No. 02315 Philadelphia 1983, APPEAL FROM THE JUDGMENT OF SENTENCE AUGUST 8, 1983 IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY, CRIMINAL NO. 524, 525 OF 1982
Ferris P. Webby, Assistant Public Defender, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Cirillo, Del Sole and Popovich, JJ.
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Appellant was tried by jury in the Court of Common Pleas of Luzerne County and found guilty of driving under the influence of alcohol and receiving stolen property. He appeals from the judgment of sentence entered August 8, 1983.
The first question appellant presents for our review is, "Was the finding of guilty on the charges of driving under the influence and receiving stolen property against
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the evidence, the weight of the evidence and the law?" Ordinarily when this court decides issues on appeal, we restrict ourselves to the Statement of Questions Involved in the appellant's brief for a definition of the issues to be decided. Pa.R.A.P. 2116(a). In this case we must ask what decidable issue appellant's first question raises.
In the trial court, in support of his post-verdict motions in arrest of judgment and for a new trial, appellant offered the selfsame broad and general attacks on the verdict as comprise his first "issue" on appeal. The trial court construed the motions as alleging that the evidence was insufficient to support the verdicts, and accordingly addressed the sufficiency of the evidence in its opinion denying the motions. In the Argument portion of his brief to this Court, appellant contests the sufficiency of the evidence, apparently satisfied that this is the issue raised in his Statement of the Questions Involved. However, the only relief appellant requests of this Court is that we grant him a new trial. If, indeed, the evidence were insufficient to support the verdicts a new trial would be not only inappropriate, but constitutionally impermissible. When a verdict of guilty is overturned on insufficiency of the evidence grounds, the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes retrial. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). A new trial is a proper remedy when the verdict is found to be against the weight of the evidence. See Commonwealth v. Graeff, 296 Pa. Super. 480, 483-84 n. 3, 442 A.2d 1153, 1154 n. 3 (1982).
Sufficiency of the evidence and weight of the evidence are discrete inquiries . . . . In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt . . . .
A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that
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there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion . . . . The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.
Commonwealth v. Taylor, 324 Pa. Super. 420, 425, 471 A.2d 1228, 1229-30 (1984); accord, Commonwealth v. Sample, 321 Pa. Super. 457, 468 A.2d 799 (1983) (allocatur denied); see also Commonwealth ...