Appeal, No. 5, Oct. T., 1956, from judgment of sentence of Court of Quarter Sessions of Philadelphia County, September T., 1952, No. 811, in case of Commonwealth of Pennsylvania v. Richard J. Nasuti. Judgment of sentence affirmed.
Edward W. Furia, with him Furia & DiCintio, for appellant.
Victor Wright, Assistant District Attorney, with him William T. Gennetti, Assistant District Attorney, Vincent G. Pananti, First Assistant District Attorney, and Samuel Dash, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 281]
The 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 Columbia 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. and his company arrived at the
[ 180 Pa. Super. Page 282]
scene of the fire three minutes later. On arrival he noted that the "bulk plate glass window" [facing Columbia Avenue] had collapsed and the 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 on 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 the 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 long 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 the 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 expert 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 witness 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., 323 Pa. 295, 186 A. 125; Brookside D.P. Corp. v. Monarch Wine Co., 367 Pa. 8, 79 A.2d 242. Expert opinion is admissible usually where the facts depend upon circumstantial rather than direct evidence. But the fact that expert opinion is referable to the ultimate issue to be decided by the jury does not bar it if otherwise admissible. Foley v. The Pittsburgh-Des
[ 180 Pa. Super. Page 283]
that within fifteen minutes from the time fixed by Officer Walsh prior to its inception, "the fire was 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 area. 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 rapid development of the fire within the short period of a few minutes during which the glass in the door and in the windows 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 ...