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decided: December 14, 1978.


No. 2371 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 2741-76.


Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellant.

James A. Cunningham, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

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

Author: Per Curiam

[ 261 Pa. Super. Page 112]

Appellant contends that there was insufficient evidence to convict her of recklessly endangering another person*fn1 because she had no actual present ability to place others in danger of death or serious bodily injury. Because we agree, we reverse the judgment of sentence and discharge the appellant.

Appellant Mary Trowbridge lived in the last house on Main Street, Spring Mount, Pennsylvania, with her three children and six dogs. Her ex-husband John Trowbridge was also in the house during the events in question. With one important exception to be discussed later, the material facts of the case are not disputed.

Around 2:30 in the morning of June 26, 1976, Officer John Schwemmer of the Lower Frederick Township police was cruising on routine patrol on Main Street. As he approached the turn onto Zieglerville Road, a dog ran out in front of his car, forcing him to stop. Several other dogs then surrounded his vehicle. Concerned for his safety, Schwemmer radioed for assistance. Officer Harold J. Smith responded to the call and arrived in a few minutes. Using his nightstick, he dispersed the dogs, which ran back in the direction of appellant's house.

When appellant heard one of her dogs start to bark, she went outside to investigate the presence of the two police cars parked on Main Street near her driveway. An angry confrontation developed between appellant and Smith. The officers warned her that she could be cited for disorderly conduct and letting her dogs run loose. Appellant resisted an attempt by Officer Smith to arrest her and returned to the house. John Trowbridge observed his exwife grab their oldest son's unloaded "Daisy" BB gun from the kitchen.*fn2 He followed her back outside and waited on

[ 261 Pa. Super. Page 113]

    the porch while appellant walked onto her driveway, stopped behind her car, raised the gun to her shoulder, and pointed it at the officers in the street. The officers took cover behind their cars and drew their guns. After a tense half minute or so, appellant returned to her house. The officers left the scene, returning the next day to arrest her.

The Commonwealth charged appellant with recklessly endangering another person, making terroristic threats,*fn3 and possession of instruments of crime.*fn4 The jury acquitted appellant of the latter two charges but found her guilty of recklessly endangering another person. The lower court denied appellant's motion for arrest of judgment raising the issue of insufficient evidence. This appeal followed.

[ 261 Pa. Super. Page 114]

Recklessly endangering another person is a crime of assault under chapter 27 of the Crimes Code.*fn5 The common law of criminal assault required that the defendant have the actual present ability to inflict a battery or otherwise cause injury.*fn6 Thus, a conviction for assault under the old Crimes Code,*fn7 based on the common law, required a present ability to inflict injury, and, if the charge was assault by pointing a revolver and threatening to shoot, the Commonwealth would have to show that the revolver was loaded. Commonwealth v. White, 37 Montg.Co.L.Rep. 283 (Pa.C.P.1921).*fn8

In its opinion, the court below held that the mere pointing of the gun by appellant was sufficient because the recklessly endangering statute replaced the former crime of "Pointing Deadly Weapons,"*fn9 which read, "[w]hoever playfully or wantonly points . . . a gun, pistol, or other firearm at any person, is guilty of a misdemeanor." Under this statute, the mere pointing of a firearm was the offense, and it was immaterial whether the firearm was loaded. Commonwealth v. Stokes, 225 Pa. Super. 411, 311 A.2d 714 (1973).

[ 261 Pa. Super. Page 115]

The present recklessly endangering statute, under which appellant was convicted, reads as follows: "A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." Thus, the crime requires (1) a mens rea -- recklessness, (2) an actus reus -- some "conduct," (3) causation -- "which places," and (4) the achievement of a particular result -- "danger," to another person, of death or serious bodily injury. By requiring the creation of danger, we think it is plain under § 2705 that the mere apparent ability to inflict harm is not sufficient.*fn10 Danger, and not merely the apprehension of danger, must be created. Therefore, we think that § 2705 retains the common law assault requirement of actual present ability to inflict harm.*fn11 See also Commonwealth v. Goosby, 251 Pa. Super. 326, 380 A.2d 802 (1977) (where defendant pointed gun and pulled trigger, but one live cartridge in the gun misfired, there is sufficient evidence to convict for recklessly endangering).

An additional reason in support of this conclusion is what the legislature did not say in enacting § 2705. The statute is based upon Section 211.2 of the Model Penal Code, which reads: "A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness

[ 261 Pa. Super. Page 116]

    and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded."*fn12 We note that the legislature adopted the first sentence of this Section as § 2705 verbatim, except for grading. However, the second sentence of § 211.2 which would impose criminal liability for pointing an unloaded weapon*fn13 was not enacted. Thus, it must be true that the legislature did not intend that the mere pointing of an unloaded weapon should give rise to criminal liability, except as a simple assault.*fn14

We now turn to an application of these principles to the facts of the case at bar. When appellant pointed her BB gun at officers Smith and Schwemmer, it was unloaded. As we have indicated, this in itself does not create a danger of death or serious bodily harm, and thus no violation of § 2705.*fn15 The judge below erred in placing any emphasis on

[ 261 Pa. Super. Page 117]

    the former "Pointing Deadly Weapons" statute and the cases decided thereunder. This statute is no longer part of our Crimes Code, and the legislature did not enact § 2705 as a replacement for it.*fn16 In fact, Section 211.2 of the Model Penal Code, which would have been a logical replacement for the "Pointing Deadly Weapons" statute, was consciously avoided by the legislature.*fn17 Because appellant did not place the police officers in danger of death or serious bodily harm, the Commonwealth failed to prove an essential element of the recklessly endangering statute. Therefore, we reverse the judgment of sentence and discharge the appellant.

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