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COMMONWEALTH v. MOYER (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
MOYER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Blair County, March T., 1973, No. 73, in case of Commonwealth of Pennsylvania v. David Charles Moyer.

COUNSEL

Richard A. Consiglio, Public Defender, for appellant.

Edward S. Newlin, Assistant District Attorney, and Amos C. Davis, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J.

Author: Watkins

[ 232 Pa. Super. Page 121]

This is an appeal from the Court of Common Pleas, Criminal Division, of Blair County, by the appellant-defendant, David Charles Moyer, after a non-jury trial on a charge of fornication and bastardy; and from the denial of post-conviction motions.

The only question raised by this appeal concerns the weight and sufficiency of the evidence.

The prosecutrix testified that she met the defendant on March 12, 1972, in Tyrone, Pennsylvania, and again on March 19, 1972, and on another later occasion and

[ 232 Pa. Super. Page 122]

    that she had intercourse with him. She testified that he called her and informed her that he had lost his wallet in her friend's car with whom they were riding. Her friend found the wallet and for the first time from the documents in the wallet she found out the defendant's right name. He had used another name during their meetings. The prosecutrix became pregnant and bore a child.

The appellant denied that he had ever met the prosecutrix prior to being arrested and produced several witnesses who testified that he had been at a birthday party on the day in question. The witnesses were all relatives of the appellant and their credibility was for the factfinder.

The appellant places great weight on an identification made at the preliminary hearing. At the hearing, the prosecutrix and two friends all testified that an imposter, who the defendant had convinced to attend the hearing in his place, was the one with whom she had had intercourse. However, the imposter was the same general build as the appellant and was wearing the hat of the appellant pulled down over his face. After he removed the hat all of the witnesses identified him as not being the one who was with the prosecutrix and they all identified the appellant when he finally arrived at the preliminary hearing. It was stipulated that counsel had no knowledge of the attempted imposture. The appellant was outside and when he did come in the prosecutrix and witnesses immediately recognized him. At trial, they all identified the appellant.

The appellant now claims that since the prosecutrix and her friends had incorrectly identified the imposter as the perpetrator of the offense, that that fact destroyed ...


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