Commonwealth v. Peacock , 246 Pa. Super. 212 ( 1977 )

JACOBS, Judge:

The facts in this case are uncontroverted. On August 16, 1975 two Philadelphia police officers, James Cattalo and Harry Marnie were walking down Wolf Street in Philadelphia after working the night shift. Officer Cattalo was wearing his blue policeman’s shirt, which was unbuttoned and out of his trousers, his official blue-striped police trousers and his service revolver on his right hip. He did not have his nameplate, badge, blackjack or nightstick. Officer Marnie was dressed in civilian clothes. At approximately 10:15 a. m., as both men proceeded down the street side-by-side, Officer Cattalo felt numerous tugs on his service revolver, brought his right hand down to keep the gun in its holster and yelled “He’s got my gun.” Officer Marnie, viewing the appellant Kenneth Peacock with his arm between Officer Cattalo’s right hip and arm, thereupon proceeded to punch the appellant twice in the head knocking him down. The appellant began kicking his feet and swinging his arms wildly at the officers and yelled “Don’t lock me up, I have a wife and four kids.” Unable to subdue the appellant, and after telling him he was under arrest, Officer Cattalo kicked the appellant in the chest thereby stopping the kicking and swinging. Appellant was charged with attempted theft by unlawful taking or disposition, resisting arrest and two counts of simple assault. The Commonwealth introduced two witnesses, both police officers, who testified, as far as is relevant for the purpose of this appeal, that there was a bar in the vicinity but that they didn’t see where the appellant came from. Officer Cattalo testified that the appellant appeared to be drinking but that his wobbly condition could have been from the blows he received, he wasn’t sure. He also testified that the appellant appeared “gazy-eyed” and “starry-eyed” but that he did not smell any liquor on his breath. Officer Marnie testified that “he appeared to have something to drink” and that the appellant staggered at detective headquarters. The defendant demurred to the Commonwealth’s evidence, rested, and was convicted only of resisting arrest.¹ He was sentenced to 18 months probation conditioned on his undergoing psychotherapy. This appeal followed.

Appellant raised a number of allegations of error in his post-trial written motions but argued only one point in his appellate brief. All other points are therefore deemed waived. Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975). The sole issue thus preserved for this appeal is the propriety of the lower court’s refusal to charge the jury in accordance with Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975). The appellant contends that sufficient evidence of intoxication was introduced in the Commonwealth’s case-in-chief to warrant a Graves instruction. The lower court ruled that insufficient evidence of intoxication was introduced and therefore denied the requested instruction. We agree with the lower court and affirm the judgment of sentence.

Admittedly, at the time the appellant was brought to trial,² “evidence of intoxication or drugged condition of the defendant [could have been] offered by the defendant whenever it [was] relevant to negative an element of the offense, 18 Pa.C.S. § 308 added by Act of December 6, 1972 (P.L. 1482, No. 334) § 1.” Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661, 665 n. 8 (1975). And it is quite possible that the charge to the jury could be required because of evidence found in the Commonwealth’s own case-in-chief. Commonwealth v. Rose, 457 Pa. 380, 389, 321 A.2d 880, 884 (1974). However, before such an instruction can be required “there must be evidence in the case sufficient to place in issue that fact concerning defendant’s mental condition.” Commonwealth v. Rose, 457 Pa. 380, 389, 321 A.2d 880, 884 (1975). Such evidence is absent in this case. Unlike Commonwealth v. Graves, supra, in which the defendant testified that he had consumed a quart or more of wine and had taken an LSD pill, or Commonwealth v. Haywood, 464 Pa. 226, 346 A.2d 298 (1975) in which a statement was read into evidence in which the defendant stated that he and his friends had consumed “four half-gallons of wine,” or Commonwealth v. Rose, supra, in which there was direct testimony that the defendant had been drinking early in the morning and had a blood alcohol content of .24%, the record in this case is devoid of any such evidence indicating that appellant was in fact intoxicated at the time of the incident. The testimony of the two police officers was no more than conjecture and speculation and as such did not require the Graves charge. Commonwealth v. Rose, supra; see, Commonwealth v. Mott, 234 Pa.Super. 52, 334 A.2d 771 (1975) (per Van der Voort J., with two judges concurring), Commonwealth v. Brown, 462 Pa. 578, 342 A.2d 84 (1975); Commonwealth v. Tervalon, 463 Pa. 581, 345 A. 2d 671 (1975); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Therefore, because the appellant did not establish the factual foundation for his requested charge, it did not “bear upon an issue in the case” and the trial court properly refused the instruction. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1975) (Roberts, J., filed July 6, 1976).

Judgment of sentence affirmed.

HOFFMAN, J., files a dissenting opinion, in which SPAETH, J., joins.

1 . Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 5104 (1973).

2 . The decision in Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975) was nullified through recent legislation. See Act of April 7, 1976, P.L. -, No. 32, 18 Pa.C.S. § 308 amending 18 Pa. C.S. § 308 (1973).

2 . The Crimes Code, supra; 18 Pa.C.S. § 2701.