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COMMONWEALTH PENNSYLVANIA v. JOSE BERRIOS (09/24/81)

decided: September 24, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSE BERRIOS, APPELLANT



No. 212 January Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 1804, 1806 & 1808 September Term, 1978, dated May 2, 1979.

COUNSEL

Lewis S. Small, Philadelphia, for appellant.

Robert B. Lawler, Philadelphia, Sarah B. Vandenbraak, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.

Author: Roberts

[ 495 Pa. Page 447]

OPINION OF THE COURT

Appellant Jose Berrios stands convicted of murder of the second degree, burglary, and arson for his involvement in the burning of a home in Philadelphia and the death of one of its residents. On this appeal, appellant seeks to be discharged on the ground that the evidence does not support the convictions or, alternatively, to be granted a new trial on multiple grounds of alleged trial error. We reject appellant's contentions and affirm.

Background

The fatal fire occurred at the Vargas residence in the early morning hours of July 27, 1978. Five of the six residents escaped by leaping from upper-story windows. The victim, Jose Vargas, was unable to escape, and died as a result of smoke inhalation and thermal burns.

Fire investigators determined that the fire had originated at the foot of the inside stairs of the residence, and had been deliberately set with an inflammable liquid. An empty can was recovered from the point of origin of the fire.

[ 495 Pa. Page 448]

Through further investigation, fire investigators located a self-service gasoline station in the neighborhood of the Vargas residence which had been open shortly before the fire occurred. Edward Deissler, the station attendant, told Lieutenant Quinn of the Fire Marshall's Office that, shortly before the fire began, he had sold gasoline to a customer carrying a can. Deissler, who had several minutes to view the customer in the station's artificial lighting, provided a general description of the customer. Deissler identified the can which had been recovered as the can into which the customer had placed the purchased gasoline.

Police detectives questioned Gilbert Perez, an occupant of the Vargas residence and brother-in-law of the victim. They learned that appellant had been in an argument late the previous evening with another brother-in-law of Perez, George Vargas, outside the Vargas residence. Perez stated that, although there had been no physical confrontation between appellant and George Vargas, appellant had left threatening to return and kill George Vargas.

Station attendant Deissler was then interviewed a second time, by Police Detective Paris. When asked to identify the customer from a group of five photographs, Deissler selected two. One of the two photographs which Deissler selected was a picture of appellant.

On August 1, 1978, police filed a criminal complaint against appellant and obtained a warrant for his arrest. Police were unsuccessful in their efforts to apprehend appellant. On August ...


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