Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal at No. 85-12-3315-3323.
Peter Rosalsky, Assistant Public Defender, Philadelphia, for appellant.
Joann Verrier, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Brosky, McEwen, Del Sole, Montemuro, Beck, Tamilia, Popovich and Johnson, JJ. Tamilia, J., files a dissenting opinion.
[ 383 Pa. Super. Page 210]
This is an appeal from an order of the Court of Common Pleas of Philadelphia County, wherein the court determined that double jeopardy does not bar retrial of the appellant, James W. Gains. We affirm.
Appellant was charged with arson, aggravated assault and related offenses following an early morning fire which occurred in an apartment building located in the Abbottsford
[ 383 Pa. Super. Page 211]
area of the City of Philadelphia.*fn1 Appellant's jury trial on these charges commenced on June 11, 1986. Testimony during the trial revealed that three of appellant's stepchildren, Anthony Harris, Michael Harris, and Brenda Chandler, resided together in an Abbottsford apartment at the time of the fire. Their mother, Hattie Gains, was married to appellant but had separated from him. She had apparently been living intermittently with her children at the Abbottsford address.*fn2 Michael Harris testified that during the week prior to December 16, 1985, his stepfather asked him to tell his mother to call the appellant. Thereafter, according to the testimony of Anthony and Michael Harris, appellant came to their apartment building and, upon learning that Hattie Gains did not wish to speak with him, appellant stated that "the consequences of what happened will be on her." (N.T., June 11, 1986 at 41.)
Anthony Harris was awakened on the morning of December 18, 1985, by what he described as a "crash." He then observed flames at a window on the second floor of the Abbottsford apartment: ". . . the curtains were starting to burn and the walls [were] starting to smoke and burn." (Id. at 44). Following the "crash" noise, Anthony Harris also recalled hearing a car "driving off" and the "neighbors hollering." (Id. at 55). Anthony and his brother Michael, with the help of a neighbor, were able to extinguish the fire. Hattie Gains, who was not staying at the Abbottsford apartment on the night of the fire, testified that when Michael Harris told her that the appellant had thrown a fire bomb into the apartment, she phoned the appellant and accused him of attempting to kill her children. According to Hattie Gains, appellant responded by stating: "This is war. I'm going to kill all [of] you . . . ." (Id. at 104). She testified that approximately fifteen minutes after the phone
[ 383 Pa. Super. Page 212]
conversation, her husband was banging and kicking her door, telling her to come outside because he had something for her. (Id. at 105).
A police officer who arrived first at the scene of the fire advised Anthony Harris that he believed that the fire had been caused by electric candles in the window. This police officer did not testify at appellant's trial. Lt. Carr of the Philadelphia Fire Marshall's Office did testify. After arriving at the apartment shortly following the fire, Lt. Carr entered the living room and noted the odor of gasoline. In addition to determining that the origin of the fire was located under the windowsill, Lt. Carr discovered pieces of broken glass and a wick in that area of the room. Lt. Carr expressed his opinion as to the cause of the fire in the following words:
There was an incendiary device. It was thrown into the living room breaking the window. The bottle itself breaks a part (sic), the gasoline that was in the bottle and on the wick burned to extend the fire from the bottle to burn the wall and windowsill and the window.
Later in the morning of December 18, 1985, appellant was stopped by Philadelphia police, while driving in a car apparently owned by a friend. Officer Leslie Edward Gunther testified that he detected a strong odor of gasoline in the car. The police later discovered a pile of clothing, wet with ...