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decided: April 13, 1978.


No. 600 April Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, entered on February 17, 1977, at No. CC7602009


Lester G. Nauhaus, Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, with him Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Hoffman

[ 254 Pa. Super. Page 298]

Appellant contends that the Commonwealth failed to produce sufficient evidence to convict him of (1) carrying a firearm without a license,*fn1 (2) making terroristic threats,*fn2 (3) recklessly endangering another person,*fn3 and (4) conspiracy to commit criminal mischief.*fn4 We reverse the judgment of sentence on the charge of conspiracy to commit criminal mischief. While we find sufficient evidence to sustain convictions on all other charges, we vacate the remaining judgments of sentence and remand for resentencing.

On February 28, 1976, Allegheny County officials arrested appellant and charged him with the crimes listed above plus simple assault*fn5 on a woman named Anita Racchini. At a non-jury trial in the Allegheny County Court of Common Pleas on July 22, 1976, the Commonwealth produced the following testimony. Patricia Castelli testified that she was the owner and operator of Toto's Bar Hotel on Woodstock Avenue in Swissvale, Allegheny County. At about 9:00 p. m., on February 19, 1976, she observed three men -- Eugene Slick, William Hughes, and appellant -- enter the bar and order a round of drinks. Ten or fifteen minutes later, after consuming their drinks, the three men started to walk towards the door. On the way, Slick picked up some money which did not belong to him from the bar counter. At this point, one Chuck Flenner and another man interceded and grabbed Hughes and Slick. A fight of a few minutes duration ensued. When Slick extricated himself from the entanglement, he ran towards the door. Appellant had already exited. Slick yelled to appellant: "Get the gun." Appellant complied and shortly afterwards ran into the bar

[ 254 Pa. Super. Page 299]

    with a small .25 automatic pistol in his hand. Appellant pointed the gun at everybody in the bar; the patrons, understandably frightened, froze. Appellant then handed the gun to Hughes. Hughes went up to each of the 16 people in the bar, stuck the gun under each person's nose, and said, in turn, "I know you; I know you; I know you; and I know I know you." While Hughes was making his terroristic tour, Ms. Castelli attempted to call the police. The telephone was located on the back bar; she put the phone on the floor of the bar and stooped down. Appellant saw her do this, grabbed her by the hair, and pulled her up. He stated: "Leave that phone alone. Don't you call the police." This scared Ms. Castelli; she thought he was going to kill her. At this point, Chuck Flenner said something to Hughes; Hughes responded by hitting Flenner on the head with the pistol. Flenner's wife, Dorothy, told Hughes to leave her husband alone. Hughes then dropped the gun and "smacked her all over the bar." Slick recovered the gun. A very frightened Ms. Castelli again attempted to call the police. Appellant, swinging his arms at Ms. Castelli, leapt over the bar, grabbed her, and pulled her out of her crouching position. He reiterated: "I told you to leave that phone alone." Hughes, Slick, and appellant then decided to leave the bar. As they exited, appellant hollered: "We will be back with more guns." Hughes uttered a similar threat. The three men then drove away; the time was now about 10:00 p. m.

After the three men left, Ms. Castelli asked all her customers to leave because she wanted to close the bar after this trying experience. However, the patrons, severely shaken, wanted a drink and asked to stay. Ms. Castelli acquiesced and locked the door. She did not call the police.

At about 11:45 p. m., Ms. Castelli and others inside the bar heard a sound outside the bar door. The door had a curtained window. A patron drew the curtain back, glanced outside, and saw a big man with a red beard. Ms. Castelli looked out another window and saw the same man. She then walked to the door and looked through its window; she

[ 254 Pa. Super. Page 300]

    stared straight into a barrel of a Lugar pistol held by Hughes. Ms. Castelli turned off the lights and yelled to everybody to get down on the floor. Everyone did so. The persons outside the bar attempted to kick the bar door open, but failed. Frustrated, they fired four shots into the bar; the bullets lodged in the wall behind the bar area and one hit the bar sink. The terrorizers then departed. According to Ms. Castelli, all the occupants of the bar were "frightened to death."

On cross-examination, Ms. Castelli stated that she did not know if the .25 automatic pistol which appellant had wielded during the first incident at the bar had been loaded or operable. However, she was absolutely positive that appellant yelled: "We will be back with more guns." She also did not know whether appellant had participated in the 11:45 p. m. occurrence.

Lee Bechtold, a patron at Toto's Bar Hotel on February 19, 1976, testified next for the Commonwealth. He corroborated every detail of Ms. Castelli's account. In particular, he was certain that appellant screamed: "We are coming back with more guns." Like Ms. Castelli, however, Mr. Bechtold did not know whether the .25 automatic pistol was loaded or whether appellant returned with Hughes at 11:45 p. m.

Lieutenant James McCann of the Swissvale Police Department completed the Commonwealth's case-in-chief. He testified that he had investigated the events which triggered the instant prosecutions. He found bullet holes and spent lead slugs inside the bar. He also determined that appellant did not have a license to carry a firearm. At this point, the ...

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