ORDER
The Court being evenly divided, the opinion of the Superior Court is AFFIRMED.
OPINION IN SUPPORT OF AFFIRMANCE
The issues raised in this appeal are whether the Commonwealth proved beyond a reasonable doubt the corpus delicti for the crime of failing to control or report a dangerous fire 1 and whether the trial court’s jury instruction regarding the corpus delicti rule warrants a new trial. For the reasons below, I would affirm appellant’s judgment of sentence.
On September 9, 1992, following a jury trial, appellant was convicted of failure to control or report a dangerous fire and for failing to take action after learning of a fire that broke out in a building he owned at 87 and 89 Main Street in the city of Bradford, Pennsylvania. At approximately 8:00 p.m. on February 12, 1992, eyewitnesses Jan McCoy and Tammy Stives smelled smoke as they walked down the street towards appellant’s property. They observed appellant, looking “nervous” and “fidgety,” exit a doorway which led from the second floor *451 of the building to the street. McCoy and Stives noted that it was 8:02 p.m. Shortly thereafter, they saw smoke coming from appellant’s property. At 8:05 p.m., an unidentified man triggered a nearby fire alarm.
Two to three minutes later, firefighters arrived, at which time both smoke and flames were readily visible at the property. They estimated that the fire appeared to have been burning anywhere from fifteen to thirty minutes. Firefighters later determined that the fire originated on the second floor of the building where McCoy and Stives had seen appellant exiting, but, because of the extensive damage which extended to an adjacent property, they were not able to determine the fire’s cause.
When Pennsylvania State Police first discussed the fire with appellant, he denied having been in his building on the evening of the fire. Police subsequently learned from further investigation that McCoy and Stives had observed appellant leaving the building just minutes before the fire became visible and, therefore, the officers arranged to interview appellant again. At the second interview, appellant initially reiterated his previous statement — that he had not been at the property on the evening in question. When an officer informed appellant that two eyewitnesses reported having seen him leave the building and get into his car, appellant stated that someone was lying and that his car was in the area only because he had eaten at a nearby restaurant.
When the interviewing officer, in appellant’s presence, asked another officer to confirm with the restaurant owner that appellant had been in his establishment at the time of the fire, appellant then admitted that he was the person who had lied and he admitted that he had actually been in the building when the fire started. He further stated that before he left his building, he had seen smoke and/or fire, but that he had left the scene without taking any steps to control or report the fire, and that he had not reported the fire because he was afraid he would be accused of starting it.
*452
Following appellant’s conviction of the charges
sub judice,
the trial court denied post-verdict motions and sentenced appellant to six to twenty-three months imprisonment. On appeal, the Superior Court affirmed in a published opinion, finding appellant’s claims to be meritless.
Commonwealth v. Persichini,
Appellant’s first claim is that his incriminating statements to police should not have been admitted as evidence because the Commonwealth did not establish the corpus delicti of his crime beyond a reasonable doubt.
See Commonwealth v. Tallon,
In
Commonwealth v. Reyes,
*453 Before introducing an extra-judicial admission, the Commonwealth must establish by independent evidence that a crime has in fact been committed; however, the Commonwealth is not required to prove the existence of a crime beyond a reasonable doubt.... The corpus delicti, like other facts, may be shown by circumstantial evidence; it is sufficient if these circumstances are consistent with a crime even though they are also consistent with ... an accident. However, it is insufficient if it is merely as consistent with an accident as with a crime.
Id.
at 381,
The problem with Reyes and the two-tier system of proof is that it creates confusion for the jury as factfinder and is difficult for the trial courts to enforce. One of the problems which arises is the practicality of having the jury, in a single proceeding, make an initial determination about whether the Commonwealth has established beyond a reasonable doubt that a crime has occurred before it, at least theoretically, considers separately the defendant’s inculpatory extrajudicial statements as evidence. Although the trial court can instruct the jury how to proceed under these circumstances, the only *454 way to truly follow Reyes and ensure that a jury does not consider a defendant’s statements until after determining that the corpus delicti was proven beyond a reasonable doubt is to conduct a bifurcated trial or have two bodies of finders of fact. Under the bifurcated trial, the jury would first hear evidence about the corpus delicti and determine whether a crime occurred beyond a reasonable doubt, and only after reaching this initial verdict would they hear evidence of the defendant’s confession as proof that he had committed the crime at issue. See Thomas A. Mullen, “Rule Without Reason: Requiring Independent Proof of the Corpus Delicti as a Condition of Admitting an Extrajudicial Confession,” 27 U.S.F.L.Rev. 385, 396 (1993). However, this approach would unduly complicate the judicial process and expend limited judicial resources. With respect to the latter solution, such a process would require that the trial court first find that the corpus delicti has been found beyond a reasonable doubt before the statement could be presented to the jury. This procedure, however, would unduly interfere with the jury’s role as finder of fact and should not be condoned.
There is no dispute that some independent evidence of the corpus delicti must be offered before the statements are admitted to guard against “the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed.”
Commonwealth v. Turza,
I am not aware of any other form of evidence which requires that a crime be proven beyond a reasonable doubt before its admission and, accordingly, I believe that the application of the
Reyes
two-tiered approach towards inculpatory statements is no longer warranted. A better course, easier for both the trial court to follow and the jury to understand, is the elimination of the second level of proof by permitting the jury to consider extrajudicial inculpatory statements in reaching its verdict once the trial court concludes that the Commonwealth has introduced prima facie evidence that the crime has occurred. This is the view shared by a number of our sister jurisdictions.
See e.g., State v. Angell,
Since the Commonwealth is required to establish prima facie evidence of the corpus delicti at the preliminary hearing level, the present two-tiered approach at trial would be eliminated. At trial, the trial judge would still be free to exclude the evidence if he or she determines that a prima facie case for the crime has not been made. Once the statement is properly admitted, the jury’s role should stay the same; that is, it will consider all the admissible, relevant evidence and determine whether the Commonwealth has adequately proven all of the elements of the crime beyond a reasonable doubt.
I recognize that reversing
Reyes
would be a departure from this Court’s standard of stare decisis.
3
Nevertheless, “the doctrine of stare decisis is not a vehicle for perpetuating error, but rather a legal concept which responds to the demands of justice and, thus, permits the orderly growth process of the law to flourish.”
Ayala v. Philadelphia Bd. of Pub. Ed.,
Nevertheless, at the time of the trial sub judice, the Commonwealth was required to prove the corpus delicti beyond a reasonable doubt before the jury could consider the statements. Therefore, in the instant matter, the Commonwealth needed to prove beyond a reasonable doubt that there was sufficient independent evidence to support the jury’s determination: (1) that a person knew that a fire was endangering the life or property of another, (2) that the person failed to take reasonable measures to put out or control the fire, when he could have done so without substantial risk to himself, or to give a prompt fire alarm, and (3) that the fire was started by the person or with his assent, or on property in his custody or control rather than by non-criminal activity (e.g., an accidental cause). 18 Pa.C.S. § 3301(e) (Failure to control or report dangerous fires).
Here, the evidence established that the property in which the fire began was in appellant’s custody or control, 4 that the fire endangered the life or property of another, that appellant was in the building at a time when smoke could be smelled outside of it, that he nervously exited the building from a doorway which led from the second floor of the building, and that smoke and flames were visible coming from the second floor when firefighters arrived approximately five minutes later. Moreover, firefighters established: (1) that the fire had been burning for at least fifteen minutes before they arrived— a time placing appellant in the building at approximately the time the fire began; and (2) that the fire began on the second floor — an area where appellant had been just before leaving the property. Additionally, reports of the fire to authorities came from persons other than appellant, and appellant’s statements denying having been in the building on the evening of *458 the fire indicate consciousness of guilt. 5 This independent circumstantial and direct evidence clearly was sufficient for the jury to find beyond a reasonable doubt that the circumstances of the fire were more consistent with criminal behavior prohibited under § 3301(e) so that appellant’s statement could be admitted against him to prove that he committed the crime. 6
Appellant also challenges the adequacy of the trial court’s jury instruction. The court charged the jury on the corpus delicti rule as follows:
Now before you may consider the statement of the defendant you must be satisfied beyond a reasonable doubt by other evidence, first, that the fire did occur; and second, that the property was destroyed in that fire; and three, that the destruction was done in whole or in substantial part due to the failure to give the alarm properly. And if you are satisfied, then you may consider the statements alleged to have been made by the defendant in determining whether he’s guilty as charged. In other words, you must disregard the defendant’s statement until you are satisfied by other *459 evidence in the case that the fire loss did occur and that it was at least in substantial part the result of the failure to report the fire promptly. [T]he other evidence that we refer to does not need to rule out all possibility of the cause of the fire being improper or illegal. It is enough if you are satisfied that circumstances proved or [were] more consistent with loss having resulted from the crime that had been committed by failure to report the fire properly.
N.T. 9/9/92, 172.
Appellant contends that this charge was deficient in two respects. First, he argues that the instruction failed to adequately define the corpus delicti of § 3301(e) by failing to instruct the jury that it must be satisfied that the destruction of property was due to his failure to take reasonable measures to put out or control the fire. As discussed above, however, it is not necessary for the Commonwealth to prove that particular element of the crime in order to prove the corpus delicti, so long as the evidence does prove that appellant failed to give a prompt fire alarm. See note 5, supra. I therefore conclude that this claim is meritless.
Second, appellant challenges the trial court’s charge to the jury that before the jury can consider appellant’s confession, it must be satisfied beyond a reasonable doubt by evidence other than appellant’s confession “that circumstances proved or [were] more consistent with loss having resulted from the crime that had been committed by failure to report the fire properly.” Appellant argues that the words “more consistent” are at conflict with the Commonwealth’s required burden of proof at the time of trial — the reasonable doubt standard.
See Commonwealth v. Fried,
*460
A review of the record reveals that at trial and in post-verdict motions, appellant raised a challenge to the jury-charge on the corpus delicti rule only on the basis that it failed to refer to reasonable measures to put out or control the fire. At no time did appellant suggest that the charge erroneously defined the applicable burden of proof. By failing to timely lodge a challenge to the Court’s jury charge, appellant deprived the trial court of the opportunity to correct its allegedly incorrect instruction. This claim is therefore waived.
See
Pa. R.A.P. 302; Pa. R.Crim. P. 1119(b);
Commonwealth v. Edmondson,
For the foregoing reasons, I would affirm the order of the Superior Court.
OPINION IN SUPPORT OF REVERSAL
I dissent. The majority, without sufficient reason, would overrule well established precedent in Pennsylvania that before a jury may consider the extra-judicial statement of a defendant, the corpus dilecti of crime must be established beyond a reasonable doubt.
Commonwealth v. Reyes,
Apart from the issue of whether Reyes should be abandoned in future cases, the majority is correct that Reyes applies to this case, but is plainly wrong in its application of Reyes to the facts of this case. The majority sets out what the Common *461 wealth was required to prove beyond a reasonable doubt, under Reyes, before the jury could consider the defendant’s extra-judicial statements. It must have proven:
(1) that a person knew that a fire was endangering the life or property of another, (2) that the person failed to take reasonable measures to put out or control the fire, when he could have done so without substantial risk to himself, or to give a prompt fire alarm, and (3) that the fire was started by the person or with his assent or on property in his custody or control rather than by non-criminal activity (e.g., an accidental cause). 18 Pa.C.S. § 3301(e) (Failure to control or report dangerous fires).
Maj. Op. at 1212-13 (Emphasis added). Since the majority itself states that “because of the extensive damage which extended to an adjacent property, [firefighters] were not able to determine the fire’s cause,” Maj. Op. at 1209, it is difficult to see how the Commonwealth could be said to have proved beyond a reasonable doubt that the fire was started by the defendant or with his assent rather than by non-criminal activity. And absent proof of this element beyond a reasonable doubt, the extra-judicial statement was not to be considered by the jury. Since the jury apparently considered the extra-judicial statement, I would reverse the conviction. 1
Notes
. 18 Pa.C.S.§ 3301(e)(2).
.
See e.g., Blades v. Commonwealth,
. "The rule of stare decisis declares that for the sake of certainty, a conclusion reached in one case should be applied to those which follow, if the facts are substantially the same, even though the parties may be different.”
Commonwealth v. Tilghman,
. At trial, the parties stipulated that appellant owned the property in question and that the property of others was endangered as a result of the fire.
. Appellant’s statements denying any participation in the crime are not inculpatory and therefore are admissible to establish the corpus delicti. Because the purpose of the corpus delicti rule is to guard against a confession leading to a conviction where no crime occurred, the rule attaches to inculpatory statements only.
Commonwealth v. McMullen,
. Appellant argues, however, that the Commonwealth produced no evidence of his failure to take reasonable measures to put out or control the fire and accordingly the corpus delicti was not established. Appellant ignores the plain language of § 3301(e), which clearly provides that a person is guilty of that crime if he fails to take reasonable measures to put out or control a fire or if he fails to give a prompt fire alarm. Therefore, the Commonwealth was not required to produce sufficient evidence to prove that appellant failed to put out or control the fire and that appellant failed to report the fire; rather, because of the disjunctive language of the statute, the Commonwealth was free to proceed using only the latter theory of guilt. Appellant’s argument is thus contrary to the plain language of the statute.
. I note that Reyes was decided by a unanimous court, including Mr. Justice Castille.