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COMMONWEALTH v. WISNESKI (06/13/69)

decided: June 13, 1969.

COMMONWEALTH
v.
WISNESKI, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Philadelphia County, July T., 1967, No. 1435, in case of Commonwealth of Pennsylvania v. Joseph Wisneski.

COUNSEL

Francis J. Moran, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 214 Pa. Super. Page 398]

This is an appeal by appellant Joseph Wisneski from the judgment of sentence of the Court of Quarter Sessions of Philadelphia County on bills of indictment charging arson and burning with intent to defraud an insurer.

Appellant was the owner of a three-story building located at 3048 Germantown Avenue, Philadelphia. Although the property had been utilized by appellant both as his residence and in the conduct of his roofing business, some months prior to March 1, 1967, appellant constructed a home in Absecon, New Jersey in which his common-law wife resided and he stayed on weekends and, occasionally, during the week. The convictions arise from a fire occurring on March 1, 1967, at the Philadelphia property.

Viewing the evidence in the light most favorable to the Commonwealth, the fire was undoubtedly of incendiary origin. At about 5:00 a.m. on March 1, 1967, two Philadelphia police officers observed smoke coming through several open windows on the second floor of the premises. The Fire Department responded immediately and the fire was brought under control within 25 minutes. Both the Fire Captain responding to the call and the Fire Marshal subsequently investigating the fire testified that three separate fires were burning independently within the building. The Fire Marshal testified that he could find no accidental cause accounting for the three fires and the burn pattern of one fire indicated that a flammable liquid had been used to accelerate burning. On the basis of these observations, he concluded that the fire was of incendiary origin and had been ignited within one-half hour of discovery.

Appellant purchased the property for $5500 in 1957 and an expert witness for the Commonwealth testified

[ 214 Pa. Super. Page 399]

    that the fair market value of the property was about the same at the time of the fire. However, this witness further testified that real estate values in the neighborhood had been undergoing a general decline and that if appellant sought to sell the property in a short time he would be able to realize only about $2500. Appellant maintained a $10,000 fire, lightning and extended coverage insurance policy on the property and a $3500 policy on its contents. An employee of the Home Insurance Company of New York, which issued the policies, testified in reference to the $10,000 extended coverage policy that while appellant was not over-insured considering the repair costs, he was over-insured in relation to the market value of the property. Prior to appellant's arrest, Home Insurance agreed to pay him the face amount of the $10,000 policy and $981 on the contents policy. The proceeds of the $10,000 policy were assigned by appellant to a public adjustor and a contractor for repair of the premises.

Shortly after the fire, appellant gave a statement of his whereabouts on the night of the fire to the investigating Fire Marshal. He stated that at about 8:00 p.m. on February 28 he had gone to the home of Thomas Gunderman in Philadelphia to collect an overdue bill, that he had left Philadelphia about 9:00 and that he arrived in Absecon to spend the night at about 10:30. This version of appellant's conduct was directly contradicted by the Commonwealth. Eleanor Vacca, a waitress employed directly across the street from the premises, testified that at 11:00 at night on February 28 she had seen appellant loading furniture from the premises onto his truck. This witness ...


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