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HomeMy WebLinkAbout95-0964 CriminalCOMMONWEALTH JOHN F. LOFTUS, III IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-0964 CRIMINAL TERM CHARGE: (A) ARSON (ENDANGERING PERSONS) (B) ARSON (ENDANGERING PROPERTY) IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Oler, J., October 1, 1996. In this criminal case, Defendant has appealed to the Superior Court from a judgment of sentence imposed by the writer of this opinion on August 6, 1996. The sentence followed a non-jury trial in which Defendant was found guilty of arson (endangering persons) in Violation of Section 3301(a) of the Crimes Code and arson (endangering property) in violation of Section 3301(c) of the Code. Defendant has set forth his contentions on appeal in a statement of matters to be complained of on appeal. They are (1) that the court erred in failing to grant Defendant's motion to suppress evidence obtained as a result of a search of his residence, (2) that the court erred in admitting into evidence prior criminal activity on the part of Defendant, (3) that the court erred in permitting testimony by a certain police officer, because his identity and testimony were not disclosed by the Commonwealth during discovery, and (4) that the evidence presented by the Commonwealth was insufficient to establish that Defendant was guilty of arson endangering persons because it "did not establish either that the victim was in danger or that the property NO. 95-0964 CRIMINAL TERM of the victim was damaged to an extent to show that there was intent to injure or harm occupants of the structure."~ In accordance with Pennsylvania Rule of Appellate Procedure 1925(a), this opinion is written in support of the judgment of sentence imposed on August 6, 1996. STATEMENT OF FACTS On Friday, May 19, 1995, at approximately 3:15 a.m., the victim in this case, Rachel Savidge, 79, who owned and occupied a home at 3409 Bedford Drive, Camp Hill, Cumberland County, was awakened by a noise which sounded like a loud "shot" hitting the wall outside her bedroom; this wall was the west wall of the house.2 Ms. Savidge smelled gasoline and saw flames shooting across her bedroom window.3 She got out of bed to investigate, and, from her window, observed Defendant, John F. Loftus, III, standing in the area of his carport.4 Defendant resided next door to the victim, at 3411 Bedford Drive.5 Defendant's carport is located 25 feet 8 inches from the west wall of Ms. Savidge's ~ Defendant's "Statement of Matters to be Raised on Appeal," filed August 30, 1996. 2 Nonjury Trial, Commonwealth v. Loftus, Criminal Term 96- 0964 (June 17, 1996), N.T. 76-77, 83 (hereinafter N.T. __). 3 N.T. 79. 4 N.T. 80, 82, 85. 5 N.T. 43, 77. 2 NO. 95-0964 CRIMINAL TERM house.6 Ms. Savidge called 911.7 Camp Hill Borough police and fire units were dispatched to her house for a fire reported to be of an unknown type.8 Patrolman Michael L. Hope of the Camp Hill Borough Police Department arrived at the scene first, followed shortly thereafter by Patrolman Joseph R. Adams, also of the Camp Hill Borough Police Department, and Camp Hill Fire Department Chief David Apgar.9 When Patrolman Hope arrived, fire was still smoldering at the base of the west wall of the house, and a strong odor of gasoline was present.~° Patrolman Hope, Patrolman Adams, and Chief Apgar extinguished the remains of the fire.~ Patrolman Hope observed pieces of broken glass and burnt paper towels at the base of the house where the fire had been burning.~2 The brick on the west side of the house was blackened up to the overhang of the roof.TM 6 N.T. 44, 71. ? N.T. 79. 8 N.T. 14-15. 9 N.T. 15 · ~0 N.T. 16. ~ N.T. 16, 88. ~2 N.T. 16. ~3 N.T. 17, 46. 3 NO. 95-0964 CRIMINAL TERM Rodney C. Snyder, a state police fire marshall, testified at the trial as an expert in the fire and arson investigations.~4 Trooper Snyder examined the damage done to the victim's house and concluded that someone had put gasoline in a glass bottle, ignited the gasoline with paper towels, and thrown the bottle against the west wall of the residence.~5 According to Trooper Snyder, this device, commonly known as a "Molotov cocktail," was thrown from the yard between the victim's house and Defendant's house,~ and ignited the whole west side of Ms. Savidge's house.~7 The trooper observed black soot on the west wall of the house,~8 and noted that smoke damage went up into the eaves of the roof.~9 According to Trooper Snyder, the only thing which prevented the house from burning down was the fact that it was a brick structure and that no gasoline happened to land on the roof.2° Because Ms. Savidge's house was of brick construction, the burning gasoline rolled off the side of the house.2~ However, it was the ~4 N.T. 111. ~s Id. ~ N.T. 113. ~ N.T. 112-13. ~8 N.T. 110. ~9 Id. 20 N.T. 115. 2~ Id. NO.~ 95-0964 CRIMINAL TERM trooper's opinion that if the gasoline had gotten on the roof, it would have remained there and burned.22 While Patrolman Hope was investigating the collecting evidence, he observed Defendant watching the investigation through the kitchen window of his residence.23 Upon arriving on the scene, Patrolman Adams, approaching between the two residences, also observed Defendant looking out his kitchen window.24 Patrolman Adams noted that Defendant was wearing a blue bathrobe at that time.2s At the trial, Patrolman Adams identified Commonwealth's Exhibit 11 as the blue bathrobe he saw Defendant wearing that night.26 Defendant objected to the testimony of Patrolman Adams regarding the blue bathrobe on the ground that the Commonwealth had failed to disqlose his identity as an eyewitness pursuant to the rules of discovery in criminal cases. The court denied Defendant's motion to preclude the officer's testimony, but indicated that it would consider a request for a continuance or any other form or relief, if Defendant so desired.27 Defendant did not make any such request during the trial. Id. N.T. 18. N.T. 97. N.T. 99. N.T. 101-02. N.T. 95. 5 NO. 95-0964 CRIMINAL TERM After being observed by Patrolman Adams wearing the blue bathrobe, Defendant eventually came outside yelling, screaming, and stumbling about in a intoxicated fashion.28 Defendant proceeded to a storage area in his carport and secured the doors to the storage shed.29 Shortly after Patrolman Hope left the crime scene, he received a message from the State Police regarding a call they had received from Defendant.3° Following up on this information, Patrolman Hope telephoned Defendant.3~ Defendant described to Patrolman Hope a purported fire-bombing of his home that was supposedly carried out in the same manner as the attack on the victim's home.3~ Specifically, Defendant stated that the Camp Hill police had fire-bombed his house by filling a gas container with gasoline, setting it on fire, and throwing it at his house.TM Patrolman Hope and Patrolman Adams proceeded to Defendant's house.TM Defendant was then taken into custody; search warrants were 28 N.T. 18. 29 N.T. 18, 42. 30 N.T. 19-20. 3~ N.T. 20. 3~ N.T. 24. 33 Id. 34 N.T. 25. NO. 95-0964 CRIMINAL TERM obtained for his residence and the clothes he was wearing when he entered the Cumberland County Prison following his arrest.3s Among the evidence seized pursuant to the search warrants was a blue bathrobe. The bathrobe was found in Defendant's bedroom on a bedpost.36 The bathrobe was sent for testing to a state police laboratory.37 The laboratory reported that the item had gasoline on it.38 The bathrobe became Commonwealth's Exhibit #11 at trial. Defendant was charged with arson endangering persons and arson endangering property. A preliminary hearing was held on May 24, -1995, before District Justice Robert V. Manlove, who found sufficient evidence to bind the charges over for trial. Defendant was formally arraigned on July 10, 1995. Defendant filed an omnibus pre-trial motion to suppress items seized pursuant to the search warrants. By order of court dated December 7, 1995, the Honorable George E. Hoffer denied Defendant's motion to suppress evidence. A non-jury trial before the writer of this opinion followed. A motion in limine was made by Defendant to exclude evidence of prior criminal activity of Defendant directed towards Ms. Savidge.39 N.T. 27, 42-43. N.T. 51. N.T. 123. N.T. 130. N.T. 8-10, 154-57. NO. 95-0964 CRIMINAL TERM This motion was denied.4° Defendant and the Commonwealth, then, stipulated to the fact that Defendant had pleaded guilty on August 31, 1993, to recklessly endangering another person.4~ This guilty plea followed an incident which had occurred on May 21, 1993, and involved Defendant and the victim.~2 In this incident, Defendant had thrown an item through the victim's bedroom window around midnight, causing glass to fall on her while she was asleep in her bed.~3 At the time of this previous incident, Defendant and the victim were residing at the same addresses as those in the present case.44 Defendant was found guilty of arson (endangering persons) in violation of Section 3301(a) of the crimes Code and arson (endangering ~roperty) in violation of Section 3301(c) of the Code. On August 6, 1996, the following judgment of sentence was imposed: ORDER OF COURT AND NOW, this 6th day of August, 1996, the Defendant, John Frank Loftus, III, now appearing in court for sentence with his privately retained counsel, Francis M. Socha, Esquire, and having previously been found guilty following a nonjury trial of Arson (Endangering Persons) in violation of Section 40 N.T. 157. 4~ N.T. 158. 42 N.T. 155. 43 N.T. 155, 158-59. 44 N.T. 158. NO. 95-0964 CRIMINAL TERM 3301(a) of the Crimes Code and Arson (Endangering Property) in violation of Section 3301(c) of the Crimes Code, and the Court being in receipt of a pre-sentence investigation report, upon which it relies, and believing that the charge of Arson (Endangering Property) merges with the more serious offense for purposes of sentencing, the sentence of the Court with respect to the charge of Arson (Endangering Persons) in violation of Section 3301(a) of the Crimes Code, a felony of the first degree, is that the Defendant pay the costs of prosecution, make restitution in the amount of $100.00 to Rachel [Savidge], the victim in this case, and in the amount of $931.72 to Allstate Insurance Company, and that he undergo imprisonment in a State Correctional Institution for a period of not less than 36 months nor more than 72 months, with credit to be given from May 19, 1995. This sentence is in the mitigated range because the Court believes that the offense was at least party the result of the Defendant's alcoholism and mental illness. On the other hand, the Court believes that any lesser sentence would tend to depreciate the seriousness of the offense, and the Court notes that a previous incident for which the Defendant was on parole at the time this offense occurred involved the same victim. It is recommended that as a condition of the Defendant's eventual parole, he be prohibited from having any further contact with the victim in this case. DISCUSSION First, as to Defendant's contention that the court should have granted his motion to suppress evidence, the record contains a thorough opinion by the Honorable George E. Hoffer in support of 9 NO. 95-0964 CRIMINAL TERM his ruling adverse to Defendant's position. A copy of this opinion is attached hereto and its rationale incorporated herein. Second, as to Defendant's contention that the evidence of prior criminal activity on his part toward the victim should not have been admitted, it may be pointed out that "[e]vidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial .... " Commonwealth v. Scarfo, 416 Pa. Super. 329, 384, 611 A.2d 242, 269 (1992), quoting Commonwealth v. Peterson, 453 Pa. 187, 197, 307 A.2d 264, 269 (1973). "Where the evidence is relevant, the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence." Commonwealth v. John, 408 Pa. Super. 234, 238, 596 A.2d 834, 836 (1991), citing Commonwealth v. Lasch, 464 Pa. 573, 586, 347 A.2d 690, 696 (1975). The fact that Defendant had recklessly endangered the victim in the present case in 1993 by throwing a projectile through her bedroom window at night as she slept, causing glass to fall on her, tended to show a common scheme, plan or design, in the court's view, by means of an offense so similar to the offense at issue that proof of the earlier event tended to prove the latter, and was 10 NO. 95-0964 CRIMINAL TERM therefore property admitted.4s In addition, the court notes that the potential for prejudice to Defendant from a misuse of such evidence by the trier of fact was minimized by the non-jury aspect of the trial. Third, as to Defendant's contention that the testimony of Patrolman Adams regarding the bathrobe was inadmissible because he had not been identified as an eyewitness during discovery, it is noted that "a person who is not actually present at the scene of a crime is not an eyewitness, and thus his identity is not discoverable under [Pennsylvania Rule of Criminal Procedure] 305B(2)(a), (b)." Commonwealth v. Buehl, 510 Pa. 363, 389, 508 A.2d 1167, 1180 (1986). Patrolman Adams in this case performed the function of an investigating officer. He appeared at the scene after the crime had been committed, and he observed the Defendant in the course of his investigation. The officer's identity was therefore not discoverable on the theory that he was an eyewitness under Pennsylvania Rule of Criminal Procedure 305B. See Commonwealth v. Wolfe, 301 Pa. Super. 187, 200, 447 A.2d 305, 312 (1982). Assuming, arguendo, that Patrolman Adams was an eyewitness, we note that under Pennsylvania Rule of Criminal Procedure 305E a 4s Defendant's prior criminal act can also arguably be said to have tended to prove (1) motive, by demonstrating animosity on the part of Defendant toward Ms. Savidge, (2) intent and (3) an absence of mistake or accident. 11 NO. 95-0964 CRIMINAL TERM court has broad discretion in choosing an appropriate remedy when there is a violation of the discovery rules. The grant of a continuance is one of the remedies specifically approved in the rule as a remedy for non-disclosure of an eyewitness during discovery. Upon denial of Defendant's motion to exclude Patrolman Adams' testimony, the court offered to consider a request by Defendant for a continuance or for any relief other than outright preclusion; however, Defendant chose not to avail himself of this opportunity and thereby waived any right to another form of relief. See Commonwealth v. Lamb, 309 Pa. Super. 415, 427, 455 A.2d 678, 684 (1983). Finally, as to Defendant's contention that the evidence was insufficient to establish that Defendant was guilty of arson endangering persons, it is noted that a person is guilty of arson .endangering persons "if he intentionally starts a fire or causes an explosion ... whether on his own property or on that of another, and ... he commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another." Act of Dec. 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3301(a). Furthermore, it has been held that "any person who either 'recklessly places another person in danger of death or bodily injury' or 'commits the act with the purpose of destroying or damaging an inhabited building or occupied structure of another' may be prosecuted for and convicted of committing arson endangering 12 NO. 95-0964 CRIMINAL TERM persons." Commonwealth v. Lopez, 444 Pa. Super. 206, 212, 663 A.2d 746, 749 (1995) (emphasis in original). In addition, "[i]t is well established that a conviction for arson may be based solely on circumstantial evidence." Commonwealth v. Ford, 414 Pa. Super. 470, 475, 607 A.2d 764, 766 (1992). Here, the evidence established that Defendant intentionally threw a Molotov cocktail at the victim's house, setting the west side of the residence ablaze. It can be inferred that Defendant war aware that the house was occupied. By setting a fire at an occupied dwelling, Defendant created a substantial and unjustifiable risk of harm to the 79-year-old victim. Only the fact that Ms. Savidge's house was constructed of brick and that gasoline from the Molotov cocktail did not land on the roof or go through a window prevented a disaster. For the foregoing reasons, it is believed that the judgment of sentence appealed from herein was properly imposed. William I. Gabig, Esq. Assistant District Attorney Francis M. Socha, Esq. 2201 North Second Street Harrisburg, PA 17110 Attorney for Defendant : rc 13 COMMONWEALTH Vo JOHN F. LOFTUS III IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-964 CRIMINAL TERM (A) ARSON (ENDANGERING PERSONS) (B) ARSON (ENDANGERING PROPERTY) AFFIANT: PTL. MICHAEL HOPE IN RE: DEFENDANT'S OMNIBUS PRE-TRIAL MOTION ORDER OF COURT AND NOW, December 7, 1995, after hearing and careful consideration of the evidence presented, the defendant's Motion to Suppress Evidence is denied. William I. Gabig, Esquire Senior Assistant District Attorney For the Commonwealth Frances M. Socha, Esquire 2201 North Second Street Harrisburg, PA 17110 For the Defendant By the Court, Jo COMMONWEALTH JOHN F. LOF-rUS III IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 95-964 CRIMINAL TERM (A) ARSON (ENDANGERING PERSONS) (B) ARSON (ENDANGERING PROPERTY) AFFIANT: PTL. MICHAEL HOPE IN RE: HOFFER, J.: DEFENDANT'S OMNIBUS PRE-TRIAL MOTION OPINION On May 19, 1995, the Camp Hill Borough Police were dispatched to 3409 Bedford Drive, Camp Hill, in Cumberland County, for a reported unknown type of fire. Rachel Savidge, the victim and homeowner, reported that she was awakened by an explosion and fire burning directly along side her house. The affiant, Patrolman Michael Hope, verified this information. extinguished. While the police and fire The fire was subsequently department were investigating and collecting evidence, they observed the defendant, John Loftus, looking out his kitchen window. Loftus lived next door to Ms. Savidge. He eventually came outside yelling, screaming, and stumbling about in an intoxicated fashion. The defendant proceeded to a storage area in his carport and secured the doors to the storage shed. 95-964 CRIMINAL TERM The defendant telephoned the State Police forty-five minutes later, yelling that his house was fire-bombed by the police and demanding that someone come and investigate. The defendant made threats over the phone. When Patrolman Hope followed-up this information by telephoning the defendant, the defendant described a fire-bombing of his home that was carried out in the same way as his neighbor's. Specifically, he stated that the Camp Hill police had fire-bombed his residence by filling a glass jar with gasoline, setting it on fire, and throwing it at the side of his residence. Patrolman Hope determined that the defendant could not possibly know the origination of the fire unless he was somehow involved. Upon returning to Bedford Drive and approaching the storage area in the carport, Patrolman Hope smelled a strong odor of gasoline in the carport. The defendant was then taken into custody and search warrants were obtained for his residence and the clothes he was wearing while incarcerated at the Cumberland County Prison. The defendant was charged with (A) Arson Endangering Persons and (B) Arson Endangering Property. He received a preliminary hearing on May 24, 1995, before district Justice Manlove, who found sufficient evidence to bind the charges over for tdal. Evidence was seized pursuant to the search warrants, including paper towels, dish cloths, socks, a lighter, an Ocean Spray fruit drink, a partially full 95-964 CRIMINAL TERM plastic gas can, blue jeans, a leather coat, and a pair of shoes. The defendant filed an Omnibus Pre-trial Motion to Suppress items seized pursuant to the search warrants. The defendant contends that the affidavits in support of the search warrants failed to establish probable cause; therefore, all evidence obtained as a result should be suppressed. We disagree. DISCUSSION Pennsylvania has long adhered to the "four corners rule," which confines inquiry as to the existence of probable cause to what is written in the affidavit. 42 Pa. C.S.A. §2003; Commonwealth v. Edmund, 526 Pa. 374, 382, 586 A.2d 887, 891 (1991). The courts in this Commonwealth employ a "totality of the circumstances" test, as enunciated in.Illinois v. Gates, 462 U.S. 213, 103 S. Ct.2317, 76 L. Ed.2d 527 (1983) for determining the existence of probable cause for the issuance of a search warrant. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The totality of the circumstances are examined "as seen through the eyes of a trained police officer, not the average citizen." Commonwealth v. Vergotz, 420 Pa. Super. 440, 616 A.2d 1379 (1992). An affidavit for a search warrant is to be tested by this court with common sense and a realistic manner, and not subjected to overly technical interpretations. Id. The magistrate's determination of probable cause is to be accorded great 3 95-964 CRIMINAL TERM deference on review. Id. See Commonwealth v. Baker, 532 Pa. 121,615 A.2d. 23 (1992). The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before her, there is a fair probability that contraband or evidence of crime will be found in a particular place. Commonwealth v. Singleton, 412 Pa. Super. 550, 603 A.2d 1072, 1073 (1992). We find that the facts alleged on the-affidavit provided probable cause to show that the items sought were connected with criminal activity, and that the items would likely be fOund in the place to be searched. The objects of the search were any accelerant soaked rags, towels, paper towels, clothing, gasoline containers, accelerant containers, and any Ocean Spray brand fruit juice containers. The affidavit provided that the investigation revealed broken glass and a strong odor of gasoline at the site of the explosion. These facts were sufficient to establish the connection between the items sought and criminal activity. The affidavit also alleged enough facts to show that the items sought would be found in the defendant's residence. The investigation revealed that the explosion and fire were the result of an ignited Ocean Spray bottle filled with gasoline. Forty-five minutes after this incident, the defendant described a phantom fire-bombing of his own residence. The modus operandi of the individual who set 4 95-964 CRIMINAL TERM this nonexistent fire was identical to that involving his neighbor's fire. The defendant was acting in a belligerent manner while securing the storage area on his premises just after the police arrived on the scene of the fire at his neighbor's. When officers arrived at the defendant's house after he called police, the affiant smelled a strong odor of gasoline emanating from the storage area on the defendant's property. The affiant believed that the only individuals who could possibly know the source of the fire were the victim, the police and fire officials, and the perpetrator. We find that there was sufficient information to tie the defendant to the arson to justify the issuance of a search warra, nt.