Austin J. McGreal, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Cliff Haines, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined.
Appellant, Benjamin Terry, was tried before a jury and convicted of three counts of murder in the first degree and one count of arson. Post-trial motions were denied and sentences of life imprisonment on each of the murder counts were imposed and made to run concurrently. Additionally, a sentence of ten to twenty years was imposed under the arson count also to run concurrently with the life sentences. This appeal followed.*fn1
Appellant first contends that the evidence was insufficient to sustain the verdict. We disagree. At trial, the Commonwealth produced evidence which can be summarized as follows. On January 11, 1971, a fire occurred at 2927 N. Fairhill Street in Philadelphia, the home of appellant's estranged girl friend, Gwendolyn Harris. Three people were killed as a result. Appellant, in a written statement, admitted that he and his brother, Donald, had secured paraphernalia to make firebombs and, after warning one of the members of the Harris household by telephone to remove the children from the home, the two brothers had gone to the Harris home where appellant threw the lit firebomb through the window resulting in the fatal fire. Testimony by several persons, including Gwendolyn Harris, revealed that appellant had been at the Harris home on January 9th, two
days before the fatal fire and had threatened Ms. Harris, "I'm going to get you", when she had refused to resume their relationship. Appellant admitted that upon leaving the Harris home on the 9th, he had walked through the vacant house at 2925 N. Fairhill Street which adjoined the Harris home. Shortly thereafter a fire was discovered in this building which appellant was also accused of starting. Appellant admitted lighting matches and dropping them in this building giving as his reason that he was using the light from the matches to find his way through the darkened interior.
Reviewing the record in the light most favorable to the verdict winner, the Commonwealth, Commonwealth v. Von Smith, 457 Pa. 638, 326 A.2d 60 (1974); Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973), we conclude that this evidence was clearly sufficient to warrant the jury in finding that appellant was criminally responsible for the three deaths by means of arson, thus justifying the verdicts which were returned.
Appellant next contends that the trial court erred in permitting the Commonwealth to introduce evidence of the prior fire of January 9th and appellant's involvement with that fire. Appellant claims that this evidence does not come within any of the recognized exceptions to the general rule that evidence tending to show that the accused has committed separate and distinct crimes for which he is then not being tried is inadmissible. We do not agree.
"'It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant's prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that [t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated ...