No. 1088 October Term, 1978, Appeal from judgment of sentence of the Court of Common Pleas, Trial Division, Criminal Section, First Judicial District of Pennsylvania, April Term, 1977, Bill Numbers 1365.
Ronald Rubin, Philadelphia, for appellant.
Nancy Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Watkins, JJ. Spaeth, J., concurs in the result.
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This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County by the defendant-appellant, Sidney Gibson, after conviction in a non-jury trial of robbery and conspiracy. Post-trial motions were denied and he was sentenced to seven concurrent terms of ten years probation.
The facts are as follows: On April 4, 1977, at approximately 10:45 p. m. two men entered the Stardust Bar at 18th and Rockland Avenue in Philadelphia. While one of the two men held a shotgun on the patrons of the bar, the other, Sidney Gibson, the defendant herein, ordered the patrons to put their money on the bar. After collecting the money, defendant stated, "If I find anything left on anybody we're going to blow them away". Defendant then proceeded to search James Johnson, the owner of the bar, stating to another patron, "Tell him I'll blow him away". The defendant and his partner then backed out of the bar, fled in an automobile and were pursued by James Johnson and the police. Defendant was arrested at his home approximately two hours later, at 12:45 a. m., April 5, 1977.
The only questions raised on appeal are (1) should the psychiatric-neurological testimony have been admitted under the rationale of Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914, 918 (1976). Since the proffer of proof targeted not only on defendant's general "personality makeup", but upon his mental incapacity to formulate the specific intent required in the crime of robbery; and, (2) even if the proffered evidence is held to be unrelated to defendant's specific intent as introduced, should it still be admitted as bearing on the probability that this defendant committed the crime charged? Both questions were answered in the negative by the court below.
The Commonwealth contends that the defendant waived his right to raise the question concerning the admissibility of the psychiatric evidence by failure to include his claim that the testimony would tend to negate the specific
[ 264 Pa. Super. Page 551]
intent to commit robbery in his offer of proof. An offer of proof must be sufficient to alert the trial judge of the purpose for which the evidence is being offered, and a trial court's exclusion of evidence must be evaluated on appeal in the contents of the offer at the time it was made. Commonwealth v. Cain, 471 Pa. 140, 149, 369 A.2d 1234 (1977); Commonwealth v. Harper, 479 Pa. 42, 387 A.2d 824, 827 (1978). A party specifying the purpose for which evidence is admissible cannot later complain on appeal that the evidence was admissible for still another purpose. Commonwealth v. Cain, supra.
The offer of proof demonstrates that the psychiatrist's testimony was offered to show that the defendant's personality traits were such that he was not likely to participate in a robbery. The offer was as follows:
"The purpose of my calling Dr. Nelson is to establish that this defendant does not have the mental or emotional capacity to formulate and carry out a scheme of robbery such as was testified to by the ...