Opinion by
Thе defendant was convicted of arson and was sentenced. He had been a part owner of a small restaurant conducted in a single room in the Hardt Building on West Cоlumbia Avenue in Philadelphia. The restaurant was about 1 1/2 feet below the street level. There were windows on the street side and also fronting on an alley in the rear. At 12:55 on the morning of March 17, 1952, Police Officer Walsh, in patrolling his beat, was on his way to change the controls on automatic traffic signals from normal sequence to blinker, at intersections in the neighborhood. As he passed the restaurant an unidentified man emerged from it and almost collided with him. The officer then observed the defendant and an unidentified woman in the rear of the dimly lighted room. The restaurant then was not in operation and had not been open for business since three o’clock of the prior morning.
As Officer Walsh approached Tenth Street, four blocks away, he heard fire engines approaching and he retraced his steps on Columbia Avenue. The officer had not observed any sign of fire in the restaurant at five minutes to one when he first looked into it through the window on Columbia Avenue but when he returned to the scene, fifteen or twenty minutes later, the room was a mass of flames. Charles J. Hassett, a fire department captain testified that an alarm sounded in his nearby station at 1:07 a.m. аnd his company arrived at the *282 scene of the fire three minutes later. On arrival he noted that the “bulk plate glass window” [facing Columbia Avenue] had collapsed and thе inside of the restaurant was “just one sea of flames.” The east windows also had been broken out by the heat and there were flames, through the opening, rising 20 to 30 feet оn the outside of the building. Six hose lines were used in fighting the' fire and to “black out” the flames about 12,000 gallons of water were required. Charles A. Gallagher, another captain in thе Philadelphia Fire Department, who was also an Assistant Fire Marshal, made an examination of the premises at 8:30 of the morning of the fire. Both captains had had lоng experience as firemen, and Captain Gallagher’s duty at the time was the investigation of fires of undetermined origin. Both gave it as their opinion, at the trial, over thе objection of the defendant that the fire was of incendiary origin. The admission of this opinion evidence is the principal error urged in this appeal by the defendant from the sentence imposed after his motions in arrest of judgment and for a new trial were refused.
Was the opinion evidence admissible? In general the admissibility of еxpert opinion evidence is within the discretion of the trial judge. Necessity is the ground of admissibility of such evidence and whether necessity exists and whether the Avitness is qualified are in the first instance to be determined by the trial judge. The question on appeal is whether the judge abused his power in admitting such evidence.
Cooper v. Metropolitan L. Ins. Co.,
As to whether opinion evidence, expеrt or otherwise, is admissible on the question of the incendiary origin of a fire, the courts in general are hopelessly in conflict. Cf. 131 A.L.B. 1113, 1125 and particularly 1135, et seq. In 2 Wharton, Criminal Evidеnce, 12th Ed. §517, it is said: “In an arson case, a witness cannot, as a general rule, testify concerning his opinion as to whether the fire was or was not of incendiary origin, that bеing a question for the jury to determine, and upon which they can usually form their own opinion without any need of expert advice.
However, exceptional cases may arise which would justify the admission of expert opinion testimony on such a question as an aid to the jury in arriving at their determination.”
(Italics added.) In support of the tеxt and as an example of the exceptional case, where expert opinion testimony may be admissible, Wharton cites
Sawyer v. State,
In our view this was an exceptional case in which the opinions of the two еxperts, qualified by experience, were admissible. Captain Hassett testified in effect *284 that within fifteen minutes from the time fixed by Officer Walsh prior to its inception, “the fire wаs burning at a tremendous rate” and in a section of the restaurant where there was no combustible material there “was a rolling mass of flames” from “gasses” burning in that areа. He gave it as his opinion that “the fire was of incendiary origin and had been accelerated” by the use of one of a number of chemical agents such as “gasoline, naptha, benzine, acetone” or “nitrocellous products” which have no odor. In his opinion the inflamable accelerating agents were consumed by the severity of the resulting fire and the fact that he was unable to find any trace of them therefore was unimportant. He based his opinion also upon the raрid development of the fire within the short period of a few minutes during which the glass in the door and in the windoAvs on both sides of the restaurant were broken out by the heat, as well as upon the nature of the other damage from fire within the restaurant and the large quantity of water required to black it out. Captain Gallagher, from an examination of the debris and the extent of the fire in relation to the limited amount of inflamable material in the réstaurant, testified: “that a fire of this type could not get such an acceleration without . . . some material that would activate that fire.”
In our view the jury were entitled to the aid of these expert opinions in determining the question of the guilt of the defendant. Appellant, to the contrary, leans heavily on
Commonwealth v. Greenberg,
In the refrigerator after the fire there was only a small piece of bolоgna and 3 or 4 spareribs, and nothing more. An ice cream container was about 1/3 full. There was no evidence of other food or supplies on the premises. The amount of insurance carried on the restaurant fixtures however was not excessive and defendant was not in financial straits. Motive was not proven but such proof is not essential on a charge of arson, and was not indispensable to a conviction in this case. 14 Am. Jur., Criminal Law, §27. Ordinarily there is no burden on the Commonwealth to provе motive.
Commonwealth v. Byers,
The evidence of defendant’s unexplained presence on the premises immediately before the fire at an hour not related to the operation of the restaurant, and other incriminating circumstances, together with the opinion evidence as to the incendiary origin of the fire was clearly sufficient to support the conviction in this ease.
Judgment of sentence affirmed and it is ordered that the defendant appear in the court below at such time as he may bе there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed when the appeal in this case was made a supersedeas.