Aрpellant was found guilty by a jury of robbery as a felony in the first degree. He was then sentenced to six to
The evidence adduced at trial establishes that appellant entered a McDonald’s Restaurant in the early morning hours and jumped over the serviсe counter. He announced that “this is a robbery” and proceeded to push a cashier. As he was doing so, appellant held a pointed object under his shirt with one hаnd. The cashier and a co-worker both testified that they believed that the object which appellant was pointing was a gun. With his free hand, appellant began to take money from the cash register. However, when appellant began to use both hands to retrieve the money, he exposed the contents of the hand which he had kept under his shirt. He was holding, not a gun, but a six-inch door lock. Upon realizing that appellant did not possess a gun, one of the employees tried to stop appellant, but appellant escaped.
Appellant’s sole claim is that trial counsel was ineffective for failing to request a jury instruction on the lesser offense of robbery as a sеcond degree felony under 18 Pa. Cons.Stat.Ann. § 3701(a)(l)(iv) (Purdon 1983). When reviewing allegations of ineffectiveness of counsel, we must first determine if the underlying issue is one of arguable merit.
Commonwealth ex. rel. Washington v. Maroney,
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
18 Pa.Cons.Stat.Ann. § 3701(a)(l)(i) and (ii) (Purdon 1983). Appellant contends that his trial counsel was ineffective for failing to request the court to instruct the jury on robbery as a felony of the second degree. Robbery constitutes a felony of the second degree when a person, in the course of committing a theft:
“inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury.” 18 Pa.Cons.Stat.Ann. § 3701(a)(l)(iv) (Purdon 1983).
Appellant asserts that had defense counsel requested such an instruction, he would have been entitled to it since robbеry as a second degree felony is a lesser included offense of the first degree robbery charge. An offense can be considered a lesser included offense of a charge if each and every element of the lesser offense is necessarily an element of the greater.
Commonwealth v. Wise,
These same definitions were examined in
Commonwealth v. Sirianni,
However, appellant is not automatically entitled to havе the jury instructed on second degree robbery simply because that charge constitutes a lesser included offense of the first degree robbery charge. A defendant is entitlеd to such an instruction only where the evidence in the record would permit the jury to find, rationally, the defendant guilty of the lesser included offense but not the greater offense.
Commonwealth v. Wood,
Appellant asserts that he was entitled to such an instruction because the evidence supported a finding that appellant threatened the McDonald’s employees with “immediate bodily injury” but not with “immediate serious bodily injury.” According to appellant, since appellant carried only a lock, which cannot cause serious bodily injury, the viсtims were never placed in fear of serious bodily injury. Appellant further maintains that since the employees realized before appellant escaped thаt the hidden object was not a gun, any fear they had of serious bodily injury was unfounded.
Appellant’s focus on the true nature of the hidden object and on the state of mind of the victims is misplaced. Rather, the proper focus under the statute in determining the type of bodily harm threatened is on the defendant’s intent and actions.
Commonwealth v. Morton,
Appellant’s crime is not made less serious by the fact that he did not possess a gun, but was only simulating one.
Commonwealth v. Hurd,
The statute itself, by dividing the degrees of robbery into gradations of possible violence, demands that the jury make a decision as to the degree of violence that the defendant intended or used in the commission of the crime. In distinguishing between bodily injury and serious bodily
We affirm the order of the lower court denying appellant’s petition for post-conviction relief.
