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HomeMy WebLinkAbout98-2111 criminal (2)COMMONWEALTH THERESA L. FERNBAUGH IN RE: IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA 98-2111 CRIMINAL TERM OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE '1925 Bayley, J., August 11, '1999:- Defendant, Theresa L. Fernbaugh was convicted by a jury of arson endangering property? and arson endangering persons? She was sentenced on the count of arson endangering property to pay the costs of prosecution and undergo a period of supervised probation for twenty-three months. The sentence on the count of arson endangering persons was to pay the costs of prosecution. Defendant filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence. In a concise statement of matters complained of an appeal, she raises two issues: 1. The evidence was insufficient as a matter of law to support the charge of arson endangering persons in that there was insufficient evidence to establish that persons were endangered, and there was also insufficient evidence to establish that Theresa Fernbaugh intentionally started a fire or caused an explosion. 2. The evidence was insufficient as a matter of law to support the charge of arson endangering property in that there was insufficient evidence to establish that Theresa Fernbaugh acted with intent to destroy or damage a building or unoccupied structure of another. There was also insufficient ~ 18 Pa.C.S. § 3301(c)(2). 2 18 Pa.C.S. § 3301(a). 98-2111 CRIMINAL TERM evidence to establish that Theresa Fernbaugh intentionally started a fire or caused an explosion. The evidence in a light most favorable to the Commonwealth was as follows? On August 28, 1998, defendant was living in a jointly owned marital residence at 308 East Main Street, Mechanicsburg, Cumberland County, She was separated from her husband. On August 28, 1998, around 9:00 p.m., Donna Padlo was driving on East Main Street when she saw defendant standing in the middle of the street. Defendant, who was dressed in a nightgown, was screaming and crying. Padlo stopped and asked defendant if she was all right. Defendant said "No, I'm not. I just set my house on fire." Padlo asked defendant if she had called the fire department and defendant said "No, I didn't. I wanted to kill myself." Amy O'Donnell was living across the street from 308 East Main Street. At about 9:00 p.m. on August 28, 1998, she saw flames and smoke coming from the front window of defendant's house. O'Donnell saw defendant standing in the street and heard her yell over and over "Look what I did, isn't it pretty." Office Scott Pellman of the Mechanicsburg police was dispatched to a fire at 308 East Main Street. He arrived shortly after 9:00 p.m. and saw flames coming out of the front window. Defendant was at the curb of the street and Officer Pellman asked her what happened. Defendant told him "1 set my house on fire." Officer Peltman asked why, and defendant said "Because I wanted to kill myself." Officer Pellman asked defendant how she set her house on fire and defendant said in Commonwealth v. Reddix, 355 Pa. Super. 514 (1986). -2- 98-2111 CRIMINAL TERM an unusual voice, "I'm not going to tell you." Approximately one hour earlier, Officer Pellman had responded to the home of defendant's mother-in-law where defendant was creating a scene. The mother-in-law was taking care of the children of defendant and her husband for the husband. The house at 308 East Main Street has a party wall with the house of Anna Worgo. On the other side it is separated by a three-foot walkway from the house of Marian Fortney. Worgo and Fortney were in their homes when the fire started in 308 East Main Street. Nine pieces of fire apparatus with over twenty-five firemen responded to the residential fire. When the firemen entered 308 East Main Street the fire was going up the west wall of the living room, across the ceiling and down the other side to the floor. The firemen were able to suppress the fire in about six to eight minutes during which time, as a safety precaution, Worgo and Fortney were taken from their homes. There was light smoke in Worgo's home but no physical damage. Melvin Brewbaker, a Pennsylvania State Police Fire Marshall, arrived on the scene at 10:18 p.m. He testified before the jury that the point of origin of the fire in 308 East Main Street was a Ioveseat in the living room. He was of the opinion that the fire was not of accidental origin. Several days after the fire, defendant told Earl Bock, a Mechanicsburg police detective, that after the incident at her mother-in-law's she was upset, went home, lite a candle, and was watching a videotape. The candle accidentally fell onto a pile of pillows which ignited. She was unable to extinguish the -3- 98-2111 CRIMINAL TERM fire and ran from the house.4 The Crimes Code at 18 Pa.C.S. Section 3301(a)(1) titled Arson endangering persons, provides: starts if: A person commits a felony of the first degree if he intentionally a fire .... whether on his own property or that of another, and (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 ... (Emphasis added.) Section 3301(c) titled Arson endangering property, provides: A person commits a felony of the second degree if he intentionally starts a fire.., whether on his own property or that of another... and if: (1) he commits the act with intent of destroying or damaging a building or unoccupied structure of another; (2) he thereby recklessly places an inhabited building or occupied structure of another in danger or damage or destruction... (Emphasis added.) The jury was free to believe all of, part of or none of a witness's testimony, which included the testimony of the expert witnesses. Commonwealth v. Wright, 722 A.2d 157 (Pa. Super. 1998). From (1) the direct evidence at the fire scene, (2) defendant's 4 Defendant testified at trial and repeated the story she had told to Detective Bock. She testified that when she could not put out the fire she went outside to get help. She acknowledged that she told Officer Pellman that she set her house on fire but she denied telling him that she did it in order to kill herself. She did not recall telling Donna Padlo that she wanted to die. She said that she has never met Amy O'Donnell. The defense called two experts. One was of the opinion that the fire was of accidental origin, the other testified that the fire could have occurred accidentally as defendant maintained. 98-2111 CRIMINAL TERM own statements, (3) the opinion of the Commonwealth expert, and (4) the reasonable inferences to be drawn from all of the evidence, we conclude that there was sufficient evidence to prove beyond a reasonable doubt that defendant intentionally started the fire in the house she owned jointly with her husband. There was sufficient evidence to support the charge of arson endangering property in that defendant acted with the intent to destroy or damage the house of her husband, and there was sufficient evidence to support the charge of arson endangering persons in that defendant recklessly placed Anna Worgo, Marian Fortney, and the firefighters who responded to the fire in danger of death or bodily injury. Defendant never reported the fire to authorities. Fortunately, her bizarre conduct alerted others to the fire and firemen were able to quickly respond and put out the fire without damage to the adjacent residences of injury to anyone. (D~TE) Jaime Keating, Esquire For the Commonwealth Ellen Barry, Esquire For Defendant Edg~ B. Bayiey, J. :saa -5-