No. 1240 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lycoming County at No. 80-10, 603.
James Robert Protasio, Assistant Public Defender, Williamsport, for appellant.
Ellen Laura Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.
Cavanaugh, Cirillo and Hoffman, JJ.
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Appellant, Dorothy Boettcher, was convicted by a jury of simple assault, aggravated assault, recklessly endangering another person and violating the Pennsylvania Uniform Firearms Act. Following the denial of post-verdict motions, appellant was sentenced to one to three years imprisonment for aggravated assault and one to two years imprisonment for the remaining charges, to run concurrently. In this appeal, appellant argues that (1) the evidence was insufficient to sustain her convictions, and (2) the lower court erred in not granting her motion for a continuance so that privately-retained counsel could prepare her case. For the following reasons, we reverse the judgment of sentence for violating the Pennsylvania Uniform Firearms Act, vacate the judgments of sentence for simple assault and recklessly endangering another person and affirm the judgment of sentence for aggravated assault.
In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981); Commonwealth v. Stockard, 489 Pa. 209, 212-213, 413 A.2d 1088, 1090 (1980). It is settled law that while guilt may be proved by direct or circumstantial evidence, it may not rest upon mere suspicion or conjecture. Commonwealth v. Gray, 297 Pa. Super. 123, 125, 443 A.2d 330, 331 (1982); Commonwealth v. Jones, 291 Pa. Super. 69, 72, 435 A.2d 223, 225 (1981); Commonwealth v. Beauford, 286 Pa. Super. 297, 300, 428 A.2d 1000, 1002 (1981). Using this standard, the facts adduced at appellant's trial may be summarized as follows.
On October 2, 1980, at approximately 2:30 a.m., Tami Crouser arrived in front of appellant's apartment building in Williamsport, Pennsylvania with Brenda Summers and Herbert Foster, Jr. While Summers and Foster went inside
[ 313 Pa. Super. Page 199]
appellant's apartment for a party, Crouser remained in her car asleep. Two hours later, she awoke and went inside appellant's apartment to use the bathroom. When Crouser emerged, appellant grabbed her and told her to leave. The pair wrestled on the floor until their scuffle was broken up by a party guest. Crouser then left the apartment and re-entered the car.
Shortly thereafter, Crouser, who wanted to leave, realized that Brenda Summers had her keys. She approached appellant's apartment only to find appellant in the doorway, pointing a gun. Crouser ran into appellant's bathroom and shut the door. Appellant remained outside the bathroom yelling for Crouser to get out. Crouser was able to escape only when Brenda Summers lured appellant away from the bathroom door.
Crouser, Summers and Foster returned to Crouser's car and tried to leave; Summers was in the driver's seat, Crouser in the front passenger's seat and Foster in the middle. Appellant approached the passenger's side of the car and, reaching through the open window, hit Crouser in the head with her gun. She then turned and twice fired her gun into the air. Again turning to the car, appellant smacked Crouser, with her hand, in the side of the neck and back of the head. Before appellant left, she fired a parting shot in the air.
As a result of being pistol-whipped by appellant, Crouser received ten stitches in her cheek and ...