Appeals, Nos. 65 and 82, Oct. T., 1963, from judgments of Court of Oyer and Terminer and General Jail Delivery of Montgomery County, April T., 1962, No. 126, 126-1, 126-6, and Feb. T., 1962, No. 335, in cases of Commonwealth of Pennsylvania v. Howard N. Oister, and Commonwealth of Pennsylvania v. George E. Brockerman, Jr. Judgment as to Oister affirmed; judgment as to Brockerman reversed.
William F. Fox, for appellant.
Robert Trucksess, for appellant.
William C. Cahall, III, Assistant District Attorney, with him Richard S. Lowe, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 201 Pa. Super. Page 253]
These appeals are from convictions of arson. The Commonwealth presented evidence that a very intense fire in the early morning hours destroyed a building belonging to Brile Brothers and used as an automobile storage garage, a repair shop and an office, causing a loss of approximately $200,000. Wilmer Boardman, a special agent of the National Board of Fire Underwriters, who qualified as an expert, testified that the fire was of incendiary origin. Two witnesses testified
[ 201 Pa. Super. Page 254]
that about a week before the fire Brockerman asked each of them to set fire to the building, promising them money for doing so. Other witnesses testified that Brockerman made purchases beyond what his known income would warrant shortly after the fire. The Commonwealth also introduced Oister's confession that he had hired Brockerman to set the fire but the court charged the jury that this should not be taken as evidence against Brockerman.
The principal question raised by Oister on his appeal is that the confession should not have been admitted in evidence because there was not sufficient proof of the corpus delicti and the confession was involuntary. The principal complaint of Brockerman is that his motion for severance should have been granted and that the admission of Oister's confession was seriously prejudicial to him despite the trial judge's instruction that the jury should not consider it against him.
1. It is settled law in this Commonwealth that the opinion of an expert as to the incendiary origin of a fire is sufficient to establish the corpus delicti so as to authorize the admission of a confession of guilt by the defendant. Commonwealth v. Krzesniak, 180 Pa. Superior Ct. 560, 119 A.2d 617 (1956). Boardman's qualifications as an expert are ample and there is no serious attack upon them. Oister's complaint is that Boardman's cross-examination and the other testimony in the case indicates that his opinion was based upon evidence that was so inconclusive that the opinion can be given no credence and without it the proof of the corpus delicti is totally insufficient.
He argues that a number of other witnesses for the Commonwealth could have qualified as experts but were not asked to give an opinion; that Boardman was not present at the time of the fire and did not interview the person who discovered the fire or the other ...