Com. v. Palladino

• Decision Date: 24 January 1964
• Parties: COMMONWEALTH v. Robert T. PALLADINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 769

195 N.E.2d 769

346 Mass. 720

COMMONWEALTH v. Robert T. PALLADINO.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 4, 1963.

Decided Jan. 24, 1964.

Joseph G. Crane, Boston (Monroe L. Inker, Boston, with him), for defendant.

Aaron K. Bikofsky, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.

Before SPALDING, WHITTEMORE, CUTTER, KIRK, and SPIEGEL, JJ.

SPALDING, Justice.

Under an indictment charging unarmed robbery, the defendant was found guilty. The case was tried subject to G.L. c. 278, §§ 33A-33G, and comes here by appeal.

There was evidence of the following: Mrs. Norma Cort was employed as a bookkeeper by the Sidney Hill County Club in Newton. Early in the afternoon of January 22, 1962, she placed cash and checks amounting to $1,931.64 in a plastic pouch which she was to take to a bank for the purpose of making a deposit. Between 2:35 and 2:45 P.M. she went to the club's parking space where her automobile was parked, carrying the pouch in her left hand and her purse in her right. As she was proceeding toward her car a man, whom Mrs. Cort later identified as the defendant, jumped out of an automobile and said 'Give me that,' took her arm, and seized the pouch from her hand. He got back into the car and drove away. The car was a light colored Chevrolet bearing a Massachusetts registration plate with the number 266-145.

James P. Treddin, a Newton police officer, testified that on January 22, 1962, he was assigned to the Chestnut Hill Shopping Center. At about 2:40 P.M. he was in his car in the parking space behind Filene's store when he observed two men, one of whom was the defendant, walking rapidly from the direction of a cream colored Chevrolet (later identified as the car used in the robbery). The men entered a second automobile, which was an Oldsmobile with a Massachusetts registration number R35-299.

Officer Frongillo of the Winchester police department, as a result of information about the robbery received by him, went to an address in Somerville shortly after 7 P.M. While there he saw the above mentioned Oldsmobile approaching, which was owned by one Houde, an uncle of the defendant. He stopped the car and placed the defendant, who was driving it, under arrest. Thereupon the Somerville police were notified and they took the defendant to the Somerville police station. Frongillo stayed there with the defendant until the Newton police arrived.

The defendant by way of an alibi testified that between the hours of two and four on the afternoon of January 22 he was shopping at certain stores in Boston, and that he was not in Newton at any time on that day.

1. The defendant argues (assignment of error No. 1) that the court erred in admitting a statement which Mrs. Cort made to Captain Burke in the Newton police station because it was not made in the presence or hearing of the defendant who was then under arrest. The interrogation on which the assignment was based was as follows: ASSISTANT DISTRICT ATTORNEY: 'And did you say something upon seeing the defendant in this room?' COUNSEL FOR THE DEFENDANT: 'I object.' THE JUDGE: 'Objection overruled.' A. 'That was the man.' We are of the opinion that this evidence did not harm the defendant. Mrs. Cort had, both before and after the testimony objected to, identified the defendant as the man who had robbed her. The challenged testimony was merely cumulative and its admission was not prejudicial. Commonwealth v. Taylor, 327 Mass. 641, 650, 100 N.E.2d 22; Commonwealth v. Gliniecki, 339 Mass. 464, 469, 159 N.E.2d 657.

2. The defendant's assignments of error Nos. 2, 6, 10, and 15 can be disposed of in a word or two. These relate to various rulings involving the scope and extent of cross-examination, but the defendant appears to press only the second. ¹ There was no error. The limits of cross-examination rest largely in the sound, discretion of the trial judge. Commonwealth v. Makarewicz, 333 Mass. 575, 593, 132 N.E.2d 294. No abuse of discretion was shown in excluding the question on which the second assignment is based. The defendant was afforded ample opportunity on cross-examination to bring out any bias the witness might have had.

3. The defendant contends that his arrest by Officer Frongillo was illegal and that this rendered certain evidence, which we shall discuss hereinafter, inadmissible. ² Assignments of error Nos. 3, 4, 11-14. The defendant argues that Officer Frongillo, a member of the Winchester police force, had no right as an officer to arrest the defendant in Somerville for an alleged offense committed in Newton. His right to arrest in these circumstances, it is urged, was no greater than that of a private citizen. By that test, so runs the argument, the arrest was illegal. But even if Frongillo had the rights of an officer in making the arrest, the defendant takes the position that the arrest, which was without a warrant, was illegal because Frongillo did not have reasonable grounds for believing the defendant had committed a felony. It seems clear to us that Frongillo did have probable cause to believe that the defendant had committed a felony. However, in our view of the case we deem it unnecessary to decide these questions, for even if the arrest was illegal the result would be the same.

No contention is made that there was a search incidental to the alleged unlawful arrest. Thus we are not concerned with the introduction of physical evidence illegally obtained. The lawfulness of the arrest becomes of importance because there was testimony introduced by the Commonwealth that during the period following the arrest the defendant made contradictory statements and was identified by Officer Treddin. The defendant argues that this evidence was tainted by the unlawful arrest and was improperly admitted because it was 'fruit of the poisonous tree.' Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307. See Commonwealth v. Spofford, 343 Mass. 703, 708, 180 N.E.2d 673. The most recent discussion of this subject by the Supreme Court of the United States will be found in Wong Sun v. United States, 371 U.S. 471, at pages 487-488, 83 S.Ct. 407, at pages 417, 9 L.Ed.2d 441, where the court said, 'We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation...