Commonwealth of Massachusetts v. Lewis

Full title: Commonwealth of Massachusetts vs. Susan E. Lewis

Court: Massachusetts Appellate Division, Southern District

Date published: Feb 13, 1989

1989 Mass. App. Div. 21 (Mass. Dist. Ct. App. 1989)

Opinion

February 13, 1989.

Present: Black, P.J., Shubow Dolan, JJ.

Practice, Civil, Motor vehicle infraction; Finding of "responsibility;" Lack of legal issues.

Report of court's dismissal of defendant's appeal. Action heard in the Dedham Division by C. George Anastos, J.

Dedham Police Department for the Commonwealth.

Robert N. Gross for the defendant.

Black, P.J.

This is a review of a claim of appeal by Susan E. Lewis from a finding of "responsible" by a trial judge, affirming a similar finding by the Clerk-Magistrate of the Dedham Division on a Civil Motor Vehicle Infraction issued by an officer of the Dedham Police Department alleging that the appellant was operating her motor vehicle the wrong way on a one-way street. As a consequence of the judge's finding of "responsible", the appellant was assessed a fine. She has appealed the judge's finding on the grounds that the finding "was against the weight of the evidence, and therefore, incorrect as a matter of law." On appeal, the appellant acknowledges that the citing police officer testified before the trial judge that he observed the appellant traveling the wrong way on a one-way street and that he could see the sign indicating that the street upon which she was traveling was a one-way street. The officer further testified that the sign was positioned so that the appellant could have easily seen it and that she lived in the area where the one-way street was located.

We conclude that no "issue of law" has been properly presented for our consideration. It is not disputed by the appellant that there was evidence presented which, if believed by the trial judge, should support his finding. The appellant, in effect, asserts that the "weight of the evidence" was contrary to the judge's finding. Quite apart from the matter of Civil Motor Vehicle Infractions, it has traditionally been the position of the appellate courts that the issue of credibility and the weight to be accorded to the evidence is a matter of determination by the trier of fact, who has the opportunity to hear and observe the witnesses [ Jancsy v. Hy-Land Realty, Inc., et. al., 58 Mass. App. Dec. 152, 157 (1976), New England Canteen Service, Inc. v. Ashley, 372 Mass. 671, 675 (1977)].

In short, if credible evidence is received by the trier of fact, there is no "issue of law" subject to review by this court based solely upon an assertion that the trial judge's finding is against the "weight of the evidence." The appeal must be dismissed.