Com. v. Blystone

• Citation: 421 Pa.Super. 167,617 A.2d 778
• Parties: COMMONWEALTH of Pennsylvania v. Robert Blaine BLYSTONE, Jr., Appellant.
• Decision Date: 19 November 1992
• Court: Pennsylvania Superior Court

Page 778

617 A.2d 778

421 Pa.Super. 167

COMMONWEALTH of Pennsylvania v. Robert Blaine BLYSTONE, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted June 29, 1992.

Filed Nov. 19, 1992.

Robert R. Ferguson, Public Defender, Lewistown, for appellant.

Timothy S. Searer, Asst. Dist. Atty., Lewistown, for Com., appellee.

Before CIRILLO, KELLY and CERCONE, JJ.

CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Mifflin County. A motion to withdraw counsel is also before this court. We affirm the judgment of sentence, and deny the motion to withdraw counsel.

A jury convicted appellant Robert Blaine Blystone, Jr. of arson endangering persons and arson endangering property in violation of 18 Pa.C.S. §§ 3301(a)(1)(i) and 3301(c)(1). Following the denial of his post-trial motions, Blystone was sentenced to serve a term of imprisonment of not less than five years nor more than twenty years, and to pay a $500.00 fine. After the trial court denied his motion for reconsideration of sentence, Blystone filed a timely notice of appeal.

On February 14, 1990, at approximately 2:15 a.m., Blystone awakened the owners of a farm in Mifflin County to alert them that their milkhouse was on fire. The owners immediately telephoned the fire department while Blystone remained on the farm to assist in fighting the fire. Over the next several hours firefighters, police officers, and various others congregated on the premises. Some of these individuals were later called to testify against Blystone at his trial.

Blystone testified at trial that he was working at Domino's Pizza until 2:00 a.m., and therefore could not have had enough time to set the milkhouse on fire. ¹ Blystone's version of events was contradicted, however, by the Derry Township police captain who testified that while stationed along the main highway he observed a car drive by with a Domino's pizza sign on its roof. The captain later identified the car as belonging to Blystone. According to the captain's testimony, he observed this car in the vicinity of the fire scene approximately forty-five minutes before the owners of the farm summoned the fire department.

On appeal Blystone raises two issues for our review:

1. Did the Commonwealth meet its burden of proof beyond a reasonable doubt at trial?

2. Did Appellant present sufficient evidence of alibi defense to create a reasonable doubt?

Initially, Blystone contends that the Commonwealth failed to prove beyond a reasonable doubt that he started the fire at the milkhouse and, therefore, his conviction is based solely on speculation. This argument lacks merit. In order to determine whether the evidence was sufficient to support a conviction, we must view the entire record in the light most favorable to the Commonwealth, as verdict winner, and drawing all reasonable inferences therefrom we must then establish if there is sufficient evidence to enable the trier of fact to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). This standard applies equally whether the evidence of guilt is direct, or circumstantial, as here, so long as the combination of the evidence links the defendant to the crime beyond a reasonable doubt. Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990).

In reviewing a criminal conviction, we will not weigh the evidence and substitute our judgment for that of the factfinder, Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982), for it is within the sole purview of the factfinder to determine the credibility of the witnesses and the weight to be accorded the testimony of each. Commonwealth v. Shaver, 501 Pa. 167, 173, 460 A.2d 742, 745 (1983). Although a defendant's guilt may be established through wholly circumstantial evidence, 498 Pa. at 248, 445 A.2d at 1205; Commonwealth v. Cimaszewski, 447 Pa. 141, 144, 288 A.2d 805, 806 (1972), it cannot be based on mere surmise, conjecture or speculation. Commonwealth v. Scott, 409 Pa.Super. 313, 314, 597 A.2d 1220, 1221 (1991).

To convict Blystone of arson endangering persons, the Commonwealth must prove that Blystone intentionally started the fire or caused the explosion and thereby recklessly placed 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. 18 Pa.C.S. § 3301(a)(1)(i). To convict Blystone of arson endangering property, the Commonwealth must establish that Blystone intentionally started the fire with the intent to destroy or damage the milkhouse. 18 Pa.C.S. § 3301(c)(1). We find that the record contains sufficient circumstantial evidence from which the jury could conclude that Blystone caused the explosion with the intention of damaging the milkhouse. Cimaszewski, supra; Scott, supra.

In his second issue, Blystone asserts that the testimony of certain alibi witnesses was sufficient to create a reasonable doubt that he did not set fire to the milkhouse. This argument is also without merit. "Alibi is a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as to render it impossible for him to be the guilty party." Commonwealth v. Gainer, 397 Pa.Super. 348, 353, 580 A.2d 333, 336 (1990). Here, several defense witnesses testified that on February 14, 1990, Blystone was at work until 2:00 in the morning. Based on this testimony, Blystone argues that he did not have sufficient time to drive to the farm and set the milkhouse on fire before 2:15 a.m. when the owners of the farm telephoned the fire department.

It is well established that absent an abuse of discretion we will not disturb a trial court's findings of fact if they are supported by the record. Commonwealth v. McLean, 396 Pa.Super. 23, 27, 578 A.2d 4, 6 (1990). Determination of the credibility of alibi witnesses is within the sole purview of the jury, Shaver, supra, and the jury is free to believe all, part or none of the evidence. Id. In this case, the jury chose not to believe Blystone's witnesses. We will not now weigh the evidence and substitute our judgment for that of the jury. Pronkoskie, supra. There is adequate evidence in the record to support the jury's determination that the combination of direct and circumstantial evidence linked Blystone to the arson beyond a reasonable doubt. Hardcastle, supra. Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, and drawing all reasonable inferences therefrom, we conclude that there is sufficient competent evidence in the record to support the jury's verdict. Edwards, supra. We, therefore, affirm the judgment of sentence.

Although we have disposed of the merits of this case, we must now address a procedural issue. ² In addition to appointed counsel's brief addressing the issues presented on direct appeal, Blystone also filed a pro se motion to withdraw counsel, and a supporting brief, alleging that his attorney was ineffective. This panel is therefore faced with a "hybrid" form of representation. A similar situation arose in Commonwealth v. Ellis, 398 Pa.Super. 538, 581 A.2d 595 (1990) (en banc), allocatur granted, 528 Pa. 636, 598 A.2d 992 (1991), when appointed counsel filed a brief raising seven issues for review and the appellant filed a pro se brief raising four additional issues. Confronted with this "hybrid" form of representation, the court was unsure of precisely which issues to address. In the past this court had refused to consider the separate briefs of counsel and appellant; rather, this court would remand the case to the trial court for a hearing to enable the appellant to decide whether he wished to represent himself on appeal or be represented by counsel. Ellis, 398 Pa.Super. at 545, 581 A.2d at 598.

In Ellis, this court, sitting en banc, established a new procedure for handling cases in which both the appellant and his appointed attorney file briefs.

We will accept for filing pro se appellate briefs, but we will not review a pro se brief if a counseled brief has been filed, either before, simultaneously with, or after the pro se, due to the judicial confusion and delay that ensues. Because we refuse to play a timing game or that of a mind reader, trying to determine what the pro se really wants, we see no difference as to when the pro se brief is filed in relation to the counseled brief. If a pro se brief is filed in a counseled appeal, we direct the prothonotary to send the pro se brief on to counsel who is best able to determine in her professional judgment which of the pro se's issues should be presented for our review. Counsel may argue such pertinent issues in her brief to the court, or if the appellate brief has been filed, she may file a supplemental brief addressing those same issues. If the pro se brief alleges ineffectiveness of appellate counsel or an affirmative desire to be heard pro se, we direct counsel to petition this court to remand the case to the trial court so that it may conduct a full hearing in order to determine appellant's knowing and intelligent waiver of his right to appellate counsel, and of his desire to proceed pro se, or in the case of ineffectiveness, an appointment of new appellate counsel.

Ellis, 398 Pa.Super. at 550, 581 A.2d at 600-601; see also Commonwealth v. Ferri, 410 Pa.Super. 67, 599 A.2d 208 (1991) (this court is precluded from considering a pro se brief where a separate brief has been filed by counsel). Cf. Commonwealth v. Patton, 409 Pa.Super. 304, 597 A.2d 1216 (1991) (court disregarded pro se supplemental brief to counseled appeal where appellant neither raised allegations of ineffectiveness of counsel nor exhibited a desire to proceed pro se ).

Shortly after Ellis, a panel of this court considered a...