Commonwealth v. Petro. Same

Decision Date27 November 1944
PartiesCOMMONWEALTH v. DE PETRO. SAME v. DE PETRO et al.
CourtPennsylvania Supreme Court

350 Pa. 567
39 A.2d 838

COMMONWEALTH
v.
DE PETRO.
SAME
v.
DE PETRO et al.

Supreme Court of Pennsylvania.

Nov. 27, 1944.


Appeals Nos. 189, 190, March term, 1944, from judgment of Superior Court at Nos. 87 and 88, April term, 1944, affirming judgments and sentences of the Court of Oyer and Terminer of Cambria County at Nos. 19 and 20, December term, 1940; Thomas J. Baldrige, Judge.

James De Petro, Verna De Petro and Anthony Montonaro were convicted of arson, burning a dwelling house, and aiding, counseling and procuring the burning of property with intent to defraud an insurer, and from a judgment of the Superior Court, 154 Pa.Super. 535, 36 A.2d 513, affirming judgments and sentences of the Court of Oyer and Terminer, defendants appeal.

Affirmed.

STEARNE, J., dissenting.

Before MAXEY, C. J., and DREW, LINN, STERN, PATTERSON, and HUGHES, Jj.

Vincent M. Casey, Sebastian C. Pugliese, and Margiotti, Pugliese & Casey, all of Pittsburgh, for appellant.

39 A.2d 839

Stephens Mayer, Dist. Atty., of Ebensburg, and John M. Bennett, Asst. Dist. Atty., of Johnstown, for appellees.

MAXEY, Chief Justice.

This case originated in indictments for arson, and the burning of a dwelling house and for aiding, counselling and procuring the burning of property with intent to defraud an insurer. Those indicted were James De Petro and Verna De Petro, his wife, and the latter's brother, Anthony Montonaro. The defendants were all found guilty, and James De Petro and Tony Montonaro were each sentenced to pay the costs of prosecution and to undergo imprisonment in the County Jail; the former for a period of not less than two and one-half years nor more than five years; the latter for a period of not less than two years nor more than five years. The sentence on Verna De Petro was suspended.

The appeals were to the Superior Court, which affirmed the judgments and sentences of the court below, with two judges dissenting. This court granted an allocatur. The proof is circumstantial, and the chief assignment of error is that the trial court erred in not sustaining defendant's demurrer to the Commonwealth's evidence.

The salient facts are these: On the night of July 5, 1940, a frame dwelling house owned by James and Verna De Petro, located in the Borough of Barnesboro, Cambria County, was totally destroyed by fire. James De Petro was in attendance at a firemen's convention held in Punxsutawney when the fire occurred, and his five children were also then absent from home. Montonaro testified that he had left his home, which was near the De Petro home, to look for his young daughter, and that as he passed the De Petro home he saw what appeared to be a flame inside the house, that he forced the rear door open and fell to the floor, and he got out of the house with difficulty.

Officer McAllister testified Montonaro told him that he and Mrs. De Petro had been playing cards in the De Petro home until about 10 o'clock, and then he went to the kitchen to get a drink and while there something exploded and that he did not remember whether he walked or was blown out, of the house. Montonaro testified that on account of his burns ‘he did not know anything practically for a month after the fire and that he had said no such thing that I know of.’ County Detective Cowan testified that Mrs. De Petro at the hospital the next morning made statements to him substantially like those Montonaro is alleged to have made to Assistant Fire Marshal McAllister, but she denied this and testified that at the time of the fire she was in her bedroom lying on her bed, dressed but asleep, and that she was awakened by noise. She came downstairs and saw the flames. She went into the dining room and kitchen and then got out. Mrs. De Petro and Montonaro were badly burned and were found wandering in a nearby alley. Witnesses who were in the vicinity at the time testified that they heard a noise like a ‘bump’ and others said an explosion occurred in the house followed by ‘a burst of flames of a bluish white color, very hot, and accompanied by a roaring noise, indicating the presence of inflammables.’ When Mrs. De Petro was being taken to the hospital in an automobile she kicked off her shoes and a number of witnesses testified that these shoes smelled of gasoline that night. A chemist, H. C. Dixon, testified that shortly after the fire he discovered traces of gasoline on the shoes. He explained the tendency of gasoling vapors to explode and when that occurs it is followed by a hot, fast fire with flames of a bluish white nature. He also testified that he had examined the coat worn by Mrs. De Petro some days after the fire and found no odor of gasoline on it, which was not unexpected because of the volatility of gasoline, but that a microscopic view of the area burned showed that the top of the fibres were scorched due to a quick flame, which did not burn deeper than the exposed fibres but that it was a different result than would have followed an ordinary burn. The nurse in the hospital who attended Montonaro the night of the fire said she smelled gasoline on his clothes. In the ruins of the fire were found two 5 gallon tin cans. De Petro attempted to account for the presence of the cans by stating that they had been used for alcohol for his truck during the previous winter. There was no evidence of any fire having been in the house on this warm summer evening from which the fire in question could have originated. The defendants did not offer any explanation as to the cause of the fire.

The Borough of Barnesboro maintains two pieces of fire apparatus, a Stutz pumper and a Seagrave pumper. The latter is

39 A.2d 840

a more modern apparatus than the former. On the night of the fire the Seagrave pumper was in a firemen's parade in Punxsutawney, with the result that when the fire alarm sounded the firemen had only the Stutz apparatus at hand and with it they attempted to pump water from a creek nearby for use on the burning building. After a short period this pumper refused to function, although it had functioned three days previously. On the day after the fire an examination of the suction hose of the pump disclosed that it was blocked with pieces of lamp wick and that this had obviously caused its failure at the fire on the night before. There were protective screens at the intake of the hose and an additional one where connection is made with the pump, their purpose being to prevent foreign matter from being sucked into the hose. The Commonwealth's contention that these lamp wicks had been maliciously placed in the hose by some person before the night of July 5th appears to be well founded.

H. D. Plouse, who was charged to the duty of looking after the fire engine for the Borough of Barnesboro, testified that on the afternoon of July 5, 1940, he had a conversation with James De Petro at Plouse's garage and that De Petro asked him if he, Plouse, was going to Punxsutawney to attend the firemen's convention and what truck Plouse was taking and what time he was going to leave and how long he would be away. Plouse told him that he would be leaving about 6 p.m. and that the Seagrave pumper would be the one taken. Plouse testified that De Petro was in Plouse's place at least four times that day making the inquiry mentioned. De Petro also asked Plouse about the time the fire apparatus would return. The last conversation with De Petro was after 6 o'clock on July 5th. Plouse testified that ‘it seemed unusual for anyone to come in four or five times in one day. It is natural for him to come in once, anybody that belonged to the fire company, to come in and ask you what time you were...

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