decided: March 17, 1976.
COMMONWEALTH OF PENNSYLVANIA
FRED E. MOORE, APPELLANT
Marjorie A. Weiss, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
[ 466 Pa. Page 512]
OPINION OF THE COURT
On June 20, 1973, after a non-jury trial, appellant Fred E. Moore was convicted of arson and firing personal property. The court imposed a sentence of five years of neuro-psychiatric probation on the arson conviction and a suspended sentence on the firing personal property
[ 466 Pa. Page 513]
conviction. The Superior Court affirmed by per curiam order, and we granted appellant's petition for appeal.*fn1
Appellant raises four issues: (1) whether there was sufficient evidence to establish the corpus delicti of arson; (2) whether appellant's confession should have been suppressed; (3) whether appellant was denied a separate hearing on the issue of the voluntariness of his confession; and (4) whether appellant was denied effective assistance of counsel. We find the first claim to be meritless, and the second and third claims have been waived. We remand the case to determine whether appellant's fourth claim has merit.
Before the Commonwealth may introduce a defendant's confession, it must first establish by independent evidence that a crime has in fact occurred. Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976); Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); Commonwealth v. May, 451 Pa. 31, 301 A.2d 368 (1973); Commonwealth v. Leamer, 449 Pa. 76, 295 A.2d 272 (1972); Commonwealth v. Palmer, 448 Pa. 282, 292 A.2d 921 (1972); Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963). Thus, before appellant's confession could be properly admitted, the Commonwealth had to establish the corpus delicti of arson -- (1) that a fire occurred, and (2) that it had an incendiary origin. Commonwealth v. Cockfield, supra; Commonwealth v. Leslie, 424 Pa. 331, 334, 227 A.2d 900, 902 (1967). As this Court stated in Ware :
"This rule is rooted in a hesitancy to convict one of crime on the basis of his own statements only. 'The grounds on which the rule rests are the hasty and unguarded
[ 466 Pa. Page 514]
character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed . . . .' Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940)."
459 Pa. at 365, 329 A.2d at 274.
The Commonwealth introduced the following evidence to establish the corpus delicti. During the evening of October 25, 1972, there was a fire in the third floor Philadelphia apartment where appellant and appellant's uncle lived. A second floor tenant testified that minutes prior to the fire he heard noises on the third floor which became louder. He heard glass breaking and an unidentified voice say "help, help, help me." The tenant called police. The landlady, who lived across the street, testified that appellant's uncle arrived at her apartment shortly before she became aware of the fire. He told her to call police. When the police arrived, smoke was spewing from the upstairs apartment.
The Commonwealth called an expert witness, Robert Quinn, to testify concerning the causes of the fire. He stated that, in his opinion, the fire was deliberately ignited. He based his conclusion on the following: the type of fire damage was such that the fire could not have been caused by faulty electrical wiring; the burn pattern showed that the fire was ignited approximately a foot to a foot and a half from the floor; and his investigation of the furnishings in the apartment indicated the fire was not ignited by a cigarette burn. Although he stated that the fire could have been started accidentally, he testified that, based on his investigation of over 1,000 fires, the fire was probably incendiary because the usual causes of accidental fires were not present.
[ 466 Pa. Page 515]
Because arson is rarely committed in the presence of others, circumstantial evidence, even if standing alone, may be used to establish the corpus delicti. Commonwealth Page 515} v. May, supra; Commonwealth v. Leslie, supra.
This Court addressed the corroboration requirement in Ware :
"Although corroboration is insufficient if the independent evidence is equally consistent with accident or criminality, Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967), 'the prosecution has no duty to affirmatively exclude the possibility of accident or suicide in order to establish the corpus delicti.' Commonwealth v. May, supra, at 33, 301 A.2d at 369-370."
459 Pa. at 366, 329 A.2d at 274-75.*fn2
The Commonwealth's evidence, although circumstantial, satisfies the standards for proving the corpus delicti. There was testimony indicating that there was a scuffle shortly before the fire was ignited, and an expert witness testified that most probable accidental causes could be ruled out. This justifies the trial court's conclusion that a fire occurred and that its origins were more consistent with criminal agency than with accident.*fn3
[ 466 Pa. Page 516]
Appellant argues that, although the Commonwealth established the corpus delicti, the confession should have been suppressed because it was either involuntary or the fruit of an illegal arrest. He also asserts that he was denied an independent hearing to determine the voluntariness of the confession. However, appellant failed to make a timely motion for a suppression hearing pursuant to Pa.R.Crim.P. 323 and failed to raise these issues at trial or on post-trial motions. Consequently, they are waived and not preserved for this appeal. Commonwealth v. Kearney, 459 Pa. 603, 331 A.2d 156 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Sasser, 453 Pa. 622, 309 A.2d 352 (1973).*fn4
Finally, appellant argues that he was denied effective assistance of trial counsel.*fn5 He relies on the following: (1) trial counsel was unprepared at the preliminary hearing and at trial; (2) trial counsel failed to move for a suppression hearing; (3) trial counsel's
[ 466 Pa. Page 517]
cross-examination of Commonwealth witnesses was ineffective; and (4) trial counsel failed to call appellant in his own defense.
This Court has adopted the following test for determining whether a defendant has been denied effective assistance of counsel:
"[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client's interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record." (Emphasis in the original.)
Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352-53 (1967); see Commonwealth v. Abney, 465 Pa. 304, 350 A.2d 407 (J. 361, 1975, filed January, 1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).
Here, appellant's conviction was based almost exclusively on his own oral confession. If, as appellant contends, there were no reasonable grounds designed to effectuate appellant's interests for counsel's failure to move for suppression of that confession, his failure to call appellant as a witness, or his failure to attack the credibility of the police officer who testified concerning the contents of the confession, then appellant's counsel was ineffective and appellant is entitled to a new trial.
[ 466 Pa. Page 518]
We cannot determine from the record before us whether appellant's factual allegations have merit. We therefore vacate the judgments of sentence and remand for an evidentiary hearing. If upon remand, it is determined that counsel's action did not meet the standard for effective assistance of counsel, a new trial shall be awarded. If, however, trial counsel's representation was effective, the judgments of sentence shall be reinstated. Commonwealth Page 518} v. Twiggs, supra. The parties may, of course, appeal the hearing court's determination.
Judgments of sentence vacated and cause remanded for proceedings consistent with this opinion.