NO. 541 APRIL TERM, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, at No. CC7602660A, Criminal Division.
Lester G. Nauhaus and Paulette J. Balogh, Assistant Public Defenders, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appeal is taken from judgment of sentence rendered following non-jury trial and adjudication of guilty of recklessly endangering another person. "Crimes Code," Act of 1972, Dec. 6, P.L. 1482, No. 334, 18 Pa.C.S. § 2705. Post-trial motions were made and denied. Sentence was suspended and defendant placed on two years' probation. Before us is appellant's allegation that the Commonwealth failed to prove the elements of the crime by sufficient evidence. We disagree.
The indictment grew out of an incident at and after 4:45 A.M. on April 1, 1976. Homeowner Loukkala awoke to the sound of an unusual kind of talking near his house. Upon
[ 260 Pa. Super. Page 14]
investigation Loukkala noticed a car parked in front of his house along the curb, which car had not been there when he went to bed. He called township police.
Officer Galati of the Reserve Township police, Allegheny County, responded to the call. The suspicious parked car was found to contain appellant and another. The officer asked them to leave or else he would arrest them for prowling. The two drove off a short distance, only to return momentarily to the area of Loukkala's house, all being within eyesight of the officer. As he approached again, they left and returned to the driveway at the home of the individual riding with appellant. The officer caught up and announced their arrest. While he had the companion physically restrained due to his resistance, appellant moved up the driveway a short distance to pick up a stone. He yelled to the officer that he [appellant] would "bash my [the policeman's] brains in" if he came closer. Appellant fled but later gave himself up at the magistrate's office. For this action against the officer, appellant was indicted and tried.
Appellant took the stand in his defense and testified that the officer said that he and his friend would be arrested for "prowling." Appellant felt he had done nothing and stated so; whereupon, appellant testified, the policeman threatened to "put four slugs in your [appellant's] belly." (The officer categorically denied this threat.) It was then that appellant became apprehensive and threatened to throw a brick at the officer. This would have been impossible, Dicenzo maintained, because he neither had a brick or rock in hand, nor was there one available nearby.
There is very little conflicting testimony except as to the threats which were said to have passed between the policeman and appellant. Appellant admitted that he threatened the officer with a rock if he pulled his gun. But appellant argues that, even believing the officer's version, he could not and was not put in danger of harm to his person. The crime, supra, is defined thus: "A person commits a misdemeanor of the second degree if he ...