*1 him Rеadinger Albert S. with Samuel Gorson, for appellant. R. Samuel Liever, Solicitor, Assistant City Robert F. Shapiro, for appellee. City Solicitor, him G. Wilson Austin, Opinion Per June 25, 1956: Curiam, in the is affirmed on order entered Conrt below K. Hess. Opinion Judge Warren
Commonwealth v. Nasuti, Appellant. *2 April Argued 1956. Before 18, C. J., Steen, Jones, and Musmanno JJ. Bell, Chidsey, Arnold, him Edward W. Furia <& for Furia, DiCintio, appellant.
Christopher Edley, Attorney, F. Assistant District Lafferty, Deputy Attorney, with him James V. District appellee. Attorney, and Victor H. District for Blanc, Opinion Mr. Chief Horace June Justice Stern, 1956: found The Bichard J. having defendant, Nasuti, trial of the crime guilty arson, court, in a unanimous Superior opinion by Court on appeal, Pa. 2d Superior 642), Ct. A. Judge (180 Hirt affirmed the conviction.
For a in an arson case facts conviction three must that it fire; be established: there was (1) (2) origin; defendant was (3) questions involved guilty present party. require- relatе to the second and third of these appeal ments, as to the appellant claiming that, second, court erred in admitting expert testimony prove an it an not accidental and, *3 fire, proof to the was insufficient war- third, had a the defendant committed rant finding crime. operated with his a res- together
Defendant, wife, at West Philadelphia, taurant Columbia Avenue, small room 16 to 18 feet and 30 to 32 feet in a wide ten stores first the easternmost of on the being length, floor the Hardt at the Southeast Building Corner It Broad Street and Columbia Avenue. not ap- was a at least him- defendant parently profitable enterprise, did not draw his wife a any salary, self took $50.00 and that receipts, out of the was the total they week Their lease from the business. was for five received from the fire August, 1951; оccurred dating ap- years months thereafter. seven proximately a then on patrolman Sergeant Walsh, walked duty, at o’clock about 12:55 on the restaurant past early March As 1952. he did so he Monday, morning an man with unknown out collided who came almost a door small cardboard box. Walsh carrying restaurant into the window looked saw defendant standing and a their overcoats on. woman there with positively He he had identified defendant whom known proprietor as the had seen off and on for several identify months in did not wom- restaurant; Continuing an. fire on for a few blocks he heard en- gines and them back to the restaurant followed quarter he reached at one about ten minutes or a after everything o’clock. It then was “a mass of flames— shooting flames were out thе flames aflame; side, couple shooting high.” were of stories Captain commanding Hassett officer of an engine company fire which was called at 1:07 A.M. and arrived at the restaurant at A.M. He 1:10 engine companies, testified that it took three other two companies, truck and two battalion the use chiefs, pouring gallons of 6 hose lines on the 12,000 water during period twenty merely minutes to black out the visible and it took a total of an hour flames, put finally and twelve minutes to out the fire in these premises. small said Hassett that when he arrived plate glass bulk on the front had window blown inward, the windows on the east had wall been broken out just “the entire inside of the heat, restaurant was shifting one sea of flames” which “were out those win- height approximately dows to a 20 to 30 feet.” only plаce food contained in the was a little ice cream *4 in refrigerator, piece in container the a 6-ounce bologna, pound spareribs. and half a giving testimony questioned
After Hassett was concerning qualifications expert. appeared anas It department that he years had been the fire for 14% except years’ charge for three service of the Marine Corps Department during Fire the war. He had at- Philadelphia Philadelphia tended the Fire the School, City Officers’ and the Fire Class, School of the of Wil- mington, North he had also taken Carolina; three semi-
440 investigations University
nars arson at Purdue University. one York at New He then asked the was question: Considering that there fire at the res- was no taurant at five minutes of that alarm came in one, the at seven minutes after at the fire he arrived one, at ten minutes that he the after then found con- one, ditions as he had described them—the sea flames, plate glass collapsed, the bro- window the side windows up licking building ken out, flames the side of the gallons 20 to fact that of water were feet, 12,000 required companies by flame, three to blacken the damage extent of the the fact within restaurant, rolling he found a mass of in the center of flame although objects burning the restaurant there no were opinion origin in his was of the fire? there —what objected The was counsel for defendant the court. witness answered that but allowed it in his fire had been was “accelerated; occupancy” type not the normal of fire for that sort of incendiary origin; gave detail rea- and was admitted led him to this conclusion. He sons which any physical present of there was no in- explosive cendiary or material but stated that such completely consumed material would have been leaving any trace detecta- fire as he observed it without by smell or otherwise. ble
Captain Gallagher, had been the force of who on Philadelphia Department City for of the Fire years Assistant Marshal in the then an Fire and was investigate Department, function it was to and whose origin, he came testified that of undetermined fires Monday morning, on 8:30 o’clock restaurant at after some hours the commencement seven carefully examined all the burned and he fire, of the gave items of debris. He and the various furniture complete wreckage. picture graphic He
Ml investigatоr as an for the Fire Marshal’s office asked, person experience fighting long and as a of such investigating opinion what was as to the ori- fires, gin taking of this into consideration his examina- fire, tion of the restaurant and the debris as he him- and, say, self “the time is to added, that few element,” got way. ques- minutes in under objected by tion was counsel but for defendant Gallagher allowed the court. that in his answered incendiary origin, the fire ofwas that “a fire type get of this could not such an acceleration without process some other besides what was . . . some there, material that activate . would . . material or fire, liquids.” flammable This witness also that he testified days had talked to defendant a few after the fire and defendant had stated him no that there had been goods premises inflammablе on the that would create a the restaurant had been closed at fire, three Sunday morning, they usually opened o’clock that Sunday around four o’clock on afternoon but on this particular Sunday his so wife sick he came there two-thirty at about or three o’clock in the afternoon put sign stating in he window would not be open up there to at four o’clock; claimed that the reason there was so little stock in the store was that good Saturday night the business had been on and also kept because he a lot of food in his home and took it back and forth to the restaurant as he further needed; told the witness that he had of insurance on the $6,000 contents of the restaurant. presented testimony,
Defendant no but relied on a request for a directed verdict. His motions for a new judgment trial and for arrest of were denied court. corpus
In an arson case the delicti consists of will- burning, ful and a fire of malicious that is, *6 delicti can be always proved That origin. corpus to is As unquestionable.1 circumstantial present in the case was sufficient whether the evidence can gleaned to little be corpus delicti, establish upon its own depend from other cases since each must indicated that facts. Here the circumstances all commenced fire. It could not have ordinary was not an minutes the alarm was at seven given before five of one, arrived Captain minutes after and when Hassett one, after al- on the scene at ten minutes one premises, little were though containing comparatively equipment, in an of blaze. It is not necessary state extraordinary to of the in regard recite witnesses again testimony as to the of the strange conflagration well rapidity all facts hereinbefore set forth. quali- the other Two in their fied testified that the fire was experts opinion of incendiary origin. the admission of this objected expert
Defendant on the it answer ground purported to testimony it of the question the ultimate which was function misconception to decide. This is an obvious in jury the ultimate for the decision of not the fire but origin whether wheth- er defendant was of the of the crime. perpetration guilty No reason is or can be advanced introduction why expert proof in connection with testimony corpus delicti arson cases should be governed different rules than those which in prosecutions apply Am. (see for other crimes 4 Jur. §52). 108, Thus, it is practice murder cases for common to re- example, ceive medical establish the death expert 1 Sheffer, 437, v. 761; Commonwealth Commonwealth 218 67 A. Pa. 464, Gardner, 282 458, 87, 90; Commonwealth v . Pa. 128 A. Danarowicz, 190, 194, 127, 128; v. Commonwealth v. Pa. 144 294 A. Lettrich, 497, 503, 155, 502, 158; Commonwealth v. Pa. A. 2d 31 Smith, Superior 366, 111 Pa. 170 A. 332. Ct. of the victim not of was the natural but result, causes, perhaps, of a criminal that the deceased died as, act, by strangulation, of suffocation caused or as the result Expert testimony of bullet wounds in vital areas. admissible all civil and criminal cases, when alike, explanations it involves not inferences within the range intelligence ordinary training, knowledge, experience. Certainly laymen hardly expected could be knowledge regard types to have to variоus of fires intensity and the difference violence and nature, resulting burning of flames from the of inflammable *7 liquids other or materials as contrasted with the burn- ing upholstery, of a wooden counter or hair differences rapidity sufficiency gen- in the of such of the heat fires, erated to cause the cave-in of a bulk the window, fact liquids being that where inflammable are consumed or presence by their burnt cannot the be detected sense of very any smell. the absence of of Indeed, trace inflam- liquids premises, mable on the which was one of the points justified by amply main relied on defendant, the expert testimony introduction of to establish that this significance did not overcome the of the other indica- incendiary origin tions of the of the fire. In short, testimony may while in some arson cases the not need any supplementation expert by opinion, other such clearly justify cases its 2 admission: Wharton’s Crimi- (12th ed.), present nal Evidence §517. The is such Captain may a case, and it be added Hassett and Captain Gallagher qualified extraordinarily were well experience by unusually long fighting their fires and investigating jury their causes. Of course the not were obliged accept opinion the evidence of these witnesses judge jury, affirming learned told trial so point by defendant that submitted “It is the exclusive jury of to determine function under all the evidence incendiary origin. jury of whether this fire was 444 not to believe the bound necessarily as of marshal to the cause the fire the absence of origin actual physical incendiary fire.” us to the of de
This to the brings proof that of the de corpus fendant’s Such like guilt. proof, be evid also established circumstantial licti, may by in arson cases: v. ence,2 especially Commonwealth De A. 350 Pa. 2d Com 843; Petro, 567, 577, 838, 842, v. 165 Pa. Superior monwealth Ct. Margie, 84, 87, 2d It not for A. 196. was the Common necessary an produce wealth to direct evidence witness by eye started fire. He person defendant only he there immediate control of the was seen premises; in the no or morning object duty hour when wee him of business could have called there and within cus fire; minutes before the outbreak few very in the placed tomers had been off the sign warded as the must the fire have window; if, concluded, alone could had have origin, it is possible occurrence. Of course interest ex all of circumstances been might each and these but sufficient thеy were plained defendant, clearly *8 on the of his it go guilt. True, to to the jury of does there was over-insurance appear not had not been the fixtures but the business apparently the lease still had over four years a very profitable one, the of cash equipment to and conversion into run, ap well have policies might of the insurance proceeds 136 Pa. v. desirable: cf. peared Commonwealth Mowad, It 7 A. 2d 599. is not 596, Superior 537, 546, Ct. 545, even possible as to a or speculate to necessary, however, 2 508, 95, 97; Libonati, 504, 346 31 A. 2d Commonwealth v. Pa. 838, 842; DePetro, 567, 577, Com A. 2d v. 350 Pa. 39 Commonwealth 309, Wentzel, 137, 143, 312; Common 61 A. 2d monwealth v. 360 Pa. 194, Margie, Superior 84, 87, 88, 68 196. 165 Ct. A. 2d wealth v Pa.
445' motive while motive since it is that, probable elementary on the be it is not important an incumbent may factor, to make out a cаse, prove order Commonwealth, much an one: adequate existence of less of any motive, evi 14 Am. Jur. All that is required 786, that, §27. dence circumstances being circumstantial, proved should be such and reasonably naturally justify an inference and of such guilt accused, volume and as to overcome the quality presumption innocence and accused’s be satisfy guilt a reasonable doubt: v. Commonwealth yond Marino, 142 317; Pa. Ct. 16 A. 2d Superior 327, 334, 314, Com monwealth v. 354 Pa. 46 35, A. 2d Bausewine, 41, 491, 493; Commonwealth v. 368 Pa. 82 Carey, 157, 164, 163, A. 2d 240, 242; Commonwealth v. Pa. 412, Kloiber, 106 A. 2d 828. The as the Su here, perior Court held, satisfied that properly adequately requirement. judgment Superior is affirmed. Court
Dissenting by Opinion Me. Justice Musmanno: Richard J. defendant Nasuti, case, Mr. who is a Gallagher, school teacher and athletic coach at the Southern High School Philadelphia, owned a little restaurant (staffed two waitresses) in the basement of the Hardt at building Columbia Avenue and Broad Street, The restau- Philadelphia. rant measured about 30 feet length some feet In wide. early March morning 17, 1952, this restaurant was destroyed fire. The description of that the Majority’s Opinion would do justice to a conflagration much more pretentious than the one which occurred in the modest basement of the Hardt *9 The fact building. poured firemen 12,000 gal- Ions of on the gallons water blaze the rate of 600 (at fire- per testifies to the excellent of the minute) work fire but has nothing do with whether fighters, or is the was not which incendiary only origin, us on this appeal. before If the fire which this small destroyed eating place had a criminal the defendant Nasuti was le- inception, if has it was of accidental he gally convicted; origin, I been convicted. In this make illegally respect, assertion evi- piece there not one substantive of the printed dence the whole one hundred pages record which to incendiarism. The conclusion points that Richard Nasuti set fire to his restaurant is sheer and of the ra- conjecture precise guesswork, unworthy in a criminal case has to expected tionalization which a man’s three testified do with witnesses liberty. Only for the one officer who stated police Commonwealth: the defendant at the restaurant before the fire saw opinion and witnesses who testified that in their two in the has past the fire was of Never incendiary origin. approved expert based on such testimony Court and vоlatile shadows as were used as evanescent for the introduced in this case. expert opinions basis J. his Captain engine Charles with Hassett, who, the fire testified that responded to company, alarm, consumed the premises kindled. This not on opinion was built purposely He had no of the of substance. knowledge foundation he found at the place of the premises, contents chemicals or fuel ingredients, fire no material, usually fires. All he saw was flames. associated not been so and flames have scientifically analyzed But that one can tell with unfailing accuracy catalogued fleet- infallible their judgment, merely by noting and in the and produced erratic what dancing air, ing witnessing fighting them. Beyond fire, feeds *10 all that a Hassett of its was that history police knew officer hаd in- building testified that he seen had tact 1:07 a few minutes before that at midnight, a.m., a fire alarm at the and that firemen arrived sounded, at Has- upon locale 1:10 a.m. Once blazing scene, sett had col- noted that the bulk plate glass window and lapsed that the inside of restaurant a “sea of flames.”
At this I like to an error juncture point would out which has in this from the persisted case and beginning In was undetected even defense counsel. apparently its opinion for and refusing motions arrest of judgment new the lower Court said: Walsh testified trial, “Sgt. that as he passed restaurant about 12:55 he a.m., saw and an defendant unidentified the rear woman in of the All restaurant.” 12:55 attorneys accepted as the time that the officer looked into the restaurant. Superior its Court, Opinion the con- affirming viction, said: “At 12:55 оn the of March morning 17, Police Officer his Walsh, patrolling beat, on his toway change the controls on automatic traffic signals passed ... As he the restaurant an unidentified man from it and emerged almost collided with him. The officer then observed the defendant and an unidentified woman rear of the dimly lighted room.” This in its Court, opinion affirming the Superior Court, “Sergeant a says: Walsh, patrolman then on duty, walked the restaurant at past about 12:55 o’clock on the early morning March 1952 . .” Monday, .
But Walsh did not Sergeant say looked into the restaurant 12:55. at He looked in at Here is 12:45. “On that particular testimony: about morning quar I ter one was beat from patrolling my 10th Street to Broad and Street into the on looking windows south side of As I Columbia Avenue. came abreast of 1338 Columbia Avenue, a man restaurant, walked squаre. a about a foot door with small carton
out I I to avoid sidestep collided. had He almost I I into As I looked the window collision. did, with over standing owner and woman there saw is of all- on.”* in ten minutes coats This difference at A fire could begun significance. vital more 12:45 or an instant thereafter could reach much than one 1:10 proportions violent and extensive *11 fire 12:55. Ten so far as a began minutes,- at blaze and can be difference between a concerned, partial between life and between death, conflagration, and total destruction. into looking
After Walsh had testified to Sergeant he 12:45 on his continuing way, the restaurant at and I “As I 10th heard fire engines said: reached Street I in the and directed them coming out street got I an automobile. When got them back follоwed Q. itwas when were they you where What time were — I A. about say Restaurant? would passing Carl-Rich I of one the fire out, five then. followed engines a mass of flames.” The discovered this restaurant was the wit- quite then” indicates phrase “by clearly to an to the time subsequent ness was event referring he had looked into the When restaurant. already “What question: answered the District Attorney’s he time was Res- you passing it when were Carl-Rich Dis- officer assumed that taurant?” obviously ap- him as to the time he trict Attorney asking at the restaurant the fire engines. peared makes structure of the this conclusion whole language mis- Walsh was Sergeant incontrovertible. However, he when he said arrived at restaurant with taken at “five of one”. The fire alarm was engines and this is also not turned until 1:07, fact, course, * throughоut, mine. Italics
incontrovertible because has department the fire a rec- ord of the call. we come to the con- Thus, incontestable clusion that Walsh in error Sergeant as to the time arrived at restaurant with the fire engines. we come back to his Accordingly, original, unequivocal, categorical statement that when he into res- looked the time taurant, was 12:45. Another reason we why must take the 12:45 hour as the correct one is that a criminal case all facts which raise reasonable may doubt to guilt are to be resolved in favor of the de- fendant
After the rested in Commonwealth the de- case, fendant demurred under the provisions of the Act of June P. L. 1703. In the case of 5,1937, Commonwealth v. Marino, Pa. Superior Ct. Superior Court, said: interpreting “The Act, enactment of the Act of took from 1937, supra, the effect of away the demurrer to the evidence admission the de- fendant of the facts in evidence and of the inferences *12 reasonably deducible for except purpose the therefrom, the deciding upon and limited its demurrer, practical effect to similar to something a motion for non- very a suit in a civil action . . .” in
Since, considering the evidence before us we are constrained to in read it the light most favorable to the accused, arewe bound to accept Sergeant Walsh’s state- ment that he looked into the restaurant at es- 12:45 as tablished fact.
It taken for that granted when Walsh glanced into the darkened restaurant at 12:45 he saw no fire al- he did not though make any investigation the prem- ises. It is consistent the facts presented with at the trial that the fire could have been smoldering even long before to burst forth into full 12:45, only flame later. even the But, assuming fire at began 12:45, the defendant is entitled to the best inferences which
450 it is obvious
can be from the evidence, drawn its comestibles, restaurant, minutes a fire a and other paraffin cups paper plates, wooden furniture, of flames” into a develop could “sea easily combustibles fuels. acceleration of without the some refrigerator only the firemen found That the Ma- give seems bologna spareribs ice cream, could for but which fire, much food jority thought, a “sea of a restaurant into the interior convert not lick other food up any naturally would flames” fireproof containers. refuged a conviction in There could never have been expert testimony presented case without so-called Fire Depart- Gallagher Hassett and Captains the ori- opinions stated on their lacking ment because, out spelled of the the evidence fire, simply gin of any or connotations criminal inferences without as to Hassett had testified what Captain kind. After arrived at the fire at 1:10 a.m., he had seen when he him a put hypothetical the District Attorney has as follows: “Con- summarized Majority at five fire at the restaurant that there was no sidering min- the alarm came at seven minutes of one, the fire at ten min- that he arrived at utes after one, the conditions as he that he then found after one, utes plate glass flames, them —the sea had described out, side broken windows collapsed, window to 30 of the building feet, the side up flames licking required by of water were 12,000 gallons fact that the extent flame, to blacken companies three found the fact that he restaurant, damage within *13 restaurant center of the of flame mass a rolling there —what in objects burning no there were although fire?” of the origin was item in this hy- completely crippling major The incorrect statement that is the pothetical “there was no fire at minutes of at restaurant five one.” There no that the res- absolutely was testimony taurant was not on fire at 12:55. have seen that We testified declared only subject witness who on that he looked into the restaurant at and even 12:45, then he did not there was no fire burning. that say There could well been a latent fire in at process time which came to the surface aftеr he passed by.
Hassett did not as stated in testify, the hypothetical that the restaurant He question, was “sea of flames.” said that inside sea restaurant was a It flames. would not take much of a fire inside this matchbox of a restaurant create a miniature “sea In flames.” denied point Hassett fact, specifically the restaurant itself was in flames. He enveloped even testified that could go into the restaurant for ten feet before flames. encountering His testimony in this “Q. respect for speaks itself: You said the flame all the back —there was a mass of flames in the back. You went ten I for feet? A. did not say that: I said the flames on Q. were the side. You did go into that store for space of ten feet? A. Approximately. Q. There no Q. fire there? A. sir. The No, whole place was not a mass of flames? A. I didn’t testify Q. place whole was a mass You had ten feet of flames. could into? A. That most you get was not certainly a mass of flames.”
Nor itwas correct ques- state in the hypothetical tion that “there were no objects the ‘center burning ” of the restaurant.’ shows that there were objects many center restaurant which was food for the devouring flames. Those objects included wooden stool counters, seats, upholstered acous- booths, tic asphalt tiles, pavement, juke cigarette-dispensing,
452 paper slicing pinball, weighing machines,
box, cnps. dishes and hypo- into the had been inserted
Even if there not question I have of serious errors fact which thetical' the enough (and be in themselves would indicated which incompetent), hypothetical question the the to make entirely did not of beсause it out order was opinion jurors not have which the could for an call If had discovered themselves. there been formed for premises or device, chemicals, the some materials, on gen- working into realm of not fall the of did the opinion might expert’s knowledge, been an eral determining acceptable help jury in the whether the to origin. how- not of That, fire or was was not the case here. was ever, authority throughout weight the nation is
The of expert testimony against on evi of based the alloAvance easily is assimila is non-technical and dence which People professional’s by lay a mind. In mind as ble Appeals of 212 N.Y. the New Court 72, v. Grutz, City “An fire marshal of the should assistant said: York express origin permitted his as to to the not be simple physical so the are thе where fire, facts hy prop readily they understood when can he presentedP erly
In case N.E. Su State, Beneks v. preme “It of Indiana said: would seem, however, Court origin expert of a if the case of fire, primary testify permitted to the the conclu facts, hy expert jury, hence the can he drawn sions give permitted opinion upon not be should This view is sustained all of the fact. au ultimate our come to attention.” which have thories App. In v. 4 Ohio Carter Ohio Court State, theory Appeals throughout said: “The state arranged had trial that Carter combustible ma- terial in the or cellar and had started basement slow some hours and the before the fire broke out alarm prove given. effort of the state was to to the any question jury this fact. It did not involve of science *15 any оr art and does as we fall under not, believe, the exceptions admitting expert testimony only to the rule questions in cases where scientific or artistic in their nature are involved. prejudicial plain-
“Of this course error to the right guilt tiff error. His to his or innocence passed upon by jury guaranteed by a is him con- to the erroneously and think the stitution, we ad- deprived right by mitted him of this and that the court, admitting gave jury the to evidence, understand by the conclusions reached these witnesses were binding on or at least such nat- them, inferences would urally by jury be the drawn from the action of the court admitting against objec- such evidence the strenuous representing tion of counsel Carter.” In 2 Wharton, Criminal Evidence, 12th Ed., Sec. find: “In an we arson a witness case, as a cannot, general testify concеrning opinion rule, as to wheth- origin, incendiary er the fire was or was not of being question jury upon for the to and determine, they usually opinion can which form their own with- expert out need of advice.” Supreme
In
v.
State
233 N.C.
Cuthrell,
corpus
of North
Court
Carolina said: “The
delicti in
prosecution
such
consists of two
elements:
and
fire,
the cause
the fire. Annotation: 13 Ann. Cas. 803-
origin.
The fire must be
804.
S. v.
Church, 202 N.C. 692,
The offered the witness Charles Gallagher objectionable pre- A. was even more than that Gallagher sented the witness Hassett. did not ar- rive at the scene of the fire until seven hours after it extinguished. hypothetical question put himto your “Captain, opinion, considering was as follows: your your examination of the debris, examination of the building, plus restaurant, also construction of this layout also the restaurant, examination of your considering the debris; examination of Mr. Nasuti you regarding and his statements the absence of in- flammable materials and also restaurant, consid- ering your opinion this was a restaurant, what was *17 Captain Gallagher the cause of replied the fire?” “it was an fire.” giving in However, put question answer he into the vital elements which in were not the case. Under cross-examination, he ad- appalling “Q. mitted fact: you What facts did other into take you put consideration—what other facts did you into that before fig- answered it? A. ... I ured type it out get that a fire of this could not such process an acceleration without some other besides what you Q. by was in thеre. What do proc- mean ‘someother ess’? A. Some material that would activate that fire. you put Q. So some material into the case? A. Material liquids. you any Q. or Did find evidence flamable liquid? Q. you flamable A. sir. didn’t answer No, Then, hypothetical question, you? might say I did A. my way.” I did, brazenly
The witness thus declared that assumed premises that there were on the “material or flamable liquids” reality the face of stark that he found spite no such and of the fact that no other material, prem- witness said that such material was on ises. Captain Captain
The fact that Galla- Hassett gher superb training, qualifi- are firemen with veteran improve experience fire-fighters cations, and as does not any degree testimony quality to of their which is impres- speculation. In based on sheerest fact, fire-fightеrs qualifications only adds of their siveness give permitting gravity to of the error them to opinion testimony to believe that because it led the question put hypothetical an witnesses was only an- one could be and technical which intricate superior persons and intelli- education swered they, jury, gence should take therefore, that, as conclusive. This, answers of these witnesses of a constitutional trial the defendant robbed effect, jury- alleged proved for the no motive
The Commonwealth coverage on the restaurant was insurance crime. The amounted to over-in- only no one claims $6,000, embar- of financial evidence was there Nor surance. might part the defendant which on the rassment money means as a suggested insurance the collection dеsperately to me It seems obtaining needed cash. permit of arson a conviction matter to rather serious defendant that the no there stand when *18 it not anything a fire is from which, had to benefit guess, except in proved, arsonious on the wildest Majority says in that “if, its The character. fire was of incen- concluded, must have as the any had in- diary origin, have alone could he [Nasuti] justify not does in The record terest the occurrence.” been categorical could There an utterance. so persons had an mapy “could have to us unknown who although happening For one, of a fire. in the interest” way any suggest that he had I do not mean to Nasuti’s Mr. who was Galleta, connection fire, with partner, occur- much an interest could have as Majority which the as that interest rence of ascribes to Nasuti. presided Judge one of the over this case is who jurists day,
truly great I for and have him trial of our respect. regret, I therefore, admiration and unstinted duty discharge my as an that in the conscientious appellate judge, I must differ with views judgment refusing motion for arrest of In case. improper ground admission of for trial on the a new might opinion testimony, be denomi- he said: “This case necessity permitting a classic illustration nated opinion testimony present- to be inadmissible otherwise put question: jury.” I all diffidence With ed to testimony on basis does is what inadmissible, But if the necessity And is the neces- make it admissible? where necessary sity? to convict Is it for the Commonwealth suspicious only circumstances which are because there might guilty? possible the defendant be it makе respected drifting rule and revered from the Are we conformity our it is more ideals America escape punishment guilty justice man should that a man should be convicted? an innocent than guilty I or not. know whether Nasuti I do not adjudicated has not that he been however, do know, *19 principles accordance with law which guilty illuminated the of American since we pages justice have all to the harsh rules of the criminal allegiance severed is doubt as to That there considerable England. law demonstrated the defendant’s is guilt dramatically this case. three sat on juries already the fact could not and was agree discharged. The first jury Trial found the defendant but guilty second jury trial. The dissatisfied and ordered a new Court coerced but it a measure third convicted jury testimony its the improрer expert into conclusions by and thought derail their independent could only untrammeled judgment. overwhelm their thrown a mantle of protec- Our courts have always circum- defendants are accused by tion around who In the case of rather than direct witnesses. stance Pa. Superior v. Ct. 37, Byers, Commonwealth a crime is charged sought said: “When Superior Court circumstantial wholly by evidence, to be sustained should naturally or flow delinquency guilt hypothesis be con- and circumstances and from the facts proved, and cir- them all. The of facts with sistent to a moral cer- be such as to exclude cumstances must that of of the offense but guilt every hypothesis tainty, and in other the facts circumstances or words imputed, and to the guilt point must not be consistent only must be inconsistent with but accused, they deci- rule has by many This been followed innocence.” In and the Court. Superior Supreme Court sions 142 Pa. Superior v. Ct. 327, Marino, Commonwealth suggested modification Judge President Keller a crime charged sought “When the rule as follows: evidence the circumstantial wholly by sustained to be such as should be reasonably proved circumstances inference of the of the ac- guilt an to justify naturally volume and as to quality be of such and should cused, presumption satisfy overcome the of innocence guilt beyond of the accused’s doubt.” reasonable Accepting Judge the circum Keller’s modification of proof, rule as to standard of it is stantial evidence clear proved guilty. that Nasuti has not been is the Where quality volume and of evidence this case which over presumption against whelms the of innocence? As possibility premises that Nasuti set fire to his there are possibilities entirely numerous that he did not. It is began consistent with the evidence that the fire in one ways. Among possibilities of a number of innocent *20 quickly suggest leaking gas which themselves are: a pipe, smoldering cigarette spilled lighter’s a butt, fluid, unextinguished grill, a short an a hot circuit, stove, spontaneous combustion.* precedent today lays
The decision filed a down which predict damage I will do considerable to the cause of justice criminal in the courts of our Commonwealth. expert opinions in The allowance of a field which past occupied only by play havoc will procedure regularity may criminal well be productive grave miscarriages justice. The Mа- jority affirming here is a conviction on evidence which standing should have no in our Courts. Majority
It is manifest from guilty has it concluded the defendant is of the offense charged against appear, him. It would therefore, permitting spanning unbridge- it is of a heretofore testimony simply chasm able of inadmissible because of guilt. respect that belief the defendant’s But in this bridge I like to offer the observation that a would presumed specially carry guilty constructed to man * spontaneous A somewhat unusual ease combustion occurred explosion 1916, mill when an a flour was found to be due to spark ignition accidental of an intimate mixture of flour dust and Americana, page Encyclopedia Volume 353. air. — remain punishment to merited will some day carry an an innocent man to doom. unjust Kopp, Appellant, R. Inc. Noonan, S. v. Before C. Jones, 1956. Stern, Argued May J., JJ. Musmanno Arnold, Bell, Chidsey, *21 & for Kain Kain, him H. with Kain, Kain, William appellant. Markowitz, Arthur him B. Boyle,
Frank for & Rauhauser Kagen, Liverant, Boyle, Markowitz, appellee.