Opinion
13-P-1288
11-04-2014
COMMONWEALTH v. PHILIP A. GIANATASIO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The sole question presented on appeal is whether the evidence presented by the Commonwealth was sufficient to support the verdict of the jury that the defendant, Philip A. Gianatasio, was guilty of the crimes of larceny and uttering a forged instrument. For the following reasons, we affirm.
Background. The charges against the defendant are based on his knowledge and conduct in depositing two checks into his personal checking account. The first check was number 489, dated June 11, 2007, drawn on the account of Fay Rodolfos, and made payable to the defendant in the amount of $45,611.94. The defendant deposited this check into his account at the Elm Street branch of the Northern Bank & Trust Company in Woburn on July 30, 2007. The second check was number 490, dated June 13, 2007, drawn on the account of Fay Rodolfos, and made payable to the defendant in the amount of $25,000. The defendant deposited this check into his account at the same branch of the Northern Bank & Trust Company in Woburn on July 13, 2007.
The defendant was charged with four counts of larceny over $250, in violation of G. L. c. 266, § 30, and four counts of uttering a false check, in violation of G. L. c. 267, § 5. On May 5, 2011, the Commonwealth filed a nolle prosequi of counts three and seven involving check number 493. On October 21, 2011, the jury found the defendant guilty concerning check numbers 489 and 490, counts one and two (larceny) and counts five and six (uttering). The jury found him not guilty on counts four and eight, regarding check number 494.
The circumstances surrounding these deposits are powerfully incriminating. Fay and James Rodolfos lived next door to the defendant for many years. The Rodolfos managed their own financial affairs until March, 2007, when both Fay and James became ill and were admitted to Winchester Hospital. Thereafter, James was transferred to a hospital in Peabody where he passed away on May 30, 2007. Fay was transferred to a rehabilitation facility in Winchester where she passed away on June 24, 2007.
The jury were warranted in finding that between March 30, 2007, and June 17, 2007, the Rodolfos' check book was in the physical custody of James' cousin, Nancy Irvin, who was given responsibility by the Rodolfos for writing checks to pay their bills. The checks were drawn on the Northern Bank and Trust Company where James and Fay had their account. Mr. Fred Doherty, a close friend of James and Fay for more than fifty years, delivered their mail to them and opened it in their presence. Mr. Doherty then took the bills that needed to be paid to Irvin who met with Fay once or twice a week. At these meetings, Fay presigned several checks for Irvin to sign and mail with the bills from her home in Tewksbury. Fay signed checks in order and they remained in the checkbook until Irvin removed them at her home and mailed them with the bills she paid.
Irvin followed a routine in which she recorded the purpose of the check, and its amount, date, and number in the checkbook's register before filling it out. For each check, Irvin filled in the payee, the amount and the date. She then compared the entry in the check register and the check to be certain there was no discrepancy. After mailing the check, Irvin then retained a copy of the bill in a file she kept for the Rodolfos. Irvin never signed Fay's name to a check.
Between March 30 and June 17, 2007, Irvin prepared every check from number 401 to number 456. She also mistakenly asked Fay to sign check number 491 out of order, but marked the checkbook register to indicate that she used that check on the same day she used check number 454. Irvin also made the following notation: "Fay, I used the next book by mistake. Check number is off. Will go back." The next day, June 17, 2007, Irvin resumed the earlier sequence and wrote check numbers 455 and 456. That day or a day later, Irvin returned the checkbook to Fay at her request. It contained several checks Fay had previously signed (which were in sequence following check number 456). By this time, Fay was ill and very frail. Fay passed away one week later on June 24, 2007, at the Aberjona Nursing Home.
Over the course of the month following Fay's death, the defendant deposited into his checking account at the Northern Bank & Trust Company four checks payable to him, bearing what purported to be the signature of Fay Rodolfos, and drawn on Fay's account at the same bank. They are as follows: (1) check number 493, in the amount of $21,750 was dated June 23, 2007, and deposited at the bank's Woburn Center branch on June 25, 2007, at 11:37 A.M.; (2) check number 494 in the amount of $75,000 also was dated June 23, 2007, and was deposited at the bank's Elm Street branch one hour later; (3) check number 490 in the amount of $25,000 was dated June 13, 2007, and was deposited in the bank's Elm Street branch on July 13, 2007; and (4) check number 489 in the amount of $45,611.94 was dated June 11, 2007, and deposited in the bank's Elm Street branch on July 30, 2007. Only the latter two checks are the subject of this appeal.
According to Irvin, the signatures on checks 493 and 494, each written the day before Fay's death, were genuine. A qualified handwriting expert opined that it was "probable" that the signatures on these checks were genuine. Neither Irvin nor the handwriting expert could determine who had written the other parts of these two checks. On the other hand, with reference to checks 490 and 489, Irvin testified that she did not see Fay sign these checks and did not believe the signatures were genuine. Likewise, the handwriting expert opined that the signatures on these checks were not written by the same person who had written the thirty-two known signatures of Fay Rodolfos which he examined.
On August 29, 2007, the defendant participated voluntarily in a recorded interview conducted by the Woburn Police. The interview tape was played for the jury (exhibit 7). He stated, among other things, that Fay Rodolfo gave him the four checks in June, 2007 both as gifts and in consideration of services to be performed for Fay by his wife when Fay returned to her home which they anticipated occurring after July 4, 2007. With regard to check numbers 489 and 490, the defendant stated that Fay gave them to him as gifts in mid-June, days before the date Irvin said she returned the checkbook to Fay. The defendant stated that he saw Fay write check numbers 493 and 494 the day before her death. The defendant conceded that the signatures on check numbers 489 and 490 appeared to be different from the signature of Fay Rodolfos who signed check numbers 493 and 494 in his presence. Finally, the defendant acknowledged that he was in financial distress and was behind in making payments on his mortgage and automobile.
Discussion. Under the familiar Latimore standard, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), when we review the evidence that was presented at trial to determine if it was sufficient, "we do not weigh the supporting evidence against conflicting evidence." Commonwealth v. Merry, 453 Mass. 653, 660 (2009). Our responsibility is to consider whether the evidence, and all reasonable and possible inferences favorable to the Commonwealth, was sufficient to enable any rational trier of fact to conclude that the defendant was guilty. Latimore, supra at 678. "[T]he evidence of a defendant's guilt may be primarily or entirely circumstantial." Commonwealth v. Lao, 443 Mass. 770, 779 (2005)
The evidence supports the view that the defendant had the motive, the means, and the opportunity to commit the offenses of uttering a forged instrument and larceny. The jury could find that the defendant's statement to the police that Fay gave him check numbers 489 and 490 in mid-June, 2007, was not true, and that his explanations of the purposes of these checks were also not true. A person's knowledge or intent may be determined from his conduct. See Commonwealth v. Aronson, 312 Mass. 347, 351 (1942). The jury are allowed to draw an inference of knowledge "unless the inference either is forbidden by some special rule of law, or is declared unwarranted because too remote, according to the ordinary course of events." Commonwealth v. O'Brien, 305 Mass. 393, 401 (1940). Based on the reasonable and possible inferences that could be drawn from the evidence, the jury could find not only that the defendant did not receive check numbers 489 and 490 in mid-June and that they were not given to him as gifts or in anticipation of serviced rendered, but also that he knew that the signatures on them were not genuine.
The principal argument by the defendant is that the Commonwealth failed to prove that he forged or participated directly in the forging of Fay's signature. However, such proof was not essential to either of the charges against the defendant. Uttering requires proof that the defendant offered as genuine, an instrument known to be forged, with the intent to defraud. Commonwealth v. O'Connell, 438 Mass. 658, 664 & n.9 (2003). Larceny likewise requires proof of an intent to steal, but not that any forgery designed to facilitate the theft was committed by the defendant. Commonwealth v. Salerno, 356 Mass. 642, 648 (1970).
Judgments affirmed.
By the Court (Green, Rubin & Agnes, JJ.),
Clerk
Entered: November 4, 2014.