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).
The Government also produced an auditor employed by PNB who testified that he arrived at the King of Prussia branch at about 3:50 p.m. on the day of the burglary. He then determined that on August 15, 1974, there was a $13,052.00 loss in that booth. The Government also produced testimony which established that the defendant had no recent employment record with PNB and has no employment record with the firm which has the janitorial contract with the King of Prussia branch of PNB. (N.T. 2-117, 2-124).
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 found near the booth were compared. During the examination of Mr. Hand, the following exchange occurred:
THE ASSISTANT U.S. ATTORNEY: What are your duties there?
MR. HAND: To fingerprint, search and sometimes to take a picture of the suspect.