Commonwealth v. Pedro Gomez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-200
COMMONWEALTH
vs.
PEDRO GOMEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this consolidated appeal of nine indictments joined for
trial in the Superior Court, we review the defendant's claims of
error associated with three convictions of attempted burglary in
violation of G. L. c. 274, § 6, and the denial of his motion for
a new trial. Because we discern no error, we affirm.
Discussion. 1. Sufficiency of evidence of "overt acts."
We first address the defendant's claims that there was
insufficient evidence to show that he committed the "overt acts"
required to support three of his attempt convictions. We review
these claims of insufficient evidence to determine if, when
"viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt"
(quotation omitted). Commonwealth v. Latimore, 378 Mass. 671,
677 (1979).
In October of 2015, the Millbury Police Department and the
police departments of surrounding towns began an investigation
into recent house breaks. The police focused on the defendant
as his car was seen in several locations close to recent house
breaks. Police used a Global Positioning Satellite (GPS) device
to track the defendant's car.1 Once the GPS device was attached
to the defendant's car, the police could track its movement in
real time using a cell phone or laptop computer.
On November 3, 2015, just after 7 P.M., Sergeant Kimberly
Cadrin of the Millbury Police Department was alerted by text
that the defendant's car was in motion. She, along with other
police officers, began to monitor the defendant's movements both
through the GPS tracking device and by following the defendant
in their unmarked police vehicles. Sergeant Cadrin and
Lieutenant David Perry of the Sutton Police Department drove in
an unmarked police vehicle to the location indicated by the GPS
tracker. At about 9 P.M. they saw the defendant driving alone
in his car on Summer Street in Worcester. The defendant's
driving was unusual. Instead of taking a direct route to his
1 The two warrants the police obtained allowing their use of the
GPS device are discussed, infra, in relation to the defendant's
other claims.
2
destination he drove on and off highways in a circle, down dead-
end roads, and his speeds were erratic. At times, in order to
avoid being discovered by the defendant, Sergeant Cadrin stayed
far behind the defendant's car, losing sight of the car and
following his movements only by the GPS. Police continued to
monitor the car's movement and saw the defendant's unoccupied
car parked on a dirt road leading to a pig farm in Millbury at
around 9:15 P.M. Lieutenant Perry attempted to follow the
defendant on foot. He saw a person walking towards the parked
car, enter the car, and drive away. Due to the darkness, he
could not identify the driver of the car, but continued to track
the car using GPS.
The GPS recorded that the defendant's car stopped near 42
Tainter Hill Road in Millbury. Lieutenant Perry got out of the
unmarked police vehicle and hid in some shrubbery so he could
better observe the defendant. Lieutenant Perry saw the
defendant exit his car and walk to the backyards of homes
located at 40 and 42 Tainter Hill Road. While remaining hidden,
Perry observed the defendant inside the attached screened-in
door of 40 Tainter Hill Road, cross into the backyard of 42
Tainter Hill Road, and then return to his car and drive away.
Later investigation revealed that the screened-in porch door of
42 Tainter Hill Road was ajar and the screen was sliced near the
locking mechanism. Using "Jaxx," a K-9 dog, police tracked
3
human scent from the area where the defendant's car had been
parked to the left side of and backyard of 40 Tainter Hill Road
and to the front of 42 Tainter Hill Road, following the path the
defendant had followed while being watched by Lieutenant Perry.
Two days later, on November 5 at about 7:30 P.M., police
were alerted by the GPS that the defendant's car was in motion
in the town of Shrewsbury. After locating the defendant's
unoccupied vehicle at the corner of Mangs Drive and Rockwell
Drive, various police departments set up surveillance in the
neighborhood. About 10 P.M., a residential house alarm sounded
at 2 Mangs Drive and the defendant was seen walking off the back
deck area of the home. He was taken into custody and was found
to have a bag of small wooden dowels, a blue rag, and
approximately $288 in cash in various denominations with him.
The K-9 unit returned with Jaxx, who tracked human scent
from the area of the defendant's parked car to several homes in
the area. At most of these homes, the police observed either
damage consistent with an attempted house break or evidence
suggesting that the defendant had been immediately outside the
home. Specifically, at 7 Heywood Street the officer saw
"obvious damage" to the rear door; at 9 Heywood Street the
officer saw a piece of wood from the window trim, small wooden
dowels on the ground, and the garage window completely open; at
17 Heywood Street the officer observed damage to the residence;
4
at 23 Farmington Drive Jaxx alerted the officer to a garage
door; at 30 Rockwell Drive a screen door was forced open and the
sliding door underneath the rear porch was partially open; at 32
Farmington Drive Jaxx alerted the officer to the rear door,
which appeared to have been forced open; at 37 Farmington Drive
a screen from a rear window was on the ground and had fresh cut
marks. Jaxx also tracked the scent to a sliding door at 2 Mangs
Drive, the home at which the police had seen the defendant after
an alarm had been triggered there. Police spoke to several
homeowners in the area about their observations that night. The
homeowner at 7 Heywood Street noticed that the handle to the
sliding door in his screened in porch was loose and the door
ajar. The homeowner at 23 Farmington Drive eventually noticed
that she was missing $150 in cash from her wallet that was
inside her parked car in the garage. Finally, the homeowner at
32 Farmington Drive saw the slider door to her patio was broken.
In order for a fact finder to convict a defendant of
attempted burglary, the Commonwealth must prove beyond a
reasonable doubt that the defendant made an "attempt[] to commit
a crime," G. L. c. 274, § 6, by "engag[ing] in some overt act
toward the commission of a crime with the intent to commit that
crime" (quotation omitted). Commonwealth v. Graham, 62 Mass.
App. Ct. 642, 645 (2004). The defendant claims that there was
insufficient evidence to show that he committed the "overt acts"
5
required to prove him guilty of attempted burglary of 30
Rockwell Drive, 37 Farmington Drive, and 17 Heywood Street.2 As
we note above, the defendant challenges only the sufficiency of
the evidence that he committed the required "overt acts."
The jury could have found that on November 5 the
defendant's unoccupied car was tracked to the area of the break-
ins. The defendant was apprehended in a quiet residential area
late into the night. The defendant was apprehended when a house
alarm alerted in the near vicinity, and police found him walking
off the back porch of the property near these other homes. When
searched, the defendant had cash, a blue rag, and several small
wooden dowels with him. Additionally, Jaxx tracked human scent
from the defendant's parked car to a series of homes in the
neighborhood at issue in this appeal. At each of those homes,
the police found additional evidence of "overt acts" in
furtherance of a break-in: at 30 Rockwell Drive, there was a
screen door that appeared to have been forced open and the
sliding door was partially open; at 37 Farmington Drive, police
noticed a screen from a rear window on the ground with fresh
cuts; and there was damage to the house at 17 Heywood Street.
See Commonwealth v. Dykens, 473 Mass. 635, 643-644 (2016)
(moving ladder, removing outer window screen, and damaging
2 Indictments numbered 16-0066-4, 16-0066-5, and 16-0066-8.
6
window with a rock "fit squarely within the definition of an
overt act"). The police also found evidence, in addition to
Jaxx's identification of a human scent trail, that the defendant
had been in these areas -- small wooden dowels were found both
outside the home located at 9 Heywood Street and in the
defendant's possession.
We conclude that this evidence, although circumstantial,
was sufficient to support the convictions of attempted burglary.
See Commonwealth v. Gilbert, 423 Mass. 863, 868 (1996)
("circumstantial evidence is competent to establish guilt beyond
a reasonable doubt"). It was permissible for the jury to
consider the evidence as a whole, along with the reasonable
inferences to be drawn from it, to determine if the defendant
attempted to break and enter into each of the homes in the area.
See Commonwealth v. Harmon, 63 Mass. App. Ct. 456, 465 (2005).
2. Motion for new trial. a. Standard. The defendant's
next arguments are based upon his claim that the motion judge
erred in denying his motion for a new trial.3 "We review a
motion judge's decision [to deny a motion for new trial] 'only
to determine whether there has been a significant error of law
or other abuse of discretion.'" Commonwealth v. Hernandez, 63
3 We note that while trial counsel raised the issue of dismissal
of one of the indictments, this argument was not raised by
appellate counsel.
7
Mass. App. Ct. 426, 430 (2005), quoting Commonwealth v. Grace,
397 Mass. 303, 307 (1986). Mostly, our courts give "great
deference" to a judge's decision on a motion for a new trial
under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501(2001), especially when, as here, the motion judge also was the
trial judge.4 Commonwealth v. Pagels, 69 Mass. App. Ct. 607, 615
(2007).
b. Trial evidence. During pretrial discovery, the
Commonwealth was alerted to the fact that the GPS unit placed on
the defendant's car was not reset after daylight savings time
reverted to standard time, which occurred at 2 A.M. on November
1, 2015, and that, as a result, the times indicated in the data
generated by that GPS unit from that point on were one hour
ahead of the actual time. The prosecutor provided this
information to the defendant's trial counsel, who in turn hired
an expert to analyze the GPS data. Despite notifying
defendant's trial counsel of the issue, the prosecutor did not
clarify the time discrepancies at trial and when the police
officers called as trial witnesses testified to the times of
their observations and actions after November 1, their testimony
was consistent with the GPS data, rather than the actual time.
4 The trial judge conducted a full evidentiary hearing with one
witness called by the defense.
8
In his motion, and now on appeal, the defendant argued that
by failing at trial to correct this one hour discrepancy, the
prosecutor knowingly presented false testimony to the jury,
thereby requiring reversal of the convictions. We discern no
abuse of discretion in the judge's decision to reject that
argument.
To be certain, the Commonwealth may not introduce evidence
or testimony at trial "which he or she knows or should know is
false." Commonwealth v. Sullivan, 410 Mass. 521, 532 (1991).
Here, nothing in the record indicates that either of the
witnesses knowingly gave false testimony or that the prosecutor
knowingly elicited false testimony. Compare Commonwealth v.
Forte, 469 Mass. 469, 491 (2014) (minor inconsistencies do not
constitute falsities). The prosecutor's lack of any intent to
mislead is apparent from the fact that the Commonwealth provided
the information about the inaccuracy of the GPS time data to
defense counsel before trial. Further, to the extent the
evidence was misleading to the jury, there was no prejudice,
because nothing in either the Commonwealth's case or the
defendant's defense turned on the precise times of the witness's
observations. We are satisfied that there was no error in the
denial of the motion for a new trial. Compare Commonwealth v.
Ware, 482 Mass. 717, 725-730 (2019) (officer testimony that
defendant stated he was extremely close to scene of crime
9
required reversal because testimony was "blatantly false" and
central to prosecution's case).
3. Ineffective assistance of counsel. Alternatively, the
defendant argues that trial counsel was ineffective by failing
to: file a motion to dismiss the November 3 indictments due to
false grand jury testimony given by Sergeant Cadrin; file a
motion to suppress the fruits of the second warrant; impeach the
credibility of the police about the one hour time discrepancy
with the GPS tracker; and object to the joinder of the
defendant's case relating to his actions on November 3 with a
separate case relating to his actions on November 5. We address
each argument in turn.
a. Standard. We start with the familiar standard for
ineffective assistance of counsel set forth in Commonwealth v.
Saferian, 366 Mass. 89, 96 (1974). We look to see "whether
there has been serious incompetency, inefficiency, or
inattention of counsel -- behavior of counsel falling measurably
below that which might be expected from an ordinary fallible
lawyer -- and, if that is found . . . whether it has likely
deprived the defendant of an otherwise available, substantial
ground of defence." Id. We review for an abuse of discretion
or any other error of law. Commonwealth v. Lane, 462 Mass. 591,
597 (2012). In cases such as this where the trial judge and the
motion judge are the same, "we extend special deference to the
10
judge's findings of fact and the ultimate decision on the motion
for a new trial" (quotation omitted). Commonwealth v. Moore,
489 Mass. 735, 744 (2022).
b. Failure to file motion to dismiss. We discern no abuse
of discretion in the judge's determination that the defendant's
trial counsel was not ineffective in moving to dismiss the
indictments against the defendant on the grounds that the
Commonwealth had presented knowingly false testimony at the
grand jury. Although Sergeant Cadrin testified before the grand
jury that she "observed" the defendant at certain times during
that evening -- testimony that was likely based on the GPS data
the Commonwealth ultimately learned was off by one hour, as we
have already discussed -- the defendant's showing did not
require the judge to conclude that her testimony was "false."
First, as a practical matter, the record is clear that the
GPS issue was not identified until after the grand jury
presentment. There is no evidence that at the time of her grand
jury testimony either the Commonwealth or Sergeant Cadrin had
any knowledge that her testimony was inaccurate, let alone
false. "[I]naccurate statements made in good faith do not
require dismissal of an indictment." Commonwealth v. Mayfield,
398 Mass. 615, 620 (1986).
Because the defendant failed to offer any evidence that the
Commonwealth made "knowing use of false testimony," Commonwealth
11
v. Salman, 387 Mass. 160, 167 (1982), and because dismissal is
warranted only when the evidence shows deliberate and
intentional constitutional violations, he also failed to show a
likelihood of success on a motion to dismiss the indictments.
See Commonwealth v. Reddington, 395 Mass. 315, 319-320 (1985)
(motion to dismiss indictments properly denied where police
officer's grand jury testimony was inaccurate but made in good
faith). The judge was therefore within his discretion when he
denied the motion for new trial on this basis. Failure to
pursue a futile motion is not ineffective assistance of counsel.
Commonwealth v. Vieux, 41 Mass. App. Ct. 526, 527 (1996), cert.
denied, 520 U.S. 1245 (1997).
c. Failure to file a motion to suppress evidence obtained
from the second search warrant. In order to track the
defendant's vehicle, the police obtained two search warrants.
On October 10, 2015, Sergeant Cadrin obtained the first warrant
(first warrant) authorizing the police to track the defendant
using a GPS device attached to the defendant's car. Sergeant
Cadrin obtained a second warrant on October 23, 2015 (second
warrant), to extend the time allowed to track the defendant with
the GPS device.
The defendant's first trial counsel filed a motion to
suppress the evidence from the issuance of the first search
warrant, claiming that it lacked probable cause. Another motion
12
judge heard arguments and denied the motion. Counsel now claims
that successor trial counsel was ineffective in failing to file
a motion to suppress the evidence obtained from the second
warrant. At the evidentiary hearing, counsel was aware that
prior counsel had filed a motion to suppress, which was fully
litigated. Since the second search warrant was only an
extension of time for the GPS surveillance, and the affidavit in
support of the second warrant had even more information to
establish probable cause, filing a second motion would have been
futile. See Commonwealth v. Hanson, 79 Mass. App. Ct. 233, 237
(2011), quoting Commonwealth v. Comita, 441 Mass. 86, 91 (2004)
("[I]n order to prevail on an ineffective assistance of counsel
claim on the ground of failing to file a motion to suppress, the
defendant has to demonstrate a likelihood that the motion to
suppress would have been successful").
d. Failure to impeach witnesses based on one hour time
discrepancy. As we have discussed, despite the information in
the Commonwealth's file about the fact that the GPS time needed
to be adjusted to account for the reversion of daylight savings
to standard time, at trial Sergeant Cadrin and Lieutenant Perry
did not adjust the time in which they testified they observed
the defendant. The defendant's trial counsel did not impeach
the witnesses based on the one hour time discrepancy in the GPS
data. At the evidentiary hearing on the motion for a new trial,
13
the defendant's trial counsel5 testified that his pretrial review
of the GPS data satisfied him that it was otherwise accurate and
strongly linked the defendant to the crimes. He testified that
to have focused the jury on the GPS evidence would only have
highlighted the strength of that link. In his opinion, the GPS
data was devastating to his client, so his strategy at trial was
to attempt to create reasonable doubt by emphasizing the
Commonwealth's failure to offer any scientific evidence, such as
fingerprints or DNA from the scene, to connect the defendant to
the crimes. Highlighting the GPS data would have likely hurt
that defense.
"Where, as here, the defendant's ineffective assistance of
counsel claim is based on a tactical or strategic decision, the
test is whether the decision was 'manifestly unreasonable' when
made." Commonwealth v. Kolenovic, 471 Mass. 664, 674 (2015),
quoting Commonwealth v. Acevedo, 446 Mass. 435, 442 (2006). We
discern no abuse of discretion or other error in the motion
judge's conclusion that the defendant failed to show that his
trial counsel's strategy was manifestly unreasonable or deprived
him of a defense.
e. Failure to file a motion to sever. Next, appellate
counsel claims that trial counsel was ineffective in failing to
5 Trial counsel had practiced criminal law for over twenty years.
14
file a motion to sever the two sets -- those pertaining to the
defendant's actions on November 3 and November 5,
respectively -- of indictments. In most instances, the
decisions relating to joinder and severance are left to the
sound discretion of the trial judge. Commonwealth v. Diaz, 448
Mass. 286, 290 (2007). An ineffective assistance of counsel
claim that is based on the failure to file a motion to sever
requires the defendant to show that the motion would likely have
been granted. Id. at 289. See Commonwealth v. Bly, 444 Mass.
640, 654 (2005). The indictments in this case related to a
"series of criminal episodes connected together or constituting
parts of a single scheme or plan," Mass. R. Crim. P. 9 (a) (1),
378 Mass. 859 (1979), and were, on that basis, joined for trial.
Responding to the defendant's posttrial claim that he provided
ineffective assistance in failing to move to sever the
indictments, defense counsel testified that he made a strategic
choice not to do so because he was aware that the evidence of
the conduct underpinning one set of indictments would likely be
admissible in the trial of the other indictments. Additionally,
he testified to his opinion that if the defendant were convicted
in two separate trials, he risked more severe punishment if
convicted in either or both. On this record, we cannot say the
15
motion judge abused his discretion in concluding that trial
counsel's decision was not manifestly unreasonable.
Judgments affirmed.
Order denying motion for new
trial affirmed.
By the Court (Sullivan,
Hand & Walsh, JJ.6),
Clerk
Entered: April 4, 2023.
6 The panelists are listed in order of seniority.
16