Opinion
10-P-1041
04-11-2012
COMMONWEALTH v. CHRISTOPHER A. FALCO.
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
On appeal from his convictions on a charge of perjury, charges of larceny by false pretenses, and charges of making false statements on a motor vehicle insurance application, the defendant challenges the sufficiency of the evidence to support his convictions, and assigns error to the decision by the trial judge to allow the Commonwealth to call a previously undisclosed witness to testify at trial. We affirm the judgments, addressing the defendant's claims in turn.
1. Sufficiency of the evidence. We assess the sufficiency of the Commonwealth's evidence under the familiar standard. See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). The defendant concedes that the Commonwealth presented evidence at trial which, if credited, was sufficient to establish the elements of the perjury charge. However, the defendant contends that the Commonwealth did not submit separate corroboration of that evidence, as required under Commonwealth v. Silva, 401 Mass. 318, 323 (1987). See Commonwealth v. Knowlton, 50 Mass. App. Ct. 266, 268 (2000). To the contrary, the responses recorded on the completed application form, together with the defendant's signature on that form, served to corroborate the testimony of Deborah Kelly concerning the false statements made to her by the defendant.
For additional examples of corroborating evidence, see pages nineteen to twenty-one of the Commonwealth's brief.
As to the charges of larceny by false pretenses, the defendant contends that the evidence was insufficient to establish that he made any false statements on his insurance applications. The argument borders on the frivolous; the Commonwealth presented abundant evidence at trial that numerous statements made by the defendant on his insurance applications were false, as explained in the Commonwealth's brief on page twenty and from pages twenty-four to twenty-six.
2. Testimony by Mark Pilalas. As a threshold matter, we discern no abuse by the trial judge of her considerable discretion in deciding to allow Mark Pilalas to testify, in order to rebut the suggestion (developed by the defendant in his cross-examination of Alicia Pilalas, the defendant's former girlfriend and Pilalas's sister) that Mark Pilalas (rather than the defendant) had taken out the Commerce policy in the defendant's name, using personal information of Nicholas Pilalas (Mark's deceased father). Any potential for unfair surprise was mitigated significantly by the defendant's familiarity with the witness's testimony in prior related proceedings. In addition, the trial judge furnished the defendant an opportunity to perform a criminal background check on the witness (for the purpose of unearthing potential grounds to impeach his testimony). Finally, Pilalas's testimony was not material to any issue in the case (other than to rebut the suggestion that Pilalas rather than the defendant had taken out the Commerce insurance policy); Pilalas's testimony concerning the defendant's relationship with Alicia Pilalas and the defendant's access to Nicholas Pilalas's personal information was both collateral to the question of the defendant's guilt and wholly cumulative of the testimony of Alicia Pilalas on both topics.
Judgments affirmed.
By the Court (Cohen, Green & Graham, JJ.),