Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County No. 3475, July Term, 1974. (Criminal) No. 1546 October Term, 1975.
Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellant.
Stewart J. Greenleaf, Asst. Dist. Atty., William T. Nicholas, First Asst. Dist. Atty., Milton O. Moss, Dist. Atty., Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Price and Van der Voort, JJ., concur in the result.
[ 244 Pa. Super. Page 435]
Appellant contends that the lower court erred when it refused to charge the jury that intoxication or drugged condition of the accused could negative the intent required for a finding of guilt.
On November 13, 1974, the Montgomery County Grand Jury indicted appellant on charges of burglary,*fn1 theft of movable property,*fn2 receiving stolen property,*fn3 and criminal conspiracy.*fn4 On May 1, 1975, a jury returned a verdict of guilty on the charges of burglary, theft and conspiracy. On May 20, 1975, the lower court denied appellant's post-trial motions and sentenced appellant to a term of imprisonment of 3 to 10 years for burglary and to suspended sentences on the other charges.
Prior to jury deliberations, appellant submitted a point for charge based on Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). The following colloquy occurred between the court and appellant's attorney:
[ 244 Pa. Super. Page 436]
"[Counsel]: Your Honor, since there is evidence in this case of drugs and use of alcoholic beverages, I request that you charge under Commonwealth v. David Lee Page 436} Graves, in the fact that they have to take into consideration the alcoholic affect on [sic] intoxication. I have a formal point for charge, if your want me to, I will read it.
"THE COURT: I have read it. Anything else?
"[Counsel]: That's all I have, Your Honor.
"THE COURT: I don't know whether to read it or not. It seems to me when a defendant gets up and says I entered the property knowing what I was doing, i. e. looking for somebody and not with the intent to commit a crime, I don't see ...