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COMMONWEALTH PENNSYLVANIA v. KENNETH PAULL (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH PAULL, APPELLANT



No. 633 October Term 1976, Appeal from the Judgment of Sentence, Delaware County Court of Common Pleas, Criminal Sec., at Nos. 1311-1314, December Sess., 1974.

COUNSEL

Jay M. Goldstein, Upper Darby, with him Alvin S. Ackerman, Upper Darby, for appellant.

Ralph B. D'Iorio, Assistant District Attorney, Media, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Spaeth

[ 250 Pa. Super. Page 417]

A jury found appellant guilty of arson, causing or risking a catastrophe, and criminal trespass. On this appeal appellant contends that the trial judge should have charged the jury that it could draw an adverse inference from the

[ 250 Pa. Super. Page 418]

Commonwealth's failure to produce an eyewitness, and that the Commonwealth should have informed the defense of the witness's name and whereabouts.

One of the Commonwealth's witnesses was a thirteen-year-old boy, John Rivers. Rivers identified appellant as having been at the scene of the arson. Appellant was wearing blue dungarees and a dungaree jacket, and was "trying to get the door open" of the building in question. Having already seen two gasoline cans on the ground beside appellant's car, and knowing that the building was empty, Rivers suspected that appellant was going to set a fire; accordingly (with considerable presence of mind, we may remark), he noted appellant's license plate number by wetting his finger and writing the number on the rear-view mirror of his bicycle. After appellant entered the building, Rivers heard a loud sound and saw flames coming from a window, and then saw appellant run from the building, jump in his car, and leave. Rivers told the police what he had seen, including the license plate number and a description of appellant's car as a dark blue Cadillac with a white vinyl top. When appellant was apprehended, he was wearing blue dungarees and a dungaree jacket. Three gasoline cans -- two of them matching in color the cans described by Rivers -- were found in the trunk of appellant's car, which was a light blue Cadillac with a white vinyl top.

During his testimony Rivers mentioned that another boy, Tony Humphrey, had been with him during the early stages of his observation of appellant. Although the testimony is not entirely clear, it appears that Humphrey left while appellant was attempting to open the door of the building, that is, before he entered the building. Cross-examination yielded the following:

Q. You had a friend with you on that day, you said. I think if I remember your testimony on direct examination your friend was with you and saw the stuff laying by the trunk, and he saw the man go into the building, and that is when he took off. Am I correct in that?

[ 250 Pa. Super. Page 419]

A. No.

Q. When did your friend leave? At what point in time?

A. When we got near the corner, when I told him he was probably trying to ...


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