James C. Hogan, Easton, for appellant.
Charles H. Spaziani, Dist. Atty., John E. Gallagher, 1st Asst. Dist. Atty., Easton, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., filed a dissenting opinion in which Jones, C. J., and O'Brien, J., join.
Daniel Lee Graves was convicted by a jury in Northampton County for first degree murder, robbery and burglary. After denial of post-trial motions and the imposition of a sentence of life imprisonment under the murder indictment, this appeal was filed.*fn1
On September 28, 1971, Daniel Graves, appellant, and his cousins, Thomas and Edward Mathis, pursuant to a prior conceived plan, burglarized the residence of one Sebastiano Patiri, a 75 year old man and robbed him. During the course of the robbery and burglary, Mr. Patiri sustained injuries which resulted in his death.
Appellant Graves testified at trial that on the day of the incident he consumed a quart or more of wine and had taken a pill which was a form of Lysergic Acid Diephylanide (LSD). Appellant testified that he began hallucinating and saw "cars jumping over each other", as well as other strange phenomena. He then became unconscious and suffered limited amnesia, thus he contended that he had no recollection of the occurrence at the Patiri home.
The defense called a Dr. Sadoff, a professional psychiatrist who testified that he initially saw Graves on February 29, 1972, and then again on May 16th of that year. As a result of this examination and evaluation, which included
a polygraph and a sodium amytal test, he determined that Graves was telling the truth when he stated that he was under the influence of the wine and the LSD tablets during the afternoon of September 28, 1971. The doctor testified that in his opinion, appellant was under the influence of the two intoxicants and at the time of the Patiri attack "his mind was such that he wasn't able to form the proper conscious intent to take a life, to assault." Defense counsel then attempted to elicit from the doctor an opinion as to whether or not Graves at the time of the incident "could consciously form the specific intent to take or steal from a person or individual." An objection to this question was sustained and this ruling is assigned as error. Concomitantly, it is argued that the trial court erred in refusing a request to charge the jury that if they found Graves incapable of forming the intent to commit burglary or robbery because of the consumption of wine or the ingestion of the drug, or both, he could not be guilty of these offenses.*fn2
Relying on this Court's decision in Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971), the trial court concluded that evidence of intoxication was irrelevant as to the robbery and burglary charges. Regrettably, although the trial court was adhering to a pronouncement of this Court, this ruling was erroneous and the judgments of sentence must now be reversed.
In Commonwealth v. Tarver, supra, this Court stated:
"If the charge is felonious homicide, intoxication, which is so great as to render the accused incapable of forming a wilful, deliberate and premeditated design to kill or incapable of judging his acts and their consequences, may properly influence a finding by the trial court that no specific intent to kill existed, and hence to conclude the ...