No. 359 Harrisburg, 1982, Appeal from the Judgment of Sentence of October 1, 1982 in the Court of Common Pleas of York County, Criminal Division, No. 1517 C.A. 1981
H. Stanley Rebert, York, for appellant.
Floyd P. Jones, Assistant District Attorney, York, for Commonwealth, appellee.
Spaeth, President Judge, and Cirillo and Cercone, JJ. Spaeth, President Judge, concurs in the result.
[ 335 Pa. Super. Page 459]
This is an appeal from the judgment of sentence imposed upon appellant's non-jury conviction for robbery and theft. Appellant raises three contentions on appeal: 1) was the verdict contrary to the evidence, weight of the evidence and to the law; 2) did the court err in refusing to hear his proffered evidence as to diminished capacity; and 3) was the sentence excessive? We affirm.
We must first dispose of appellant's sufficiency claim, since if the evidence was insufficient as a matter of law then he would be entitled to be discharged.*fn1 See Commonwealth v. Poindexter, 484 Pa. 472, 399 A.2d 390 (1979). The uncontested and unimpeached evidence established the following facts. Appellant walked into a branch office of York Bank and Trust. He was wearing reflective sun glasses. Appellant went up to a teller, handed her a paper bag, and said "Fill the bag." He further said "Quick" and when the teller did so slowly, he told her "Faster." After an amount of money had been placed in the bag, appellant grabbed the bag and then departed. The teller stated she was "very scared" and frightened. Appellant never claimed to be armed, never expressly threatened the teller, and was not observed with a weapon or even his hand in his pocket.
[ 335 Pa. Super. Page 460]
At trial appellant agreed with the above recitation but indicated he had not intended to frighten the teller. Furthermore, had she refused to give him the money, he claimed he would have left the bank without incident. Appellant's defense consisted of admitting the theft, but denying that he had threatened or intentionally placed the teller in fear of immediate bodily injury.
Appellant was convicted under 18 Pa.C.S.A. § 3701(a)(1)(iv), which reads:
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of ...