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COMMONWEALTH PENNSYLVANIA v. DAVID MCGINNIS (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DAVID MCGINNIS, APPELLEE (TWO CASES)



No. 528 January Term, 1976, No. 8 January Term, 1977, Appeals from the Orders of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Dismissing Indictment No. 1696 of October Session, 1975, and Sustaining Demurrers to Indictments Nos. 1695, 1697 and 1698 of October Sessions, 1975.

COUNSEL

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty. Chief, Appeals Div., Maxine J. Stotland, Asst. Dist. Atty., Philadelphia, for appellant.

Defender Assn. of Philadelphia, John W. Packel, Louis A. Perez, Jr., Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion in which Eagen, C. J., and Larsen, J., join.

Author: Per Curiam

[ 481 Pa. Page 396]

OPINION OF THE COURT

Appellee, David McGinnis, was charged with arson, risking catastrophe, recklessly endangering another person, possessing an instrument of crime and possessing an offensive weapon. The case proceeded to trial without a jury and, following the close of the Commonwealth's case, the trial court sustained the defendant's demurrer to the evidence relative to the offenses as charged.*fn1 This appeal followed.*fn2

Accepting the Commonwealth's evidence as true and considering all reasonable inferences arising therefrom, see Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977), we are of the view that the prosecution's evidence failed to establish the crimes of which the defendant stood charged and that therefore the demurrers were properly sustained.

Orders affirmed.

ROBERTS, Justice, dissenting.

David McGinnis was charged with arson, risking catastrophe, possessing an instrument of crime, possessing an offensive weapon, and recklessly endangering another. All the charges stemmed from McGinnis' participation in the firebombing of an automobile belonging to Rademas Santiago

[ 481 Pa. Page 397]

    and parked in front of the Santiago residence, a house in a residential block of Philadelphia. The case was tried, without a jury, in the Philadelphia Court of Common Pleas. After the Commonwealth presented its case, the trial court dismissed the risking catastrophe charge and sustained demurrers to the remaining charges. The Commonwealth appealed.

Accepting the Commonwealth's evidence as true and considering all reasonable inferences arising from it, Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977); Commonwealth v. Smallwood, 465 Pa. 392, 399, 350 A.2d 822, 825 (1976), it must be concluded that there was sufficient evidence to find appellee guilty of all charges beyond a reasonable doubt. I dissent from the majority's conclusion to the contrary.

I

The Commonwealth's evidence reveals that appellee intentionally set fire to Santiago's station wagon. Lt. Edward F. Smith of the Philadelphia Fire Department testified that, in response to an alarm, he arrived at the 4400 block of North 4th Street about 12:57 a. m. on the night of September 25, 1975. He observed that the Santiago automobile was still smoldering from a fire neighbors were attempting to extinguish with a garden hose. The fire had centered on the front passenger seat where Smith discovered a partially melted one gallon plastic milk carton containing a small amount of gasoline. The front passenger window had been broken and on the ground next to the front passenger door he found the broken head of a claw hammer. The lieutenant testified that the fire was the result of arson.

The 4400 block of North 4th Street consists of two story row houses with wooden front porches over which second floor bedrooms extend. The automobile in question was parked five to six feet from the wooden porches of the houses at 4419 and 4421 North 4th Street. The court sustained defense counsel's ...


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