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decided: June 28, 1976.


Appeal From the Order of May 30, 1975, of the Court of Common Pleas, Criminal Division, of Delaware County, at No. 21 of September Term, 1972. No. 1532 October Term, 1975.


David E. Auerbach, Asst. Public Defender, Media, for appellant.

Ralph B. D'Iorio, Asst. Dist. Atty., Media, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Price

[ 241 Pa. Super. Page 487]

This is an appeal from the lower court's denial of appellant's Post Conviction Hearing Act petition. We find no merit in appellant's contentions and affirm the order of the court below.

About 12:45 a. m. on April 10, 1972, police officers observed appellant in the act of robbing, at gunpoint, a 7-11 food store in Ridley Township, outside Philadelphia. The booty netted in this nefarious enterprise included the wallet of an employee, $66.00 in bills from the cash register and a carton of Pall Mall cigarettes. After leaving

[ 241 Pa. Super. Page 488]

    the store, appellant entered his car and avoided immediate capture by evading a police blockade. During a subsequent chase, which ultimately involved thirteen police vehicles, appellant drove at speeds of seventy to eighty miles per hour and fired several shots at his pursuer, striking one car on the windshield. He was eventually apprehended when he attempted to go through a gas station and collided with a parked truck.

At the time of appellant's arrest, the $66.00 was found on his person; the 7-11 employee's wallet fell from the car when the driver's door was opened; packs of Pall Mall cigarettes littered the car's interior; and, a .32 caliber automatic pistol, together with two empty shell casings, lay on the floor of the car.

The appellant was indicted on various charges including, inter alia, robbery and robbery by assault and force,*fn1 burglary,*fn2 larceny,*fn3 receiving stolen goods*fn4 and attempt with intent to kill.*fn5 Appellant was interviewed twice and represented at arraignment by a member of the defender's office. The case was originally listed for trial on January 8, 1973, but was continued to February 5, 1973, to allow a substitute counsel additional time to prepare his defense. On February 5 and 6, 1973, appellant was tried before a judge and jury. Following a verdict of guilty on all charges, trial counsel filed post-trial motions for a new trial. Subsequently, a motion entitled "supplemental reason for a new trial" was added, a contribution of appellant's third counsel. This motion urged ineffectiveness of appellant's trial counsel as a ground for a new trial. These motions were argued and denied. The appellant was sentenced on December 21, 1973. No

[ 241 Pa. Super. Page 489]

    appeal was taken from this disposition. On September 11, 1974, the appellant filed a petition under the Post Conviction Hearing Act.*fn6 A hearing on this petition was held January 17, 1975, after which the lower court denied relief. The instant appeal followed.

The first alleged point of error raised by appellant concerns the trial court's charge to the jury on the issue of appellant's defense of involuntary intoxication. Appellant never denied or disputed, at trial or otherwise, the facts of the 7-11 store robbery and the subsequent police pursuit, or his involvement as the principal therein. His theory of defense was that he mistakenly injected a drug with which he was unfamiliar, thinking it to be a drug he used regularly, and that due to the effects of this drug he became totally unaware of and thus unable to control his behavior. Appellant testified that, at the time of the events relevant to this appeal, he was addicted to cocaine and methedrine. On the night of the robbery, appellant stated, some people came by his apartment with drugs to sell. He bought some of the merchandise, allegedly thinking it to be methedrine when it was actually mescaline. Appellant injected the drug into a vein and then left the apartment, entering his girl friend's car. From this point, according to his testimony, appellant had no recollection of the ensuing events, only returning to consciousness three or four days later, in the hospital. Appellant stated that he had never taken mescaline before, and was thus unfamiliar with its effects. The legal argument ...

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