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June 25, 1956


Appeal, No. 194, Jan. T., 1956, from judgment of the Superior Court of Pennsylvania, Oct. T., 1956, No. 5, affirming the judgment of the Court of Quarter Sessions of Philadelphia County, Sept. T., 1952, No. 811, in case of Commonwealth of Pennsylvania v. Richard J. Nasuti. Judgment affirmed.


Edward W. Furia, with him Furia & DiCintio, for appellant.

Christopher F. Edley, Assistant District Attorney, with him James N. Lafferty, Deputy District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 385 Pa. Page 438]


The jury having found defendant, Richard J. Nasuti, guilty of the crime of arson, the trial court, and the Superior Court on appeal, in a unanimous opinion by Judge HIRT (180 Pa. Superior Ct. 279, 119 A.2d 642), affirmed the conviction.

For a conviction in an arson case three facts must be established: (1) that there was a fire; (2) that it was of incendiary origin; (3) that the defendant was the guilty party. The questions involved in the present appeal relate to the second and third of these requirements, appellant claiming that, as to the second, the court erred in admitting expert testimony to prove that it was an incendiary and not an accidental fire, and, as to the third, that the proof was insufficient to warrant a finding that the defendant had committed the crime.

Defendant, together with his wife, operated a restaurant at 1338 West Columbia Avenue, Philadelphia, a small room 16 to 18 feet wide and 30 to 32 feet in length, being the easternmost of ten stores on the first floor in the Hardt Building at the Southeast Corner of Broad Street and Columbia Avenue. It was not apparently a profitable enterprise, at least defendant himself did not draw any salary, his wife took $50.00 a week out of the receipts, and that was the total they received from the business. Their lease was for five years dating from August, 1951; the fire occurred approximately seven months thereafter.

Sergeant Walsh, a patrolman then on duty, walked past the restaurant at about 12:55 o'clock on the early morning of Monday, March 17, 1952. As he did so he almost collided with an unknown man who came out of the door carrying a small cardboard box. Walsh looked into the restaurant window and saw defendant

[ 385 Pa. Page 439]

    and a woman standing there with their overcoats on. He positively identified defendant whom he had known as the proprietor and had seen off and on for several months in the restaurant; he did not identify the woman. Continuing on for a few blocks he heard fire engines and followed them back to the restaurant which he reached at about ten minutes or a quarter after one o'clock. It was then "a mass of flames - everything was aflame; flames were shooting out the side, flames were shooting a couple of stories high."

Captain Hassett was the commanding officer of an engine company which was called to the fire at 1:07 A.M. and arrived at the restaurant at 1:10 A.M. He testified that it took three other engine companies, two truck companies, and two battalion chiefs, with the use of 6 hose lines pouring 12,000 gallons of water on the fire during a period of twenty minutes merely to black out the visible flames, and it took a total of an hour and twelve minutes to finally put out the fire in these small premises. Hassett said that when he arrived the bulk plate glass window on the front had blown inward, the windows on the east wall had been broken out by the heat, "the entire inside of the restaurant was just one sea of flames" which "were shifting out those windows to a height of approximately 20 to 30 feet." The only food contained in the place was a little ice cream in a container in the refrigerator, a 6-ounce piece of bologna, and half a pound of spareribs.

After giving this testimony Hassett was questioned concerning his qualifications as an expert. It appeared that he had been in the fire department for 14 1/2 years except for three years' service in charge of the Marine Corps Fire Department during the war. He had attended the Philadelphia Fire School, the Philadelphia Officers' Class, and the Fire School of the City of Wilmington, North Carolina; he had also taken three seminars

[ 385 Pa. Page 440]

    in arson investigations at Purdue University and one at New York University. He was then asked the question: Considering that there was no fire at the restaurant at five minutes of one, that the alarm came in at seven minutes after one, that he arrived at the fire at ten minutes after one, that he then found the conditions as he had described them - the sea of flames, the plate glass window collapsed, the side windows broken out, the flames licking up the side of the building 20 to 30 feet, the fact that 12,000 gallons of water were required by three companies to blacken the flame, the extent of the damage within the restaurant, the fact that he found a rolling mass of flame in the center of the restaurant although there were no objects burning there - what in his opinion was the origin of the fire? The question was objected to by counsel for defendant but allowed by the court. The witness answered that in his opinion the fire had been "accelerated; it was not the normal type of fire for that sort of occupancy" and was of incendiary origin; he gave in detail the reasons which led him to this conclusion. He admitted that there was no physical evidence present of any incendiary or explosive material but stated that any such material would have been completely consumed in the fire as he observed it without leaving any trace detectable by smell or otherwise.

Captain Gallagher, who had been on the force of the Fire Department of the City of Philadelphia for 39 years and was then an Assistant Fire Marshal in the Department, and whose function it was to investigate fires of undetermined origin, testified that he came to the restaurant at 8:30 o'clock on Monday morning, which was some seven hours after the commencement of the fire, and he carefully examined all the burned furniture and the various items of debris. He gave a graphic picture of the complete wreckage. He was

[ 385 Pa. Page 441]

    asked, as an investigator for the Fire Marshal's office and as a person of such long experience in fighting and investigating fires, what his opinion was as to the origin of this fire, taking into consideration his examination of the restaurant and the debris and, as he himself added, "the time element," that is to say, the few minutes in which the fire got under way. The question was objected to by counsel for defendant but was allowed by the court. Gallagher answered that in his opinion the fire was of incendiary origin, that "a fire of this type could not get such an acceleration without some other process besides what was in there, ... some material that would activate that fire, ... material or flammable liquids." This witness also testified that he had talked to defendant a few days after the fire and defendant had stated to him that there had been no inflammable goods on the premises that would create a fire, that the restaurant had been closed at three o'clock that Sunday morning, that they usually opened around four o'clock on Sunday afternoon but on this particular Sunday his wife was sick so he came there at about two-thirty or three o'clock in the afternoon and put a sign in the window stating he would not be there to open up at four o'clock; he claimed that the reason there was so little stock in the store was that the business had been good on Saturday night and also because he kept a lot of food in his home and took it back and forth to the restaurant as needed; he further told the witness that he had $6,000 of insurance on the contents of the restaurant.

Defendant presented no testimony, but relied on a request for a directed verdict. His motions for a new trial and for arrest of judgment were denied by the court.

In an arson case the corpus delicti consists of a willful and malicious burning, that is, a fire of incendiary

[ 385 Pa. Page 442]

    origin. That the corpus delicti can always be proved by circumstantial evidence is unquestionable.*fn1 As to whether the evidence in the present case was sufficient to establish the corpus delicti, little can be gleaned from other cases since each must depend upon its own facts. Here the circumstances all indicated that this was not an ordinary fire. It could not have commenced before five minutes of one, the alarm was given at seven minutes after one, and when Captain Hassett arrived on the scene at ten minutes after one the premises, although containing comparatively little equipment, were in an extraordinary state of blaze. It is not necessary to recite again the testimony of the witnesses in regard to the strange rapidity of the conflagration as well as all the other facts hereinbefore set forth. Two qualified experts testified that in their opinion the fire was of incendiary origin.

Defendant objected to the admission of this expert testimony on the ground that it purported to answer the ultimate question which it was the function of the jury to decide. This is an obvious misconception in that the ultimate question for the decision of the jury was not whether the fire was of incendiary origin but whether defendant was guilty of the perpetration of the crime. No reason is or can be advanced why the introduction of expert testimony in connection with the proof of the corpus delicti in arson cases should be governed by any different rules than those which apply in prosecutions for other crimes (see 4 Am.Jur. 108, § 52). Thus, in murder cases for example, it is common practice to receive expert medical opinion to establish that the death

[ 385 Pa. Page 443]

    of the victim was the result, not of natural causes, but of a criminal act, as, perhaps, that the deceased died of suffocation caused by strangulation, or as the result of bullet wounds in vital areas. Expert testimony is admissible in all cases, civil and criminal alike, when it involves explanations and inferences not within the range of ordinary training, knowledge, intelligence and experience. Certainly laymen could hardly be expected to have knowledge in regard to various types of fires and the difference in the nature, violence and intensity of flames resulting from the burning of inflammable liquids or other materials as contrasted with the burning of a wooden counter or hair upholstery, differences in the rapidity of such fires, sufficiency of the heat generated to cause the cave-in of a bulk window, the fact that where inflammable liquids are consumed or being burnt their presence cannot be detected by the sense of smell. Indeed, the very absence of any trace of inflammable liquids on the premises, which was one of the main points relied on by defendant, amply justified the introduction of expert testimony to establish that this did not overcome the significance of the other indications of the incendiary origin of the fire. In short, while in some arson cases the testimony may not need any supplementation by expert opinion, other such cases clearly justify its admission: 2 Wharton's Criminal Evidence (12th ed.), 341, § 517. The present is such a case, and it may be added that Captain Hassett and Captain Gallagher were extraordinarily well ...

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