Appeal, No. 289, Oct. T., 1960, from judgment and sentence of Court of Oyer and Terminer of Philadelphia County, Nov. T., 1959, No. 445, in case of Commonwealth v. Oscar Williams. Judgment and sentence affirmed.
Stanley M. Greenberg, with him Ochman & Greenberg, for appellant.
William H. Wolf, Jr., Assistant District Attorney, with him John F. Hassett and Domenick Vitullo, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 193 Pa. Super. Page 602]
This is an appeal from the sentence of the court below on a charge that the defendant did unlawfully interfere with an elector while the elector was inside the enclosed space, contrary to the provisions of the Election Code, Act of June 3, 1937, P.L. 1333, § 18308 25 PS § 3530.
The facts are as follows: On November 3, 1959 a general election was held in Philadelphia; Oscar Williams, the appellant, a committeeman, went to the home of Elmyra Tony, prosecutrix, and urged her to come out and vote. She accompanied him to the polling place and, after signing the registry book, entered the voting machine booth. She attempted to pull the machine's curtains together but before she had completely closed the curtain, the appellant, who was standing beside the machine, said: "All you have to do is make sure you vote the right way now." He then extended his arm over Mrs. Tony's left shoulder and grasped and pulled a party lever. Mrs. Tony said: "You shouldn't have done that." Mr. Williams thanked her and she replied: "Thanks for what? I didn't do anything." She then walked out of the polling place without speaking to anyone else.
The appeal "is based on the fact that the court below founded a verdict solely upon the incredible testimony of one witness, whose story cannot be believed because the incontrovertible physical facts dictate that her accusation is false."
The court below arrested judgment upon the first count of the indictment which charged an unlawful marking of the ballot. This was done because the court
[ 193 Pa. Super. Page 603]
evidently agreed that the voting machine lever could not have been pulled down because the curtain was not fully closed.
Appellant's counsel now argues that the second count of unlawful interference should likewise have been thrown out because "the only allegation of interference is the 'pulling of the lever' and if this did not occur as the court has indicated, then no interference ...