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decided: December 6, 1983.


No. 47 Western District Appeal Docket, 1983, Appeal from Order of the Superior Court of Pennsylvania at No. 290 Pittsburgh, 1981, dated November 30, 1982 Affirming an Order of Conviction and Sentence Imposed by the Court of Common Pleas of Erie County, Pennsylvania, Criminal Division, at Nos. 631, 632, 633, 634 of 1980 on February 27, 1981, Pa. Super. (filed November 30, 1982).


Ramsey Clark, Pro Hac Vice, Lawrence W. Schilling, New York City, Thomas M. Kerr, Titus, Marcus & Shapira, Pittsburgh, for appellant.

Michael J. Veshecco, Dist. Atty., Erie, Bernard Siegel, Sp. Asst. Dist. Atty., Philadelphia, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., concurs in the result. Nix and McDermott file dissenting opinions.

Author: Flaherty

[ 503 Pa. Page 92]


Louis DiNicola was convicted of arson and three counts of second degree murder by a jury sitting in the Court of Common Pleas of Erie County, and on February 27, 1981 he was sentenced to three consecutive sentences of life imprisonment. After post-verdict motions were filed and denied, an appeal was taken, and on November 30, 1982 Superior Court, 308 Pa. Superior Ct. 535, 454 A.2d 1027, affirmed the judgment of sentence. Petition for allowance of appeal to this Court was filed and we granted allocatur. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.

On the afternoon of August 30, 1979 DiNicola and a friend, Jefferson, walked from their work at McCreary Roofing in Erie, Pennsylvania to Jefferson's house, where they drank beer, smoked marijuana, and worked on Jefferson's truck. While they were working on the truck, Deborah Sweet, a new tenant who lived on the first floor of the same building in which Jefferson lived, introduced herself to the two men and invited them in for beer. The three talked, drank beer and smoked marijuana in the kitchen of Ms. Sweet's apartment until about 9:00 p.m., when Ms. Sweet put her two children, aged four and eight, to bed. DiNicola made a sexual advance to Ms. Sweet in the kitchen, but was rebuffed. Thereafter, Jefferson took a shower and changed into fresh clothes and later DiNicola took a bath in Ms. Sweet's apartment. Both men were very dirty from their work. While DiNicola was bathing, sometime around 11:00 p.m., Jefferson and Ms. Sweet entered her bedroom, and with the door open, began having sex. When DiNicola emerged from the bathroom, Ms. Sweet testified

[ 503 Pa. Page 93]

    that he paused in the bedroom doorway, saw that she and Jefferson were engaged in sex, and walked into the front part of the apartment, where she heard him open the door to her daughter's room. She then heard footsteps retreat from that area, enter the kitchen, and exit through the kitchen door, which was only operable door in the apartment. She also heard that the kitchen door did not close tightly.

Ms. Sweet then dozed and was awakened by the sound of someone in the kitchen, which was adjacent to her bedroom. She thought it might be one of her children, and listened intently, and the footsteps went from the kitchen to the front part of the house. She testified, "[T]hen I heard this noise. Suddenly, there was smoke pouring over my ceiling . . . ." N.T. 67. She ran from her bedroom into the kitchen and saw DiNicola standing in the other doorway leading from the kitchen to the front part of the house, "staring at the fire," N.T. 68, which was then burning in the front part of the house where her children's rooms were located. The three adults ran from the house through the kitchen door and Ms. Sweet's subsequent attempts to reach her children were unavailing. Both children and a man who lived on the second floor died in the fire. The Erie Fire Department received the alarm shortly after midnight.

DiNicola's first allegation of error is that the evidence was insufficient to support the verdict. "It is well established that the test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt." Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983). Since the convictions were for arson and second degree murder, the Commonwealth was required to establish (1) there was a fire of incendiary origin, (2) persons were recklessly placed in danger of death or bodily injury, (3) the

[ 503 Pa. Page 94]

    defendant set the fire, (4) the fire caused the deaths of the three victims.*fn1

As to the incendiary origin of the fire, two Pennsylvania State Police Fire Marshals testified that they examined the scene of the fire and determined from the appearance of burn marks and from reports on materials which they took from the building and submitted to the State Police Crime Laboratory, (segments of the floor and other burned materials) that the fire was of incendiary origin. Moreover, all of the firemen who entered the building reported a strange acrid odor on the second floor which stung their eyes and made it hard to breathe. The Fire Chief reported a strong "kerosene-type" odor when he entered the building on the first floor. The laboratory report established that a fluid similar to Stoddard solvent, a kerosene class product which burns at a steady rate, as opposed to smoldering, was used as an accelerant in the fire. It had been poured in two adjacent rooms, the living room and the den, on the floor, on books which were being stored in a carton, and on the stereo cabinet. Moreover, the fire marshals testified that even if the laboratory report had been negative for an accelerant, the burn patterns, which they observed and photographed after removing the debris from the burned building, indicated that an accelerant was used to ignite the fire. They testified further that their

[ 503 Pa. Page 95]

    investigation ruled out an electrical origin for the fire, and it was stipulated that there was no gas leak. Although DiNicola argues that lighted candles which were burning may have started the fire, such an origin would not explain the fire marshals' finding that an accelerant was used to kindle the fire. Thus, there was clearly sufficient evidence upon which the jury could have determined that the fire was of incendiary origin.

Item 2, that the fire was set with disregard for the safety of others, and item 4, that three persons died as a result of the fire, were also established by sufficient evidence. DiNicola was aware that both floors of the dwelling were occupied (his friend Jefferson lived with his mother and her fiance on the second floor) and that at least two adults besides himself and two children were present in the first floor. It was stipulated that the three deaths were caused by the fire.

Remaining at issue is item 3, that DiNicola set the fire. Evidence of DiNicola's culpability includes the following: (1) Ms. Sweet saw DiNicola standing in the door of her room while she was having sex with Jefferson and she heard footsteps as he walked through the apartment, opened the door to her daughter's bedroom, and then left through the kitchen door, which was the only operable door in the apartment. Although Ms. Sweet closed the doors to the rooms of both children when she put them to bed, when firemen entered the building, they found the door to Ms. Sweet's daughter's room open and the child's body on the bed. (2) Subsequently, Ms. Sweet dozed and was awakened by the sound of someone moving around in the kitchen. The footsteps then left the kitchen and proceeded to the front part of the house. Ms. Sweet then heard an unidentified sound and saw smoke. She heard no footsteps retreating from the front of the house, and when she jumped from bed to the door of her room, she saw DiNicola standing in the other doorway leading from the kitchen, staring at the fire in the front of the house. (3) The fire was started with an accelerant similar to Stoddard solvent,

[ 503 Pa. Page 96]

    which DiNicola had access to at his place of employment. (4) DiNicola's suggestion that an unknown intruder could have started the fire would require that the jury believe the intruder, without being detected, splashed an accelerant in two rooms, including the room measuring roughly 12' X 11', where DiNicola told police he was sleeping on a couch, and ran from the house without being heard. (5) The presence of the accelerant is consistent with DiNicola's anger because of Ms. Sweet's earlier rebuff of his sexual advances. This evidence, although not overwhelming, is sufficient to establish beyond a reasonable doubt that DiNicola was responsible for the fire. That the evidence is circumstantial is of no moment, for as we have observed, proof of guilt, "especially in arson cases," may be established by circumstantial evidence. Commonwealth v. ...

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