Com. v. Barosh, C.

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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : CHRISTOPHER BAROSH, : No. 1103 EDA 2013 : Appellant :

Appeal from the Judgment of Sentence, February 11, 2013, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP-51-CR-0008461-2010

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 07, 2014

Christopher Barosh set fire to a home owned by his girlfriend just before an insurance policy taken out for the property was about to be cancelled. Following a jury trial in the Court of Common Pleas of Philadelphia, appellant was convicted of arson, endangering persons, and insurance fraud.1 Following careful review, we affirm.

The facts and procedural history of this case are as follows. In July of 2005, appellant purchased a home at 1148 South 54th Street in Philadelphia on behalf of his girlfriend, Jill Wezorek.2 On the deed to the property,

• • Retired Senior Judge assigned to the Superior Court. 1 Appellant was found not guilty of conspiracy. 2

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Wezorek was listed as the buyer and appellant was listed as possessing a signature appeared on a tax document with the deed.

On September 9, 2005, ap Allstate Insurance Company regarding the aforementioned property. The policy had coverage limits of $126,533 for the dwelling, $12,653 for other structures, and $94,000 for personal property. (Notes of testimony, 12/5/12 at 16-17.) In order to obtain this policy, the property was to be occupied by the owner, and the home must be under 45 years old. (Id. at 17.) Additionally, appellant needed to provide proof of insurance from July 2005 to September 2005, the date of the application. The application submitted indicated the property was purchased in September 2005 and would be owner occupied.

e premises be owner-occupied, appellant rented the house to Yolanda Dingle, who planned to live there with five children. (Id. at 17-18, 29-30.) Appellant had agreed child, and he took $2,000 from Ms. Dingle to cover the costs. (Id. at 29.) Appellant, however, did not make any of the promised renovations, and Ms. Dingle filed a police report. (Id. at 31.)

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Approximately a month after she moved into the 1148 South 54 th Street property, appellant forcefully evicted Ms. Dingle. Ms. Dingle testified that as she was putting her key into the front door, appellant approached her from behind, grabbed the key, went inside by himself, and locked her out. (Id. at 33.) She was not able to remove her personal property from the house. (Id. at 34.)

On September 16, 2005, Allstate, having discovered several reasons why the house did not qualify for the Deluxe Plus Policy,3 sent Wezorek a letter notifying her that the insurance policy would be cancelled effective October 27, 2005. (Id. at 19.) Appellant did not deny receiving the letter; rather, he claimed he thought the cancellation had already taken effect at the time he read the letter.

At approximately 11:00 p.m. on October 25, 2005, approximately 25 set on fire. Doris House, who lived directly next door at 1150 South 54 th Street, heard her fire alarm go off and noticed a lot of smoke coming from the wall of her residence shared with 1148 South 54th Street. (Id. at 55-57.) Ms. House lived with her son, her 11-year-old nephew, and 2 grandchildren who were approximately 4 and 5 years old. (Id. at 55-56.) Ms. House woke the children and got them out of the home to safety.

3 Specifically, the house was not owner occupied, was purchased in July of 2005 as opposed to September 2005, and was over 45 years old.

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Ms. House then contacted Ms. Dingle. Ms. House testified that there was smoke damage to her home and personal items, and she no longer is able to live in the home. (Id. at 60.)

Ms. Dingle testified that she received a phone call from a neighbor, Ms. House,4 who informed her of the fire, knowing her belongings were inside. (Id. at 35.) Upon arrival, Ms. Dingle met with Ms. House, who was

Id. at 36.) Ms. House told her that she saw appellant coming from the back of the house when the fire started. (Id. at 37.) Ms. Dingle testified that she observed appellant across the street in the Wilson. (Id. at 38-39.)

Lieutenant Bordes Ramseur of the Philadelphia Fire Department, an expert in the area of determining the causes and origin of fires, investigated this matter. He determined that the fire had been intentionally set in the basement area and that an ignitable liquid had been used. Louis Gahagan, a private fire investigator hired by Allstate, also testified as an expert who subsequently conducted his own investigation and reached the same conclusion; a fire began in the basement, was incendiary, and an ignitable fluid was used to accelerate the fire. (Notes of testimony, 12/6/12 at 13-16, 20, 43, 55-58.)

4 Ms. House died before trial. (Id. at 37.)

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After the fire, appellant made two separate admissions of guilt. argument about a property in New Hope Pennsylvania, and appellant

Id. at 72.) Bryan further testified that appellant stated he . . . or use a flammable liquid or kerosene gas, whatever you use to remove

Id. at 73.) Appellant also attempted to pay David Tarmin, an acquaintance and former tenant at another property, to provide him an alibi for the arson. During that conversation, appellant admitted to Mr. Tarmin that he had set fire to the house in order to collect the insurance proceeds. (Id. at 91.)

Appellant testified that he left 1148 South 54th Street between 6:00 p.m. and 6:30 p.m. and went to watch a baseball game near the University of Pennsylvania. (Id. at 40-41.) Upon his return, he thought the to do. (Id. at 43.) Appellant left and stayed overnight in a nearby hotel. Appellant also stated that Dingle was a squatter and he had to have her evicted. (Id. at 35-36.) He also denied laughing with Wilson at the time of the fire. (Id. at 47.) In fact, he stated that he did not get along with Wilson and would not be in his company. Appellant averred that House mistrusted

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him and believed he wanted to steal houses in the neighborhood. (Id. at 48.)

A jury trial was held and on December 11, 2012, appellant was convicted of arson and insurance fraud. At the February 11, 2013 sentencing hearing, the trial court read into the record a letter he received not to appear at trial and, when that failed, threatened to kill him. (Notes of testimony, 2/11/13 at 22-23.) The Honorable Chris R. Wogan sentenced arson and 6 months to 3 years for insurance fraud. Additionally, he ordered appellant to pay restitution for the damage caused by the fire.

On February 18, 2013, appellant filed a post-sentence motion seeking reconsideration of his sentence; the motion was denied after a hearing on March 15, 2013. On April 2, 2013, a timely notice of appeal was filed. On April 11, 2013, the trial court ordered appellant to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. A Rule 1925(b) statement was filed on September 16, 2013, following an extension of time that was granted.

I. guilt of arson and insurance fraud?

II. Are the verdicts of guilt against the weight of the evidence?

III. Did the pretrial court err when it denied a motion to dismiss and/or sanction as a result

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of the destruction of evidence and the

custody?

IV. Did the trial court err when it allowed testimony showing that appellant was involved

Yolanda Dingle?

V. Did the trial court err when it allowed hearsay testimony?

VI. Did the trial court err when it did not allow testimony concerning civil proceedings appellant was involved in with Commonwealth witness David Tarmin?

VII. Did the trial court err when it allowed cross-examination of appellant to establish

VIII. Did the trial court err when it allowed cross-examination of appellant concerning his alleged failure to present documentary evidence and witnesses?

IX. for arson excessive, unreasonable and not

condition?

X. excessive and not supported by the evidentiary record?

-6.

In determining sufficiency of the evidence, the Court must review the evidence admitted at trial, along with any reasonable inferences that may be drawn from that evidence, in the light most favorable to the

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verdict winner. Commonwealth v. Kimbrough, 872 A.2d 1244, 1248 (Pa.Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005). A conviction will be upheld if after review we find that the jury could have found every element of the crime beyond a reasonable doubt. Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003). The court may not weigh the evidence or substitute its judgment for that of the fact-finder. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001), appeal denied, 569 Pa. 716, 806

-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be d Commonwealth v. Sheppard, 837 A.2d 555, 557 (Pa.Super. 2003).

Commonwealth v. Judd, 897 A.2d 1224, 1233-1234 (Pa.Super. 2006), appeal denied, 912 A.2d 1291 (Pa. 2006).

nce failed to establish

Id. at 29.) Finally, while he acknowledges the Commonwealth need not prove motive, he avers that he had no motive to commit the crimes, as he would not have benefitted from an insurance claim since he did not own the property. (Id. at 30.)

In order to sustain a conviction for arson, the Commonwealth must have established beyond a reasonable doubt that the defendant intentionally set a fire on his own property or that of another, which recklessly placed another person in danger of death or bodily injury. 18 Pa.C.S.A.

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§ 3301(a)(1)(i). It is well established that a conviction for arson may be based solely on circumstantial evidence. Commonwealth v. Trafford, 459 A.2d 373 (Pa.Super. 1983).

Insurance fraud can be committed in several ways, including:

[k]nowingly and with the intent to defraud any insurer or self-insured, presents or causes to be presented to any insurer or self-insured any statement forming a part of, or in support of, a claim that contains any false, incomplete or misleading information concerning any fact or thing material to the claim.

18 Pa.C.S.A. § 4117(a)(2).

Clearly, the evidence was sufficient to establish that appellant intentionally set fire to the house. The Commonwealth presented evidence that the fire was set 25 hours before the insurance policy, that appellant had fraudulently obtained, was about to expire. Two different experts testified that pursuant to their investigations, the fire was set intentionally and that a liquid accelerant was used. Testimony was presented that a neighbor saw appellant coming from the area where the fire was started. Moreover, two witnesses testified that appellant admitted to intentionally setting the fire; one witness was threatened by appellant if he testified, while the other was

s whereabouts on the night of the fire. Uncontroverted evidence that the fire seriously damaged the house next door, which was occupied by several people, established that individuals were placed in danger of death or serious bodily injury.

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As appellant states, the Commonwealth had no obligation to prove motive for committing the arson. However, testimony presented contributed insight that burning down the property would result in his girlfriend being paid $126,553 from the insurance company. Appellan damage or destroy the property by fire would result in his benefit, directly or indirectly, by receiving funds from Ms. Wezorek.

The Commonwealth also established that appellant made several false, misleading, or incomplete statements to Allstate concerning material facts. Testimony established that appellant falsely claimed the house was purchased in September rather than July of 2005; Allstate would not have covered the property had it known it had been uninsured for three months. Appellant also falsely claimed that the house was less than 45 years old, policy. Appellant also falsely claimed that the property was owner occupied, yet another requirement for obtaining the preferred policy. Moreover, setting the fire in order to collect money from the insurance company. These facts are sufficient to establish that appellant committed the crime of insurance fraud.

While appellant provided contradictory testimony, the jury resolved all were supported by sufficient evidence.

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Next, appellant argues that his convictions are against the weight of reasserts the argument he set forth in support of his sufficiency claim: the charg sufficiency of the evidence cannot establish an abuse of discretion in the trial

o the weight of the evidence. Commonwealth v. Sullivan, 864 A.2d 1246, 1248-1249 (Pa.Super. 2004).

-of-the-evidence claim concedes that the evidence is

Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013). Nor does appellant provide any relevant authority for us to decide his weight of the evidence claims. As a result, we find all of

See Pa.R.A.P. 2119. See also Commonwealth v. Mercado, 649 A.2d 946, 954 (Pa.Super. 1994) (stating that failure to provide support for an issue may result in waiver of the claim).

The third issue presented is whether appellant is entitled to a new trial as a result of a pre-trial ruling, which permitted Mr. Gahagan, the private fire investigator retained by Allstate, to testify as to samples recovered from the crime scene. Specifically, appellant argues that this testimony should be

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ordinary course of business, and the Commonwealth failed to establish a

-36.) We find no error with either

12, 2013 opinion. (Trial court opinion, 11/12/13 at 15-18.)

fied that she paid appellant $2,000 for rent and renovations regarding the property, that she was later

conduct.

Evidence of other crimes or prior bad acts is generally inadmissible other legitimate purpose and not merely to prejudice the defendant by showing him to be a person of b Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). Such evidentiary issues are within the sound discretion of the trial court. Commonwealth v. Banks, 521 A.2d 1 (Pa. 1987), cert. denied, 484 U.S. 873 (1987).

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Ms. Dingle never referenced a specific conviction or an arrest; rather, money and not performing the promised renovations as well as forcefully evicting her before setting the fire. Defense counsel cross-examined Ms.

-53.) probative as part of the natural history of this case. Moreover, any possible such prejudice as to justify a new trial. We agree with the Commonwealth

his jury trial from December 5 to 11, 2012, and there is not a reasonable probability that the verdict would have been different but for this noun. Moreover, the

avers that the trial court abused its discretion in concerning unidentified individuals telling her to stop paying appellant rent

ng statements of Ms. (3) Ms. made to him by appellant as to his setting fire to the properties.

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law, the record, and the opinion authored by the Honorable Chris R. Wogan.

issues (See trial court opinion, 11/12/13 at 20-25.) the ruling of the trial court that precluded him from presenting testimony concerning civil proceedings he was involved in with the Commonwealth Commonwealth observe, this claim is belied by the record. (Trial court opinion, 11/12/13 at 26; Commonwealth brief at 36.) The trial court did not prohibit evidence of the existence of a civil proceeding involving appellant and Mr. Tarmin; rather, the court prohibited evidence of the result of that proceeding. (Notes of testimony, 12/7/12 at 54-55.)

In his brief on appeal, appellant now claims that he did not the trial court did not specifically explain to the jury that it could consider the fact that t instructed the jury caused the jury to ignore the testimony as to the civil proceedings in their entirety, not just

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any comment about the results testimony 12/7/12 at 54-55 (emphasis added).) This prompt instruction, to which appellant did not object and for which he did not request further clarification, was clear and concise. Appellant cannot now belatedly complain that the court should have given the jury a special instruction. See Pa.R.A.P. 302(a). A new trial is not warranted since the jury is

See Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992) (our law presumes that juries follow

id the trial court err when it allowed cross-examination of appellant to establish that he evicted brief at 54.) In his brief, he claims the Commonwealth engaged in a character assassination when it questioned him regarding his eviction of

Id.) No relief is due.

The scope of cross-discretion and will not be disturbed by this court absent an abuse of that discretion. Commonwealth v. Hoover, 16 A.3d 1148, 1150 (Pa.Super. 2011). An abuse of discretion is not a mere error in judgment but, rather,

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involves bias, ill-will, partiality, prejudice, manifest unreasonableness, or misapplication of law. Id.

Pa.R.E. 611 governs the mode and order of interrogation and presentation and provides, in relevant part, as follows:

(b) Scope of cross-examination. Cross- examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility; however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

Pa.R.E. 611(b). Our courts have broadly defined the scope of cross-may be drawn therefrom, which explain or destroy the effect of the direct

Commonwealth v. Snoke, 580 A.2d 295, 300 (Pa. 1990).

Appellant claims that his testimony did not amount to character testimony; rather, he avers relationship with Dingle, Tarmin, his brothers and other people. . . . At no time did appellant claim he was non-violent, law abiding or peaceful, the

-56.) We disagree; character testimony takes many

See Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa.Super. 1983) (it has long been the law in Pennsylvania that an individual on trial is permitted to introduce evidence of his good reputat

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tances of merely testifies to historical facts and does not describe his or her reputation, defendant will not have put general character in issue. Commonwealth v. Percell, 454 A.2d 542, 544 (Pa. 1982).

The record herein reveals that appellant testified to his reasons for evicting Ms. Dingle and Mr. Tarmin, and his testimony described several admirable character traits he believed that were generally known about him in the community. We cannot find that the trial court abused its discretion in permitting the Commonwealth to cross-examine appellant concerning his testimony as to the circumstances of evicting Ms. Dingle and Mr. Tarmin or his reputation, as he essentially testified as a character witness on his own behalf. The cross-examination of appellant was limited to the same traits appellant testified he possessed. Appellant is not entitled to a new trial pursuant to this theory of relief.

The eighth claim, that the trial court erred when it allowed cross-examination of appellant concerning his alleged failure to present 57.)

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Appellant testified that he was at a bar during the time of the fire and that he withdrew money from an ATM to give to a man who performed work for him. The Commonwealth questioned appellant about his inability to produce the ATM receipt or the man whom appellant claimed he paid. Appellant also testified that he was not in fire, and the Commonwealth questioned him about his inability to produce purchase of 1148 South 54th Street as well as her intentions with regard to the property. On cross-examination, the Commonwealth questioned him about his inability to produce Wezorek as a witness. Appellant claims the

- Id.) We disagree.

We can quickly dispose of this meritless issue. Simply put, appellant opened the door to questions regarding the existence of a witness to corroborate his alibi. See Commonwealth v. Hawkins, 701 A.2d 492, 510 statement that she was going to prove that someone other than the to the subject); Commonwealth v. Yarris, 549 A.2d 513, 526 (Pa. 1988), cert. denied, 491 U.S. 910 (1989) (p the day of the murder, did not testify did not impermissibly shift burden of

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proof to defendant). See also Commonwealth v. Ford, 650 A.2d 433, 442 (Pa. evidence, but if defendant opens an evidentiary door concerning his past criminal record, then Commonwealth is allowed to cross-examine on that issue).

In addition, the trial court properly i accused of a crime is not required to present evidence or prove anything in

-42.) Thus, any possi summation would have been eliminated by the instruction. Hawkins, supra at 511 (possible prejudicial effect of prosecutorial remark allegedly implying that appellant bore burden of proof wa general instruction that Commonwealth always bore the burden of proof; imposing what appellant characterizes as an excessive sentence for arson;5 this issue presents a challenge to the discretionary aspects of his sentence. See Commonwealth v. Boyer, 856 A.2d 149 (Pa.Super. 2004).

5 Appellant does not challenge his sentence for insurance fraud.

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sen Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010).

Before we reach the merits of this [issue], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether

reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of

on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006) (citations omitted).

In the instant case, appellant filed a timely notice of appeal, preserved his claim in his timely post-sentence motion,6 and included in his appellate brief a separate Rule 2119(f) statement. Thus, we proceed to determine whether appellant has presented a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. See Mastromarino, supra.

6 Appellant also presented the issue in his court-ordered Pa.R.A.P. 1925(b) statement.

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ceration for arson, an upward departure from the guidelines, is unreasonable and excessive as it does not take into consideration his history and character. Appellant also avers that the court failed to provide adequate reasons for the sentence. He also posits that the trial court placed undue emphasis on the nature of the crime committed. This court has held that a claim the trial court focused solely on the nature of the offense, without considering the protection of the public or the rehabilitative needs of the appellant, as is required by 42 Pa.C.S.A. § 9721(b), presents a substantial question. Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa.Super. 2012); Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005) (indicating substantial question raised when issue raises question of whether trial court sentenced in aggravated range without considering mitigating circumstances); Commonwealth v. Monahan, 860 A.2d 180, 181 (Pa.Super. 2004) (a claim that the sentencing court failed to place sufficient reasons on the record for deviating upwards from the guidelines presents a substantial question). Thus, we shall proceed to an examination of the

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its

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discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013), appeal denied, 85 A.3d 481 (Pa. 2014).

More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance

[T]he sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa.Super. 2012) (quotation omitted). Thus, under 42 Pa.C.S.A. § formulate a sentence individualized to that particular case and that particular

Boyer, 856 A.2d at 153. of the record, and the trial cour opinion, 11/12/13 at 31-36.) The record reflects due consideration of the constitute an abuse of discretion.

The final issue presented cla restitution was excessive and was not supported by the evidentiary record. After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our

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determination that there is no merit to this question raised on appeal. Once

-reasoned opinion. (Id. at 36-38.)

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/7/2014

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