No. 72 May Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division of York County at No. 210 October Term, 1972
Allen H. Smith, York, for appellant.
John C. Uhler, Dist. Atty., Richard H. Horn, Asst. Dist. Atty., Floyd P. Jones, York, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, Nix and Larsen, JJ., filed dissenting opinions. Pomeroy, J., joins in Nix's, J., dissenting opinion.
Appellant, Melvin H. Ritter, Jr., was tried for the second time on January 26, 1976, before a judge and jury and found guilty of arson and two counts of voluntary manslaughter. (Appellant's first trial resulted in a conviction which was reversed by us, Commonwealth v. Ritter, 462 Pa. 202, 340 A.2d 433 (1975)). Post-verdict motions were denied, sentence of imprisonment was imposed, and this appeal followed.
The facts surrounding this appeal may be summarized as follows. On November 17, 1972, at approximately 6:00 a. m., a fire broke out in a four-story apartment building located
in the City of York, Pennsylvania. Two residents of the building died as a result of the fire. Investigation of the fire indicated that its origin was incendiary in nature and appellant, who was also a resident of the building at the time, was arrested and charged with starting it, and was ultimately convicted.
Initially, appellant argues that he should be discharged because the evidence presented by the prosecution at his second trial was insufficient to establish that the fire was of incendiary origin. The only reason given by appellant in support of this contention is that the opinion of one of the prosecution's expert witnesses (the Chief of the fire department of the City of York) was without foundation. Chief Robert Little testified as to his education and experience in the field of fire investigation. He stated that he had been employed as fire chief in the City of York since 1963, and that he had completed various courses in firefighting, first aid, and arson investigation during that time. Furthermore, he testified that he had been actively engaged in the investigation of the causes of fires within the City of York and had, over the years, investigated several hundred fires. He testified that he visually examined the scene of the fire in this case and, based upon his education and experience in fire investigations, determined that the fire originated inside a closet under the stairway leading from the first to the second floor of the four story apartment building. He stated that he could tell the fire began in that closet because of the pattern of the burn in the surrounding area as well as by the depth of the char in the wood in that area. He further testified that in his opinion the fire was of incendiary nature, having been started in some manner not accidental or spontaneous. He specifically stated that he excluded an electrical "short" as a possible cause of the fire. This conclusion was based on the fact that the fire quickly engulfed the stairwell and because the fire was not accompanied by large amounts of smoke. That testimony was properly introduced and, if believed by the jury, as it apparently was, was sufficient to prove that the fire was of incendiary origin.
Appellant also argues that the trial court ". . . should have suppressed all confessions, admissions and spontaneous declarations made by the appellant on or about November 21, 1972." We agree that the court erred in allowing certain witnesses to relate to the jury their allegation that appellant said in ...