No. 1386 Philadelphia, 1980, Appeal from Judgment of Sentence dated May 5, 1980, Court of Common Pleas, Criminal Division, Elk County, at Nos. 92 and 93 of 1979.
Dennis V. Williams, Erie, for appellant.
James A. Meyer, District Attorney, Ridgeway, for Commonwealth, appellee.
Spaeth, Wieand and Johnson, JJ. Wieand, J., files a concurring opinion.
[ 302 Pa. Super. Page 150]
Appellant was convicted by a jury of Arson-Endangering Property*fn1 and Aggravated Assault*fn2 and sentenced, on the Arson conviction, to, inter alia, three to six years imprisonment and to make restitution in the amount of $100 to Talbot E. Cuthbert and Edna Mae Galloway and $42,921.83 to the insurance company who had insured the residence against fire damage. He received a concurrent sentence of three to six years for Aggravated Assault. Thereafter,
[ 302 Pa. Super. Page 151]
Appellant's Motion to Modify Sentence was denied and this appeal, involving twelve issues,*fn3 followed.
The first issue involves the sufficiency of the evidence as to the arson conviction. The evidence is sufficient if it supports the verdict beyond a reasonable doubt when construed in the light most favorable to the Commonwealth, with all proper inferences drawn favoring the Commonwealth. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981).
A conviction for arson requires the establishment of three facts: (1) that there was a fire; (2) that it was of incendiary origin; and (3) that defendant was the guilty party. Commonwealth v. Dolan, 287 Pa. Super.Ct. 202, 429 A.2d 1171 (1981); Commonwealth v. Colon, 264 Pa. Super.Ct. 314, 399 A.2d 1068 (1979).
Although the majority of evidence against Appellant was circumstantial, we have repeatedly held that the corpus delicti of arson can be proved by such evidence alone. Commonwealth v. Patterson, 247 Pa. Super.Ct. 527, 372 A.2d 1214 (1977), citing Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956).
It is undisputed that a fire occurred at the residence on May 22, 1979. A fire marshal testified that his investigation determined that the fire was incendiary in origin. Although he was unable to determine the exact nature of the hydrocarbon used as the accelerant, he was able to determine that the fire began in the corner of the living room. Appellant's quotation of certain statements made by the fire marshal are not conclusive in discrediting the fire marshal's testimony.
[ 302 Pa. Super. Page 152]
Appellant further argues that there was insufficient evidence of his participation in setting the fire. The record indicates that Appellant and his wife, the victim of the aggravated assault, returned home after visiting a friend early on the morning of the fire. An argument ensued and the victim was physically injured. The victim then walked to a neighbor's house for aid, while Appellant remained at the residence. The neighbor called the victim's ex-husband who arrived at the neighbor's house to take the victim to the hospital. The ex-husband testified that on leaving the neighbor's house, he noticed the silhouette of a man standing under a light in the doorway of Appellant's residence, who looked like Appellant. Also, the ex-husband testified that he saw the taillights of Appellant's car blink as he drove past Appellant's residence and that Appellant's car then proceeded down the hill towards the fire alarm. Evidence was presented concerning statements made by the victim to two Commonwealth witnesses including her ex-husband, that Appellant was going to burn the house down. There was no evidence of fire at the residence in question at this time.
Further evidence indicated that the fire alarm at the bottom of the hill was pulled by Appellant who then proceeded to his parents' house to drop off his dog and to tell his mother of the fire. Appellant then returned to the location of the fire alarm and parked his car some distance away. He made no attempt to inform the firemen who had arrived at the fire alarm location where the fire was. Upon the arrival of Appellant and the firemen at the scene of the fire, Appellant had to be restrained from entering the house. He told firemen that his wife and dog were inside.
Upon a complete review of the record, we find the evidence to have been sufficient beyond a reasonable doubt for a jury to have found Appellant guilty of arson. See Commonwealth v. Rainey, 242 Pa. Super.Ct. 39, 363 A.2d 1148 (1976).
[ 302 Pa. Super. Page 153]
Appellant argues that his conviction for aggravated assault was based on insufficient evidence. The record shows that Appellant's wife went to a neighbor's home for aid on the morning of the fire. She had open head and lip wounds, as well as numerous bruises, requiring a period of hospitalization. She told the neighbor, as well as her ex-husband, a state police officer, a doctor and a nurse, that Appellant had beaten her.
Although her testimony at trial indicated that the injuries were accidental and that Appellant did not directly cause them, we find no error in the jury's determination as to credibility. Viewing the evidence and all reasonable inferences in a light most favorable to the Commonwealth, Commonwealth v. Edwards, supra, we conclude that the jury could have found Appellant guilty of aggravated assault beyond a reasonable doubt.
Appellant next contends that the lower court erred in consolidating the arson and aggravated assault charges, despite his pre-trial objection.
Pa.R.Crim.P., Rule 228(b) states:
(b) Two or more offenses, of any grade, other than murder, may be charged in the same information if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. There shall be a separate count for each offense charged.
It is well-established that the propriety of consolidating separate informations or indictments is a matter of discretion with the trial judge and will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Finnegan, 280 Pa. Super.Ct. 584, 421 A.2d 1086 (1980).
[ 302 Pa. Super. Page 154]
The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania is that consolidation is proper (i.e., the denial of a motion for severance is not an abuse of discretion) if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other. (citations omitted)
Commonwealth v. Terrell, 234 Pa. Super.Ct. 325, 328, 339 A.2d 112, 114 (1975).
Applying this test to the instant case, it is clear that the facts and elements of arson and aggravated assault are easily separable, not only as to the law, but in reference to the facts in this case. The assault took place immediately prior to the fire. As to the second element of the test, evidence of assault was admissible to show Appellant's motive for arson.
We therefore find no error by the trial court.
Appellant's fourth and fifth assignments of error concern the re-reading of selected portions of testimony to the jury, upon their request, in the absence of Appellant. As trial counsel failed to object, Appellant's different counsel on appeal urges that this was ineffective assistance.
The court in Commonwealth v. Peterman, 430 Pa. 627, 244 A.2d 723 (1968) held that the proper procedure for reviewing testimony is for a review conducted in open court, in the presence of the parties and counsel. Accord Commonwealth v. Banks, 267 Pa. Super.Ct. 10, 405 A.2d 1277 (1979); see also Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971); Commonwealth v. Diehl, 378 Pa. 214, 107 A.2d 543 (1954).
However, we have found no case law which has specifically dealt with the issue raised by Appellant. We are of the opinion that the error in not having Appellant present, and
[ 302 Pa. Super. Page 155]
in not proceeding in open court is, at most, harmless error. This is particularly true in view of the fact that Appellant's different counsel on appeal has alleged no prejudice concerning this "error".
Since we find the error, if any, to have been harmless, trial counsel was not ineffective for failing to object to a meritless claim. Commonwealth v. Jennings, ...