Opinion
June 19, 1958.
September 11, 1958.
Criminal law — Operating motor vehicle after suspension of license — Evidence — Sufficiency — Affidavit of juror after verdict — New trial — Discretion of trial court — Appellate review — Charge to jury — Question not raised in court below.
1. On appeal by defendant following conviction and sentence on an indictment charging him with operating a motor vehicle after his operator's license had been suspended, it was Held that (a) the evidence on behalf of the Commonwealth established all the elements of the violation; and (b) although the testimony of the Commonwealth's witnesses and that of defendant was contradictory, the evidence was sufficent to sustain the conviction.
2. Defendant's contention that the verdict was against the evidence, based upon an affidavit of one of the members of the jury, stating that the verdict was rendered on defendant's past reputation rather than on the evidence, was Held not to constitute valid ground for reversal.
3. The grant or refusal of a motion for a new trial is within the sound discretion of the trial judge.
4. If there is sufficient evidence to sustain a conviction, the appellate courts will not disturb the judgment of the court below.
5. Where it appeared that defendant contended that there was basic and fundamental error in the trial court's instructions to the jury, and that this point was not raised in the court below, it was Held that it would not be considered on appeal.
Before RHODES, P.J., GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ. (HIRT, J., absent).
Appeal, No. 120, Oct. T., 1958, from judgment of Court of Quarter Sessions of Lycoming County, Sept. T., 1956, No. 148, in case of Commonwealth v. Edward H. Fisher. Judgment affirmed.
Indictment charging defendant with operating a motor vehicle after suspension of operating privileges. Before GREEVY, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
Edward H. Fisher, appellant, in propria persona.
John P. Campana, Assistant District Attorney, with him George M. Hess, Jr., District Attorney, for appellee.
Argued June 19, 1958.
This appeal is from an order of the court below denying defendant's motion for a new trial.
Edward H. Fisher was charged with operating a motor vehicle after his operator's license had been suspended. He was indicted for violation of section 620-(h) of The Vehicle Code and was found guilty, by a jury, on May 14, 1957. A new trial was refused and Fisher was sentenced to pay a fine of $250, the costs of prosecution, and undergo imprisonment in the County Prison of Lycoming County for a period of thirty days.
The prosecution was instituted by a Pennsylvania State Policeman who testified that he was patrolling Route 84 in Lycoming County when he saw a truck parked on the opposite side of the road with an illegal inspection sticker thereon. He stated that he turned around and followed the truck; that Fisher was driving but that he could not overtake him due to a turnoff. He next saw the truck at a farm. Upon questioning, Fisher refused to answer except to give his name. The officer's testimony was corroborated by Mrs. Clara Edler.
The defendant testified that the truck was parked on his lane adjoining Route 84. He denied driving the truck and his testimony was corroborated by his wife and two disinterested witnesses, all of whom testified that defendant's wife was driving at the time in question.
Defendant, in his argument, contends that the verdict was against the evidence; that the verdict was against the weight of the evidence; that there was an abuse of discretion by the trial court in refusing to withdraw a juror and in refusing to instruct the jury to ignore remark of the prosecuting attorney and that there was basic and fundamental error in the trial court's instruction to the jury.
The last point was not raised in the court below and will not be considered on this appeal. Commonwealth v. Friday, 171 Pa. Super. 397, 90 A.2d 856.
The first point raised is based upon an affidavit of one of the members of the jury stating that the verdict was rendered on defendant's past reputation rather than on the evidence. This point also contains no valid ground for reversal. See Commonwealth v. Newcomer, 183 Pa. Super. 432, 132 A.2d 731.
The second point raises the question whether the verdict was against the weight of the evidence. A review of the record reveals that there is a definite contradiction between the testimony of the Commonwealth witnesses and that of the defendant. This contradiction involves the question of credibility and credibility of the witnesses is for the jury. If there is sufficient evidence to sustain a conviction our Appellate Courts will not disturb the judgment of the court below. Commonwealth v. Collura, 183 Pa. Super. 17, 128 A.2d 101.
The evidence in this case, as presented by the officer and a corroborating witness establishes all the elements of a violation of section 620-(h) of The Vehicle Code.
The granting or refusal of a motion for a new trial in this case was within the sound discretion of the trial judge. Our examination of the record does not disclose any abuse of such discretion. Commonwealth v. Ransom, 169 Pa. Super. 306, 82 A.2d 547; Commonwealth v. Nestor, 183 Pa. Super. 350, 132 A.2d 369.
After due consideration of the point of law raised in the third question and other facts appearing in the records we fail to find any merit in this point to justify a reversal of the court below.
Judgment and sentence affirmed.