To the dismay of firefighters, a judge threw out third-degree murder charges yesterday against a Port Richmond man accused of cultivating marijuana in his home, where two firefighters were killed in August battling a blaze caused by a high-intensity grow lamp.
Daniel Brough's court-appointed attorney, William Cannon, argued that the circumstances did not meet the legal definition of third-degree murder - a recklessness of consequences, or expectation that death could result from the marijuana greenhouse.
"When Daniel Brough was growing marijuana in his basement, the last thing on his mind was that he would have a fire in his home," where the 35-year-old lived with his mother, common-law wife, son and stepson, Cannon told Municipal Court Judge Teresa Deni.
Capt. John Taylor, 53, of Northeast Philadelphia, and firefighter Rey Rubio, 42, of North Philadelphia, were asphyxiated after they became trapped in the cluttered, burning basement of Brough's Belgrade Street home on Aug. 20.
Assistant District Attorney Edward Cameron presented evidence that Brough rigged a dangerous hothouse in a basement closet that sparked the fatal fire.
"He basically created a firebomb in that basement and left it unattended," Cameron told the judge.
Deni's decision - which she did not explain - to dismiss the most serious charges visibly angered the handful of firefighters present for the hearing.
"It's a slap in the face to the whole department and the families," firefighter Martin Walsh said after the hearing. "It's a total injustice."
Brough put his head down and burst into tears during the hearing as firefighter Walter Milewski testified about trying to rescue his fellow members of Engine Company 28.
Milewski said he and other rescuers discovered Rubio slumped at the bottom of the dark and smoky basement steps, somehow pinned down. Taylor lay a foot or two farther away, Milewski said.
"I was trying to save my captain and Rey Rubio," Milewski testified. "The fire was rolling off the ceiling and slowly coming to where we were at... . It was starting to get hotter."
At the conclusion of the preliminary hearing, Deni ordered Brough to stand trial on two counts of involuntary manslaughter, a misdemeanor; a felony charge of causing or risking a catastrophe; and drug- and paraphernalia-possession offenses.
Deni also dismissed a charge of drug possession with intent to distribute after Brough's stepson testified the plants were grown for Brough's own use.
Investigators yesterday described the blackened remains of the narrow closet where the fire started. They found numerous fans, the high-intensity lamp, ventilation ducts, a timer, and five to nine charred marijuana plant stems.
A smoke detector lying on the basement floor had no battery, Lt. Fire Marshal Andrew Robinson testified. Cameron placed into evidence copies of a spiral-bound notebook in which Brough allegedly made daily notations chronicling the growth of the marijuana plants he repeatedly called "my girls."
Brough knew his sweltering indoor greenhouse posed a danger to his home, neighboring rowhouses and firefighters, Cameron told the judge.
In a July journal notation, Brough allegedly wrote, "Look very nice. Had to bend them all over. They were too tall and hitting the glass. Glass was too hot for the plants."
On Aug. 5, two weeks before the fatal fire, Brough allegedly wrote, "They are hitting the glass. The buds are burning. I love the girls."
Other notations describe installing ventilation fans and running the air-conditioning constantly to combat the heat, Cameron said.
Brough's 19-year-old stepson, Daniel Rivera, testified that he discovered marijuana growing under lights in the family's basement closet.
Reluctantly, and in a quavering voice, Rivera said Brough told him he built the closet hothouse.
"He said he was testing something out," Rivera testified. "... It was an experiment for his own personal use."
Under cross-examination, Cannon asked Rivera whether Brough ever sold marijuana or other drugs.
"Never," Rivera replied.
But in a statement to investigators immediately after the fire, Rivera allegedly said Brough told him the plants weren't yet full-grown for sale.
A witness to the fire, Patricia Kozlowski, testified yesterday that she saw Brough as firefighters battled the blaze.
"I heard him say, 'Oh, God, I obscenity up,' " Kozlowski testified. "He was just repeating it over and over again."
She said Brough had his head in his hands, and was distraught and shaking his head, as firefighters carried Taylor and Rubio out of the house.
"They were banging on their chests, performing CPR, and racing to an ambulance," Kozlowski testified as members of Taylor's and Rubio's families wiped away tears.
Prosecutor Cameron said the District Attorney's Office would weigh rearresting Brough on the third-degree murder and drug-distribution charges. A rearrest would effectively appeal Deni's decisions to a higher court.
"The bottom line is he caused the death of two Philadelphia firefighters - he is a murderer," Cameron told the judge.
Since his arrest after the blaze on murder charges, Brough has been jailed without bail. Yesterday, Deni set bail at $150,000, but Cannon said he did not believe his client would be able to post that amount. Brough is scheduled to be arraigned Nov. 3.
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