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COMMONWEALTH PENNSYLVANIA v. JOHN ZIMMERMAN (03/16/79)

decided: March 16, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN ZIMMERMAN, APPELLANT



No. 574 October Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas for Philadelphia County, Criminal Section, Trial Division, June Term, 1976, No. 1309.

COUNSEL

Lawrence S. Rosenwald, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., concurs in the result. Spaeth, J., files a concurring opinion. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 264 Pa. Super. Page 309]

This is an appeal from a non-jury verdict in the Court of Common Pleas of Philadelphia County finding appellant guilty of simple assault, robbery, and indecent assault. The lower court judge sentenced appellant to two to five years' imprisonment on the robbery charge and suspended sentence on the other charges. We affirm the decision of the lower court.

The incident in question occurred in the early morning hours of May 16, 1976. The Commonwealth's only witness, Hattie Murray, testified that she was returning from the airport when she stopped to eat breakfast at an all-night diner. Her car would not start when she left the diner and appellant, John Zimmerman, offered to help her. When he could not get the car started, appellant offered her a ride home. Although her home was only three blocks away and it was daylight, Mrs. Murray accepted. She testified that she wrote down appellant's license number before entering the car. Her further testimony was that appellant drove past her street and would not let her out of the car. He allegedly made indecent advances toward her and told her he wanted all her money. Mrs. Murray placed $82.00 on the front seat of the car, jumped out at a stop sign, and ran to her daughter's home. The police records reflect that she did not file her complaint with the police until almost three hours later.

Appellant testified that he offered Mrs. Murray a ride home after he was unable to start her car. According to appellant's version, it was Mrs. Murray who made the advances toward him and offered him money for his favors. She told him to drive past a friend's house where they sat and talked for ten to twenty minutes. Mrs. Murray then left the car.

[ 264 Pa. Super. Page 310]

Based on this evidence the trial judge decided to believe Mrs. Murray, stating that "[b]oth from the demeanor of this witness and the substantive content of her testimony, her evidence was credible." (Opinion of the lower court, p. 2). The judge found appellant's testimony "unworthy of belief." Id.

Appellant raises two issues for our review. First, whether the verdict was contrary to the weight of the evidence; and second, whether he was denied effective assistance of counsel when his trial counsel failed to object to questions concerning appellant's silence at the time of his arrest.

I.

In addressing the first issue, the test of the sufficiency of the weight of the evidence is whether, accepting as true all the Commonwealth's evidence and all reasonable inferences therefrom, the evidence is sufficient to prove beyond a reasonable doubt that defendant was guilty of the crimes charged. Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977). Appellant argues that Hattie Murray's testimony was so fraught with inconsistencies and so inherently unbelievable that the lower court judge erred in finding her testimony more credible than appellant's. Although there were inconsistencies in Mrs. Murray's testimony, the trial judge, sitting without a jury, was the arbiter of the credibility of the witnesses. Commonwealth v. Tillery, 457 Pa. 466, 326 A.2d 329 (1974). It is also the function of the fact finder to determine the weight that is to be given to the evidence. Commonwealth v. Rambo, 250 Pa. Super. 314, 378 A.2d 953 (1977). On appellate review, it is not our function to weigh the evidence and substitute our judgment but to determine whether the verdict is supported by the evidence or if the lower court committed an error of law or abused its ...


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