Commonwealth v. McCoy

199 A.3d 411

COMMONWEALTH of Pennsylvania

v.Aaron M. MCCOY, Appellant

No. 627 EDA 2017

Superior Court of Pennsylvania.

Submitted July 23, 2018

Filed November 14, 2018

Leonard Sosnov, Assistant Public Defender, and Karl Baker, Public Defender, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, and Benjamin J. Halle, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

OPINION BY SHOGAN, J.:

Aaron M. McCoy ("Appellant") appeals from the judgment of sentence entered on January 11, 2017, in the Court of Common Pleas of Philadelphia County. For the reasons that follow, we reverse two convictions, vacate the judgment of sentence, and remand.

The trial court summarized the facts and procedural history of this case as follows:

On December 22, 2015, police officers Thomas Strain and Shawn Wills responded to a call at 116 West Fisher Avenue. N.T. (Trial) 01/11/2017 at 11; see also N.T. (Suppression Hearing) 11/29/2016 at 7–8, 11–13, 47–49. There they met Appellant..., who was complaining about trespassers. Id. These trespassers happened to be the relatives of [Appellant's] recently deceased girlfriend. [Appellant] claimed that they not only were rummaging through his apartment looking for papers such as her will and insurance policies, but also were also [sic] taking his personal property. N.T. (Trial) 01/11/2017 at 68; N.T. (Suppression Hearing) 11/29/2016 at 10, 47, 50. While speaking to the individuals in the apartment, Officer Strain was informed by the mother of Appellant's late girlfriend that Appellant was growing marijuana in his apartment. N.T. (Trial) 01/11/2017 at 12; N.T. (Suppression Hearing) 11/29/2016 at 8, 15, 50. Officer Strain asked Appellant where the marijuana was and testified that Appellant showed him to a closet in the front bedroom. N.T. (Trial) 01/11/2017 at 13; N.T. (Suppression Hearing) 11/29/2016 at 9, 16–17. The closet door was closed, but Officer Strain noticed bags of potting soil and fans in the bedroom. N.T. (Trial) 01/11/2017 at 17; N.T. (Suppression Hearing) 11/29/2016 at 17–18. [Appellant] then opened the closet door, revealing the marijuana plants inside. N.T. (Trial) 01/11/2017 at 13 N.T. (Suppression Hearing) 11/29/2016 at 9, 18–19. [Appellant] stated that he just grew the marijuana as a hobby and did not sell it. N.T. (Trial) 01/11/2017 at 13; N.T. (Suppression Hearing) 11/29/2016 at 9. Officer Strain then placed Appellant...under arrest and called for a search warrant to be prepared, which was subsequently executed on the property by Officer Michael Vargas. N.T. (Trial) 01/11/2017 at 17, 27–28; N.T. (Suppression Hearing) 11/29/2016 at 9–10, 35. The police recovered 31 marijuana plants and one Sun Glo (sometimes referred to as "Sun God") brand heat lamp and the seized items were recorded on police property receipts. N.T. (Trial) 01/11/2017 at 28–29, 32–33.

On June 21, 2016, Appellant, through counsel, filed an Omnibus Pre-trial Motion seeking suppression of, inter alia , any illegally obtained physical evidence and Appellant's statements to the police. A hearing was held on Appellant's motion on November 29, 2016, and at the conclusion of the hearing, [the trial court] held the motion under advisement and denied it on December 12, 2016.

* * *

Appellant...waived his right to a jury trial on January 11, 2017, and he was found guilty of Risking a Catastrophe, Possession of Marijuana, and Recklessly Endangering Another Person.^1,2 That same date, [the trial court] sentenced Appellant to a term of three years' probation on the charge of risking catastrophe and no further penalty on the remaining charges. No post-sentence motions were filed, and Appellant filed a timely notice of appeal on February 10, 2017. On February 13, 2017 we issued an order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a Concise Statement of Matters Complained of on Appeal within twenty-one days. Appellant filed a Concise Statement on March 3, 2017, along with a Request for Extension of Time pursuant to Pa.R.A.P. 1925(b)(2), which we granted on March 6, 2017. The deadline to file a supplemental 1925(b) statement was May 26, 2017 and Appellant declined to file a supplemental statement.

¹ 18 Pa.C.S.A. § 3302(b), 35 P.S. § 780-113(a)(16), and 18 Pa.C.S.A. § 2705 respectively.

² Additionally, just prior to trial, the Commonwealth nolle prossed the charge of possession of marijuana with the intent to manufacture or deliver. N.T. (Trial) 01/11/2017 at 8.

Trial Court Opinion, 5/31/17, at 1–2, 7–8.

On appeal, Appellant states the following questions for our consideration:

1. Was not the evidence insufficient to convict [Appellant] of risking catastrophe because the Commonwealth failed to prove the mens rea of recklessness or that his conduct created a risk of a catastrophe?

2. Did not the Commonwealth fail to present sufficient evidence to sustain a conviction for recklessly endangering another person because the evidence did not prove that [Appellant] acted recklessly or that he placed another person in danger of death or serious bodily injury?

Appellant's Brief at 2 (initial capitalization of words omitted).

Appellant complains that the evidence was insufficient to sustain the convictions of risking a catastrophe and recklessly endangering another person ("REAP"). Appellant's Brief at 9, 15. A successful sufficiency-of-the-evidence claim requires discharge. Commonwealth v. Toritto , 67 A.3d 29 (Pa. Super. 2013). Whether the evidence was sufficient to sustain the charge presents a question of law. Our standard of review is de novo , and our scope of review is plenary. Commonwealth v. Walls , 144 A.3d 926 (Pa. Super. 2016). In conducting our inquiry, we examine:

whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as verdict-winner, [is] sufficient to establish all elements of the offense beyond a reasonable doubt. We may not weigh the evidence or substitute our judgment for that of the fact-finder. Additionally, the evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to resolve any doubts regarding a defendant's guilt unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. When evaluating the credibility and weight of the evidence, the fact-finder is free to believe all, part or none of the evidence. For purposes of our review under these principles, we must review the entire record and consider all of the evidence introduced.

Commonwealth v. Trinidad , 96 A.3d 1031, 1038 (Pa. Super. 2014) (quoting Commonwealth v. Emler , 903 A.2d 1273, 1276-1277 (Pa. Super. 2006) ).

Within his first issue challenging the conviction of risking a catastrophe, Appellant asserts two arguments. First, Appellant assails the testimony of the Commonwealth's expert witness, Lieutenant Charles Grover, arguing that the Commonwealth failed to prove beyond a reasonable doubt that "if a fire had started as a result of [Appellant's] growing of marijuana it would have posed a risk of a catastrophe, an extraordinary disaster." Appellant's Brief at 10.

The trial court addressed Appellant's "risking catastrophe" argument with the following analysis:

Here the evidence established that Appellant McCoy had converted a closet in his apartment to grow marijuana, using lamps, metal foil, electrical cords and wooden boards. N.T. (Trial) 01/11/2017, at 14, 28–29, 32–33. Lieutenant Charles Grover, a fire marshal qualified as an expert in the field of fire prevention, testified that the marijuana plants, foil, hanging clothes, wood, paper, and bags present in the closet were all fire hazards. Id. at 41–42, 44, 45. He also testified that [Appellant] had used ordinary household extension cords to plug in the lamps in the closet, which he opined was dangerous because the lamp could draw a greater voltage than the cord was rated for (i.e. , 120 volts). Id. at 43. Lieutenant Grover concluded that in his expert opinion, [Appellant's] marijuana growing operation represented ... "a risk of causing a fire" and further testified that it was an "extreme fire hazard." Id. at 47. Lieutenant Grover also testified that, in general, neglect of a marijuana growing operation contributes to it being a fire hazard. Id. at 41. He testified that the heat from the lamps used can dry out the marijuana plants and any other combustibles kept nearby, such as clothing, causing them to ignite. Id. at 41, 44. He also stated that because growing operations are often unattended, no one can put out the fire when it first begins and is still small. Id. at 43.

* * *

Here, the closest house was only five or six feet away from Appellant's home. N.T. (Trial) 01/11/2017, at 63.⁴ This [is] also supported by [Appellant's] Exhibit 1, a photograph of the exterior of Appellant's home, which depicts a tree and a house to the left of Appellant's home about five to six feet away from Appellant's home. Another house is located to the right of Appellant's home, and that house is at least 15 away from Appellant's home. See also N.T. (Trial) 01/11/[2017], at 63 (Appellant testified[, "Y]ou could actually fit a semi-truck in between our house and the house on the right.").

⁴[Appellant] testified that no one was living in the first floor apartment on the date he was arrested. N.T. (Trial) 01/11/2017 at 63.

As discussed, supra , Lieutenant Grover testified as to the numerous ways that [Appellant's] marijuana growing apparatus constituted an extreme fire hazard. He further testified that fire usually spreads up and out, i.e. to the sides of the building. Id. at 46. A fire originating from Appellant's marijuana growing operation would easily have spread to the neighboring tree and house. The Commonwealthestablished the element of risk of catastrophe beyond a reasonable doubt.

Trial Court Opinion, 5/31/17, at 14–15, 17.

Upon...