J-S94015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DAVID ADKINS

                            Appellant                  No. 160 MDA 2016


           Appeal from the Judgment of Sentence February 24, 2015
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0003343-2013


BEFORE: LAZARUS, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 21, 2017

        David Adkins appeals from the judgment of sentence, entered in the

Court of Common Pleas of Cumberland County, following his convictions for

arson endangering persons,1 arson endangering property,2 and criminal

mischief.3 Upon review, we affirm.

        The trial court summarized the relevant facts of this matter as follows:

        On March 17, 2013, at the Shippensburg Mobile Estates, a
        mobile home park located within Cumberland County, a fire
        occurred in the early morning hours that subsequently led to the
        arrest and prosecution of [Adkins] on charges of [a]rson
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3301(a)(1)(i).
2
    18 Pa.C.S. § 3301(c)(1).
3
    18 Pa.C.S. § 3304(a)(1).
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     [e]ndangering [p]ersons, [a]rson [e]ndangering [p]roperty, and
     [c]riminal [m]ischief that involved the property known as 116
     Shippensburg Mobile Estate, Shippensburg Township, owned by
     Cheryl Barrick. Ms. Barrick was or had been the inamorata of
     [Adkins] and was just one of many of [Adkins’] perceived
     paramours. On the evening of March 16, Ms. Barrick had texted
     her male neighbor [with whom Ms. Barrick also had a
     relationship] to advise him to the effect that there [was]
     somebody going by [his] house that look[ed] suspicious.

     On the evening of March 16, 2013, [Adkins] was at a bar with
     the adult son (Terrence) of one of his paramours, one [with]
     whom he also had a child, and Terrence’s girlfriend (Kady), who
     essentially was the designated driver for the evening. At the
     conclusion of their night of drinking, [Adkins] instructed Kady to
     drive her now[-]highly[-]intoxicated boyfriend Terrence and
     himself to the Shippensburg Mobile Estates. [Adkins] directed
     her to drive specifically to the Barrick property at which time he
     got out of the vehicle and disappeared behind the mobile home.
     [Adkins] shortly thereafter reappeared in a hurry to get away
     while Kady was attending to her retching boyfriend. Kady drove
     away but prior to exiting the mobile home park, [Adkins]
     directed her to stop and he turned and looked back at the
     Barrick residence, waited and then instructed her to leave.
     [Adkins] directed Kady to drive all of them to another
     paramour’s home, Kathy, which Kady did and is where Kady
     spent the remainder of the early morning hours tending to
     Terrence. Kady later asked [Adkins] about the evening and was
     specifically directed by [Adkins] that they were not together,
     [and that] nothing happened.

     Kathy, upon receiving the phone call from [Adkins] that he,
     along with Kady and Terrence, were on their way to her
     residence, and not wanting confrontation, had her then[-]
     companion, David vacate the residence. David did so but stayed
     nearby and witnessed the outside interaction. Kathy described
     [Adkins’] appearance and odors to the jury as well as his
     admission that he was in trouble for [doing] something bad to
     the Barrick[s’] residence.

     A Shippensburg Mobile Estate resident, Terry Smith, who was
     out allowing his dog to relieve itself, witnessed the flames
     coming from the mobile home and called 911. Mr. Smith,
     knowing that Ms. Barrick had young children and fearing that
     they may still be inside the mobile home, attempted a rescue

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     but found no one inside the burning mobile home. Ms. Barrick
     had gone to the home of her cousin who lived down the road.
     Ms. Barrick had warned another resident of the mobile home
     park that someone was watching the home and that this other
     resident should be on notice. The other resident was a male
     with whom Ms. Barrick was also involved in relations.

     The fire investigation detailed the origin of the fire to be in Ms.
     Barrick’s bedroom, specifically at the mattress and box spring
     where a kerosene lantern was found in the remnants of the bed
     set. Further, the investigation revealed the nature and location
     of the fire origin and deemed it arson, the details of the
     investigation, and the response of firefighters on the scene. In
     addition to the fire investigation, a forensic analyst detailed the
     usage of a cell phone, known to belong to [Adkins], on March 16
     and 17, 2015, together with its corresponding locations in the
     area of the Shippensburg Mobile Estates. A fire expert was
     called by defense; the expert could not definitively rule out arson
     but challenged the Commonwealth forensic collection techniques
     and opined that more investigation was required to deem this an
     intentionally set fire.

Trial Court Opinion, 12/28/15, at 2-4.

     A jury trial was held beginning on December 1, 2015, after which

Adkins was found guilty of the aforementioned charges on December 5,

2015. The court sentenced Adkins on February 24, 2015, to an aggregate

sentence of 7 to 22 years’ incarceration. Adkins filed timely post-sentence

motions seeking an arrest of judgment, a new trial, a modification of

sentence, and to merge his sentence for arson endangering property with

the sentence for arson endangering persons, all of which were denied on

December 28, 2015.

     On January 27, 2016, Adkins filed a timely notice of appeal. The court

ordered him to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), which Adkins filed on March 18, 2016,


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following two extensions of time.     On appeal, Adkins raises the following

issues for our review:

      1. Whether the trial court abused its discretion and misapplied
      the law when it failed to grant [Adkins’] motion for arrest of
      judgment because the Commonwealth failed to establish a
      corpus delecti for the arson charges where the evidence showed
      that the cause of the fire was equally consistent with both
      accidental and criminal conduct?

      2. Whether the trial court abused its discretion when it allowed
      the Commonwealth to introduce evidence related to separate
      attempted arson charges against [Adkins], when those charges,
      upon motion from the Commonwealth, were severed into a
      separate trial?

Brief for Appellant, at 7.

      Adkins first argues that the Commonwealth failed to establish a corpus

delecti for the crime of arson, and therefore, the trial court improperly

admitted incriminating statements made by Adkins.           As this Court has

summarized:

      The corpus delecti rule is an evidentiary one. On a challenge to
      a trial court’s evidentiary ruling, our standard of review is one of
      deference. The admissibility of evidence is solely within the
      discretion of the trial court and will be reversed only if the trial
      court has abused its discretion. An abuse of discretion is not
      merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will
      or partiality, as shown by the evidence of record.

      Pennsylvania law precludes the admissibility of a confession
      absent proof of the corpus delecti, literally the body of a crime.
      However, the rule is not a condition precedent to the
      admissibility of the statements of an accused. Rather, the rule
      seeks to ensure that the Commonwealth has established the
      occurrence of a crime before introducing the statements or
      confessions of the accused to demonstrate that the accused


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      committed the crime.       The rule was adopted to avoid the
      injustice of a conviction where no crime exists.

      Only inculpatory statements fall within the scope of the corpus
      delecti rule. Before such a statement may be admitted into
      evidence, the Commonwealth must establish: 1) a loss has
      occurred and 2) the loss occurred as a result of criminal activity.
      Only then may the Commonwealth introduce a statement to
      show that the defendant is responsible for the loss. For the
      purpose of admission, the corpus delecti may be established by a
      preponderance of the evidence. Moreover, the Commonwealth
      may establish the corpus delecti with circumstantial evidence.

Commonwealth v. Herb, 852 A.2d 356, 362-63 (Pa. Super. 2004)

(quotation marks and citations omitted). Importantly, “the order of proof is

a matter within the realm of (the trial judge’s) judicial discretion which will

not   be   interfered   with    in   the    absence    of   an       abuse   thereof.”

Commonwealth v. Smallwood, 442 A.2d 222, 225 (Pa. Super. 1982)

(emphasis added).

      As an initial matter, we note that the Commonwealth argues that

Adkins waived the corpus delecti issue by failing to raise the issue in the trial

court. See Pa.R.A.P. 302 (“[I]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”). In Commonwealth v.

Chambliss,     847   A.2d      115   (Pa.   Super.    2004),     a   defendant   first

acknowledged the existence of a corpus delecti issue after both the defense

and Commonwealth rested their cases.            The trial court ruled that the

objection was untimely, and this Court affirmed, stating: “[a]s Appellant did

not raise any objection to the Commonwealth’s admission of this evidence

during the Commonwealth’s presentation of this evidence, we do not find

that Appellant has properly preserved a challenge to the admissibility of the

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confession.”    Id. at 121.   See Pa.R.E. 103 (appellant may not predicate

claim of error on ruling that admits evidence unless timely objection, motion

to strike or motion in limine appears on record and states specific ground of

objection).    Our review of the record shows that Adkins never moved to

suppress the statements prior to trial on the basis of corpus delecti, and he

failed to object to the admission of his statements at trial. Rather, Adkins

first raised the corpus delecti issue in a post-sentence motion. Accordingly,

the corpus delecti issue has been waived.

      Even if Adkins had properly preserved a corpus delecti objection, the

claim is without merit because the Commonwealth established the corpus

delecti of arson. Adkins correctly states, “[t]o establish the corpus delecti of

arson, the Commonwealth needed to show (1) that a fire occurred, and (2)

that it had an incendiary origin.” Commonwealth v. Moyer, 419 A.2d 717,

719 (Pa. Super. 1980) (citation omitted).         Inculpatory statements are

properly admitted if the Commonwealth demonstrates by a preponderance

of the evidence that the crime in fact occurred. Adkins specifically contends

that the Commonwealth failed to prove that the fire that engulfed Ms.

Barrick’s mobile home was of an incendiary origin before introducing

evidence of Adkins’ inculpatory statements.

      Instantly, the Commonwealth offered evidence that the fire at Ms.

Barrick’s home was of an incendiary origin through multiple lay witnesses

and expert witnesses.     Eyewitnesses Kady Descheemaeker and Terrence

Wolf placed Adkins at the scene of the crime with his ill-will and motive

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absent his inculpatory statements.     Fire Chief Clyde Tinner ruled the fire

“intentional” at the time of his investigation and before ever hearing of

Adkins.    He also ruled out an “accidental” or “electrical” fire.      Dennis

Woodring, a fire and explosives investigator, testified that his K-9 alerted

him to liquid accelerants four times in the area of the bed where it was

determined the fire originated. Trooper Bradley Dunham, the investigating

fire marshal, testified that the fire was caused by direct flame contact on the

bed, but not necessarily a flame from the oil lamp.        He also ruled out

unintentional and/or accidental causes such as smoking, candle use, or

electrical issues.

      Adkins relies on these investigations and the fact that lab testing was

unable to identify the flammable liquids detected by the K-9 in arguing that

the fire was not intentionally set. However, Jessica Mulhollem, the forensic

scientist who conducted the testing, testified that it is not uncommon for K-

9s to detect liquids consumed by a fire to the point where they cannot be

detected by the lab.

      It is important to note that Adkins also offered a qualified expert

witness who testified that he could not determine whether the cause of the

fire was accidental or intentional based on photos of the scene and the lab

reports. However, with regard to the admissibility of evidence, the corpus

delecti rule only requires that the Commonwealth prove that a crime actually

occurred by a preponderance of the evidence, or more simply, that the

Commonwealth prove that “the evidence is more consistent with a crime

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than an accident . . . to admit the statements.” Commonwealth v. Reyes,

681 A.2d 724, 729 (Pa. 1996).     Because the Commonwealth proved by a

preponderance of the evidence that the crime of arson occurred, the trial did

not abuse its discretion when it admitted Adkins’ inculpatory statements.

Id. Therefore, Adkins’ argument fails.

     Adkins’ second claim is that the trial court abused its discretion when it

allowed the Commonwealth to introduce evidence related to a separate

attempted arson charge at a neighbor’s home. As our Supreme Court has

summarized:

     Generally, evidence of prior bad acts or unrelated criminal
     activity is inadmissible to show that a defendant acted in
     conformity with those past acts or to show criminal propensity.
     Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
     admissible when offered to prove some other relevant fact, such
     as motive, opportunity, intent, preparation, plan, knowledge,
     identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
     In determining whether evidence of other prior bad acts is
     admissible, the trial court is obliged to balance the probative
     value of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations

omitted).

     Specifically, Adkins asserts that the trial court erred by admitting into

evidence testimony of Ms. Barrick’s warning to her neighbor about

impending danger and testimony from investigators about the evidence they

collected at the scene from an earlier attempted arson at that neighbor’s

home. The Commonwealth introduced evidence of the separate attempted

arson charge in order to show Adkins’ motive for burning down Ms. Barrick’s


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home. The separate attempted arson occurred just hours prior to the fire at

Ms. Barrick’s home, and the victim of the prior act was in a relationship with

Ms. Barrick, sparking Adkins’ anger at the pair. This is further corroborated

by the fact that the fire in Ms. Barrick’s home originated on her bed. As the

trial judge summarized: “how much more symbolic can one get than to burn

the bed of one’s inamorata for perceived infidelity.”     Trial Court Opinion,

5/6/16, at 5. Lastly, the two crime scenes are so close to one another that

the two victims’ backyards touch. N.T. Trial, 12/2/14, at 7.

      In consideration of Adkins’ timely objection, the trial judge limited the

evidence to testimony only and barred photographs of the attempted arson

scene from being admitted into evidence, explicitly explaining in a sidebar:

“I am trying not to distract the jury from anything.” N.T. Trial, 12/3/14, at

7.   Additionally, the trial judge gave the following instructions to the jury

regarding motive:

      Motive for the crime of arson and criminal mischief is not an
      element of either offense. In filtering the evidence for you, you
      may have heard evidence of motive. The Commonwealth does
      not have to prove motive. However, you may consider evidence
      of motive or lack thereof.

      Knowledge of human nature tells us that an ordinary person is
      more likely to commit a crime if he had a motive than if he has
      none. You should weigh and consider the evidence tending to
      show motive or absence thereof with all the other evidence in
      deciding whether the Defendant is guilty or not guilty. It is
      entirely up to you to determine what weight should be given the
      evidence concerning motive.

N.T. Trial 12/5/14, at 69.



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     As made clear by the record, the evidence of the attempted arson was

limited by the trial judge and that which was introduced was simply to show

Adkins’ motive.   We, therefore, conclude that the probative value of the

evidence outweighed any potential for prejudice, and the trial court did not

abuse its discretion in admitting the evidence. Sherwood, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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