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COMMONWEALTH v. BANKS (12/29/71)

decided: December 29, 1971.

COMMONWEALTH
v.
BANKS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Washington County, Sept. T., 1969, No. 90, in case of Commonwealth of Pennsylvania v. John Allen Banks.

COUNSEL

George B. Stegenga, with him D. Keith Melenyzer, for appellant.

Roger J. Ecker, Assistant District Attorney, with him Jess D. Costa, District Attorney, for Commonwealth, appellee.

Bell, C. J., Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Jones took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts joins in this dissenting opinion, and in addition dissents for the reasons stated in his dissenting opinion in Commonwealth v. Matthews, Author: Eagen

[ 447 Pa. Page 358]

This concerns the appeal of John Allen Banks who was convicted by a jury of having participated in the burglary-homicide of F. K. Fawcett in July 1969, in Washington, Pennsylvania. Banks was adjudged guilty

[ 447 Pa. Page 359]

    of murder in the second degree. In a subsequent and separate jury trial, Norvelle DeWitt Jennings, another alleged participant in the Fawcett crimes, was convicted of murder in the first degree. Today, we affirmed the judgment and conviction of Jennings. As noted in our opinion disposing of the Jennings appeal, the evidence of guilt introduced by the Commonwealth in the Jennings trial was more substantial than that offered during the Banks trial.

The facts giving rise to the prosecutions are detailed in our opinion disposing of the Jennings appeal and will not be repeated here.

In the instant appeal, it is urged Banks is entitled to a new trial because "the verdict was against the weight of the credible evidence," and also because certain errors during the trial proceedings were prejudicial to Banks' rights.

In reviewing the validity of a criminal conviction, it is not the duty of this Court to weigh the evidence or to pass upon the credibility of the trial witnesses. Cf. Commonwealth v. Green, 358 Pa. 192, 56 A.2d 95 (1948). However, this does not mean that in a proper case, we are precluded from awarding a new trial in order to prevent a miscarriage of justice,*fn1 if the assignment of error under discussion is construed to establish that the evidence below was such that justice requires a new trial. However, in the instant case, we are not so persuaded. The sufficiency of the evidence to sustain the conviction is not disputed, and our review of the record satisfies us that no error of law ensued in leaving the issue of guilt to the jury's determination.

[ 447 Pa. Page 360]

Likewise, we find no merit in the position that trial errors mandate a new trial.

It is first asserted the conviction should not stand because Banks was not properly and timely ...


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