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submitted: February 24, 1984.


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.

Author: Cercone

[ 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:

(a) Offense defined. --

(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 immediate bodily injury; . . . .

In the current case we must determine whether appellant's intent was adequately demonstrated when there was no actual threat or display of force but only a demand for money. While this precise issue has not been addressed before, similar situations have arisen under § 3701(a)(1)(ii).*fn2

In Commonwealth v. Hurd, 268 Pa. Superior Ct. 24, 407 A.2d 418 (1979) this court held that an actor's request to open a drawer, which was repeated in the following manner: "Bitch, open the drawer," while the actor appeared to have his hand, on an object in his pocket was sufficient to show that the actor intended to place the victim in fear of "immediate serious bodily injury." Hurd may appear to be a stronger case than the one currently before us, as there the defendant's action suggested he had a gun. However, more similar to the current controversy is Commonwealth v. Davis, 313 Pa. Superior Ct. 355, 459 A.2d 1267 (1983). The defendant in Davis was convicted under § 3701(a)(1)(ii) of robbing a pipe store which was open all night. He was observed entering the shop through a small window

[ 335 Pa. Super. Page 461]

    through which business was transacted. The defendant told an employee of the shop to: "Get back, Get back." This court held that Davis' "mode of entry and his warnings . . . certainly were aggressive actions which implicitly carried with them a threat of imminent bodily harm . . . ." When applied to the facts at hand, Davis requires that we find that the current evidence showed beyond a reasonable doubt that appellant, contrary to his claim, intended to put the teller in fear. A sun-glassed individual, who approaches a bank teller with a paper bag and commands that the bag be filled with currency and exhibits extreme impatience with a teller creating an atmosphere of extreme tension, can be reasonably presumed to intend to inflict fear into the mind of the teller within the meaning of § 3701(a)(1)(iv).*fn3

In his second contention, appellant argues that the trial court erred in prohibiting him from presenting a diminished capacity defense to negate the specific intent required for his conviction of robbery. The trial court held that such defense was only available in first degree murder prosecutions. The trial court, acknowledging the novelty of the problem relied upon the Subcommittee Note to Pennsylvania's Suggested Standard Jury Instruction 5.01B*fn4 to support its position.

[ 335 Pa. Super. Page 462]

All of the Supreme Court's past pronouncements on the doctrine of diminished capacity have been made in the context of premeditated murder cases. However, general language in Commonwealth v. Walzack, 468 Pa. 210, 221, 360 A.2d 914, 919 (1976), where the court said: "The thrust of the doctrine is to challenge the capacity of the actor to possess a particular state of mind required by the legislative for the commission of a certain degree of the crime charged", seems to imply the defense is available to other crimes. Similarly, in Commonwealth v. Brantner, 486 Pa. 518, 523, 406 A.2d 1011, 1014 (1979), the court stated: "Appellant is correct in noting that this jurisdiction recognizes diminished mental capacity as a defense to a charge requiring a specific intent." As the court in both of the above cases did not limit it's language to homicide situations, it would appear to be a reasonable inference that diminished capacity may be applicable to other crimes.

Additional support for the above conclusion can be gathered from the historical development of the defense of intoxication. In Commonwealth v. Santiago, 489 Pa. 527, 414 A.2d 1016 (1980); and Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975),*fn5 our Supreme Court held that evidence of intoxication could be used to negate the specific intent required to commit other specific intent crimes and in particular the crime of robbery. But for the intervention of the legislature in enacting a statutory prohibition as to the use of voluntary intoxication as a defense to crimes other than murder of the first degree, such a defense would be available in robbery prosecutions. See 18 Pa.C.S.A. § 308,*fn6

[ 335 Pa. Super. Page 463]

    at least until the recent Supreme Court's decision in Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984). As the legislature has not expressed its disapproval of the use of the diminished capacity in contrast to involuntary intoxication defense in situations other than premeditated murder, it could be argued that such defense is not so limited.

Our Supreme Court was faced in Commonwealth v. Garcia, with the specific issue of whether diminished capacity may be applied to crimes other than murder of the first degree. There the defendant raised diminished capacity as a defense to both felony murder and robbery. He argued that he was incapable of forming the intent to steal from the victim and hence he could not be held liable for robbery and similarly, could not be culpable of felony murder. Mr. Justice Hutchinson, writing for the majority, noted that the doctrine of diminished capacity has "to date" only been applied to first degree murder. See Commonwealth v. Terry, 501 Pa. 626, 462 A.2d 676 (1983); Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). He then went on to hold that:

Proper psychiatric testimony is admissible only to negate the specific intent required to establish first degree murder. See Commonwealth v. Weinstein, supra. Therefore, the determination of whether Garcia ever formed an intent to rob, and if so, when he formed such intent, was required to be made on the basis of the factual circumstances surrounding the criminal episode as developed by demonstrative evidence and testimony other than psychiatric expert testimony.

505 Pa. at 311, 479 A.2d at 477 (footnote omitted but discussed infra.)

Had the court concluded its discussion with the above holding, there would have been little reason here for us to discuss the issue further. However, in footnote three, (on 505 Pa. page 311, 479 A.2d page 477) the court acknowledges that the issue of whether "diminished capacity" is applicable to robbery was not open to Garcia since he

[ 335 Pa. Super. Page 464]

    admitted the theft, thereby admitting "precisely the same 'specific' intent" required for robbery. Therefore, it would appear that the court's holding, as it pertains to the current controversy, is advisory.

Unlike the Supreme Court in Garcia, we must address appellant's claim. In light of Garcia any of the inferences which are suggested above by Walzack, Brantner, Santiago and Graves,*fn7 appear to be contrary to the reasoning of the Garcia majority. Accordingly, even though the discussion of diminished capacity may have been unnecessary to the resolution of Garcia, it clearly expresses the majority's view and therefore should be followed. Hence, in the current appeal we can not find error in the trial court's refusal to hear and consider appellant's proffered psychiatric evidence.

Judgment of sentence affirmed.*fn8

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