Com. v. Thompson, T.

J. A21045/20


                                          :           PENNSYLVANIA
                     v.                   :
THEODORE THOMPSON,                        :          No. 2623 EDA 2018
                          Appellant       :

        Appeal from the Judgment of Sentence Entered August 17, 2018,
             in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0006649-2017



        Theodore Thompson appeals from the August 17, 2018 aggregate

judgment of sentence of 18 to 36 months’ imprisonment, followed by 3 years’

probation, imposed after he was found guilty of risking catastrophe,

possessing instruments of crime (“PIC”), and recklessly endangering another

person (“REAP”).1 After careful review, we affirm the judgment of sentence.

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

              The incidents in this case took place on May 20[,]
              2017 at around 1:00 pm. Officer Brian Wolf testified
              at trial to the alleged facts.

              Officer Brian Wolf along with his partner, Officer
              Pat Haselbarth, were responding to a radio call for a
              person screaming at 5236 Castor Avenue, located in
              the City and County of Philadelphia. Upon arrival to
              the location, a typical row home, the officers knocked

1   18 Pa.C.S.A. §§ 3302(b), 907(a), and 2705, respectively.
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            on the front door and were let in by an older son of
            Complainant. Upon entering, the officers became
            aware of multiple minor children in the home and a
            strong odor of gasoline. As the officers walked further
            into the home the odor of gasoline continued to
            strengthen and observed appellant and complainant
            smoking cigarettes while engaging in a verbal dispute.
            It was later clarified that both appellant and
            Complainant resided in the row home. Appellant then
            shoved Complainant into an officer in an effort to have
            her exit the home. Appellant was then restrained by
            being placed in handcuffs. At that point the officer
            inquired as to the odor of gasoline and appellant
            indicated he poured gasoline onto the master bed to
            have Complainant leave the home. Officer Wolf went
            upstairs to the master bedroom and observed a
            two-gallon gasoline container and the smell of the
            gasoline was at its strongest.       Officer Wolf had
            everyone exit the home and called the fire
            department. Upon arrival, the fire marshal removed
            the gasoline container and tested it. The police officer
            observed the testing of the contents of the container.
            The contents of the container were poured onto the
            sidewalk and lit on fire to confirm it was in fact
            gasoline. After the fire marshal cleared the property
            for safety, the officers reentered the rowhome and
            found multiple cigarettes on a nightstand, in the
            master bedroom where the gasoline was poured on
            the bed.

Trial court opinion, 1/8/20, at 2-3 (extraneous capitalization and citations to

notes of testimony omitted).

      Appellant   was   subsequently     arrested   and    charged     with   the

aforementioned offenses in connection with this incident. On November 27,

2017, appellant filed an omnibus pre-trial motion to suppress the inculpatory

statement he made to police.      Following a hearing, the trial court denied

appellant’s suppression motion on February 16, 2018.          That same day,

J. A21045/20

appellant waived his right to a jury and proceeded to a bench trial. At the

conclusion of a one-day bench trial, the trial court found appellant guilty of

one count each of risking catastrophe, PIC, and REAP.         (See notes of

testimony, 2/16/18 at 31.)      As noted, appellant was sentenced to an

aggregate term of 18 to 36 months’ imprisonment, followed by 3 years’

probation, on August 17, 2018.      Appellant did not file any post-sentence

motions. This timely appeal followed.2, 3

      Appellant raises the following issues for our review:

            1.    Did not the trial court err in admitting the
                  appellant’s extra-judicial statement because the
                  Commonwealth failed to establish the corpus
                  delicti of the crime of risking catastrophe by a
                  preponderance of the evidence?

            2.    Was not the evidence insufficient to convict
                  appellant of risking catastrophe because the
                  Commonwealth failed to prove that his conduct
                  created a risk of a catastrophe?

2 On October 16, 2018, the trial court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with Pennsylvania
Rule of Appellate Procedure 1925(b). Appellant timely complied and the trial
court filed its Rule 1925(a) opinion on January 8, 2020.

3 We note that on September 14, 2020, the Commonwealth filed a motion
requesting a second extension of time to file its brief, which was accompanied
by its brief. Thereafter, on September 16, 2020, appellant filed a motion to
strike the Commonwealth’s brief as untimely, or in the alternative, to accept
his reply brief. In light of our disposition, we grant the Commonwealth’s
motion requesting a second extension of time to file a brief and accept its
September 14, 2020 brief as timely filed. We deny appellant’s motion to strike
and accept his reply brief.

J. A21045/20

Appellant’s brief at 4.4

      We begin by addressing the claim that there was insufficient evidence

to sustain his conviction for risking catastrophe. (Id. at 14.) Specifically,

appellant avers that “[his] act of squirting gasoline on the bed, in order to get

[complainant] to leave the house, without any proof that [appellant]

thereafter intended to set fire to the bed, was insufficient to convict him of

risking catastrophe.” (Id. at 16). We disagree.

      Our standard of review in assessing whether there was sufficient

evidence to sustain a conviction is well settled.

            We must determine whether the evidence admitted at
            trial, and all reasonable inferences drawn therefrom,
            when viewed in a light most favorable to the
            Commonwealth as verdict winner, support the
            conviction beyond a reasonable doubt. Where there
            is sufficient evidence to enable the trier of fact to find
            every element of the crime has been established
            beyond a reasonable doubt, the sufficiency of the
            evidence claim must fail.

            The evidence established at trial need not preclude
            every possibility of innocence and the fact-finder is
            free to believe all, part, or none of the evidence
            presented. It is not within the province of this Court
            to re-weigh the evidence and substitute our judgment
            for that of the fact-finder. The Commonwealth's
            burden may be met by wholly circumstantial evidence
            and any doubt about the defendant's guilt is to be
            resolved by the fact[-]finder unless the evidence is so
            weak and inconclusive that, as a matter of law, no
            probability of fact can be drawn from the combined

4 For the ease of our discussion, we have elected to address appellant’s claims
in a different order than presented in his appellate brief.

J. A21045/20

Commonwealth v. Izurieta, 

171 A.3d 803

, 806 (Pa.Super. 2017) (citations


      The offense of risking catastrophe is set forth in Section 3302(b) of the

Crimes Code, which provides, in relevant part, as follows:

            (b)    Risking catastrophe.--A person is guilty of a
                   felony of the third degree if he recklessly creates
                   a risk of catastrophe in the employment of fire,
                   explosives or other dangerous means listed in
                   subsection (a) of this section.

18 Pa.C.S.A. § 3302(b).

      The risk proscribed by Section 3302 has been described as “the use of

dangerous means by one who consciously disregards a substantial and

unjustifiable   risk   and   thereby   unnecessarily   exposes   society   to   an

extraordinary disaster.”     Commonwealth v. McCoy, 

199 A.3d 411

, 417

(Pa.Super. 2018) (citation omitted). “[A] person can be guilty of risking a

catastrophe even where no catastrophe occurs[.]”            Commonwealth v.


880 A.2d 505

, 522 (Pa. 2005).

      Viewing the evidence in the light most favorable to the Commonwealth,

the verdict winner, we find that there was ample evidence from which the trial

court, sitting as fact-finder, could conclude that appellant was guilty of the

offense of risking catastrophe. The evidence at trial established that appellant

poured gasoline on a bed located in a rowhome adjoining several other

residences, and where multiple individuals were present and cigarettes were

actively being smoked. Officer Wolf testified that upon his arrival at the scene,

J. A21045/20

he immediately recognized the the smell of gasoline emanating from the

rowhome and that this smell intensified as he proceeded further into the

residence.   (Notes of testimony, 2/16/18 at 12-14.)       Officer Wolf further

testified that he observed appellant and his female companion inside the

rowhome smoking cigarettes while engaged in a verbal argument, and that

multiple individuals, including several minors, were present in the residence

at this time. (Id.) This verbal dispute turned into a physical altercation when

appellant pushed the female companion towards Officer Wolf. (Id. at 14.)

Thereafter, appellant acknowledged to police that he had poured gasoline on

his bed in an effort to convince his female companion to leave.           (Id.)

Officer Wolf also testified that during his subsequent investigation, he

observed a two-gallon gasoline can and an ashtray full of cigarette butts in

the master bedroom where the gasoline odor was the strongest. (Id. at 15,

17-18.) Based on the foregoing, we agree with the trial court that “[t]here is

no question that putting gasoline on a master bed located in a row home is

reckless and creates a substantial and unjustifiable risk[,]” which was

“exacerbated by cigarettes being actively smoked[,]” sufficient to find

appellant guilty of risking catastrophe.    (Trial court opinion, 1/8/20 at 7.)

Accordingly, appellant’s sufficiency claim must fail.

      We now turn to appellant’s claim that the trial court erred in admitting

his inculpatory statement that he poured gasoline on the bed because the

Commonwealth failed to establish “the corpus delicti of the crime of risking

J. A21045/20

catastrophe by a preponderance of the evidence.” (Appellant’s brief at 9; see

also notes of testimony, 2/16/18 at 14.) We disagree.

      Our standard of review for a challenge to the corpus delicti rule is well


            The corpus delicti rule is a rule of evidence. Our
            standard of review on appeals challenging an
            evidentiary ruling of the trial court is limited to a
            determination of whether the trial court abused its
            discretion. The corpus delicti rule places the burden
            on the prosecution to establish that a crime has
            actually occurred before a confession or admission of
            the accused connecting him to the crime can be
            admitted. The corpus delicti is literally the body of
            the crime; it consists of proof that a loss or injury has
            occurred as a result of the criminal conduct of

Commonwealth v. Hernandez, 

39 A.3d 406

, 410-411 (Pa.Super. 2012)

(citation, internal quotation marks, and emphasis omitted), appeal denied,

63 A.3d 1244

(Pa. 2013).

      Courts in this Commonwealth have recognized that Pennsylvania law

requires courts to apply the corpus delicti rule in two distinct phases:

            In the first phase, the court determines whether the
            Commonwealth has proven the corpus delicti of the
            crimes charged by a preponderance of the evidence.
            If so, the confession of the defendant is admissible.
            In the second phase, the rule requires that the
            Commonwealth prove the corpus delicti to the
            factfinder’s satisfaction beyond a reasonable doubt
            before the factfinder is permitted to consider the
            confession in assessing the defendant’s innocence or

J. A21045/20

Commonwealth v. Otterson, 

947 A.2d 1239

, 1249 (Pa.Super. 2008)

(citation omitted), appeal denied, 

958 A.2d 1047

(Pa. 2008), cert. denied,

556 U.S. 1238


      Instantly, we discern no abuse of discretion on the part of the trial court

in rejecting appellant’s corpus delicti claim. The record establishes that the

corpus delicti of the risking catastrophe charge was sufficiently proven by

the Commonwealth prior to the admittance of appellant’s inculpatory

statement. Moreover, appellant’s statement was clearly not the sole evidence

the trial court, as fact-finder, considered in finding appellant guilty.      As

discussed, prior to the introduction of appellant’s admission to Officer Wolf

that he had poured gasoline on his bed, the trial court had already heard

testimony from Officer Wolf that he immediately smelled a strong odor of

gasoline emanating from appellant’s rowhome upon his entry; that multiple

individuals were present in the residence at this time; and that appellant and

his female companion were smoking lit cigarettes while engaged in a verbal

dispute that ultimately turned physical. Clearly, it was Officer Wolf’s duty in

such a situation to inquire as to the source of the gasoline smell for the safety

and protection of all those involved.       Accordingly, we conclude that the

corpus delicti of risking catastrophe was sufficiently proven and the trial

court did not abuse its discretion in admitting appellant’s subsequent

inculpatory statement into evidence.

J. A21045/20

      For all the foregoing reasons, we affirm the August 17, 2018 judgment

of sentence.

      Judgment of sentence affirmed.     Commonwealth’s motion for second

extension of time to file brief granted and its brief accepted as timely filed.

Appellant’s motion to strike denied and his reply brief accepted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Date: 10/28/2020

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