The opinion of the court was delivered by: BRODERICK
BRODERICK, District Judge.
This matter comes before the Court on the defendant's Motion for a New Trial after a jury verdict of guilty on both counts of a two count indictment. The indictment charged the defendant in Count I with burglary of the Philadelphia National Bank (PNB) branch located in the King of Prussia Plaza, King of Prussia, Pennsylvania on August 15, 1974.
Count II charged the defendant with larceny of the same bank.
The defendant, in his Motion for New Trial, asserts that the Court erred in denying his oral motion for judgment of acquittal made at the conclusion of the Government's case and renewed after the defendant rested. (N.T. 3-13).
"In reviewing the denial of a motion for judgment of acquittal, the pertinent question is whether the trial court had reason to believe that there was sufficient evidence on which reasonable persons could find guilt beyond a reasonable doubt." United States v. Leach, 427 F.2d 1107 (1st Cir. 1970). It is not for the Court, ruling on a motion for a judgment of acquittal, to assess the credibility of witnesses or to weigh the evidence. 2 Wright, Federal Practice and Procedure: Criminal § 467, at 259. Rather, the Court must view the evidence in a light most favorable to the Government. United States v. Armocida, 515 F.2d 29 (3d Cir. 1975); United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). If a conviction is based on circumstantial evidence, the evidence need not be inconsistent with every conclusion save that of guilt, provided it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959). Applying this test, and viewing the evidence most favorably to the Government, we conclude that there was sufficient evidence for the jury reasonable to find the defendant guilty beyond a reasonable doubt.
On August 15, 1974, Joan Roskos, a PNB employee with 18 years of experience, was employed as a head teller for the King of Prussia office of PNB. On that day, she was working in a drive-in teller's booth which was situated in the Mall parking lot and was separated from the main PNB branch office located at the King of Prussia Mall. (N.T. 2-17). On August 15, 1974, Mrs. Roskos opened her teller's booth at 11:00 a.m. (N.T. 2-19). Sometime between 11:45 a.m. and 12:45 p.m., Mrs. Roskos observed a man walking directly toward the window of her teller's booth. (N.T. 2-20). She paid particular attention to this individual because of his distinctive dress, which consisted of a black banlon knit golf shirt, black pants, a white golf cap and sunglasses. (N.T. 2-21, 2-22). Between 12:45 p.m. and 1:45 p.m., Mrs. Roskos observed this same individual as he again walked directly toward her teller's booth. (N.T. 2-23). At 1:45 p.m., Mrs. Roskos closed her teller's booth and prepared to settle her work for the day. At 2:20 p.m., after completing her settlement, Mrs. Roskos walked to the washroom of her booth in preparation for leaving the booth for lunch. She looked out of the window of the booth and saw two men sitting on a tree lined embankment behind the booth. (N.T. 2-23). Both men were looking toward her booth, and one of the men was the same individual who had twice walked toward Mrs. Roskos' booth and who had attracted her attention because of his distinctive dress. (N.T. 2-24). Mrs. Roskos then took $11,000.00 out of the safe in her booth in order to replenish her cash drawer and be prepared for business upon her return from lunch at 3:00 p.m. (N.T. 2-25). After locking her cash drawer, Mrs. Roskos left the teller's booth and locked the door leading outside. On this occasion, because of the two men she had previously seen sitting on the embankment, Mrs. Roskos made certain that her door was locked. She then placed on a second security lock which was connected directly to the local police department. (N.T. 2-26).
Upon returning from lunch, Mrs. Roskos looked toward the embankment and noted that the two men were no longer there. Mrs. Roskos, when entering the teller's booth, noticed that the security lock had been turned off. She was not overly concerned, however, and assumed that perhaps the head teller had been in her booth for some reason during her lunch hour. (N.T. 2-27). At 3:00 p.m. when Mrs. Roskos opened her teller's booth for the afternoon's business, she discovered that her cash drawer was unlocked and empty. (N.T. 2-28, 2-29). She then promptly notified the proper bank officials.
At about 3:30 p.m. on the same afternoon, Mrs. Roskos gave a statement to agents from the F.B.I. During the course of the interview, she gave a description of the man who had earlier that day walked toward her teller's booth on two separate occasions. On August 27, 1974, Agent Sabinson, the F.B.I. agent assigned to the King of Prussia case, brought Mrs. Roskos a group of 12 photographs of individuals who fit the same general description as that of the person Mrs. Roskos had described on the day of the theft. (N.T. 2-31, 2-32, 2-78). Mrs. Roskos was unable to identify any of the photographs on that day. (N.T. 2-32, 2-81). However, pursuant to her request, Mrs. Roskos was again shown the same 12 photographs on February 7, 1975, and on that occasion identified a photograph of the defendant as the person who had twice walked past her booth on the day of the theft. (N.T. 2-33, 2-85). Mrs. Roskos also made an in court identification of the defendant as the person who had twice walked past her teller's booth and as the man who had been seated on the embankment on the day of the theft. (N.T. 2-31).
Agent Sabinson testified that on August 15, 1975, he fingerprinted the interior of the teller's booth which had been burglarized. (N.T. 2-70). During the course of this fingerprinting, Agent Sabinson lifted a latent fingerprint from the top handle of the safe inside the booth. (N.T. 2-72). After conducting this fingerprinting, Agent Sabinson policed the area where Mrs. Roskos had observed the two men sitting on the embankment. (N.T. 2-74). He located and secured from this area a paper cup, a crumpled-up cigarette package without a lining and a piece of white paper which was lined on one side with aluminum foil and which appeared to be the lining to the empty cigarette package. (N.T. 2-75).
The Government also produced a fingerprint specialist employed by the F.B.I. (N.T. 2-148). This expert testified that he had determined, after a comparison of the latent fingerprint taken from the top handle of the safe located in the burglarized teller's booth and the known left thumb print of the defendant, that both prints were made by the same finger. (N.T. 2-160). He further testified that latent prints developed from the crumpled cigarette package and the discarded lining of the package, both of which had been sent to him by Agent Sabinson, were identical to the known left index fingerprint of the defendant. (N.T. 2-160, 2-161).
We are satisfied that the above outlined evidence, viewed in a light most favorable to the Government, is sufficient to support a jury verdict of guilty on the two counts charged in the indictment. The evidence showed that the defendant was outside the burglarized teller's booth on August 15, 1974, the day when $13,052.00 was stolen from that booth. It also establishes that at some time the defendant was inside the teller's booth and touched the safe handle on the vault. From this evidence, the jury could reasonably conclude that on August 15, 1974, the defendant unlawfully entered the King of Prussia branch of PNB to commit a larceny, and that he did steal $13,052.00 which belonged to PNB.
In his new trial motion, the defendant contends that the jury's verdict was against the weight of the evidence. Such a motion is made pursuant to rule 33 of the Federal Rules of Criminal Procedure which provides that the Court may grant a new trial "if required in the interest of justice." A motion based upon the weight of the evidence, unlike a motion for judgment of acquittal, is directed to the sound discretion of the trial court, and the court may weigh the evidence and consider the credibility of witnesses. United States v. Morris, 308 F. Supp. 1348 (E.D.Pa. 1970). Indeed, it has been said that when ruling on such a motion the court sits as a thirteenth juror. 2 Wright, Federal Practice and Procedure: Criminal § 553, at 487. If the Court concludes that the verdict is contrary to the evidence, or its weight, and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted. However, the remedy is to be sparingly used and only in exceptional cases. United States v. Leach, 427 F.2d 1107 (1st Cir. 1970). In reviewing the evidence and assessing the credibility of the witnesses, we find that the verdict in this case was fully justified by the evidence.
The defendant's final contention is that the Court erred in not granting a mistrial as the result of the testimony given by Frank Hand, an evidence technician for the City of Philadelphia. Mr. Hand was called by the Government to establish that the fingerprints shown on a Government exhibit were the known fingerprints of the defendant, to which the latent prints found in the teller's booth and on the articles ...