Commonwealth v. Mowad , 136 Pa. Super. 537 ( 1939 )

I am unable to agree with the conclusion expressed in the majority opinion. My analysis of the evidence convinces me that it is insufficient in volume and quality to overcome the presumption of defendant's innocence. At most, the Commonwealth established that defendant might have known that something was going on; as a matter of fact, I think there are strong suspicions that he did. But mere suspicion and possibility of guilty connection are not sufficient to sustain the conviction. Commonwealth v. Benz, 318 Pa. 465, 467, 178 A. 390, 391;Commonwealth v. Pogach, 119 Pa. Super. 510, 519,180 A. 126. The facts, including defendant's conduct and method of living, do not give rise to a logical inference that defendant aided, counselled, or procured the burning of Catherine Yamin's building. The fire had its inception about 12 o'clock on Sunday night, March 13, 1938, in the apartment occupied by Catherine Yamin who was the owner of the building. When the fire started she and William Addessa were present. The latter, who was acquitted by the jury by direction of the trial judge, was either blown out of the Yamin apartment by the explosion or jumped out. The fire was confined to the Yamin apartment, and never reached the apartment below occupied by defendant and his family. Defendant's wife and their children returned to their apartment about 9 P.M. Sunday night, and retired. I do not consider it beyond the realm of possibility that after Mrs. Mowad and her children had retired some individual entered the apartment and placed gasoline therein as described in the testimony. It is significant to me that the elaborate preparations for the fire had been made in the Yamin apartment where there was also the electrical connection which could have had no other purpose than producing a fire, and that Catherine Yamin, owner of the building, and Addessa were there in her apartment at midnight when an explosion occurred and the fire started. The explosion was probably premature. I cannot conclude without some substantial evidence that defendant aided, counselled, or procured the placing of gasoline and other inflammable materials in his apartment, where his children and wife were to sleep, for the purpose of burning the Yamin building. With the preparations which were made it would clearly seem that the probable result, if the fire had been successful, would have been the destruction of defendant's wife and their children as well. I differ with the appraisal of the evidence made in the majority opinion. I think that the gasoline could have been placed after 9 P.M. in the Mowad apartment and also in the Yamin apartment. It is true that it was distributed throughout both apartments, but the live wire was connected to the kitchen stove in the Yamin apartment where Catherine Yamin was from 9 P.M. until the fire occurred. The wire was exposed, and the copper end was visible where it was fastened around the stove. Defendant may have aided, counselled, or procured the actual perpetrator, but the Commonwealth, I believe, failed to prove it. I find no evidence to connect defendant with Addessa or Catherine Yamin, or, for that matter, with anyone else who may have participated in this incendiary fire. Defendant was not present at the fire, and had not been at his apartment since Saturday afternoon. Although his testimony may have been slightly conflicting, such conflicts were not of such nature as to sustain a conviction in this case. It is readily distinguishable from the testimony of the defendant in Commonwealth v. Pulemena, 113 Pa. Super. 430, 173 A. 462. This defendant's conviction should not be sustained on proof that does not measure up to the legal requirements, although the facts and circumstances may create a suspicion of guilt. I would therefore reverse the judgment and discharge defendant.