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COMMONWEALTH v. SHOWALTER (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
SHOWALTER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 1945 of 1973, in case of Commonwealth of Pennsylvania v. Cary Wade Showalter.

COUNSEL

Penn B. Glazier, Assistant Public Defender, with him Theodore S. Danforth, Public Defender, for appellant.

Michael H. Ranck, Assistant District Attorney, and D. Richard Eckman, District Attorney, submitted a brief for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Price, J., dissents.

Author: Jacobs

[ 231 Pa. Super. Page 280]

Appellant, Cary Wade Showalter, was charged with simple assault*fn1 and recklessly endangering another person.*fn2 On January 14, 1974, he received a jury trial and was acquitted of simple assault but found guilty of recklessly endangering another person. After being sentenced to 11 1/2-23 months imprisonment, appellant filed this appeal. Several issues are presently raised by appellant which we find to be without merit and we affirm the judgment of sentence.

The charges in the present case arose out of an altercation between appellant and the prosecutrix. At trial, the prosecutrix testified to the following facts: on Saturday evening, September 22, 1973, appellant visited the prosecutrix at her home; prior to this meeting, appellant and the prosecutrix had "gone together" for several years, but recently the prosecutrix had been trying to terminate the relationship; after appellant

[ 231 Pa. Super. Page 281]

    entered her house, an argument soon erupted and the prosecutrix ordered appellant to leave; instead of leaving, appellant approached the prosecutrix and started to choke her; after choking her for one or two minutes, appellant left the house; later that evening, the prosecutrix went out for the remainder of the night; when she returned the next morning, which was Sunday, she discovered that someone had broken into the house and taken some items belonging to her; that morning she received several phone calls from appellant and eventually appellant returned the things that were taken; later that Sunday the prosecutrix drove to a gas station for a newspaper; at the gas station appellant approached her and threatened to get her in trouble if she ever tried to "get him" for breaking in; while she was driving home, appellant in his car cut in front of her, forcing her off the road; appellant then came over to her and pulled her hair and held his hands over her mouth so she could not talk; after that the prosecutrix drove to an auto body shop, apparently for some gas; appellant followed her there and pulled in next to her car, striking it with his car and causing $208.00 worth of damage; the following day, which was Monday, the prosecutrix contacted the police and filed the previously mentioned charges against appellant.

Appellant took the stand in his own behalf and his version of the facts was as follows: he did not visit the prosecutrix on September 22 but did visit her one week earlier; at that time they had a verbal argument because the prosecutrix was using illegal drugs, but appellant never choked her; he, however, had pushed and shoved her in the past because she attacked him with a knife; furthermore, he never tried to force her off the road with his car but simply pulled over to talk to her; at that time he did not use violence on her but did put his hand over her mouth to quiet her down; he never hit her car at the auto body shop, but she drove

[ 231 Pa. Super. Page 282]

    into his car causing the damage to her own car; although he did return the things that were taken from her house, he did not steal them but someone else had taken them for a joke; and before the trial the prosecutrix had told him that she was sorry about the charges and offered to drop them.

Appellant's friend testified that he was in the car with appellant on Sunday; that appellant did not force the prosecutrix off the road; and that it was the prosecutrix who damaged ...


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