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submitted: June 28, 1984.


No. 03389 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 71-75 August Term, 1981.


Jeffrey M. Miller, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Olszewski, Popovich and Cercone, JJ.

Author: Popovich

[ 335 Pa. Super. Page 356]

Appellant, Carl Redel, was convicted by a jury of arson endangering property and creating a danger, arson endangering property in an attempt to collect insurance, risking a catastrophe, and recklessly endangering other persons, all in violation of Title 18 C.P.S. ยงยง 3301, 3302, 3304 and 2705, respectively.

A criminal mischief charge was withdrawn by the prosecution at the close of trial testimony. Appellant was acquitted of arson endangering other persons.

Appellant was sentenced to ten years reporting probation with mandatory out-patient psychotherapy and a fine of $10,000. Appellant's trial counsel filed post-verdict motions which were denied.

The relevant facts are as follows. On June 22, 1981, at approximately 3:00 A.M., the Philadelphia Fire Department was called to a fire at 1031 South 9th Street in Philadelphia. The building was owned by the appellant who used the first floor as a storage area for eggs in connection with his egg and poultry business. The appellant ran his business from two nearby buildings located at 1029 and 1037 South 9th Street.

A neighbor, Barbara Guarner, who was returning home with her husband from a trip to Atlantic City, observed fire coming from appellant's property. She also observed appellant in front of the building in a dazed condition. (N.T. 4.11) While Guarner phoned the fire department, her husband watched the appellant enter a silver Chrysler which was parked nearby. Appellant remained at the scene of the fire. Finally, he was ordered to move his car by a police officer but did not leave the area until Mrs. Guarner shouted to another officer that "he (appellant) was the one who came out of the building." (N.T. 4.12)

Appellant was stopped approximately two blocks from the fire scene. He was arrested by Officers Leo Judge, James Long, and Kathleen Long of the Philadelphia Police Department and was transported to police headquarters by

[ 335 Pa. Super. Page 357]

Officer James Long, who observed that Redel was "in shock," "white," "perspiring" and "smelled of gasoline." (N.T. 3.112)

Inside the car on the front seat, police officers found a box containing four empty one-gallon bleach jugs. Six more of the same type of container were found in the trunk. The vehicle smelled of gasoline (N.T. 1.32), and it was later determined that the jugs contained gasoline residue. (N.T. 5.27) It was the opinion of the Fire Marshal's expert that the fire was caused by ignited gasoline. (N.T. 4.100-4.101)*fn1 In addition, police officers found one empty matchbook, three packs of partially used matches and a complete wardrobe of laundered clothes sized to fit appellant in the car. (N.T. 4.36, 4.38, 4.39)

As the result of these incidents and the evidence found, appellant was charged with the crimes leading to this appeal.

Six issues are raised on appeal: (1) whether the Commonwealth violated appellant's Fifth Amendment right to remain silent by cross-examining appellant about his post-arrest silence and commenting upon it in closing argument; (2) whether the trial court erred in refusing to allow appellant to present relevant evidence that he was a Holocaust survivor to explain his conduct during arrest and his presence at the scene of the fire at 3:00 A.M.; (3) whether the District Attorney's argument that appellant's reputation was irrelevant because "Jean Harris" also had a good reputation before committing murder, and the prosecutor's statement that appellant said nothing when arrested because he knew he had been caught "red-handed," were inflammatory, misleading, and prejudicial remarks violating appellant's right to a fair trial; (4) whether the Commonwealth's prejudicial comments amounted to prosecutorial overreaching precluding retrial under the Double Jeopardy Clause of the Fifth Amendment; (5) whether the trial court

[ 335 Pa. Super. Page 358]

    erred in refusing to instruct the jury that where evidence presented is equally capable of two inferences, guilt or innocence, the jury must adopt the conclusion consistent with innocence; and (6) whether the trial court erred in instructing the jury that a defendant charged with a catastrophe and recklessly endangering other persons need not intend the danger he creates.

Appellant contends that references by the District Attorney, in his cross-examination of appellant and in his closing argument, constitute reversible error warranting the grant of a new trial. We agree.

The law is clear that questions or comments by a prosecutor concerning a defendant's post-arrest silence constitute a clear violation of the defendant's Fifth Amendment right to remain silent. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976). In addition, the court in Commonwealth v. Williams, 296 Pa. Super. 97, 100, 442 A.2d 314, 316 (1982) held: "An accused's Fifth Amendment right to remain silent is unequivocal. Any mention of the fact that a defendant availed himself of that protection must be scrupulously avoided."

The United States Supreme Court established the constitutional permissibility of references at trial to post-arrest silence where the silence in question occurred prior to the giving of Miranda warning. Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 1310, 1312, 71 L.Ed.2d 490 (1982). However, the Pennsylvania Supreme Court, acknowledging that their position is more restrictive than that taken by the United States Supreme Court in Fletcher v. Weir, id., declined to hold, under the Pennsylvania Constitution, that the existence of Miranda warnings, or their absence, affects a person's legitimate expectation not to be penalized for exercising the right to remain silent. Commonwealth v. Turner, 499 Pa. 579, 584, 454 A.2d 537, 540 (1982).

In Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976) our Supreme Court declared:

The law is clear. It is reversible error to admit evidence of a defendant's silence at ...

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