Appeal, No. 86, Jan. T., 1955, from judgment of Court of Oyer and Terminer of Lackawanna County, Oct. T., 1953, No. 17, in case of Commonwealth of Pennsylvania v. Daniel Bolish. Judgment reversed. Indictment charging defendant with murder. Before HOBAN, P.J. Verdict of guilty of murder in the first degree, with penalty fixed at death, and judgment of sentence entered on the verdict. Defendant appealed.
John W. Bour, with him Raymond Bialkowski, for appellant.
Ralph P. Needle, Assistant District Attorney, with him Carlon M. O'Malley, District Attorney, and William J. Kearney, Assistant District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Defendant was indicted for the murder of Robert J. Flynn. The jury convicted him of murder in the first degree and imposed the sentence of death. The Commonwealth contended that Flynn's death occurred as the result of arson and that his death was a felony
murder in the commission of which felony defendant was one of the principals. The Commonwealth's evidence consisted entirely of circumstantial evidence both with respect to the cause of Flynn's death and the defendant's connection with and responsibility therefor. From the Commonwealth's evidence the jury could reasonably and legitimately have found the following facts:
An explosion followed by fire occurred in the early morning of July 22, 1953, in the house owned by Mrs. Mary Torti, the premises being numbered 115 Reeves Street in Dunmore Borough, Lackawanna County, Pennsylvania. Mrs. Torti's house was a two story house consisting of a kitchen and living room on the first floor and two bedrooms and a bathroom on the second floor. The house had been vacant for several months and at the time of the explosion there was no furniture in the house.
The explosion was heard, the flash was seen, and the fire was discovered immediately by neighbors. Firemen arrived about three minutes after the explosion. The interior was filed with intense heat, the woodwork and the walls were scorched and burned, and fire was playing around the screen of the front door. An electrical hot plate and an electric cord about 3 feet long were found on the kitchen floor. The electricity in the home was turned on. The fire originated on or near the hot plate. A pad was found near the hot plate which contained the odor of kerosene (the importance of which will hereinafter appear) and there was some broken glass nearby which appeared to be parts of a glass jar in which had been placed some volatile material. There was also an odor of gasoline in the kitchen. The fire was caused (according to the Commonwealth's experts) by an explosion of a volatile material placed
on the hot plate and the odor of kerosene remained up to the day of the trial, indicating that a good deal of kerosene was on the floor at the time of the fire. The time necessary to cause an explosion would be from 30 to 50 seconds after the electric current was applied to the hot plate or to the volatile material thereon. No hot plate was left in the house by Mary Torti when she cleaned and vacated it.
Flynn appeared about 4 o'clock on the morning of the fire (July 22nd) at the Ronda Coal Company office in Dunmore, badly burned. He sought water from the night watchman. He died 19 hours later as a result of burns. The Commonwealth established a trail of flesh, fragments of material and discarded shoes from the Torti house to within approximately 150 feet of the Ronda Coal Company office. Dr. Willard testified that in her opinion the hair from the venetian blind which was found in the Torti house on the window ledge came from the head of Flynn. The Commonwealth also proved that the discarded shoes belonged to Flynn. The evidence was sufficient to prove beyond a reasonable doubt that Flynn was in the Torti house when the fire and explosion took place in the early morning of July 22, 1953, and that he died as a result of the Torti fire.
There was no direct evidence to prove that defendant committed the arson, nor, as we have seen, was there any direct evidence that Flynn was present in the Torti house at the time of the explosion and fire. The defendant's connection with and responsibility for the arson can be thus summarized:
Mary Torti, the owner of the house, and her son-in-law, Michael Sika, furnished most of the money for the business of Louis Serrian and Stella Torti, daughter of Mary Torti. Their business owed debts of approximately $9,000. Serrian attempted to place fire insurance
of $8,000. on Mary Torti's house. Defendant and Serrian were together in nearby Scranton about 2 hours before the fire. Several days before the fire and several times in the week preceding the fire, defendant and Serrian were seen conversing together.
Several weeks prior to the fire defendant, accompanied by two people, one of whom was a witness for the Commonwealth, stopped his car in back of the Torti house and pointed it out to the witness. The day before the fire, namely, July 21, defendant purchased from the Rafferty Gas Station a gallon of kerosene, which he took away in a jug that afternoon at 2:30. The bottom of the jug was covered with grease. At 8:30 the same evening defendant met Commonwealth's witness Maddon and borrowed his car. At the time of the fire defendant had not returned the car.
Robert Flynn, aged 17, had been frequently and very generously befriended by defendant. They met at 11 o'clock P.M. on July 21st, approximately 2 or 2 1/2 hours before the fire; and around 12 midnight they left a restaurant together and drove off in defendant's (Maddon's) automobile. Immediately after the explosion and fire, neighbors saw a car being driven rapidly away from the Torti house. The car was subsequently identified as Maddon's car. At the time of the fire a man was seen on the porch of the Torti house, but could not be identified. After the fire, at about 2:45 A.M., Maddon met defendant in the vicinity of the Court House benches on Adams Avenue and gave him back the keys to his car which he had left on another street.
Defendant at this time said to Maddon, "By the way, Butchie [Flynn] borrowed one of your shirts"; and "Flynn's shirt is in your car."
The Commonwealth proved that the shirt which was burned and was found along the trail taken by Flynn
after the fire, was Maddon's shirt. Furthermore, after the fire a blanket was found in Maddon's car which Dr. Willard testified from chemical analysis contained kerosene and that this kerosene, in her opinion, came from the same original bulk container as the kerosene which Rafferty Garage sold the afternoon before to the defendant. Moreover, the witness further testified that the floor mat in the Maddon car contained a greasy ring which was the size of the gallon jar (with greasy bottom) which Rafferty Garage sold defendant the day before. Burnt pieces of paper were also found in the Maddon car.
Maddon testified that the day after the fire defendant said to him, "Don't tell them you loaned me the car. Tell them you loaned it to someone else. Tell them somebody stole it." Defendant twice denied to others that he had borrowed Maddon's car. Maddon also testified that when he met defendant at 3 o'clock in the afternoon of July 22nd he asked him about Flynn, to which defendant replied, "Yes, Butchie got himself into a little trouble." Maddon also testified that he told defendant he had found Butchie's (Flynn's) shirt and defendant then said: "Throw it away, get rid of it." Maddon then showed defendant a key which he found in Flynn's shirt and defendant said, "Give it to me" and took it. The key, which was a twin key for Mary Torti's house, was later found in the sewer at the American Auto Store corner where defendant had left Maddon.
Incidentally, defendant did not take the witness stand to deny any of the Commonwealth's evidence or explain or justify his statements or his conduct or his whereabouts at the time of the fire.
The jury could properly have believed (a) that defendant lied about Flynn, lied about Maddon's automobile, lied about his whereabouts the night before the
fire, and (b) that his statements and actions were those of a guilty man.
The jury brought in a verdict of guilty of murder in the first degree. The Penal Code of March 31, 1860, and the Penal Code of June 24, 1939, P.L. 872, § 701, 18 PS § 4701, do not define "murder"; they merely divide murder into two degrees and prescribe what shall be murder in the first degree and what shall be murder in the second degree. Section 701 of the Penal Code of 1939 provides as follows: "All murder which shall be perpetrated by menas of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree."
If defendant in the instant case was guilty of murder it was murder committed in the perpetration of or attempt to perpetrate arson.
Prior to the Criminal Penal Code of 1860 the authorities held that the arson, rape, robbery and burglary specified in the murder section of the Criminal Code meant common law arson, rape, robbery and burglary; and "At common law, arson consists of the wilful and malicious burning of the dwelling house of another: 3 Inst. 66; 1 Hale, P.C. 566; 1 Hawk. P.C. (8th Ed.) 137; 4 Bl. Comm. 220; 2 East, P.C. 1015.": Commonwealth v. Bruno, 316 Pa. 394, 400, 175 A. 518.
The Penal Code of 1939 § 905 enlarged and to that extend changed the definition of arson,*fn1 and thus defined
it: "Whoever, wilfully and maliciously, sets fire to or burns, or causes to be burned, or who aids, counsels, or procures the burning of any dwelling house, kitchen, shop, barn, stable, or other outhouse, that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, is guilty of arson, a felony, and upon conviction thereof, shall be sentenced to imprisonment in solitary confinement for not exceeding twenty (20) years, or fined not exceeding ten thousand dollars ($10,000), or both. ..."
Since the Penal Code of 1939, murder committed in the perpetration of any arson means arson as defined in § 905 of the Penal Code of 1939: cf. Commonwealth v. Maloney, 365 Pa. 1, 73 A.2d 707; Commonwealth v. Carey, 368 Pa. 157, 162, 82 A.2d 240. In the Maloney case Chief Justice STERN said (page 11): "... When the Penal Code of 1939 refers to burglary in § 701 [the murder section] it must be understood as meaning the crime of burglary as defined in § 901 of the same Act", and not as common law burglary. In that case Maloney and not as common law burglary. In that case Maloney killed the manager of the taproom while Maloney was running away. Although this was not a common law burglary, it was a burglary under the Act of 1939 and on this ground the verdict of murder in the first degree was sustained by the Court.
There was, we repeat, no direct evidence of arson or identity or murder. Proof by eye witnesses or direct evidence of the corpus delicti or of identity or of the commission by the defendant of the crime charged is not necessary. "... It is clearly settled that a man may be convicted on circumstantial evidence alone, and a criminal intent may be inferred by the jury from facts and circumstances which are of such a nature as to prove defendant's guilt beyond a reasonable doubt:
Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820; Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743; Commonwealth v. Lowry, 374 Pa. 594, 600, 98 A.id 733; Commonwealth v. Danz, 211 Pa. 507, 60 A. 1070; Commonwealth v. Wentzel, 360 Pa. 137, 61 A.2d 309": Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 348, 106 A.2d 587.
The jury, the trial Judge and the Court en banc were convinced that the Commonwealth proved beyond a reasonable doubt that the defendant was guilty of arson. Judge ROBINSON, who dissented on the ground of felony murder, said: "I agree with the majority that the evidence established the guilt of Bolish [defendant] for the crime of arson beyond a reasonable doubt."
We now come to the main contention of the defendant, viz.: The killing which resulted from this arson could not amount to a so-called felony murder and consequently was not murder under the law of Pennsylvania. Expressed another way, the so-called felony murder doctrine does not apply to the death of an accomplice which resulted from the accomplice's own act in the perpetration of arson. That raises a very important question which has never been specifically decided by this Court, although there are a number of closely analogous cases. Defendant assumes (a) that Flynn was an accomplice and (b) actually set the fire which caused his own death, and based on this premise argues that Flynn's act was an intervening and superseding force which relieved defendant from the killing.
Murder has never been defined by Statute in Pennsylvania; it has often been said that it is "common law murder". Cf. Commonwealth v. Exler, 243 Pa. 155, 89 A. 968; Commonwealth v. Kelly, 333 Pa. 280, 4 A.2d ...