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