Commonwealth v. ThomasCommonwealth v. Thomas
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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 service сounter. 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 hand. Thе 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 robbеry as a second degree felony under
(1) A person is guilty оf 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;
“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 robbery as a second degree felony is a lesser included offеnse 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,
298 Pa. Super. 485, 493, 444 A.2d 1287, 1291 (1982). The “serious bodily injury” required to prove first degree robbery is defined as “[bjodily injury which creates a substantial risk of dеath or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
These same definitions were examined in
Commonwealth v. Sirianni,
286 Pa.Super. 176, 428 A.2d 629 (1981).
Siri
However, appellant is not automatically entitled to have the jury instructed on second degree robbery simрly because that charge constitutes a lesser included offense of the first degree robbery charge. A defendant is entitled to such an instruction only where the evidenсe 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, 327 Pa.Super. 351, 475 A.2d 834 (1984); Commonwealth v. Sirianni, 286 Pa.Super. at 183, 428 A.2d at 633.
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 victims were never placed in fеar of serious bodily injury. Appellant further maintains that since the employees realized before appellant escaped that the hidden object was not а 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,
355 Pa.Super. 183, 512 A.2d 1273 (1986);
Commonwealth v. Mays,
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, 268 Pa.Super. 24, 29, 407 A.2d 418, 420 (1979) (defendant placing hand in pocket and pointing at victim shows thаt defendant intended to put victim in fear of serious bodily harm). Neither is the harm intended reduced to mere bodily harm simply because the victims realized before appellant escaped (but after appellant began taking the money), that appellant did not possess a gun. The proper question is whether the threat intended or posed by appellant was calculated to inflict fear of serious bodily injury. Commonwealth v. Mays, 248 Pa.Super. at 321, 375 A.2d at 118. The threat posed by the appearance of a gun is calculated to inflict fеar of deadly, not just mere bodily, injury. This threat enabled appellant to proceed with the theft. The fact that the victims eventually discovered that appellant did nоt have a gun may have served only to dissipate tension somewhat, if at all, during appellant’s escape. Moreover, the statute instructs that in determining the grade of thе felony we focus on the intent or act of the defendant and not the subjective state of mind of the victim. Appellant would not have been exonerated of the first degree felony even if his victims refused to take his threat seriously. Hurd, 268 Pa.Super. at 29, 407 A.2d at 420; Mays, 248 Pa.Super. at 321, 375 A.2d at 118.
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.
WIEAND, J., concurs in the result.