Com. v. Pisa

• Decision Date: 16 May 1977
• Citation: 363 N.E.2d 245,372 Mass. 590
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 245

363 N.E.2d 245

372 Mass. 590

COMMONWEALTH v. Ralph A. PISA.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued June 8, 1976.

Decided May 16, 1977.

James M. Pool, Boston, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

LIACOS, Justice.

The defendant was convicted by a jury on an indictment charging him with the murder in the first degree of George W. Deane. The jury returned a verdict without recommending that the death penalty not be imposed, G.L. c. 265, § 2, and accordingly the defendant was entenced to death. After filing a claim of appeal, which was not perfected, the defendant moved for a new trial. G.L. c. 278, § 29. Since the original trial judge had retired prior to the hearing on the motion, another Superior Court judge was assigned to hear the evidence and rule on the motion. After a three-day hearing the judge denied the defendant's motion for a new trial. The appeal from the denial of that motion is before us pursuant to G.L. c. 278, §§ 33A--33G.

In his motion for a new trial, the defendant asserted six grounds for relief. The defendant did not press three of these claims at the hearing on the motion, nor has he asserted them here, and they are therefore deemed waived. COMMONWEALTH V. DELOREY, --- MASS. --- , 339 N.E.2D 746 (1975)^A. His assignments of error raised the claim that the denial of the defendant's motion for a new trial on the ground that new evidence of a material nature unavailable to the defense at the time of trial had been discovered, constituted prejudicial error to the defendant. This assignment of error was neither briefed nor argued by the defendant before this court and hence is also deemed waived. S.J.C. Rule 1:13, as amended,--- Mass. --- (1975). COMMONWEALTH V. BYS, --- MASS. --- , 348 N.E.2D 431 (1976)^B.

The fifth ground asserted in the motion for a new trial was that certain evidence of an exculpatory nature was suppressed by the Commonwealth during the trial. The motion judge ruled that the alleged suppressed exculpatory evidence was neither suppressed, nor exculpatory, nor of a sufficiently material nature to require a new trial. The sixth ground asserted for a new trial was that the sentence of death imposed pursuant to G.L. c. 265, § 2, was illegal. The motion judge ruled that the illegality of the original death sentence could be cured by imposing a new sentence of life imprisonment, and no new trial was required.

The defendant asserts here that these latter two rulings constitute error. He also asks that we order a new trial under the broad powers granted us by G.L. c. 278, § 33E.

The evidence presented against the defendant was essentially circumstantial in nature. It is not necessary to restate it at length here. A significant part of the prosecution's case case consisted of testimony of a taxi driver placing the defendant and two other unidentified men in the company of the victim in East Boston about 2 A.M. on September 9, 1969. This was the last time that anyone other than those who may have caused his death saw the victim until his body was discovered in the Malden-Melrose area around 7 A.M. on the morning of September 9, 1969. The time of death was placed at between 3 and 5 A.M. of that day. The cause of death was attributed to six gunshot wounds which were fired from the gun of the victim, a security guard, who was seen in possession of that weapon during the evening in question.

The prosecution presented evidence as to an alleged statement of the defendant to one Francis Dion in January, 1970, at the Clam Shell bar in Peabody as follows: 'You remember the guard at the Arsenal? Well, I shot him' and further that the shooting had not bothered him but that he had enjoyed it.

Another significant part of the Commonwealth's case involved evidence as to an automobile rented by one Roy White after the date of the homicide. ¹ There was evidence that White and Pisa were friends, that Pisa was present when the car was rented by White, and that Pisa had been a passenger in this car on at least one occasion. This automobile was rented by White on October 2, 1969, and repossessed by the rental agent on October 19, 1969, for lack of payment. The next morning the defendant, who had rented a similar car on October 10, 1969, showed up at the rental agency which also served as a gasoline station and claimed that his car had broken down. He asked for assistance. He was told that he would have to wait until another employee showed up at the gasoline station. Sometime during the waiting period the defendant stotted White's car, asked if it was such, had the identification confirmed, and asked if he could search it in order to find a 'brown bag' with personal belongings in it. An attendant at the rental agency testified that the defendant asked for a brown paper bag. Permission to search was refused due to the status of the car. When asked to describe the bag in greater detail at his trial where he testified in his own behalf, the defendant testified, however that it was 'beige, like a suede . . . a woman's bag.'

When the car was searched that same day a brown paper bag was found in the trunk. In the bag were two guns, one of which was identified as the gun belonging to the victim, and later identified as the murder weapon.

At the defendant's trial there was testimony that the only brown bag of any description found in the car was the brown paper bag containing the murder weapon. However, at the White trial there was evidence that a second bag containing keys was found in the trunk of the car. No further description of this second bag was placed in evidence at either trial or at the hearing on the motion for a new trial. At the hearing on the new trial motion, there was evidence that still a third bag, a brown paper bag containing pantyhose, was found in the White rental automobile.

1. The defendant claims that the presence of either of the bags in the White rental car was exculpatory in nature and that the failure of the prosecution to acknowledge or reveal the existence of such evidence is error requiring a new trial.

It is the defendant's argument that the failure to disclose such evidence is error of constitutional dimension requiring a new trial because the withheld evidence is both exculpatory, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and material to the issue of his innocence. Commonwealth v. Hurst, 364 Mass. 604, 307 N.E.2d 835 (1974). United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The defendant premises this argument on two points. First, he claims that if the jury had known of another bag's existence this would have rebutted and, indeed, foreclosed the prosecution's 'consciousness of guilt' argument based on Pisa's apparent attempt to recover the murder weapon from the White car. Second, the defendant argues that if the jury had known of another bag's existence it would have bolstered Pisa's credibility in so far as he made reference to a brown bag in his testimony.

The Commonwealth on the other hand argues that it did not suppress or withhold any evidence and that, in any event, the second bag was neither exculpatory nor material to the issue of the defendant's innocence, and that it was not error, in the absence of a specific request, to fail to acknowledge or reveal the existence of the second bag. The judge agreed with the position taken by the Commonwealth. We find no error. ²

The 'suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.' Brady v. Maryland, supra at 87, 83 S.Ct. at 1196. Accord, Commonwealth v. DeChristoforo, --- Mass. ---, --- - --- ^c, 353 N.E.2d 769 (1976); Commonwealth v. Donahue, --- Mass. ---, --- ^d, 344 N.E.2d 886, cert. denied, 429 U.S. 833, 97 S.Ct. 96, 50 L.Ed.2d 97 (1976); Commonwealth v. Gilday, --- Mass. ---, --- ^e, 327 N.E.2d 851 (1975); Commonwealth v. Hurst, 364 Mass. 604, 607, 307 N.E.2d 835 (1974); Commonwealth v. Earl, 362 Mass. 11, 283 N.E.2d 677 (1972); Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 317, 275 N.E.2d 33 (1971), cert. denied sub nom. Farrell v. Massachusetts, 407 U.S. 910, 92 S.Ct. 2433, 32 L.Ed.2d 683, and sub nom. Beneficial Fin. Co. v. Massachusetts, 407 U.S. 914, 92 S.Ct. 2433, 32 L.Ed.2d 689 (1972); United States v. Agurs, supra. However, before the defendant can take advantage of the Brady rule as the predicate to establishing the constitutional error necessary for a grant of a new trial, Earl v. Commonwealth, 356 Mass. 181, 248 N.E.2d 498 (1969), he must first show that the evidence withheld is 'favorable to the accused . . . (and) . . . material . . . to guilt . . ..' Brady v. Maryland, supra at 87, 83 S.Ct. at 1196. Cf. Commonwealth v. Gilday, supra.

In the case at bar the defendant submitted a general request for all exculpatory evidence, a motion which was granted in part and denied in part. There was no specific request for a second bag. The standards of both the exculpatory quality and the materiality of the evidence sought must be judged in light of the fact that a prosecutor cannot be expected to appreciate the significance of every item of evidence in his possession to any possible defense which might be asserted by the defendant. Commonwealth v. Hurst, supra. Commonwealth v. Earl, supra.

We do not believe that the defendant has demonstrated that the allegedly withheld evidence is either exculpatory or material to the issue of the defendant's innocence. See, e.g., Commonwealth v. Donahue, supra. Exculpatory evidence is that evidence which tends to 'negate the guilt of the accused' (ABA Pattern Rules of Court and Code Provisions, Rule 7--1.1(c) (Rev. ed. 1976)), or, stated affirmatively, 'supporting the innocence of the...