Com. v. White, K. ( 2018 )

J-S31020-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH WHITE :
:
Appellant : No. 1391 EDA 2017
Appeal from the Judgment of Sentence December 23, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006576-2016
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 12, 2018
Kenneth White appeals from his judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after he was convicted, in a
nonjury trial, of aggravated assault,1 attempted arson,2 possessing
instruments of crime (“PIC”),3 simple assault,4 and recklessly endangering
another person.5 On appeal, White challenges the sufficiency of the evidence
as to his aggravated assault and attempted arson convictions. After careful
review, we affirm.
____________________________________________
1 18 Pa.C.S.A. § 2702(a)(1).
2 18 Pa.C.S.A. §§ 901(a) and 3301.
3 18 Pa.C.S.A. § 907(a).
4 18 Pa.C.S.A. § 2701(a).
5 18 Pa.C.S.A. § 2705.
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The trial court cogently set forth the facts of this case as follows:
On June 17, 2016, at approximately 3:00 [p.m.], Latanya Pressley
(“Pressley”) and [White] got into an argument about [White’s]
drinking and medication use. The argument soon escalated.
Pressley locked herself in the bathroom because she was scared
for her safety, but [White] kicked in the door. While Pressley
cowered in the shower, [White] began spraying lighter fluid on the
curtain, threatening to set her on fire.
In the meantime, Police Officer Matthew Rivera and backup
officers responded to a radio call for a disturbance at the
residence. Upon arriving at the property, Officer Rivera knocked
on the front door but received no response. When he knocked on
the front window, Officer Rivera heard a female screaming inside.
He also heard what sounded like a struggle, including items being
dropped. When Pressley heard Officer Rivera knocking, she
pushed [White] and ran downstairs. [White] followed her. He
opened the door, saw Officer Rivera, slammed the door, and ran
to the back of the house. Pressley re-opened the door for Officer
Rivera. She was screaming, crying, shaking hysterically, and
pointing to [White], repeatedly claiming that [White] had tried to
set her on fire. Officer Rivera immediately pursued [White], who
was stopped by backup officers at the rear of the residence, and
taken into custody.
As Officer Rivera surveyed the property, he saw the bathroom
door hanging off its hinges, the furniture in disarray, and the
shower curtain partially pulled down. He also noticed the “very
strong” smell of lighter fluid. He saw lighter fluid sprayed on the
bathroom floor and shower curtain. A bottle of lighter fluid was
on the bathroom floor, and a lighter was on the floor just outside
the bathroom. Pressley, herself, also smelled so strongly of lighter
fluid that Officer Rivera could detect the odor even as she sat in
the backseat of his patrol car with the windows open on the way
to her interview with detectives.
Lieutenant Assistant Fire Marshal Steven McMichael (an expert in
the field of the causes and origins of fires and explosions) was
called to the scene, as was a trained, certified accelerant detection
canine, “Chance.” Chance alerted to lighter fluid in the bottle on
the bathroom floor and on the bathroom rug. Lieutenant
McMichael also observed the lighter on the floor a mere three feet
from where the lighter fluid bottle was. Based on these
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observations and Chance’s response at the scene, Lieutenant
McMichael concluded that someone had attempted to start a fire
in the bathroom.
Trial Court Opinion, 8/3/17, at 1-3 (citations to record omitted).
On October 20, 2016, the Honorable Donna M. Woelpper found White
guilty of the above charges. On December 23, 2016, the court sentenced
White to an aggregate term of 3½ to 12 years’ incarceration, followed by 7
years of probation. Post-sentence motions were denied by the trial court on
April 19, 2017. White filed a timely notice of appeal to this Court, followed by
a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on
appeal.6
White challenges the sufficiency of the evidence as to his aggravated
assault and attempted arson convictions. We begin by noting our standard of
review:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the factfinder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not
[re]weigh the evidence and substitute our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
____________________________________________
6 The trial court found that White had waived his sufficiency claims because
he failed to specify in his Rule 1925(b) statement the elements of the offenses
he believes the Commonwealth failed to prove. White has requested that we
either find that he has not waived the claims or, in the alternative, remand for
the filing of an amended Rule 1925(b) statement. Because we believe the
record is sufficient to address White’s claims, we decline to either find waiver
or require a remand and will address the merits of his claims.
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evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Cunningham, 805 A.2d 566, 570–71 (Pa. Super. 2002),
quoting Commonwealth v. Vetrini, 734 A.2d 404, 406–07 (Pa. Super. 1999)
(internal citations and brackets omitted).
To establish the crime of aggravated assault, the Commonwealth was
required to demonstrate that White intended to inflict serious bodily injury
upon the victim and committed any act constituting a substantial step toward
inflicting such an injury. 18 Pa.C.S.A. § 2702(a)(1); Commonwealth v.
Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (en banc). In order to prove
White committed attempted arson, the Commonwealth was required to prove
that, with intent to commit arson, White did any act which constitutes a
substantial step toward the commission of that crime. See 18 Pa.C.S.A. §
901(a). A person commits arson if he intentionally starts a fire, on his own
property or on that of another, and thereby recklessly places another person
in danger of death or bodily injury. See 18 Pa.C.S.A. § 3301(a). “As intent
is a subjective frame of mind, it is of necessity difficult of direct proof.”
Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. upper. 2005)
(citations omitted). Accordingly, intent may be proven by direct or
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circumstantial evidence and may be inferred from acts, conduct or attendant
circumstances. Id.Here, the Commonwealth presented ample evidence to prove both
aggravated assault and attempted arson. Officer Rivera testified that Pressley
repeatedly told him, in the immediate aftermath of the incident, that White
had tried to set her on fire. Officer Rivera stated that, at the time, Pressley
was extremely upset, shaking, and crying hysterically. Officer Rivera also
testified that he could smell the odor of lighter fluid emanating from Pressley’s
person, in the bathroom, and on White himself. A canine officer also confirmed
the presence of lighter fluid in the bathroom, and both Officer Rivera and
Lieutenant McMichael testified that there was a lighter lying on the floor
directly outside the bathroom. Moreover, Pressley’s statement to police, given
the day of the incident, was admitted into evidence as a prior inconsistent
statement and corroborated Officer Rivera’s version of events.
White asserts that “[i]t is clear that the trial court in this case disbelieved
Ms. Pressley’s recantation of her statement to the detective and relied upon
that statement” to find White guilty. Brief of Appellant, at 14. White argues
that the verdicts cannot stand because they were based on the trial court’s
disbelief of Pressley’s in-court testimony, rather than on affirmative proof
presented by the Commonwealth. In support of his claim, White relies on
Commonwealth v. Scott, 597 A.2d 1220 (Pa. Super. 1991), in which our
Court held that it is impermissible to substitute trial court’s disbelief of an
appellant’s testimony for presentation by the Commonwealth of evidence
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beyond a reasonable doubt, and Commonwealth v. Brady, 560 A.2d 802(Pa. Super. 1989), in which we held that a finding by the trial court that an
alleged accomplice was not credible does not support an affirmative inference
of the appellant’s guilt. These cases are inapposite.
In both Scott and Brady, the Commonwealth failed to present
affirmative evidence of the appellants’ guilt beyond a reasonable doubt.
Rather, the verdicts were based on the disbelief of witnesses’ testimony. In
contrast, here, the Commonwealth presented ample affirmative evidence of
White’s guilt, not only through the testimony of Officer Rivera and Lieutenant
McMichael, but also Pressley’s own statement to police from the day of the
incident. Accordingly, while the trial court may well have disbelieved
Pressley’s recantation testimony, its verdict was also based on affirmative
evidence of White’s guilt provided by the Commonwealth.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/18
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