Borza v. State

• Court: Maryland Court of Appeals
• Writing for the Court: MOYLAN; LOWE
• Citation: Borza v. State, 25 Md.App. 391, 335 A.2d 142 (Md. App. 1975)
• Decision Date: 21 March 1975
• Docket Number: No. 556,556
• Parties: Peter J. BORZA, III v. STATE of Maryland.

Page 391

25 Md.App. 391

335 A.2d 142

Peter J. BORZA, III v. STATE of Maryland.

No. 556.

Court of Special Appeals of Maryland.

March 21, 1975.

Certiorari Denied June 25, 1975.

Geraldine K. Sweeney, Baltimore, with whom were Alan H. Murrell, Public Defender, Dennis M. Henderson and Frank Sacks, Asst. Public Defenders, on the brief, for appellant.

James G. Klair, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty. for Baltimore City and Mark Van Bavel, Asst. State's Atty. for Baltimore City on the brief, for appellee.

Argued before MOYLAN, MENCHINE and LOWE, JJ.

MOYLAN, Judge.

The appellant, Peter J. Borza, III, was convicted in the Criminal Court of Baltimore by a jury, presided over by Judge Albert L. Sklar, of statutory arson. Upon this appeal, he raises six contentions:

1. That the trial judge should have ruled that Joseph Credge was an accomplice as a matter of law and that there was insufficient evidence to corroborate his testimony;

2. That there was insufficient testimony from which the jury could find that the accomplice's testimony was corroborated;

3. That the trial judge erred in refusing to give appellant's requested jury instructions;

4. That the trial judge committed reversible error in admitting prejudicial hearsay evidence;

5. That the trial judge erred in refusing to grant a mistrial; and

6. That the evidence was legally insufficient to sustain the convictions.

Because of our holding that the corroborative testimony was sufficient, even if Joseph Credge is assumed to be an accomplice, contentions one and two merge. Contention six may be dealt with along with them.

Late in the afternoon of Saturday October 2, 1971, a fire occurred at the Castro Convertible furniture store at 315 North Howard Street in Baltimore. It was during business hours. The site of the fire was on the fifth floor, an area used for the storage of furniture. The business was one of three furniture stores in Maryland and New Jersey operated by the appellant, as franchisee of the Castro Convertible Company. The Hartford Mutual Insurance Company paid $13,917.52 for damages to the store and $24,655.57 for damages to the contents. An accountant testified that as of June, 1971, three months earlier, the store was operating at a net loss of $104,000.

Captain John Richter of the Baltimore City Fire Department's Fire Investigation Bureau arrived at the fire scene at 5:05 p. m. He estimated that the fire had been burning about one hour when he arrived. The first alarm had been turned in at 4:36 p. m. by a parking lot attendant next door who saw smoke and flames coming from the building. Captain Richter could not fully ascertain the cause of the fire. He found a large pile of trash burning on the fifth floor. The fire had also spread to the sixth floor. He effectively eliminated electrical or heating fixtures as a cause of the fire. He could not eliminate spontaneous combustion, noting that the source of possible combustion would have been consumed in the fire. He surmised that the fire probably resulted from careless smoking. He did interview the employee who had worked on the fifth floor that day, however. That employee was not a smoker, and he had not been in the store after 12:30 p. m. that day.

The testimony of the assumed accomplice now comes into play. Joseph Credge first became acquainted with the appellant in 1967. He was later employed by the appellant as a salesman in his Trenton, New Jersey, store. Credge later worked as general manager of both the Trenton store and the Baltimore store. In 1971, Credge and the appellant became partners in the Trenton store.

Credge testified that the Baltimore store was losing money and that in April or May of 1971, he and the appellant began discussions as to how to dispose of it. They finally determined to burn the Baltimore store. It was agreed that one or the other of them would go to the fifth floor of the Baltimore store and set fire to the packing materials and rubbish which were usually piled there awaiting disposal. On two occasions, on two successive Saturdays in September, 1971, Credge traveled from Trenton to Baltimore to set the fire. On both occasions, he abandoned the attempt because of fear. On the night of Friday, October 1, 1971, the appellant told Credge that he was going to Baltimore the next day and would set the fire if the opportunity presented itself. As a signal to the appellant upon his return to Trenton that the mission had succeeded, Credge was to leave the lights on in the Trenton store if word came in from Baltimore that the store had caught fire. Late on the afternoon of October 2, Credge, in Trenton, received a telephone call from the manager of the Baltimore store informing him that the store had caught fire.

The corroboration of Credge's testimony came largely from three employees of the Baltimore store. John Martin, the manager of appellant's Towson store, received a call from the appellant on the morning of October 2. The appellant informed Martin that he was taking a train in from Trenton and asked to be picked up at Pennsylvania Station. Martin picked him up at the station at between 3:30 and 4:00 p. m. and drove him immediately to the Howard Street store. The appellant spent a few minutes on the first floor talking to various employees. A customer came in, and the appellant took him upstairs. The employees assumed that the two were going to a second floor showroom. They were not certain whether the appellant returned to the first floor simultaneously with the customer. All that was certain was that the appellant was out of their sight on some upper floor. The appellant returned to the first floor about fifteen minutes after he had left it and within several minutes told Martin that he had to catch a train. They immediately departed. Martin dropped the appellant at Pennsylvania Station 'at most one hour' from the time he picked him up. Martin was just three blocks away from the station when he heard on his car radio about the store fire on Howard Street. He returned there immediately. The appellant took the stand and acknowledged the account of his visit to Baltimore as given by the three employees.

We have no difficulty whatsoever in holding that the testimony of the assumed accomplice was amply corroborated. The test with respect to corroboration was well stated by Chief Judge Orth in Early v. State, 13 Md.App. 182, at 191-192, 282 A.2d 154, 160:

"'Corroborate' means to strengthen not necessarily the proof of any particular fact to which an accomplice has testified, but the probative, criminating force of his testimony.' Wright v. State, 219 Md. 643, 649, 150 A.2d 733, 737. quoting with approval 1 Underhill Criminal Evidence (5th ed. 1956) § 185. It is settled that the corroborative evidence must tend either: (1) to identify the defendant with the perpetrators of the crime, or (2) to show the defendant's participation in the crime itself. Foxwell v. State, supra; (13 Md.App. 37, 281 A.2d 123) Spies v. State, 8 Md.App. 160, 258 A.2d 758. If with some degree of cogency it tends to establish either of these matters it would be sufficient, authorizing the trier of fact to credit the accomplice's testimony even with respect to matters as to which there had been no corroboration. McDowell v. State, supra, (231 Md. 205) at 213, 189 A.2d 611. Corroboration need not extend to every detail. Brown v. State, 210 Md. 301, 305, 123 A.2d 324 and cases there cited. So it is not necessary that in and of itself the corroborating evidence be sufficient to convict, and not much in the way of corroboration is required; only slight corroboration is necessary. The corroborating evidence may be circumstantial. Nolan v. State, 213 Md. 298, 309, 131 A.2d 851. 'Whether the testimony of an accomplice has in fact been sufficiently corroborated must, of course, depend upon the facts and circumstances, and the inference deducible therefrom, in each case.' Wright v. State, supra, 219 Md. at 650, 150 A.2d at 737.' (Emphasis added)

The foregoing would also be dispositive of the appellant's sixth contention that the evidence was legally insufficient to permit the case to go to the jury, but for an added fillip in that regard. The fourth count charged specifically that certain merchandise, to the detriment of the defrauded insurance company, was 'set fire to and burn(ed).' The fire investigator testified that the literal damage to the furniture was from its being 'smudged from smoke and heat' and 'water damage.' Art. 27, Sec. 9 reads, in pertinent part:

'Any person who wilfully and with intent to injure or defraud the insurer sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of any goods, wares, merchandise or other chattels or personal property of any kind, or of the property of himself or of another, which shall at the time be insured by any person or corporation against loss or damage by fire; shall upon conviction thereof, be sentenced to the penitentiary for not more than five (5) years.' (Emphasis added)

It is clear to us that the gravamen of the offense is defrauding the insurance company by damaging goods through the agency of fire. That the literal damage comes from the heat of the fire, from the smoke of the fire, or from the water of the firemen's hoses, rather than through the chemical process of combustion, is not controlling. To hold otherwise is to make an absurdity of the law. The employment of the phrase 'sets fire to' as an alternative actus reus to 'burns' frees this law from ancient rigidity of the arson laws when it comes to the term 'burn.' Cochrane v. State, 6 Md. 400 (1854), holds that there is a difference between the two terms and cites with approval the Virginia case of Howel v. Commonwealth, 5 Grattan 664. That case states, at 670-671:

'We are not satisfied that setting fire to and burning, have been established by any legal authority to be...