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COMMONWEALTH PENNSYLVANIA v. BARBARA JEAN COWHER (03/28/80)

filed: March 28, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
BARBARA JEAN COWHER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. DONALD RAY MARSHALL, APPELLANT



No. 1714 October Term 1978, No. 1701 October Term 1978 Appeals from Judgments of Sentence in the Court of Common Pleas of Lycoming County, Criminal Division, Nos. 77-10, 795 [J. 210]; Nos. 77-10, 796 [J. 212].

COUNSEL

David K. Boyer, Assistant Public Defender, Williamsport, for appellant at No. 1714.

Gregory V. Smith, Chief Public Defender, Williamsport, for appellant at No. 1701.

William S. Kieser, District Attorney, Williamsport, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ.

Author: Lipez

[ 276 Pa. Super. Page 491]

The appellants, Barbara Jean Cowher and Donald Marshall, were tried jointly by a judge sitting without a jury. Both were found guilty of criminal trespass, 18 Pa.C.S. § 3503(a), and criminal conspiracy, 18 Pa.C.S. § 903(a). Post-verdict motions were denied, and sentences imposed. We have combined appellants' separate appeals for purposes of this opinion, and new reverse all judgments of sentence and discharge appellants.

The sole contention by each appellant is that the evidence was insufficient to support the verdicts of guilty of criminal trespass and conspiracy to commit criminal trespass. Viewed in the light most favorable to the Commonwealth as verdict winner, the trial evidence established the following facts as stated in the opinion of the court below:

"On July 27, 1977, at 11:00 P.M. Mr. James Sanders observed a Plymouth Station Wagon traveling up and down a 'no outlet' gravel road at a slow pace several times. The road was a township route and was located in a country area. Several homes or farms were located at varying distances along the road. The third time the

[ 276 Pa. Super. Page 492]

    vehicle made a pass, its operator turned around in the Sanders driveway. Mr. Thomas Garber was with Mr. Sanders at the time. The two men's suspicions were aroused and they decided to investigate. They followed the station wagon at a distance in a car owned by Mr. Sanders. As they reached the next farm, owned by Mr. Lee Heim, a man (defendant Marshall by his admission) was observed in the yard between the house and a shed. When Garber and Sanders stopped, the man ran. Garber and Sanders took chase and the man disappeared into the woods behind the house.

"Meanwhile the slow-moving station wagon had turned around at the foot of the road and proceeded back up the dead-end road passing the Garber vehicle. Mr. Garber stopped the car and identified defendant Barbara Cowher as the driver of the vehicle. When asked what she was doing, Ms. Cowher replied she was 'just out for a drive.' She then turned and proceeded back down the road as the two men followed her at a distance. She turned around and came back past the two men. The men decided to inform John Bower (who lived near the intersections of this dead-end road on the main highway) of their observations as Mr. Bower was the nephew of the owner of the farm (Lee Heim) and served as overseer of the Heim residence. Mr. Bower accompanied the two men to the intersection of the roads and blocked Ms. Cowher as she was about to exit onto the highway. They told Ms. Cowher she'd have to wait there while the police were called. Within twenty minutes defendant Marshall appeared walking along the main road. Mr. Sanders recognized the man as the one he had observed in the Heim yard. Advised he would have to wait for the police, Mr. Marshall promptly entered the car occupied by Barbara Cowher and conversed and had a cigarette with her, demonstrating that he knew Ms. Cowher.

"Mr. John Bower, the nephew of Mr. Heim, testified that on July 26, 1977 at around noon some things had been moved in the Heim ...


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