 (1963). This claim is without merit.
Under Brady, exculpatory evidence not disclosed to the defense will give rise to a due
process violation and will require a new trial if the exculpatory evidence is "material" either to
guilt or punishment. 373 U.S. at 87; see also Pa.R.Crim.P. 573(B)(l)(a) (specifying, as
mandatory discovery, "[a]ny evidence favorable to the accused that is material either to guilt or
to punishment, and is within the possession or control of the attorney for the Commonwealth").
Defendant must therefore establish three elements: "(1) suppression by the prosecution (2) of
evidence, whether exculpatory or impeaching, favorable to the defendant, (3) to the prejudice of
defendant." Commonwealth v. Tedford, 960 A.2d 1, 30 (Pa. 2008). If the police possess
evidence that is favorable to the defense, then the Commonwealth is deemed to be responsible
for its disclosure even if it is solely in the possession of the police. See Commonwealth v.
Lambert, 884 A.2d 848, 853 (Pa. 2005) (quoting Brady, 373 U.S. at 87).
Nowhere in defendant's Statement of Errors, or post-sentence motions, does defendant
. identify the records of Marinakos that were not disclosed and that were favorable to defendant.
See Defendant's Post-Sentencing Appeal and Motions per Rule 720, filed January 19, 2016,
unnumbered page 3 at 12; Statement of Errors at unnumbered page 5. Moreover, unless material
is in possession of the police, Brady does not obligate the Commonwealth to secure evidence for
defendant, but only to turn over exculpatory evidence in its possession. Since the
Commonwealth was under no obligation to secure any records of Marinakos, no relief is due.
14
G. Withholding Discovery and Failure of Court to Investigate
Defendant claims· that the Commonwealth wrongfully withheld discovery regarding the
results of fact-finding investigations of the collapse that were performed by "Investigation
Members," including the Mayor, the City Controller, the City Inspector General, and others.
Statement of Errors at unnumbered page 5. However, defendant did not, at any time prior to this
appeal, make this claim, nor seek relief from the Court concerning these alleged discovery
violations. Accordingly, this claim.is waived. See Pa.R:A.P. 302(a); Miller, 80 A.3d at 811.
H Restricting the Testimony ofDefense Expert Clifton Fordham
Defendant asserts that the Court committed error by "severely restrict[ing] the
Defendant[']s Expert Report and Trial Testimony of Board Certified Architect, Clifton
Fordham." Statement of Errors at unnumbered page 5. As .the basis for this claim, defendant
avers that Fordham placed primary responsibility for the safe demolition of the property on
architect Plato Marinakos, and that the Court denied defendant a fair trial by not permitting
Fordham to cover Marinakos' responsibility for the collapse in his testimony. Id
· This claim is refuted by the record. Contrary to defendant's avennents in the Statement
of Errors, the Court ruled in limine that anything in Fordham's report that pertained to
Marinakos' culpability was admissible and could be covered in full by Fordham. N.T. 7/24/15 at
44-48. As detailed in Section II.(E) above, the Court permitted the defense to freely present any
evidence of the culpability of any witnesses called at trial since the arguable culpability of a
witness could give rise to a proper claim that the witness was biased. Because Marinakos was a
Commonwealth witness, Fordham's opinion regarding Marinakos' culpability was not barred
from evidence. No relief is due.
15
1 Failure to Investigate Tacit Agreement
Defendant asserts that the Court erred in denying his post-trial motions "concerning the
secret tacit agreement between the DA and the counsel for both witnesses.'' Statement of Errors
at unnumbered page 6. In his post-trial motions, defendant asserted that witnesses Richard
Basciano and Thomas Simmonds both asserted their right to remain silent under the Fifth
Amendment and refused to testify at defendant's trial, and yet testified in civil depositions about
the collapse after defendant's criminal trial was completed.7 Defendant averred that he was
denied the right to present the testimony of these witnesses due to a "tacit agreement" between
these witnesses and the District Attorney that they would not be prosecuted so long as they
refused to testify in the criminal case. Post Sentencing Appeal and Motions per Rule 720,
unnumbered page 3 at, 5; Defendant's Rule 720 Pennsylvania Rules of Criminal Procedure-
Post Sentencing Motion [Based on] Selective Racial Prosecution During the Investigating Grand
Jury Investigation and Indictment Process and the Tacit Agreement Not to Indict Richard
Basciano, -inow, CJ Simmonds and Frank Cresci at ,r 12. This claim is without merit.
"To establish a fourteenth amendment due process violation based on the denial of the
right to compulsory process, a defendant must establish more than the mere absence of
testimony. There must be a plausible showing that an act by the government caused the loss or
erosion of testimony that was both material and favorable to the defense." Commonwealth v.
Holloman, 621 A.2d 1046, 1054 (Pa. Super. 1993) (internal citations omitted). As such,
defendant must establish "some plausible nexus between the challenged governmental conduct
and the absence of certain testimony." Id (quoting United States v. 1-\o,.f��n) 621 A.2d at 1054.
In addition, defendant failed to set forth any analysis or argument as to how these two
witnesses, if they had not asserted their Fifth Amendment right to not testify, would have
provided evidence both material and favorable to the defense. While defendant's post-
sentencing motions included as exhibits over two thousand pages of civil depositions, transcripts,
and documents, defendant did not cite to anything that would have permitted this Court to
examine how these witnesses might have assisted defendant if they had testified.
Accordingly, no relief is due.
J. Insufficient Evidence and Inconsistent Verdictfor Aggravated Assault
Defendant was convicted of one count of aggravated assault regarding victim Mariya
Plekan. Defendant asserts that this conviction "should be dismissed due to both lack of essential
· elements of proof and the inconsistent jury verdict." Statement of Errors at unnumbered page 6.
Defendant further avers that "during [Plekan's] trial testimony the DA never met the burden to
prove all the elements to the Fl Aggravated Assault." Id
8
When the Court inquired as to whether defense counsel was challenging the veracity of the prosecutors, defense
counsel stated: "I'm not challenging the integrity of these two fine prosecutors." N.T. 1/29/2016 at 23.
17
As to defendant's inconsistent verdict claim, defendant fails to specify in his Statement of
Errors how the verdict was inconsistent. However, in his post-sentence motions, defendant
premised his argument on the fact that the mens rea for third degree murder and for first degree
aggravated assault are the same: each requires that the defendant act at least recklessly in a
manner that manifests extreme indifference to value of human life. Defendant claimed that since
he was acquitted of all of the third degree murder charges, the jury necessarily found that he
lacked the required mens rea for both third degree murder and first degree aggravated assault.
As a result, defendant asked for a judgment of acquittal .on the aggravated assault charge.
Defendant[']s Post Verdict Motion Pursuant to Pennsylvania Rule of Criminal Procedure 606(5)
[sic J - Motion for Judgment of Acquittal of the Conviction for Aggravated Assault - Victim
Mariya Plekan- Rendered on October 19, 2015 at ff 4-16.
This argument is refuted by established law. Inconsistent verdicts are not a ground for
setting aside a conviction so long as the evidence is sufficient to support the convictions. As a
result, an acquittal on a third degree murder charge will not undermine a conviction for first
degree aggravated assault. Commonwealth v. Frisbie, 889 A.2d 1271, 1274 (Pa. Super. 2005).
In Frisbie, the defendant beat the victim to death after a fight in a restaurant bathroom. The jury
found defendant guilty of aggravated assault and involuntary manslaughter, but not guilty of
third degree murder. Just as in the case at bar, the defendant argued that the verdict on the third
degree murder charge required a judgment of acquittal on the aggravated assault charge, since it
negated the mens rea required for aggravated assault. The Superior Court rejected that
argument, applying the principle that inconsistent verdicts are not a ground for relief. 889 A.2d
at 1272-1273. As the Court then stated, "acquittal on the third degree murder charge is not a
18
specific finding that appellant did not act with malice." 889 A.2d at 1274. This rule applies with
equal force here.
Moreover, there was ample evidence in this case for the jury to conclude that defendant
acted with the requisite "reckless[ness] under circumstances manifesting extreme indifference to
the value of human life." 18 Pa.C.s.· § 2702(a)(l). First, the· evidence clearly established that
defendant was the sole demolition contractor and was in charge of the means and methods of
demolition that led to the disaster. Architect and owner representative Plato Marinakos testified
that defendant bid on the Market Street project with the understanding that he would be able to
salvage and sell materials from the demolition. N.T. 10/1/15 at 43-47. Marinakos also testified
that defendant, as general contractor, was in charge of the means and methods of demolition.
N.T. 10/1/15 at 57-59; 10/5/15 at 193. Marinakos testified that being in control of the means and
methods of demolition meant that defendant was in control of when, how, and where the
'
building was to be demolished. N.T. 10/1/15 at 57-59. That defendant was in control of the
demolition was corroborated by architect John Higgins. N.T. 10/7/15 at 72. Defendant's control
of the demolition process was also confirmed by laborers Darryl Alston, Eric Sullivan, and Juan
Cajas, who each testified that defendant directed their actions on. the site. N.T. 10/5/15 at 211
(Alston); 10/6/15 at 18 (Sullivan); 10/6/15 at 73, 75-76 (Cajas). SeanBenschop testified that he
was hired by defendant in order to work on the demolition site with his excavator, where he
assisted in the demolition of the buildings on the 2100 and 2200 block of Market Street. N.T.
10/8/15 at51-52, 55. Benschop testified that defendant instructed him as to what to do with the.
excavator. N.T. 10/8/15 at 56. Benschop also testified that he would not operate his equipment
on the site without defendant being present. N.T. 10/8/15 at 74.
19
It was also clearly established that the manner in which defendant demolished the Hoagie
City building was directly contrary to established safety procedures. Albert McCarthy, Code
Compliance Specialist for the-Department of Licenses and Inspections in Philadelphia, testified
that the only way to properly demolish a structure that is adjacent to another occupied structure is
from the top down, by hand. N.T. 10/7/15 at 18-19. McCarthy testified that this was in order to
prevent the loss of control over the building's demolition. N. T. 10/7/15 at 18-19. Expert
structural engineer David Peraza similarly testified that the proper method to demolish a building
is from the top down. N.T. 10/9/15 at 21. However, multiple witnesses each testified that
defendant did not demolish the Hoagie City building in a top down, by hand manner, but that he
instead gutted the building of salvageable material, rendering the building unsafe. In particular,
defendant directed his workers to remove the internal support of the Hoagie City building,
.namely the floors and floor joists. Further, multiple witnesses testified that defendant ordered
the mechanical demolition of the building by use of Benschop's excavator.
Eric Sullivan testified that defendant ordered him to remove the floor joists from the
buildings next to the Hoagie City building in early May, 2013. N.T. 10/6/15 at 15-18. Sullivan
testified that, after removing the joists and demolishing the neighboring buildings, he proceeded
to the Hoagie City building and began removing the joists from there as well. N. T. 10/6/15 at
27. Darryl Alston similarly testified that the site was not a normal job site as there were large
holes in the middle of the building and joists were missing in the floors. N.T. 10/5/15 at 211-
213.
Plato Marinakos testified that, on May 21, 2013, he visited the site and took pictures,
which documented that the floor joists of the Hoagie City building had been removed,
weakening the lateral support for the building walls. N.T. 10/1/15 (Vol. 1) at 95, 99-100.
20
Marinakos testified that he returned to the work site on June 2, 2013, again took photos, met with
defendant, and saw Benshop working on the site with the excavator. N.T. 10/1/15 (Vol. 1) at
104-108; 10/2/15 at 46. Marinakos testified that he was unaware that the floor joists had been
removed from the lower floors of the building, and that defendant explained to him that
defendant was going to erect scaffolding inside the building to effectuate a hand demolition.
N.T. 10/1/15 (Vol. 1) at 106-107; 10/5/15 at 183.
After removing the salvageable floor joists, defendant ordered the removal of the entire
front wall of the Hoagie City building. Benschop testified that defendant instructed him to use
the excavator and tear down the front of the building on June 2, 2013, and that he did so. N.T.
10/8/15 at 68-73. Marinakos similarly testified that the front wall was removed on June 2, 2013.
N.T. 10/2/15 at 46. Additionally, laborer Juan Cajas testified that defendant ordered the removal
of the front wall of the Hoagie City building by use of the excavator. N.T. 10/6/15 at 7l
Marinakos testified that visited the work site on June 4, 2013, at approximately 5:00 p.m.,
and that the western wall of the Hoagie City building was unbraced and free standing. N.T.
10/1/15 (Vol. 1) at 113-119. Benschop testified that the next morning, June 5, 2013, defendant
told him to continue to take the eastern wall down as the building owner wanted it down. N. T.
10/8/15 at 82. Benschop testified that he placed a beam in the jaws of the excavator and
attempted to take the eastern wall down, but that the western wall collapsed onto the Salvation
Army store. N.T. 10/8/15 at 83-87.
The Commonwealth also established defendant's reckless state of mind through the
numerous witnesses who had warned defendant that he was proceeding in an improper and
highly dangerous manner prior to the collapse. Defendant's employee, Eric Sullivan, testified
that he was concerned with the manner in which.the Hoagie City building was being demolished
21
as it was leaving free standing walls and that he brought this concern to defendant, who told him
to continue removing joists and that defendant would "take care of it." N. T. 10/6/15 at 29-31.
Sullivan testified that, after removing more joists from the building, Sullivan again expressed
concerns about the building's safety to defendant, who told him to continue working or leave.
N.T. 10/6/15 at 32-33. Sullivan testified that his last day on the work site was June 1, 2013. On
that day he and defendant had an argument, with defendant ordering Sullivan to continue
removing joists. Sullivan refused to do so and quit, since defendant's demolition method would
damage the integrity of the walls of the building. N.T. 10/6/15 at 39-40.
Similarly, worker Alston testified that he expressed his concerns to defendant about the
safety of the demolition after defendantordered Benschop to remove the front wall of Hoagie
City. N.T. 10/5/15 at 211, 220-221, 250. In addition, Marinakos told defendant the day before
the collapse that the wall adjacent to the Thrift Store needed to be taken down that night. N.T.
10/2/15 at 27-28. Cajas, who was one of the workers who defendant sent up to roof of the Thrift
Store the night before the collapse, told defendant that the wall was not stable, and that the wall
moved while they were working on it. N.T. 10/6/15 at 81-82. Benschop testified that he told the
defendant that he was concerned about using the excavator for demolition the day before the
collapse since the Thrift Store was occupied, but that defendant ordered him to go forward
anyway. N.T. 10/8/15 at 75-76.
Moreover, the evidence demonstrated defendant's consciousness of guilt. When
defendant was first interviewed by OSHA investigator Sarah Carle, he falsely told her that the
excavator was not being used at the time of the collapse. N.T. 10/7/15 at 286-287. Similarly,
Marinakos testified that the morning of the collapse, defendant called him and falsely stated that
he had taken the wall down the night before. N.T. 10/2/15 at 36.
22
Accordingly, there was ample evidence from which the jury could conclude that
defendant acted with the requisite mental state for first degree aggravated assault, that is,
recklessly in a manner manifesting extreme indifference to the value of human life. Defendant
pressed forward with a demolition technique well-known to be highly dangerous while a store
adjacent to the demolition project was occupied and disregarded clear warnings that the building
was unstable and posed an immediate safety hazard. Therefore, defendant's sufficiency of the
evidence claim was properly rejected.
K. Excessive. Sentence
Defendant's next claim reads, in its entirety: "Excessive sentencing by the trial court - 15
to 30 years." Statement of Errors at unnumbered page 6. This claim is without merit.
. "Sentencing is a matter vested in the sound discretion of the sentencing judge, and a
sentence will not be disturbed on appeal absent a manifest abuse ·of that discretion."
Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988), appeal denied, 571 A.2d
379 (Pa. 1989); see Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). The sentencing
court must consider the need to protect the public, the gravity of the offense in relation to the
impact upon the victim, the rehabilitative needs of the defendant, and the Sentencing Guidelines.
42 Pa.C.S. § 9721 (b); see Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005)
(quoting Commonwealth v. Monahan, 860 A.2d 180, 184 (Pa. Super. 2004)). A sentence within
the Guidelines may be vacated only if ''the case involves circumstances where the application of
the Sentencing Guidelines would be clearly unreasonable." 42 Pa.C.S. § 9781(c)(2).
As to consecutive sentences, "[l]ong standing precedent of [the Superior] Court
recognizes that [the Sentencing Code] affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at the same time or to
23
sentences already imposed." Commonwealth v. Marts, 889 A.2d 608, 612-13 (Pa. Super. 2005).
Accordingly, the decision to sentence consecutively fails even to raise a substantial question on
appeal unless that decision "raises the aggregate sentence to, what appears upon its face to be, an
excessive level in light of the criminal conduct at issue in the case." Commonwealth v.
Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010) (quoting Commonwealth v. Gonzalez-Dejusus,
994 A.2d 595, 596 (Pa .. Super. 2010)). Therefore, an appellate court will not disturb consecutive
sentences unless the aggregate sentence is "grossly disparate" to the defendant's conduct, or
"viscerally appear[s] as patently 'unreasonable.!" Id. at 587-588.
Here, in fashioning an appropriate sentence, the Court explicitly considered the evidence
presented during defendant's trial and sentencing hearing, the information contained in the pre-
sentence report, all the mitigating evidence provided by defendant, the Sentencing Guidelines,
. the need to protect the public, 'the gravity of the offense and its impact on the victims, and
defendant's rehabilitative needs. N.T. 1/8/16 at 118-123.9 The Court sentenced defendant on
each of the six involuntary manslaughter charges to one to two years incarceration, on each of
the eleven REAP charges to six to twelve months incarceration, on the aggravated assault charge
to three and a half to seven years incarceration, and on the causing a catastrophe· charge to one to
two years incarceration. N.T. 1/8/16 at 123-126. The involuntary manslaughter, REAP, and
aggravated assault charges were all run consecutive to each other, for an aggregate sentence of
15 to 30 years incarceration, while the causing a catastrophe charge was run concurrently. Id.
9
Applying the Seventh Edition of the Sentencing Guidelines, the parties agreed that defendant's prior record score
was 1. · N .T. 1/8/16 at 14. The parties also agreed that, using the Basic Sentencing Matrix, the charge of causing a
catastrophe and six counts of involuntary manslaughter were assigned a standard range of 6 to 14 months, plus or
minus 6 months for the aggravated and mitigated ranges, respectively, the 11 counts of REAP were assigned a
standard range of RS to 6, plus or minus three months for the aggravated and mitigated ranges, respectively, and the
charge of aggravated assault was assigned a standard range of 42 to 60 months, plus or minus 12 months for the
aggravated and mitigated ranges, respectively. N.T. 118/16 at 18� 19.
24
These sentences were all within the standard range of the Sentencing Guidelines and were clearly
reasonable.
The magnitude of defendant's criminal behavior established by the record demonstrates
that the Court was well within its discretion to run the majority of the sentences consecutively.
Defendant-presided. over, and directed, the demolition of a multi-story building located next to
the occupied Salvation Army store. Defendant stripped the building of nearly all lateral support
in order to increase his profit margin from salvage. In the course of this demolition, defendant
ignored repeated warnings and left an unsupported multistory wall looming over the Salvation
Army building. Defendant then continued to demolish the building by ordering the use of an
excavator to knock down both the front and eastern walls· or the now-gutted building, despite the
safety concerns raised by using mechanical demolition. As a result of defendant's actions, the
western wall collapsed onto the roof of the Salvation Army Thrift Store, killing sri people in a
horrible manner and grievously injuring many others. The consecutive sentences reflected the
separate victims, and resulted in an aggregate sentence commensurate with the criminal conduct
demonstrated during the trial of this case.
Hence, the recorddemonstrates that the sentence imposed by theCourt was not grossly
disparate to defendant's conduct or patently unreasonable. See Mastromarino, 2 A.3d at 587-
588. Accordingly, the sentence should be affirmed on appeal.
L. Denial ofDefense Motions and Objections
Finally, defendant "incorporates all of the properly filed post trial motions for relief- and
the failure of the trial court to properly investigate and grant the requested relief' and submits
"all objections noted on the record at all pre [trial] hearings, motions, during the course of the
trial and post trial motions for the purposes of the concise Statement of Errors." Statement of
25
Errors at unnumbered pages 6, 7. As the trial in this matter spanned a period of twenty days and
included multiple pre-trial and post-trial hearings, the Court is left to guess as to which
objections, other than those presented above, defendant now seeks to raise on appeal.
Accordingly, this claim is waived. Cannon, 954 A.2d at 1228.
III. CONCLUSION
For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.
BY THE.COURT:
GLENN B. BRONSON, J.
26
Commonwealth v. Griffin Campbell CP-51-CR-0001793-2014
Type of Order: 1925(a) Opinion
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing Court Order upon the person(s), and
in the manner indicated below, which service satisfies the requirements of Pa.R.Crim.P.114:
Defense Counsel/Party:
William D. Hobson, Esquire
Two Penn Center, Ste. 1410
1500 J.F.K. Blvd.
Philadelphia, PA 19102
Type of Service: ( ) Personal {X) First Class Mail ( ) Other, please specify:
District Attorney(s):
Hugh J. Bums, Jr., Esquire
Chief, Appeals Unit
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Type of Service O Personal (X) First Class Mail () Other, please specify:
Additional Counsel/Party:
Joseph D. Seletyn, Esquire
Prothonotary
Office of the Prothonotary - Superior Court
530 Walnut Street, Suite 315
Philadelphia, PA 19106
Type of Service: ( ) Personal. (X) First Class Mail ( ) Other, please specify:
Dated: March 10, 2017