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filed: May 15, 1981.


No. 137 March Term, 1979, Appeal from Order of the Court of Common Pleas of Perry County, Criminal Division No. 25 of 1979.


C. Joseph Rehkamp, District Attorney, New Bloomfield, for Commonwealth, appellant.

Daniel W. Stern, New Bloomfield, for appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., dissents.

Author: Cercone

[ 287 Pa. Super. Page 40]

This is an appeal by the Commonwealth from the order of the Court of Common Pleas in Perry County which granted the defendant's motion for a demurrer. Finding the Commonwealth's contentions to be without merit, we affirm the

[ 287 Pa. Super. Page 41]

    decision of the court below for the reasons stated by the Honorable Keith B. Quigley, President Judge, in his opinion of August 29, 1979.

Our Supreme Court has recently held that in order "[t]o avoid a demurrer in a criminal prosecution, the Commonwealth must come forward with evidence which establishes beyond a reasonable doubt each element of the crime charged." Commonwealth v. Mason, 483 Pa. 409, 413, 397 A.2d 408, 411 (1979). The standards applied by our courts in ruling on a defendant's demurrer is whether the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Smith, 262 Pa. Super. 258, 396 A.2d 744 (1978); Commonwealth v. Hunt, 256 Pa. Super. 140, 389 A.2d 640 (1978); Commonwealth v. Kaulback, 256 Pa. Super. 13, 389 A.2d 152 (1978). With this perspective in mind, the facts in the instant appeal are as follows:

The defendant-appellee, Mr. Baker, was charged with Recklessly Endangering Another Person in violation of the Pennsylvania Crimes Code, 18 Pa.C.S. § 2705. This charge arose out of a "late night fracas" at a bar in Sherman's Dale, Pennsylvania. Shortly after 12:00 A.M. on December 19, 1978, Mr. Baker and two friends, one male, and one female, walked into the bar and ordered a six pack of beer. Three men sitting at the bar made remarks about the length of Mr. Baker's hair and the type of beer he ordered. An oral argument ensued which escalated into a physical brawl starting inside the bar and continuing on the outside. In the course of the fight, one of Mr. Baker's opponents picked up a two-by-four piece of lumber, slammed the end of it on the ground and told Mr. Baker to leave. Mr. Baker went to his truck, retrieved a gun and pointed it at his opponents. Unknown to all except Mr. Baker, the gun was not loaded. Mr. Baker then put his gun away, told his friends to get in the truck, received another six-pack of beer from the owner of the bar to replace the one that had been broken during the fight, and left.

[ 287 Pa. Super. Page 42]

The sole issue involved here is whether the actual present ability to inflict death or seriously bodily injury which is required by Commonwealth v. Trowbridge, 261 Pa. Super. 109, 395 A.2d 1337 (1978) has been shown by the Commonwealth in the instant case. In Trowbridge we ruled that mere apparent ability to inflict harm was not enough to support a conviction for recklessly endangering. Id., 261 Pa. Super. at 115 n.11, 395 A.2d at 1340 n.11. Thus, we there held that the pointing of an unloaded B.B. gun at two police officers was not sufficient for a conviction unless the circumstances surrounding the defendant's conduct were such that the alleged victims were nevertheless endangered despite the fact that the gun was unloaded. Id., 261 Pa. Super. at 116 nn. 14 & 15, 395 A.2d at 1341 nn. 14 & 15. For example, Trowbridge cites us to Commonwealth v. Painter, 32 Sommerset 115, 119 (Pa.C.P.1975) for the proposition that pointing an unloaded gun "at a person driving a passengerfilled car at fifty miles per hour on a public highway [is sufficient for a conviction under § 2705] since the requisite danger comes from the loss of vehicular control in such a panic situation." 261 Pa. Super. at 116 n.14, 395 A.2d at 1341 n.14.

Another circumstance in which a reaction to the accused's conduct could supply the element of actual danger of harm is where the pointing of an unloaded gun could trigger retaliatory gunfire. One such case is Commonwealth v. Stetler [Stettler], 36 Lehigh L.J. 525 (Pa.C.P.1976) in which the defendant pointed an unloaded shotgun at a policeman with defendant's wife, mother and another man standing nearby. The officer then pulled out his revolver and told the defendant to drop his weapon. The defendant complied and was placed under arrest. Although the shotgun was unloaded, the Stetler court nonetheless convicted the defendant for recklessly endangering because the officer did not know it was unloaded and very well might ...

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