Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, at No. 1570 Criminal Division 1974. No. 133 March Term, 1976.
Steven M. Foldes, Harrisburg, for appellant.
Marion E. MacIntyre, Second Asst. Dist. Atty., Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion.
[ 242 Pa. Super. Page 41]
This is an appeal from the judgment of sentence in the Court of Common Pleas of Dauphin County, Criminal Division, by the defendant-appellant, Alexander Roosevelt Rainey, after conviction by a jury of arson -- endangering persons; and from the denial of post-trial motions.
The case centered around violent marital discord between appellant and his wife. The appellant had threatened to burn the house and to kill the wife and children. The wife in a prior dispute had shot her husband but she was never prosecuted.
On the morning of July 3, 1974 at 3:00 a. m. appellant's wife was sleeping on the first floor of her home because of fear of her husband's threats when she was awakened by the sound of fire. She found the kitchen and the dining room engulfed in flames which were spreading to the second floor where the children were sleeping. She rushed upstairs and led the four children to safety. The house was completely gutted by the fire. Investigation disclosed that the fire was of an incendiary nature and that a petroleum based accelerant was used.
The evidence presented by the Commonwealth was circumstantial in nature involving threats by the appellant, in the presence of others who testified, that he would burn the property and kill his wife and the children. There was testimony by a witness that he asked someone else to set the home on fire and his wife testified that he had been at her home in April of 1973 with a fire bomb. In addition, there was testimony to the effect
[ 242 Pa. Super. Page 42]
that appellant's car was parked near the home and that the description of the man who entered the home and returned to the car resembled the appellant. In viewing this evidence, even though circumstantial, in the light most favorable to the Commonwealth, it was sufficient to sustain the verdict. Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974).
The other contentions consist of the following:
(1) That the opening statement of the district attorney was prejudicial;
(2) That the court abused its discretion by refusing to allow certain ...