J-S56043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RANDY LAVERTS HAY,

Appellant No. 1712 MDA 2014

Appeal from the Judgment of Sentence June 4, 2014

in the Court of Common Pleas of Northumberland County

Criminal Division at No.: CP-49-CR-0000693-2011

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 12, 2015

Appellant, Randy Laverts Hay, appeals from the judgment of sentence 

imposed following his jury conviction of arson, risking a catastrophe, 

recklessly endangering another person, and criminal mischief. Appellant 

challenges the sufficiency and the weight of the evidence. We affirm. 

We summarize the facts from the trial court’s opinions and our 

independent review of the record. The charges stem from the setting on fire 

of the doorway to the (multi-unit) apartment house where Appellant 

formerly lived with his ex-girlfriend, Tabitha Castle, and which, at the time of 

the fire, she occupied with her new boyfriend, Robert “Knowledge” Blake. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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There was evidence tending to show that some time before the fire 

Tabitha Castle had left the apartment, waited until Appellant left, and then 

moved back in with Robert Blake. She changed the locks on the apartment, 

barring Appellant. His belongings were still inside the apartment. Appellant 

came to the apartment to retrieve his clothes, but Blake refused, testifying 

that he told Appellant it was too late and he would have to come back 

another time. 

Later that night Blake and Castle awoke to the smell of smoke. Blake 

testified that he saw Appellant running away. He testified that he knew it 

was Appellant even though he only saw him from behind, because they had 

been in jail together. (See N.T. Trial, 5/18/12, at 86). Appellant admitted 

trying to retrieve his personal items, but denied that he set the fire. (See 

id. at 184). 

In his final argument, defense counsel essentially argued that Blake 

and Castle had set Appellant up, and suggested another motive beyond 

romantic rivalry: “And then there’s a dispute over stuff. So I mean maybe 

[the] motivation is greed. Maybe it’s not love, or lust, or a broken heart as 

they would have you say.” (Id. at 198). Similarly, on appeal, Appellant’s 

theory of the case is that Castle and Blake set him up to get him “out of the 

picture” to avoid interference in their romantic relationship as well as to 

keep his belongings. (Appellant’s Brief, at 16; see also Order, 9/05/14, at 

1). 
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The jury convicted Appellant of four counts of arson, 18 Pa.C.S.A. 

§ 3301(a)(1)(i), (recklessly placing another person in danger); 18 Pa.C.S.A. 

§ 3301(a)(1)(ii), (intent to destroy or damage an occupied structure); 18 

Pa.C.S.A. § 3301(c)(1)(i), and 18 Pa.C.S.A. § 3301(c)(2), (recklessly placing 

an occupied building in danger of damage or destruction); risking a 

catastrophe, 18 Pa.C.S.A. § 3302(b); recklessly endangering another 

person, 18 Pa.C.S.A. § 2705, (the occupants of apartment #2); and 

recklessly endangering another person, 18 Pa.C.S.A. § 2705, (the other 

occupants of the apartment building).

On June 4, 2014, the court sentenced Appellant to a term of not less 

than three years’ nor more than eight years’ incarceration with credit for 

time served. The trial court denied post-sentence motions, including a 

challenge to the weight of the evidence, on September 5, 2014. Appellant 

timely appealed.1 

On appeal, Appellant presents two overlapping questions for our 

review, which we reproduce verbatim, to the extent possible. 

1. Whether [Appellant] is entitled to acquittal or a new trial 

because there was insufficient evidence to support the verdict[?] 

The Commonwealth presented no credible testimony or other 

evidence of a degree necessary to meet their burden of proof 

tying [Appellant] to the act of burning the door frame at 417 

Walnut Street, Apartment 2, Sunbury, Pennsylvania. While the 

____________________________________________

1 Appellant filed a timely statement of errors on October 27, 2014. See

Pa.R.A.P. 1925(b). The trial court filed a Statement in lieu of Formal 

Opinion, on December 23, 2014. See Pa.R.A.P. 1925(a). 
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Commonwealth witness, Robert Blake, claimed that he was able 

to identify [Appellant] because he saw the back of his bare head 

in a dark, unlighted entry way in the predawn hours of February 

19, 2011. At the same time a [different] Commonwealth 

witness to the same event, Tabitha Castle, did not see 

[Appellant] either in the same entry way or running away down 

the street in front of the apartment building.

2. Whether [Appellant] is entitled to a new trial as the verdict in 

this case is against the weight of the evidence, because there 

was no credible testimony which contradicted [Appellant’s] own 

testimony, or other evidence of such weight to satisfy the 

Commonwealth’s burden of proof tying [Appellant] to the crimes 

charged, particularly because there are inconsistencies in the 

testimony of the interested witnesses against him in that while 

Robert Blake claimed that he was able to indentify [sic] 

[Appellant] because he saw the back of [Appellant’s] bare head 

in a dark unlighted entry way in the predawn hours of February 

19, 2011, while at the same time another Commonwealth 

witness to the same event, Tabitha Castle, did not see 

[Appellant] either in the same side entry way or running away 

down the street in front of the apartment building[?]

2

(Appellant’s Brief, at 10-11).3

Preliminarily, we note that although Appellant raises general 

challenges to the sufficiency and weight of the evidence for the verdict, he 

makes no claim about the specific elements for the particular crimes for 

which he was convicted. Instead, in both claims, he makes essentially the 

____________________________________________

2 Appellant’s statement fails to comply with Rule of Appellate Procedure 

2116, which in relevant part provides that “[t]he statement of the questions 

involved must state concisely the issues to be resolved, expressed in the 

terms and circumstances of the case but without unnecessary detail.” 

Pa.R.A.P. 2116 (emphases added). The insertion or appendage of lengthy 

argument to the statement of questions presented is inappropriate and 

violates the spirit as well as the letter of the rule. 

3 The Commonwealth did not file a brief. 
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same argument about inconsistencies in the testimonial evidence. 

Specifically, he challenges the identification of him fleeing the scene after 

the fire by Robert “Knowledge” Blake.4 

Although common items of clothing and general physical 

characteristics are usually insufficient to support a conviction, 

such evidence can be used as other circumstances to establish 

the identity of a perpetrator. Commonwealth v. Minnis, 312 

Pa. Super. 53, 458 A.2d 231, 233–34 (1983). Out-of-court 

identifications are relevant to our review of sufficiency of the 

evidence claims, particularly when they are given without 

hesitation shortly after the crime while memories were fresh. Id. 

at 234. Given additional evidentiary circumstances, “any 

indefiniteness and uncertainty in the identification testimony 

goes to its weight.” Id. at 233. 

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011), appeal 

denied, 54 A.3d 348 (Pa. 2012).

Appellant first challenges the sufficiency of the evidence. 

Our standard of review of sufficiency claims requires that 

we evaluate the record “in the light most favorable to the verdict 

winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence.” Commonwealth v. 

Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000).

“Evidence will be deemed sufficient to support the 

verdict when it established each element of the crime 

charged and the commission thereof by the accused, 

beyond a reasonable doubt.” Nevertheless, “the 

Commonwealth need not establish guilt to a mathematical 

certainty,” and may sustain its burden by means of wholly 

circumstantial evidence. Significantly, “[we] may not 

____________________________________________

4 Accordingly, we deem any challenge to the sufficiency of the evidence 

based on the elements of the crimes other than the identification issue and 

other issues addressed here, to be waived. 
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substitute [our] judgment for that of the factfinder; if the 

record contains support for the convictions they may not 

be disturbed.”

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 

2005) (citations omitted). Any doubt about the defendant’s guilt 

is to be resolved by the factfinder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances. See 

Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 

2001).

Commonwealth v. Scott, 967 A.2d 995, 997-98 (Pa. Super. 2009), appeal 

denied, 983 A.2d 1248 (Pa. 2009). Similarly, 

It is well settled that the evidence must be viewed in the 

light most favorable to the verdict winner, in this case the 

Commonwealth. Commonwealth v. Rife, 454 Pa. 506, 312 

A.2d 406 (1973). It is the province of the factfinder to weigh 

the evidence. Commonwealth v. Alston, 461 Pa. 664, 337 

A.2d 597 (1975). The factfinder can believe all, part, or none of 

the evidence. Commonwealth v. Smith, 457 Pa. 638, 326 

A.2d 60 (1974). The test for the sufficiency of the evidence was 

set forth in Commonwealth v. Jackson, 466 Pa. 311, 313, 353 

A.2d 370, 371 (1976) as follows:

The test for the sufficiency of the evidence is 

whether accepting as true all the evidence and all 

reasonable inferences therefrom, upon which, if believed, 

the fact-finder could properly have based its verdict, it is 

sufficient in law to prove beyond a reasonable doubt that 

the defendant is guilty of the crime or crimes of which he 

has been convicted.

Commonwealth v. Fortune, 451 A.2d 729, 730 (Pa. Super. 1982). 

“In order to convict a person of arson, the prosecution must establish 

beyond a reasonable doubt that (1) there was a fire, (2) it was maliciously 

set, and (3) the defendant was the guilty party.” Commonwealth v. 
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Hardcastle, 546 A.2d 1101, 1108 (Pa. 1988), cert. denied, 493 U.S. 1093 

(1990) (citations omitted). 

Here, Appellant’s principal argument on insufficiency is that the 

testimony of Castle and Blake is suspect because they wanted to get 

Appellant “out of the picture.” (Appellant’s Brief, at 16). He notes there was 

no testimony from a fire marshal and posits that because there are “a 

number of possible scenarios . . . [t]he only way to dispel any speculation 

would have been for the Commonwealth to present the testimony of a fire

marshal.” (Id. at 17). We disagree. 

There is no requirement that a fire marshal present evidence to 

establish the crime of arson. See Hardcastle, supra at 1108. To the 

contrary, purely circumstantial evidence is sufficient to establish the 

commission of the crimes charged. See Scott, supra at 997-98. It was the 

role of the jury as fact finder to resolve any doubt about Appellant’s guilt. 

See id. 

Viewing the evidence in the light most favorable to the Commonwealth 

as verdict winner, together with the benefit of all reasonable inferences, we 

conclude that there was sufficient evidence for the jury to find that Appellant 

was guilty of the crimes charged. It was the role of the jury to weigh the 

evidence and assess credibility. Appellant’s first issue does not merit relief. 
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Appellant’s second issue challenges the weight of the evidence. “The 

weight of the evidence is exclusively for the finder of fact, who is free to 

believe all, part, or none of the evidence, and to assess the credibility of 

witnesses. As to these issues, an appellate court cannot substitute its 

judgment for that of the finder of fact.” Commonwealth v. Treiber, 874 

A.2d 26, 30 (Pa. 2005), cert. denied, 547 U.S. 1076 (2006) (citations 

omitted). 

A motion for a new trial based on a claim that the verdict 

is against the weight of the evidence is addressed to the 

discretion of the trial court. Commonwealth v. Widmer, 560 

Pa. 308, 319, 744 A.2d 745, 751–52 (2000); Commonwealth 

v. Brown, 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A 

new trial should not be granted because of a mere conflict in the 

testimony or because the judge on the same facts would have 

arrived at a different conclusion. Widmer, 560 Pa. at 319–20, 

744 A.2d at 752. Rather, “the role of the trial judge is to 

determine that ‘notwithstanding all the facts, certain facts are so 

clearly of greater weight that to ignore them or to give them 

equal weight with all the facts is to deny justice.’ ” Id. at 320, 

744 A.2d at 752 (citation omitted). It has often been stated that 

“a new trial should be awarded when the jury’s verdict is so 

contrary to the evidence as to shock one’s sense of justice and 

the award of a new trial is imperative so that right may be given 

another opportunity to prevail.” Brown, 538 Pa. at 435, 648

A.2d at 1189. 

An appellate court’s standard of review when presented 

with a weight of the evidence claim is distinct from the standard 

of review applied by the trial court: 

Appellate review of a weight claim is a review of the 

exercise of discretion, not of the underlying question 

of whether the verdict is against the weight of the 

evidence. Brown, 648 A.2d at 1189. Because the trial 

judge has had the opportunity to hear and see the 

evidence presented, an appellate court will give the 

gravest consideration to the findings and reasons 
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advanced by the trial judge when reviewing a trial court’s 

determination that the verdict is against the weight of the 

evidence. Commonwealth v. Farquharson, 467 Pa. 50, 

354 A.2d 545 (Pa. 1976). One of the least assailable 

reasons for granting or denying a new trial is the lower 

court’s conviction that the verdict was or was not against 

the weight of the evidence and that a new trial should be 

granted in the interest of justice. 

Widmer, 560 Pa. at 321–22, 744 A.2d at 753 (emphasis 

added). This does not mean that the exercise of discretion by 

the trial court in granting or denying a motion for a new trial 

based on a challenge to the weight of the evidence is unfettered. 

In describing the limits of a trial court’s discretion, we have 

explained: The term “discretion” imports the exercise of 

judgment, wisdom and skill so as to reach a dispassionate 

conclusion within the framework of the law, and is not exercised 

for the purpose of giving effect to the will of the judge. 

Discretion must be exercised on the foundation of reason, as 

opposed to prejudice, personal motivations, caprice or arbitrary 

actions. Discretion is abused where the course pursued 

represents not merely an error of judgment, but where the 

judgment is manifestly unreasonable or where the law is not 

applied or where the record shows that the action is a result of 

partiality, prejudice, bias or ill-will. Widmer, 560 Pa. at 322, 

744 A.2d at 753 (quoting Coker v. S.M. Flickinger Co., 533 Pa. 

441, 447, 625 A.2d 1181, 1184–85 (1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).

Here, the jury heard evidence and argument that Blake and Castle had 

a motive to get Appellant out of the picture by falsely accusing him of arson. 

(See N.T. Trial, at 198). By its verdict, the jury rejected this claim. 

Notably, Appellant does not argue that the trial court abused its 

discretion in denying the weight claim. Instead, citing the romantic rivalry 

over Ms. Castle, Appellant maintains that “[t]hese two witnesses [Castle and 

Blake] were very clearly biased.” (Appellant’s Brief, at 19; see also id. at 
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18-19). It was the role of the jury to assess credibility and accept all, part, 

or none of the evidence. See Treiber, supra at 30. 

On independent review, we find that there is support in the record for 

the jury verdict. “[We] may not substitute [our] judgment for that of the 

factfinder; if the record contains support for the convictions they may not be 

disturbed. . . . Any doubt about the defendant’s guilt is to be resolved by the 

factfinder unless the evidence is so weak and inconclusive that, as a matter 

of law, no probability of fact can be drawn from the combined 

circumstances.” Scott, supra at 998 (citations omitted).

For the same reason, we discern no abuse of discretion in the trial 

court’s determination that the jury’s verdict was not so contrary to the 

evidence as to shock one’s sense of justice. (See Statement in lieu of 

Formal Opinion, 12/23/14, at 3). Appellant’s second claim does not merit 

relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/12/2015