Com. v. Salamone

• Decision Date: 10 April 2006
• Citation: 897 A.2d 1209
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. John V. SALAMONE, Appellant.
• Court: Pennsylvania Superior Court

897 A.2d 1209

COMMONWEALTH of Pennsylvania, Appellee v. John V. SALAMONE, Appellant.

Superior Court of Pennsylvania.

Argued August 31, 2005.

Filed April 10, 2006.

COPYRIGHT MATERIAL OMITTED

Joseph P. Green, Jr., West Chester, for appellant.

James W. Saerk, Asst. Dist. Atty., Norristown, for Com., appellee.

BEFORE: KLEIN, PANELLA, and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 Appellant, John V. Salamone, appeals from the judgment of sentence following his convictions for risking a catastrophe¹ and recklessly endangering another person,² and the order denying his motion for return of property and directing his forfeiture of $34,000 to the Commonwealth entered in the Montgomery County Court of Common Pleas.³ We are asked to determine, inter alia: (1) whether the piloting of an airplane for four hours around a major urban international airport and surrounding populated areas under the influence of alcohol and valium constitutes the "means" required for causing potentially wide spread injury under the Pennsylvania Crimes Code statute for causing or risking a catastrophe; and (2) whether there exists common law authority in this Commonwealth to forfeit an airplane used in such action when the pilot is subsequently convicted of criminal charges. For the foregoing reasons, we resolve both issues in the affirmative.

¶ 2 For approximately four hours on January 15, 2004, Appellant piloted his single engine aircraft in Philadelphia, Montgomery, and Bucks Counties while intoxicated. He flew around Philadelphia International Airport, a restricted Class B airspace, without permission and unpredictably changed speeds, altitudes, and directions.⁴ Two pilots preparing to land their freight plane saw a stray aircraft, Appellant's plane, coming toward them and quickly ascended. When they had risen 500 feet, Appellant's plane passed within 300 feet beneath them. Appellant came close to other planes, requiring air traffic controllers to redirect aircraft to different areas of the airport to avoid colliding with him. Airport traffic officials attempted numerous times, unsuccessfully, to contact Appellant, who finally responded when his fuel ran low. Meanwhile, the pilot of a Philadelphia Police Department helicopter dispatched to the airport hearing Appellant's voice over radio transmission, later described it as slurred, and at times unintelligible. (N.T. Trial, 9/14/04, at 30). Appellant then headed away, flying over Montgomery County, with the police helicopter following. Appellant continued to fly at erratic speeds, altitudes, rates of climb, and direction, and at one point suddenly made a steep descent from a high altitude. The officer later testified this maneuver generally occurs only where there is an emergency or aircraft malfunction. Nevertheless, Appellant continued flying.

¶ 3 Air traffic control advised Appellant to land at Northeast Philadelphia Airport because it was closer and could accommodate fire department services if necessary. Appellant refused to land there, indicating he wished to land at Wings Field Airport, in Montgomery County, instead. On the way there, however, Appellant changed direction and indicated he wished to land at Pottstown-Limerick Airport. During this time, Appellant continued to change altitudes and directions erratically. Appellant missed the runway on his first attempt to land, made an abrupt U-turn and flew directly toward the police helicopter, coming within 500 feet of it. Appellant then communicated to the officer that he could not find the airport. When the officer saw Appellant come within 1,000 feet horizontally and a few hundred feet vertically of the Pottstown-Limerick nuclear power plant cooling towers, he positioned his helicopter between Appellant and the towers and directed Appellant to follow it to land. Once Appellant safely landed his plane, he was taken into state police custody. A blood test revealed he had a blood alcohol level of 0.15% and the presence of valium.

¶ 4 Appellant's plane was confiscated because it was used in the commission of the crimes charged. In March of 2004, after Appellant filed a motion for the return of this property, the Commonwealth filed an answer and new matter requesting forfeiture of the aircraft. The trial court postponed ruling on Appellant's motion for return of property pending resolution of the underlying criminal charges. Following a bench trial in September of 2004, Appellant was convicted of risking a catastrophe and recklessly endangering the welfare of another person, for which he was sentenced in November to six to twenty-three months' imprisonment and an aggregate five years' probation. Appellant filed a timely notice of appeal on December 29, 2004, challenging only his conviction for risking a catastrophe.

¶ 5 Meanwhile, in November of 2004, Appellant's airplane was sold for $34,000 under the parties' agreement that the proceeds of the sale would be treated as the res for purposes of litigation. After a hearing on Appellant's motion to return property, the trial court determined in January of 2005 that Appellant's plane constituted derivative contraband, and granted the Commonwealth's request for forfeiture in the amount of $34,000. Appellant appealed from this order also.⁵

¶ 6 Appellant presents the following issues for our review:

DID THE TRIAL COURT ERR IN CONCLUDING THAT THE EVIDENCE WAS SUFFICIENT TO CONVICT [APPELLANT] ON THE CHARGE OF RISKING CATASTROPHE, 18 PA.C.S. § 3302(B), WHERE THE COMMONWEALTH FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT, THAT HE ENGAGED IN ANY CONDUCT THAT CONSTITUTED ANY "MEANS OF CAUSING POTENTIALLY WIDE-SPREAD INJURY OR DAMAGE?

(Appellant's Brief, No. 10 EDA 2005, at 5) (emphasis in original).

DID THE TRIAL COURT ERR IN REFUSING TO RETURN THE APPELLANTS' PROPERTY, AND IN DIRECTING FORFEITURE, WHERE FORFEITURE WAS NOT AUTHORIZED, AND WHERE A $34,000 FORFEITURE WAS UNCONSTITUTIONALLY EXCESSIVE AND WHERE THE TRIAL COURT ABUSED WHATEVER DISCRETION IT MIGHT HAVE HAD?

(Appellant's Brief, No. 305 EDA 2005, at 4).

¶ 7 In his first issue, Appellant claims the evidence was insufficient to sustain a conviction for risking a catastrophe. He contends a person cannot be convicted of risking a catastrophe unless he employs one of the statutorily prohibited means of causing or risking catastrophe, and that the act of flying an airplane is not such a means. Appellant also argues that his operation of a single engine aircraft could not cause widespread injury, and concludes his conviction on the charge of risking catastrophe must be reversed. We disagree.

Our well-settled standard of review when evaluating a challenge to the sufficiency of the evidence mandates that we assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner, in this case the Commonwealth. If the fact-finder could have found that every element of the crime charged had been proven beyond a reasonable doubt, the evidence is ipso facto sufficient to sustain a conviction for that crime.

Commonwealth v. Whitacre, 878 A.2d 96, 99 (Pa.Super.2005) (citations omitted).

¶ 8 Section 3302 of the Crimes Code provides in relevant part:

§ 3302. Causing or risking catastrophe

(a) Causing catastrophe. —A person who causes a catastrophe by explosion, fire, flood, avalanche, collapse of building, release of poison gas, radioactive material or other harmful or destructive force or substance, or by any other means of causing potentially wide spread injury or damage . . . commits a felony of the first degree if he does so intentionally or knowingly, or a felony of the second degree if he does so recklessly.

(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 (emphasis added). This Court has distinguished the two sections of this statute:

Section 3302 attempts to meet two separate and distinct societal harms. In paragraph (a) it purports to punish for the damage caused by the mishandling of certain enumerated highly dangerous forces or substances. Paragraph (b) addresses the exposure to harm created by the misuse of these forces or substances.

Commonwealth v. Hughes, 468 Pa. 502, 364 A.2d 306, 309 (1976) (emphasis in original) (footnotes omitted). Additionally, "[t]he fact that swift and effective governmental intervention limited the deleterious effect of [the defendants'] reckless conduct does not decriminalize their actions. The fact that an actual devastating catastrophe was averted is of no moment in assessing [the defendants'] conduct in terms of Section 3302(b)." Commonwealth v. Scatena, 508 Pa. 512, 498 A.2d 1314, 1317 (1985).

¶ 9 The Pennsylvania Supreme Court recently addressed the "other means" by which a person could cause a catastrophe under both Section 3302(a) and (b) in Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505 (2005). In that case, the defendants leased a pier on the Delaware River in Philadelphia on which they operated an open-air nightclub and banquet hall. Id. at 507. In December of 1994, the defendants hired engineers to evaluate damage caused by the collapse of some portions of the pier. Id. The engineers recommended a comprehensive maintenance and repair plan for the entire pier, but the defendants merely repaired the collapsed portions. Id. Between October of 1995 and May of 2000, the defendants were aware of additional damage to the pier and its buildings, including cracks on the pier and in the floor of the banquet hall, separation of the banquet hall's ceiling, a bent gas pipe running along the side of the pier, and the twisting of steel reinforcements in the river. Id. at 507-09. Engineers repeatedly advised the defendants that the pier was moving and recommended continuous monitoring, but the defendants made only isolated repairs to the immediate and...