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COMMONWEALTH v. ZIMMERMAN (03/20/69)

decided: March 20, 1969.

COMMONWEALTH
v.
ZIMMERMAN, APPELLANT



Appeal from judgment of Criminal Courts of Montgomery County, April T., 1966, No. 215, in case of Commonwealth of Pennsylvania v. Lamar T. Zimmerman.

COUNSEL

Abraham J. Brem Levy, with him William O'Donnell, for appellant.

Richard A. Devlin, Assistant District Attorney, with him Henry T. Crocker and William T. Nicholas, Assistant District Attorneys, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Wright, P. J., dissents on the opinion of Judge Honeyman below. Montgomery, J., dissents.

Author: Per Curiam

[ 214 Pa. Super. Page 63]

On January 11, 1967, Dr. Lamar T. Zimmerman was convicted on a charge of performing an illegal abortion. This is an appeal from the refusal of the trial court to grant defendant's motions for a new trial and in arrest of judgment. The only issue raised is whether sufficient evidence was presented to sustain the guilty verdict.

It is the duty of the court, in considering a motion for new trial and in arrest of judgment, to evaluate the sufficiency of the evidence by reviewing the entire trial record. The evidence must be read in the light most favorable to the Commonwealth, which, by reason of the verdict, is entitled to all reasonable inferences arising therefrom. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965), Commonwealth v. Moore, 398 Pa. 198, 157 A.2d 65 (1959). The effect of such motion is to admit all the facts which the Commonwealth's evidence tends to prove. Commonwealth v. Tabb, supra. These facts, however, must be sufficient to justify a verdict based upon guilt beyond a reasonable doubt. If the evidence itself is insufficient, the verdict of the jury does not add any greater weight to it.

The testimony at trial will be set out at length so that the basis for our decision is clear.

The Commonwealth produced five witnesses. Its case was based almost entirely, however, on the testimony of three witnesses. They were: (1) Sarah Yerger, upon whom the abortion was allegedly committed, (2) her mother, Elizabeth S. Moyer, and (3) Dr. John Kane.

Sarah Yerger

Sarah Yerger testified that she was sixteen years of age in April of 1966, at which time she was a high school student.

[ 214 Pa. Super. Page 64]

In March of 1966, Sarah was experiencing irregularity in her menstrual cycle and menstrual cramps, a condition which had persisted for two or three years. Although she had been under the treatment of another doctor for this condition, she became a patient of Dr. Zimmerman at the direction of her mother, who had been his patient for several years.

Sarah was first examined by defendant at his office on March 1, 1966, at which time her past history of irregular menses was discussed. As a result, defendant prescribed medication which tended to relieve her cramps but did not bring on her period.

Sarah returned to defendant's office on six different occasions for additional treatment. All of these appointments were held during regular evening visiting hours, with a receptionist and attending nurses present. All of these appointments were recorded in the ...


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