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.
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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
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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 ...