No. 132 March Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Perry County, No. 377 of 1977.
David J. Foster, Lemoyne, for appellant.
C. Joseph Rehkamp, District Attorney, New Bloomfield, for Commonwealth, appellee.
Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., files a dissenting opinion.
[ 287 Pa. Super. Page 123]
Appellant, Kevin Gouse, takes this appeal from the judgment of sentence in the Court of Common Pleas of Perry County. After a non-jury trial, Mr. Gouse was convicted of recklessly endangering another person under the Crimes Code, 18 Pa.C.S. § 2705 (1973). This section of the Crimes Code provides that:
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.
After Mr. Gouse's post-trial motions were denied, he was sentenced to a term of imprisonment for three to twenty-three and one-half months.
In this appeal, appellant Gouse raises two issues for our consideration: (1) that the evidence was insufficient as a matter of law to establish that he placed or might have placed his alleged victims in danger of death or serious bodily injury; and, (2) that the sentence imposed by the lower court was excessive and, therefore, should be reconsidered and modified. We agree with appellant Gouse that the evidence was insufficient to support a conviction for recklessly endangering another person and we, therefore, do not reach the sentencing allegation.
This charge arose from an incident in Marysville, Perry County, Pennsylvania, on an evening in early November, 1977. At that time, two men, James Scholl and Michael Miller, were leaving a local pool hall when they were shouted to by appellant who was sitting in his vehicle across the street. The two men got into their car and pulled alongside of appellant's vehicle. An argument ensued during which appellant Gouse raised a shotgun and pointed it at the two men for less than one minute. At this point, a mutual friend of all parties concerned intervened and the shotgun was lowered.
[ 287 Pa. Super. Page 124]
At trial, the Commonwealth presented no evidence which would indicate that the shotgun pointed at the two men was loaded at the time. The defendant testified that the gun was not loaded and the friend who intervened in the incident also stated that he believed the gun was not loaded.
In construing the Crimes Code section on recklessly endangering, this court has recently determined that the common law assault requirement of actual present ability to inflict harm must be shown in order to support a conviction under the statute. Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337 (1978). Thus, the mere apparent ability to inflict harm is not sufficient for a conviction under section 2705, and the pointing of an unloaded weapon, without more, does not constitute recklessly endangering. Id. See also Commonwealth v. Baker, 287 Pa. Super. 39, 429 A.2d 709. In Trowbridge, however, we specifically retained the rule in Commonwealth v. Painter, 32 Somerset 115 (1976) which held that the pointing of an unloaded gun at a passenger filled car traveling fifty miles an hour created a great risk that the driver would lose control of the vehicle in a panic reaction to the defendant's actions. Commonwealth v. Trowbridge, 261 Pa. Super. at 116 n.14, 395 A.2d at 1341 n.14. The danger created in that case was a reasonably foreseeable reaction to the actor's conduct of pointing a ...