226 Pa. Super. 107 | Pa. Super. Ct. | 1973
Opinion
The six judges who heard this appeal being equally divided, the judgment of sentence is affirmed.
Opinion by
In Support of Reversal:
Appellant Sylvester Carthon was convicted of arson and of firing personal property after a non-jury trial in the Court of Common Pleas, Philadelphia County. Post trial motions were denied and appellant was sentenced to a term of imprisonment of six months to three years on the arson charge and sentence was suspended on the charge of firing personal property. This appeal followed.
The evidence at trial established that Mrs. Linda Williams, the complainant, left her 15th floor apartment at approximately 11:00 p.m. on March 20, 1972, and when she returned about 15 minutes later, her “boyfriend” the appellant, was in her living room.
She then dozed off again and when she awoke she saw appellant standing in front of her. She heard a “big noise”, saw the gasoline blaze up behind him. Appellant grabbed Mrs. Williams and pulled her on to the balcony, stating “He was sorry, he didn’t niean it.” He then shouted for someone to call the fire department.
An assistant fire marshal for the Philadelphia Fire Department arrived approximately one hour after the fire, after the furniture had been moved to the balcony and the area of the fire had been cleaned by the fire department. He observed a flammable liquid burn pattern in the middle of the living room floor. The floor, wall, ceiling and much of the furniture were burned. As a result of his observations he concluded, over objection, that the fire was incendiary in nature. He did state, however, that gasoline could be set off by static charges. Although he could not determine whether such static charges were present, in the apartment, he thought this would be unlikely since the floor covering was of tile. He emphasized that this had been a flash fire which must have been ignited immediately after the gasoline was spilled on the floor, because had there been a passage of time before ignition, a violent explosion would have resulted.
Appellant testified that he had purchased the can of gasoline for a friend’s car in which he had been riding and which had run out of gas near Mrs. Williams’ apartment building. He stated he went to get gasoline, leaving a radio at the service station for a deposit on the can. When he returned to the car he discovered his friend was gone and the car was locked. He then went to Mrs. Williams’ apartment where he placed the can of gas on the table. He stated that the can fell off the table and as he reached for the mop which was in a
The offense of arson is defined in 18 P.S. §1905 as: “Whoever, willfully and maliciously, sets fire to or burns, or causes to be burned, or who aids, counsels, or procures the burning of any dwelling house . . . whether the property of himself or of another is guilty of arson.” 1939, June 21, P. L. 872, Sec. 905. In order to prove that arson has been committed, the Commonwealth must establish beyond a reasonable doubt that (1) there was a fire, (2) it was incendiary in origin, and (3) that the defendant was the guilty party. Commonwealth v. Mozzillo, 443 Pa. 171, 175 (1971).
After a verdict of guilty, the test of the sufficiency of the evidence, direct or circumstantial, is whether accepting as true all of the evidence upon which, if believed, the trier of fact 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 charged. Commonwealth v. Whiting, 409 Pa. 492 (1963). While it is the function of the jury to pass upon the weight of the evidence, it is the duty of the trial judge to determine its sufficiency and in a proper case, such as is presently before us, to declare it insufficient as a matter of law. Commonwealth v. Pogach, 119 Pa. Superior Ct. 510 (1935).
It is well established that in an arson case, the corpus delicti as well as the guilt of the accused can always be proved by circumstantial evidence and expert testimony as to the origin of the fire is properly admissible. Commonwealth v. Nasuti, 385 Pa. 436 (1956); Commonwealth v. Reginelli, 208 Pa. Superior Ct. 344, 349 (1966). The opinion evidence, however, can have probative value only where there is testimony sufficient to support findings by the jury of the facts assumed by the expert as the predicate of his opinion.
The function of opinion evidence is to assist the jury in arriving at a correct conclusion upon a given state of facts, but in order to endow the opinion evidence with probative value, it must be based on facts sufficient to enable the expert to form an intelligent opinion. “An expert cannot base his opinion upon facts which are not warranted by the record. No matter how skilled or experienced the witness may be, he will not be permitted to guess or to state a judgment based on mere conjecture. The opinion must be an intelligent and reasonable conclusion, based on a given state of facts, and be such as reason and experience have shown to be a probable resulting consequence of the facts proved. The basis of the conclusion cannot be deduced or inferred from the conclusion itself. In other words, the opinion of the expert does not constitute proof of the existence of the facts necessary to support the opinion.” Collins v. Hand, 431 Pa. 378, 390 (1968). It was therefore improper for the trial court to have accepted into evidence the expert’s opinion regarding whether the origin of the fire was accidental or incendiary where such opinion was a mere conclusion unsupported by the facts in evidence.
This case differs materially upon its facts from the decided cases in which convictions have been sustained.
Finally, looking to cases in which the evidence was held insufficient as a matter of law, 1 believe that a similar conclusion regarding insufficiency of evidence must be reached in the instant case. In Pogach, supra, the oil stained cartons, portions of sweater and blanket smelling of gasoline were sufficient, standing alone, to raise at least a suspicion of incendiarism and of appel
The following language contained in Commonwealth v. Evans, 399 Pa. 387, 396 (1960),
Accordingly, I would reverse the judgment of the court below.
Mrs. Williams testified that this room is in fact a living room-kitchen combination.
In response to a question as to what they were talking about Mrs. Williams stated: “Just talking, nothing in particular.” She further stated on redirect, that there had been no dispute between her and appellant preceding this incident.
This is not to say, of course, that an expert may not properly examine the scene of a fire after it is extinguished and testify as to what he finds and base an opinion on the evidence he discovers. However, in the instant case nothing was in fact found at the scene by the expert that would justify and support his conclusions. The fact llmt nothing was found to explain the ignition was spe
Concurring and dissenting opinion by then Mr. Justice Bell.