No. 3652 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 452-458 August Term, 1980.
Gregory B. Emmons, Newtown, for appellant.
Ronald Eisenberg, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Wieand and Hoffman, JJ.
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In a prosecution for criminal homicide and arson, what is the duty of the District Attorney to disclose that he has obtained during trial a copy of the defendant's depositions given as part of a civil action to recover for fire losses sustained and covered by a policy of fire insurance? Did the trial court err by allowing the Commonwealth to use such depositions to contradict portions of the trial testimony of the defendant after a brief recess called to permit defense counsel to review his client's prior testimony? These are the principal issues in this appeal from judgment of sentence after John Hussmann had been convicted on two counts of murder of the second degree, arson and conspiracy.*fn1 We conclude that there was neither prosecutorial
[ 335 Pa. Super. Page 606]
misconduct nor trial error and affirm the judgment of sentence.
John Hussmann was engaged in remodeling a residential dwelling which he owned on Elizabeth Street in the City of Philadelphia. Because his construction business was saddled with debt, the evidence showed, he determined to burn the dwelling on Elizabeth Street to collect the insurance thereon. He persuaded Burton Smith to set the fire and paid him to do so. Hussmann also provided the gasoline to be used as an accelerant. Smith, in turn, recruited Richard Hahn, an acquaintance, to assist in starting the fire. At or about midnight on August 15, 1979, Smith and Hahn went to Hussmann's building to start a fire. There they found Kevin Higgins, an employee of Hussmann, who occupied a furnished room. As Higgins was preparing to vacate his room, Hahn and Smith poured gasoline over various parts of the building. While they were doing so, the gasoline was prematurely and accidentally ignited. Hahn and Higgins perished in the ensuing blaze. Smith was found a block away, severely burned and writhing in pain. Although he
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initially denied participation in setting the fire, Smith subsequently confessed his role to Hahn's relatives. He also gave a statement to the police and agreed, pursuant to plea bargain, to testify against Hussmann. A warrant was issued for Hussmann's arrest, but Hussmann had fled to Florida. After six weeks, during which Philadelphia police were unable to find him, Hussmann surrendered voluntarily in Florida on June 14, 1980.
At trial, Hussmann was represented by A. Charles Peruto, Esquire. After he had been convicted, Hussmann discharged Peruto and hired other counsel who filed supplementary post-verdict motions challenging the effectiveness of Peruto's assistance. Evidentiary hearings were held thereon. Hussmann then changed counsel again and hired present counsel, who filed additional averments of ineffective assistance which required further hearings. Finally, all challenges to the effectiveness of prior counsel were dismissed, post-verdict motions were denied, and sentences of imprisonment were imposed. This appeal followed.
Jeffrey Voluck, Esquire, had been counsel for Hussmann in a civil action to recover the proceeds of a fire insurance policy which provided coverage for the burned building. During the course of the civil proceedings, Hussmann's depositions had been taken. In those depositions he had described the property destroyed and the values thereof. Hussmann had paid for a copy of the transcribed depositions, but his copy had remained in the file in Voluck's office. Hussmann did not tell Peruto of the ...