dissenting:
Appellant contends that the lower court erred in refusing to charge the jury that a defendant’s intoxication may negate the required intent to commit the crime charged. I agree, and would, therefore, reverse the judgment of sentence.
On November 7, 10, and 12, 1975, appellant was tried before a jury on charges of unlawful taking or disposition,1 simple assault,2 and resisting arrest.3 Officers James Cattalo and Harry Marnie testified to the following facts. On August 16, 1975, the officers, both off-duty, were walking in the 2400 block of Wolf Street in Philadelphia. Officer Cattalo was wearing police uniform trousers and a short-sleeved blue shirt which was unbuttoned and hanging outside his pants. He was carrying his service revolver on his right hip, but he did not have his badge, nameplate, handcuffs, blackjack, night stick or extra ammunition. Officer Marnie was wearing civilian clothes.
As the men were walking towards the northwest corner of Wolf and Hemberger Streets, Officer Cattalo felt *217several tugs on his service revolver. Officer Cattalo put his right hand over his gun and yelled: “He’s got my gun.” Officer Marnie then punched appellant twice in the head and knocked him down. Appellant started kicking and swinging his arms wildly. After informing appellant that he was under arrest, Officer Cattalo kicked appellant in the ribs, thereby ending appellant’s resistance.
Officer Cattalo testified that the above events occurred within 15 feet of Moo’s bar at the northwest corner of Hemberger and Wolf. When the prosecutor asked Officer Cattalo if he was able to tell if appellant had been drinking, Officer Cattalo responded: “He appeared to be drinking, but I couldn’t be sure because it may have been from the blows that he received.” Officer Cattalo testified that he was not close enough to appellant to smell liquor on his breath, but he observed that appellant was “gazy-eyed” and “starry-eyed” and that he “wobbled.” On cross-examination, Officer Cattalo denied that he himself had been drinking in Moo’s bar prior to the incident of August 16, 1975.
Officer Marnie testified that the above events occurred within 20 to 30 feet of Moo’s bar. When the prosecution asked if Officer Marnie had noted whether appellant had been drinking, Officer Marnie responded that appellant “appeared to have [had] something to drink.” He based this opinion on the fact that appellant staggered to the men’s room at the police station. On cross-examination, Officer Marnie denied drinking at Moo’s bar on the morning of the incident. He also denied that the incident occurred in Moo’s bar and that the police officers forcibly removed appellant from the bar.
At the conclusion of the above testimony, the prosecution and the defense both rested. Appellant then offered the following points for charge:
*218“30. [Appellant] has claimed that he was intoxicated at the time of the incident.4
“31. Intoxication is not a defense in itself, but maybe relevant to negate an element of the crimes charged. 18 Pa. § 308.
“32. All of the crimes [appellant is] charged with requires a criminal intent on his part.
“33. Therefore, if you find that [appellant] was so intoxicated that he could not form the intent to commit these crimes, you must find him not guilty.”
The trial court refused to give these requested points for charge. Appellant was convicted only of resisting arrest. The lower court sentenced appellant to 18 months probation, conditioned upon appellant undergoing psychotherapy. This appeal followed.
Evidence of intoxication was relevant to negate an element of the offense of resisting arrest. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 308; Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975) 5. In order to establish the guilt of one accused of resisting arrest, the Commonwealth must prove beyond- a reasonable doubt that he possessed the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty.6 However, “the Common*219wealth’s burden to prove beyond a reasonable doubt all elements of the crime does not require it to disprove a negative. Thus, to enable a defendant to seek to negate specific intent by reliance on the fact of his intoxication, there must be evidence in the case sufficient to place in issue that fact concerning defendant’s mental condition. Such evidence may be adduced by the defendant as part of his case, or, conceivably, may be found in the Commonwealth’s own case in chief or be elicited through cross-examination. Once a defendant has come forward with such evidence, or it is in the case otherwise, the Commonwealth, as we have indicated above, may introduce testimony to refute it, but is under no duty to do so.” Commonwealth v. Rose, 457 Pa. 380, 389-90, 321 A.2d 880, 884 (1974). See also Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Haywood, 464 Pa. 226, 346 A.2d 298 (1975). If there is evidence in the record to bring the issue of a defendant’s intoxication into the case, the trial court must instruct the jury that it may consider such evidence when determining whether the Commonwealth had proved beyond a reasonable doubt that he possessed the intent to commit the crime of which he is accused. Commonwealth v. Kichline, supra; Commonwealth v. Haywood, supra.
I believe that there was evidence in the case sufficient to place in issue appellant’s intoxication. Both police officers testified that appellant appeared to have been drinking and they substantiated this opinion by pointing to particular characteristics and conduct of appellant. They asserted that appellant appeared “gazy-eyed” and “starry-eyed” and that he “wobbled” and “staggered”. This evidence is sufficient to raise a reasonable doubt as to appellant’s sobriety and possession of the requisite intent to resist arrest. See American Law Institute, Model Penal Code, § 1.12 (formerly § 1.13) (Proposed Official Draft, 1962). See also American Law Institute, Model Penal Code, Comment § 1.13 at pg. 108 (Tent. Draft No. *2204, 1955).7 Therefore, the lower court should have read the requested instructions to the jury.
In Commonwealth v. Haywood, supra, the prosecution introduced a pre-trial confession in which the defendant stated that he and four friends had consumed four half-gallons of wine shortly before robbing a gas station and killing the attendant. In the confession, the defendant did not indicate how much wine he drank himself or that he was intoxicated when he participated in the crimes. Nevertheless, the Supreme Court held that this confession placed the issue of defendant’s intoxication at the time of the crimes before the jury, and that the lower court erred in not instructing the jury that it could consider such evidence in determining whether the Commonwealth had proved beyond a reasonable doubt defendant’s *221intent to commit premeditated murder.8 In comparison to Commonwealth v. Haywood, supra, there is evidence in the instant case that appellant appeared and acted in an intoxicated manner at the time he allegedly resisted arrest.9 If a jury could reasonably doubt that a defendant possessed the mental capacity to commit murder because he consumed an unspecified amount of wine, it could reasonably doubt that appellant, who was “starry-eyed” and “gazy-eyed” and who “wobbled” and “staggered”, possessed the requisite intent to resist arrest. Therefore, the lower court should have granted the requested points for charge. Because the lower court failed to do so, I would reverse the judgment of sentence.
SPAETH, J., joins in this dissenting opinion.. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 3921.
. The Crimes Code, supra; 18 Pa.C.S. § 5104.
. Appellant admits that point for charge number 30 was properly denied. Appellant did not testify at trial.
. The legislature has since amended 18 Pa.C.S. § 308. See Act of April 7, 1976,-P.L.-, no. 32; 18 Pa.C.S. § 308 amending 18 Pa.C.S. § 308 (1972). 18 Pa.C.S. § 308 now states: “Neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense, except that evidence of such intoxication or drugged condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.”
. The Crimes Code, supra; 18 Pa.C.S. § 5104.
. Section 1.12 of the Model Penal Code provides as follows:
“(1) No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed.
“(2) Subsection (1) of this Section does not:
“(a) require the disproof of an affirmative defense unless and until there is evidence supporting such defense; . . . ”
The Comment to section 1.13 of the Penal Code states, in pertinent part: “The draft does not attempt to state how strong the evidence must be to satisfy the test that ‘there is evidence’ supporting the defense. The Council of the Institute thought it the wiser course to leave this question to the courts. It may be noted, however, that Rule 1(2) of the A.L.I. Model Code of Evidence defines the ‘burden of producing evidence of a fact’ to call for ‘sufficient evidence ... to support a finding that the fact exists.’ We have no doubt that such a standard is too onerous to be accepted for the present purpose. It should suffice to put the prosecution to its proof beyond a reasonable doubt that the defendant shows enough to justify such doubt upon the issue. We think that most courts would construe the section in this way.” (Emphasis supplied) (at 110).
The lower court rejected appellant’s proposed instructions because he could not point to “reasonably definitive” evidence of intoxication “fortified By factual observations.” This approach contravenes the standard adopted by the American Law Institute in its Model Penal Code. The record need not contain enough evidence to support a finding that appellant was intoxicated; it need only contain enough evidence to justify a reasonable doubt as to appellant’s intoxication.
. In its opinion rejecting appellant’s post-verdict motions, the lower court stated that, “[tjhere was no evidence of the extent of the drinking and no evidence as to the effect such a quantity would have had on defendant’s capacity to formulate the requisite intent. Vague testimonial references to drinking, with no specificity as to amount consumed, nor testimony that drinking caused intoxication, does not constitute evidence of intoxication.” In light of the Supreme Court’s holding in Commonwealth v. Haywood, supra, this is obviously an erroneous statement of the law.
. In Commonwealth v. Kichline, supra, a defense witness testified that the defendant’s breath smelled of alcohol about one hour before the commission of a murder. However, the witness testified that the defendant’s conduct at that time was not in any way adversely affected by the alcohol. Defendant “didn’t act out of line or nothing, . . ” Our Supreme Court held that the mere odor of alcohol upon one’s breath is not sufficient to bring the issue of intoxication into the case. In the case at bar, there is specific testimony that appellant’s conduct and appearance at the time of the offense charged suggested that appellant was acting under the influence of alcohol.