Commonwealth v. PaskingsCommonwealth v. Paskings
- Reporters:
- , ,
- Before:
- Pomeroy
Opinion by
Mr. Justice Pomeroy,Early in the morning of October 24, 1964, the home of Luther and Mary Eoberts in Chester, Pennsylvania, caught fire, resulting in the deaths of four of their seven children. Appellant was arrested and later indicted for arson and murder. A trial on both indictments commenced June 15,1965. As the close of the Commonwealth’s case, hppellant entered pleas of guilty, whereupon a court en banc returned a verdict of first degree murder and sentenced her on June 28, 1965, to an indeterminate tеrm in the State Industrial Home for Women at Muncy. Sentence on arson was suspended.
Appellant subsequently filed three petitions under the Post Convictiоn Hearing Act, the last resulting on November 22, 1968 in a resentence of life imprisonment because the Muncy Act 1 had been declared unconstitutional. On Dеcember 30, 1968 a fourth PCHA petition was filed alleging inter alia that appellant would not have pleaded guilty had she known that the Muncy Act was unconstitutional. A hearing was held, and on September 30, 1969 a new trial was ordered.
Testimony at the new trial, which commenced on April 6, 1970 elicited the following: Appellant hаd been involved in October, 1964 in a meretricious relationship with Luther Eoberts for approximately five years. On the evening of October 23, 1964, they had a quarrel at her apartment at which time blows were exchanged and Luther returned home to his wife. Later that evening a fire broke out in the cellar оf the Eoberts’ house, but it was quickly extinguished and no one was injured. Appellant was in the vicinity at the time, but denied having set the fire when accused by Mrs. Eoberts. Early the next morning, a second fire occurred and took the lives of the four small Eoberts children.
The denial of a new trial is challenged on four grounds. Appellant’s first objection is to the time and manner of her arraignment, which took place on the day of the trial and in the presence of the entire jury panel. Rule 317(b) of the Pennsylvania Rules of Criminal Procedure providing “Arraignment in all cases shall be mandatory and shall take place
at least ten daps before trial
unless provided otherwise by local court rule or waived by a defendant who has counsel of his own choice” (emphasis added), is inapplicable to this case. The accused had been arraigned previously on the same indictment. As we said in
Commonwealth v. Phelan,
427 Pa. 265, 272-3, 234 A. 2d 540 (1967) : “. . . the purpose and necessity of an arraignment is to fix the identity of the accused, to inform him of the nature of the charges against him and to give him the opportunity of informing the court of his plea thereto (citations omitted). Due process of law does not require
Appellant’s second assignment of error is that the Commonwealth’s failure to produce Luther Roberts at the second trial constituted a deprivation of her constitutional right to сonfront and cross-examine her accuser. This right, however, extends only to witnesses whose testimony is offered. Roberts did not testify and the presence of his name on the back of the indictment did not obligate the Commonwealth to produce him. We said recently in
Commonwealth v. Gray,
441 Pa. 91, 100, 271 A. 2d 486 (1970), that the Commonwealth is not bound to call all available and material witnesses, though when it does not, the defense should be apprised of the witness’ name and whereabouts.
Commonwealth v. Schmidt,
437 Pa. 563, 263 A. 2d 382 (1970). See also
Commonwealth v. Horn,
395 Pa. 585, 150 A. 2d 872 (1959);
Commonwealth v. Palermo,
368 Pa. 28, 81 A. 2d 540 (1951) ;
Commonwealth v. Giacobbe,
341 Pa. 187, 19 A. 2d 71 (1941). The Commonwealth did all that could have been expected to locate Roberts. After discovering his absence, a bench warrant was issued and delivеred to the sheriff, whose efforts at service proved unavailing. In addition, the defense must be held to have acquiesced in Roberts’ absence, for at no time was a motion made either for a
Apрellant’s next contention is that because Roberts could not be located, a tape-recorded statement made to appellant’s counsel should have been admitted. This statement was not a deposition, was not sworn to, and the Commonwealth had no representative present when it was taken. Thus it was clearly inadmissible hearsay and properly excluded.
The final objection is to the trial judge’s exclusion of the testimony of an expert witness called by the defense in an attempt to show that the fire was not of incendiary origin. After establishing his qualifications, the witness testifiеd that he had read the notes of testimony from the first trial and had viewed the exterior of the burned house on April 4, 1970, six years after the fatal fire. The witness was then asked his opinion as to the origin of the fire. The Commonwealth’s objection to this question was sustained, we think properly. 3
The appropriаteness of expert testimony relating to the incendiary origin of fires is well recognized in our courts.
Commonwealth v. Kaufman,
182 Pa. Superior Ct. 197, 126 A. 2d 758 (1956);
Commonwealth v. Nasuti,
180 Pa. Superior Ct. 279, 119 A. 2d 642 (1956) ;
Commonwealth v. George,
178 Pa. Superior Ct. 261, 116 A. 2d 253 (1955). As with all expert opinion, however, it is essential that the salient facts relied
Judgment of sentence affirmed.
The former Mr. Chief Justice Bell took no part in the consideration or decision of this case. The former Mr. Justice Barbieri took no part in the decisiоn of this case.
Notes
Act of July 25, 1913, P. L. 1311, §15, as amended,
The arson appeal was originally filed in the Superior Court. Pursuant to Section 503(c) of the Appellate Court Jurisdiction Act of 1970, July 31, P. L. 673, §503,
The Commonwealth objected to this expert testimony on the additional ground that the witness had not gone inside the building, nor had he examined the Commonwеalth’s exhibits showing the charred condition of the interior. The Commonwealth thus argued that, the witness was incapable of giving an informed opinion on the fire’s origin. It may well be that these factors would go to the weight to be given the proffered testimony, rather than to its admissibility. As discussed in the text, however, the Commonwealth’s objection was properly sustained on other grounds.