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COMMONWEALTH PENNSYLVANIA v. JOSE J. COLON (03/16/79)

decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSE J. COLON, APPELLANT



No. 640 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 2092.1, 2092.2, 2087, 2088, 2090. May Term, 1976.

COUNSEL

Eugene V. Alessandroni, Philadelphia, for appellant.

Michael R. Stiles, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, President Judge, concurs in the result. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 264 Pa. Super. Page 317]

Following a jury trial concluded on October 12, 1976, appellant was convicted of arson endangering persons*fn1 and arson endangering property.*fn2 Post-verdict motions were denied, and appellant was sentenced to a term of imprisonment of ten to twenty years on the arson endangering persons count and a concurrent term of five to ten years on the arson endangering property count. Appellant now argues that the evidence was insufficient to sustain a guilty verdict and that he was denied effective assistance of counsel during trial. Finding no merit in these contentions, we affirm the judgment of sentence.

[ 264 Pa. Super. Page 318]

Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978), the following facts were adduced at trial. At approximately 1:15 p. m. on May 10, 1976, a fire broke out in the first-floor apartment of a three-story building located at 1320 N. Sixth Street, Philadelphia. Gloria S. Rivera (Gloria) resided in the first-floor apartment with her three children. The third floor was occupied by Gloria's sister, Magdalina Rivera (Magdalina), her two children, and Ismael Perez and his wife.

For some two and one-half months prior to the conflagration, appellant had been living with Gloria. During that time, appellant physically abused her, made threats on her life, and threatened to set fire to the building. As a result of these actions, Gloria demanded on May 3, 1976, that appellant leave the house. Appellant acceded and removed himself and his belongings. Two days later, however, he moved back into the apartment and occupied the living room couch. The return was not salutary, and on the evening of May 9, 1976, he beat Gloria with a belt. The next morning, taking advantage of appellant's brief absence, Gloria gathered the children and left the apartment in favor of living with a friend. She mentioned the move, and the friend's name, to Magdalina, but did not reveal the address. During appellant's absence from the apartment, Juanita Gonzales, who resided on the building's second floor, overheard him say to a friend, "I am leaving the block, but I am going to leave the block on fire." N.T. 234.

Returning to the apartment early that same afternoon, appellant discovered Gloria's absence, and asked Magdalina if she knew of her whereabouts. Magdalina refused to divulge any information and appellant took his leave. Some ten minutes later he returned, broke the front door, and again demanded that Magdalina tell him where Gloria had gone. Magdalina remained silent and then accompanied appellant down the stairs, where she left him standing in the first-floor bedroom. Five minutes later, Magdalina descended the stairs and noted appellant bending over the bed,

[ 264 Pa. Super. Page 319]

    holding a newspaper, and removing something from his pocket. At this point, Magdalina went to her apartment upstairs, but returned immediately afterward to the first floor. She there saw appellant still in the bedroom which was now rapidly filling with smoke and fire. Magdalina then endeavored to warn the occupants of the building.

In her second-floor apartment, Juanita Gonzales smelled the smoke and ran downstairs where she saw appellant holding a knife. She asked appellant what he was doing, but he replied only, "Get out and shut up." She exited safely and the only injuries connected with the blaze were incurred by Maritza Adorno, a visitor to the third-floor apartment, and Ismael Perez, when both were forced to jump from the third floor to escape the flames.

Approximately forty-five minutes after the blaze started, it was extinguished on the first floor, and Fire Marshall Gerald Dubzak entered the premises to begin an investigation of the fire's cause. On the basis of his findings, detailed more fully below, he concluded that it was incendiary in nature with a point of origin in an area near the bed on the first floor.

Appellant's first contention dealing with ineffective assistance is premised on the following set of facts. On direct examination, Mr. Perez testified that subsequent to his fall from the third story, he received medical aid at a hospital and returned to his uncle's residence, located immediately opposite the burned apartment building. He there met Valentin Alamo, another visitor to the third floor on the day of the fire. At this point of the testimony, appellant's trial counsel interposed an objection and a conference was held at sidebar. In response to a request for an offer of proof from appellant's counsel, the assistant district attorney stated that Mr. Perez was prepared to testify that after he left his uncle, he and Mr. Alamo encountered appellant in a nearby park. An argument ensued during which appellant stabbed Mr. Alamo in the arm and ran from the park. Mr. Perez pursued, and a fight developed between the two until it was halted by the police. Assault charges were filed as a result

[ 264 Pa. Super. Page 320]

    of the incident, although the court at that time indicated that the Commonwealth was not proceeding on them.

After hearing this account, the court below opined that evidence of the stabbing and the surrounding circumstances was not relevant to the instant prosecution and would not be admissible. Nevertheless, ...


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