-: SJC-13318 Commonwealth v. Michael D. Schoener.
-: Okay, Attorney Opperman, whenever you're ready.
-: Good morning, and may it please the court.
Erin Opperman on behalf of the appellant, Michael Schoener.
We are here today because at trial
there was insufficient evidence of the crime charged
and because the court committed prejudicial error
in the jury instructions.
However, in order to reach the merits,
or the substance of the argument,
this court is first called upon, by myself,
to revisit Marshall v. Commonwealth
and before that Commonwealth versus Rodriguez,
and address what the elements,
or specifically what the elements of
accessory before the fact to a felony are.
At trial the court clearly conflated the crimes
or the theories of joint venture,
of accessory before the fact, and aiding and abetting.
This court in Marshall
obviously walked back the language of Rodriguez,
which held that accessory before the fact
and aiding and abetting are two separate crimes.
This court decided in Marshall,
they were not two separate crimes,
but more accurately,
two separate theories of accomplice liability,
one of which, accessory before the fact,
happens before a crime is committed.
The second of which, aiding and abetting,
happens while the crime is committed.
-: Can accessory before the fact
be a subset of aiding and abetting
or joint ventral liability.
-: It can, and I think- -: That's what
the Zanetti instruction says.
Zanetti says, and gives a myriad ways
you can prove aiding and abetting or joint venture,
to include accessory before the fact,
and it's punished in the same manner.
-: I think Zanetti suggests that.
Zanetti does not specifically refer
to accessory before the fact,
which is what makes this case,
or the facts of this case, somewhat confusing,
because it seems to conflict with
some of the language in Marshall,
which discusses accessory before the fact
and aiding and abetting as if they are on co-equal grounds
and not as if one envelops the other.
And I think the problem with respect to this case
is that the language of the indictment
only included half of the statute
under which Mr. Schoener was charged.
It included procuring, counseling, and hiring,
and it did not include the second clause of that statute,
which is assisting, aiding, or encouraging.
At trial, the court clearly thought that
aiding and abetting or,
I would say he actually thought the opposite
of what Your Honor just suggested
in that accessory before the fact
encompassed accessory before the fact
and aiding and abetting
and instructed the jury as to both theories,
as if that's what was charged.
-: I thought Judge Cosgrove said
this is the assist version
of accessory before the fact, correct?
-: Correct, yeah.
So I think rather than conclude
that aiding and abetting- -: So we have two clauses
in the statute.
One clause is the assist clause
and the other clause is this more specific
hiring, counseling, procuring.
-: Correct.
And I think the outcome of this question
is really only relevant with respect to
the sufficiency of the evidence on the element of the act.
The actus rea, whether or not the defendant
procured, counseled, or hired.
The trial court seemed to agree,
which is the argument here, that that element was not,
there was not sufficient evidence
of that element. -: Why couldn't the actus reus
be the assist version of accessory before the fact?
-: Again, I think that's what the court
is called upon today to determine.
The defendant's position
is that it's not based on the language in Marshall.
However, if the court decides that the actus rea
was accurately described by the court,
meaning it can encompass procuring, hiring, counseling,
assisting, encouraging, aiding,
irrespective of how that question is answered here,
there was insufficient evidence
of both intent and knowledge.
And I think that's really
the more important issue in this case,
how it applies to both the sufficiency question
and how it applies to
the erroneous jury instruction question.
-: The way I read your brief is there are really two issues.
One is the sufficiency, which you're gonna get to,
but just before you'll go to sufficiency,
on the assist theory of aid and abetting,
where do the instructions go awry?
-: I think on the assist theory
that the instructions are fine
as to the first two elements in the jury instructions.
The act that the defendant was required,
or the jury was required
to find the defendant engaged in,
and the crime that he was
procuring, hiring, assisting, or so have you.
Where it went awry is element three,
which discusses knowledge and intent, the mens rea,
and I think it fell woefully short
of what is required by Zanetti,
what is required by our constitution,
and what is set forth
in the Superior Court model instructions
for all joint venture cases.
And if you look at the record when it,
I think it's the beginning of the day on which
jury instructions are given,
there's a discussion on jury instructions
and the court says,
"I don't think I need to give this big instruction
"on joint venture as to Mr. Schoener."
But that was the theory of criminal liability
that the Commonwealth was proceeding on.
-: If I'm remembering correctly, though,
in response to a jury question
wasn't there a more in-depth instruction?
-: I would say there was an attempt
at a more in-depth instruction.
I would not say that it succeeded
in being more detailed in depth or explanatory.
The question was the element of knowledge,
can you explain that in layman's terms,
and the court in discussing the question
acknowledges, "I didn't explain or I didn't say very much
"about knowledge,"
and then goes on to say, repeats to the jury,
"You have to find that the defendant knew"
and then kind of changes his course of,
the direction of his sentence,
"That you have to find the defendant knew,
"had knowledge of the kidnapping."
So he essentially kind of repeated
just what he said the first time.
And then I think the only other explanation was
knowledge is an awareness of a fact.
And while that might be- -: Yeah,
what's wrong with that?
-: Well, while that might be
an appropriate description of the term knowledge
in a casual conversation,
when it comes to a trial on an alleged crime
and a legal definition, that is insufficient,
and this court has provided a definition of knowledge
in a joint venture case.
And that is a substantial,
knowledge that there is a substantial likelihood
that a crime is gonna be committed.
And that is the definition that should have been given.
-: And here, again, I defer to my colleagues who
parsed these elements more carefully
in the past than I have,
but we have a police officer who's given,
one who's, for his drug dealer,
is running a Board of Probation information,
driver information that he knows he shouldn't be giving out.
Right? (indistinct)
Then he's then he's giving his gun holster
and police, I can't remember what else he gave.
What else did he- -: Handcuffs.
-: And handcuffs.
I mean, it doesn't...
Serge: What did he think he was gonna do with it?
-: Yeah, really?
-: Well, what the record shows,
and what was submitted to the jury,
were his statements and his testimony made
during the grand jury,
during which he said, I believe-
-: Sure, which they were entitled to discredit.
Right?
They got that,
and they were entirely within their rights to not buy it.
Right? -: Well, sure.
I mean they're within their right not to believe
anything any witness says.
But that doesn't necessarily speak to
whether or not the jury instructions were satisfactory
and whether or not there was sufficient evidence.
And I would say that, although the defendant certainly
did things that were not allowed by his employer
and were extremely poor decisions,
the question is did he know that-
Scott: Can I add another-
-: Was going to use these items to kidnap another person.
-: Well, he also knows that the person he's
giving information about is in a love triangle, right?
It starts to-
-: Well, and I think that's the problem
in looking at the facts at trial,
but particularly on appeal,
is that they're all set forth in a 50-something page brief,
and they look very close together.
But in reality, these events
did not happen in quick succession.
I think there was the running of the license plates,
which happened, I believe the record said in the summer.
And then there was the providing
of the driver's license Board of Probation information,
which happened in November.
And then there was the providing of the other items,
which happened at the end of December.
-: Again, this is in the light
most favorable to the Commonwealth, right?
-: I understand.
And I think with respect to the sufficiency argument,
I would urge the court to look to cases
like Gonzalez, Baxter,
where there are inferences to be made
about the knowledge of the defendant
and the intent of the defendant.
But this is a case where the inference that he knew
what Feeney was going to do with these items
and that he intended that this happen
crosses the line into speculation.
-: He has to know it's a kidnapping.
If he knows, if it's ambiguous,
that it could be an assault and battery,
that doesn't suffice.
It has to be knowledge of that crime-
-: Correct. -: Correct?
-: Under state and federal law.
And I believe I cited the Rosemont case
out of the U.S. Supreme Court that says in,
not its holding, but says within the case-
-: I take your argument because it's clear that
Feeney has a beef with the victim
and that he's asking for documents that would identify him
through BOP records or in his photograph.
Then we have the items,
and the argument is,
well, what was he gonna do with the items?
And somewhat to Justice Wegman's case,
where they pull up in the car and the guy gets outta the car
and we don't know what's gonna happen,
but here, don't these items point to a kidnapping
in that they are used to impersonate a police officer
in lawful authority?
That's the only issue I've got.
If it was just a beef, we don't know.
He could've burned his car down,
he could've beat him up, who knows, but-
-: So, I think-
-: Speak to the three items that are unique.
-: I think, the Commonwealth almost puts it best in its brief
where it argues that the defendant knew that the items
could be used for a kidnapping,
and that isn't enough to find sufficient evidence
that he knew that they would be used for a kidnapping,
because it is the case that the items can, in theory,
be used for something else.
And- -: But not collectively.
'Cause I get the whole issue with the handcuffs
and could be a costume party,
but when you put them all together it's a different issue.
-: And when your Honor says altogether,
do you mean the three items or the three items
coupled with the other evidence?
-: Well, yeah, well, I mean,
the three items, address the three items.
-: So with respect to the three items,
I think that the only answer the court needs to find
is that they could be used for
something other than kidnapping, and-
Scott: What?
-: Well, I think something that would still be a crime
but wouldn't be the crime of kidnapping
is simply posing as a police officer.
One could-
But the crime of posing as a- -: Don't you just need
the badge for that?
Why would you need the handcuffs and holster?
-: Well, you could just use the badge,
and I mean, police officers have guns, they have handcuffs.
I mean, so I think if one is looking to
commit the crime of posing as a police officer,
I mean, they could use those three items,
among other things.
A gun, for one.
-: Can I ask you what I think is your stronger argument
is about the shared intent.
Because it seems to me
the knowledge issue is not your strongest,
but can you talk to me about the evidence of shared intent?
-: I think it's similar.
I think they are overlapping in many ways.
-: So you have no difference in the arguments?
Focus on the difference, if any.
'Cause if you don't see any, then that's fine by me.
-: I don't know that they're entirely different.
I would make the same arguments as to knowledge.
But I think with respect to evidence that shows his intent,
what the court has instructed courts,
trial courts or juries look to
with respect to sufficient evidence is a motive,
whether or not a defendant sees a joint venture
or an accomplice develop their intent
and thereafter acts to help them.
And I think the case that is probably
closest on point to this case is Commonwealth versus Stout,
where the court holds that someone who delivers guns
to an individual who later robs a bank
is guilty of the principle crime.
And the reason that he's guilty
is because the evidence showed
that a couple of days before the crime,
he was with the accomplice while the accomplice discussed
what he was going to do with the guns.
And that is the piece that's missing here.
-: And I think Judge Cosgrove said,
"Boy, this is a close case."
And (clearing throat) excuse me, I think it is.
Getting back to your first argument.
What was his instruction on intent?
-: I believe that the instruction on intent was simply that
the only thing the Commonwealth must show
is that the defendant had knowledge of the crime
and shared James Feeney's intent to bring it about.
The intent to commit kidnapping is the intent to confine
or imprison another person against his will.
The requirement is satisfied even if the purpose to kidnap
in the defendant's mind was simply a conditional
or a contingent one, a willingness
to see the kidnapping take place if necessary.
There was no other instruction on intent.
And I would contrast that to the instruction
on intent for joint venture.
Frank: So your argument on instructions
is they weren't as rich or fulsome
as the Zanetti instructions. -: Correct.
-: But before Zanetti we had non-Zanetti instructions,
which we said were fine, correct?
-: Correct, however, Zanetti is so old at this point,
I would say it has essentially become-
-: It doesn't seem old to me, though. (everyone laughing)
-: The law, the land.
Legal terms old is just a few years.
But more so in the number of cases
that cite Zanetti as controlling.
And I think here the difficulty with joint venture cases
is that the jury needs to understand
the intent to commit the crime,
but the jury also needs instruction
on what sharing someone's intent means.
Because- -: But you know,
there's nothing about Zanetti that says
the previous instruction differentiating principle
in joint venture was wrong.
It's just Zanetti is frankly easier to satisfy
in a lotta ways.
And you don't have the required finding issue
of one being satisfied and one not.
But there's nothing in Zanetti that says
the previous joint venture instruction
on shared knowledge and intent was wrong.
-: I would agree with that,
but I would say that the instruction in this case
fell short of what is required,
what is constitutionally required
to explain the issues to the jury.
-: Attorney Opperman, I need to ask this one question,
because I know you're well over time,
if you wouldn't mind,
in response to a question that Justice Gaziano asked you,
you said either the knowledge or the shared intent
with respect to looking at the three items
or all of the other evidence,
and you only answered the question
with respect to the three items.
But were the jury able to look at all of the evidence
when determining knowledge or shared intent?
-: Of course. -: Okay, so,
if that's said, what about the call after the fact
about did you have anything to do with this,
going to retrieve the items,
how does all of that not militate in favor of sufficiency?
-: Well, I would say the call, I believe,
and I'm not as confident on the timeline of this.
I believe the call happened around February.
So a couple of,
a month to two months after Mr. Robertson went missing.
And there was a statement- -: But when did he
retrieve the items?
-: I believe the record was that he retrieved the items
on the day after the kidnapping took place.
-: Mm-hmm. -: wasn't it at 3:30
on that same day?
-: It was either the same day or the day after, yes.
And so obviously that is something the jury could consider,
but again, I think with respect
to both knowledge and intent,
and Your Honor is correct,
that the question on knowledge is closer
than the question on intent,
there is still the question about
whether he knew what the items were being used for.
He certainly knew the items were borrowed.
So the fact that he retrieved them is to be expected.
But this court still has to look to
what evidence shows that the defendant
knew what the items were being used for
and intended that they be used that way.
And there is certainly evidence that doesn't look good.
This is, as the court suggested, I mean,
it's a sufficiency argument.
It's not beyond a reasonable doubt.
It is a somewhat close call in the grander scheme
of criminal trials.
But there does have to be,
and this court has said repeatedly
with respect to joint venture cases,
discussing whether or not
there's sufficient evidence on intent.
There has to be more than just speculation.
There has to be the observation of a conversation
discussing a crime.
There has to be evidence that the defendant
overheard the principle saying,
"I'm gonna do X, Y, Z to this guy."
And that wasn't there.
There was evidence that he was aware of some animosity.
There was evidence that he was aware that Mr. Feeney
did not like Mr. Robertson.
There was also evidence that
he never thought that Mr. Feeney could have
or would have done this because, in part,
because he was in a wheelchair,
and it didn't cross his mind that someone
who was handicapped would be committing
such a horrible crime.
I think the jury also heard
everything that the witness Andrea Morris knew about.
She knew much more about Mr. Feeney's disdain
toward Mr. Robertson, knew and had told him that
Mr. Robertson was acting as an informant,
knew more about the weapons that Mr. Feeney had,
and after she found out what Mr. Feeney had done,
still expressed doubt that this could have happened
or that he could have done this.
So I think taking a step back from
the pieces of evidence here,
what this court should focus on
is simply that there are inferences to be made,
but that's all that's there.
And in this case, that's simply not enough.
-: Okay. -: If there are
no further questions, thank you.
-: Thank you.
Attorney Alford.
-: Good morning, Your Honors.
The Commonwealth asked this court
to affirm the defendant's conviction
for accessory before the fact to kidnapping
involving the kidnapping of James Robertson,
whose family is in the courtroom today.
The defendant, a police officer,
who had previously provided his drug supplier, James Feeney,
with the victim's criminal record and licensed photo,
gave at fee's request, his police badge,
handcuffs, and a holster,
although, he said he was taken aback at the request.
Items whose very purpose in non-police hands
would be to falsely assert lawful authority to restrain
and tools which the jury could find
were instrumental to the victim's kidnapping.
-: So would you just focus on the knowledge and intent issues
that we talked about previously?
-: Absolutely, Your Honor.
These two elements are intertwined.
Mere knowledge is not enough,
and the Commonwealth suggests particularly here
the shared intent builds on the knowledge
of the whole relationship
between both the defendant and Feeney
and the defendant's knowledge of Feeney and the victim.
So starting the defendant was a police officer.
Feeney became his drug supplier.
He said, the defendant,
whose grand jury testimony was read into evidence,
said that he went to Feeney's apartment
two to three times a week for pills, stayed 15 minutes.
They were friendly.
That he would occasionally wear his police pants,
which was corroborated by another witness.
to Feeney's apartment that,
so Feeney clearly knew that Schoener was a police officer.
Schoener said that he knew there was a love triangle there.
Schoener said that, the defendant said that,
"Well, Feeney started talking about
"his anger was directed towards Morris
"that she had left him."
-: Let me, I'm sorry, let me refocus.
I want you to address the knowledge
that there would be a kidnapping.
-: And the Commonwealth suggests it's the whole relationship.
-: So he knew about the love triangle.
-: Right. -: Right.
-: He knew that Feeney disliked the victim,
and I suggest it's not casual, I suggest it was repeated.
He said he mentioned him a few times.
The victim came to Feeney's apartment at one point
at the parking lot got, himself arrested.
-: Counsel, let me ask you a question.
What if it's equally plausible
that somebody were to take those items,
understanding that Mr. Feeney was not happy
about Ms. Morris's relationship with Mr. Robertson.
And somebody with those items goes by
and sees Mr. Robertson, and says,
"Hey, Mr. Robertson, stay away from Andrea Morris,"
and then drives away.
Why isn't that equally plausible
versus a knowledge and shared intent of a kidnapping?
-: Because he wanted his police handcuffs.
The defendant's testimony- -: That's all part of
the standard issued uniform, though.
I mean, if you would come across a police officer,
they've got the badge, they've got the holster,
they've got the handcuffs, it all adds to the appearance.
And again, the question and the concern that I have
is the question of is it a bridge too far,
that the shared intent and the knowledge
of a kidnapping that leads to
a terrible murder of another human being,
but the question is whether the jury
could find that beyond a reasonable doubt on this evidence.
-: And the Commonwealth suggests that it can,
because the important here was that the defendant knew
that Feeney had handcuffs,
and yet Feeney wanted the defendant's
police-issued handcuffs.
There's something to be made there.
He wanted his badge, which gives somebody lawful authority
to direct other humans beings,
a critical component of intent.
He wanted his holster,
from which the defendant could infer
that a firearm would be involved,
and he wanted his police-issued handcuffs,
an item whose very intent,
very purpose is to restrain, the core element of kidnapping.
-: I know, but I think this is the question.
There's no doubt that what the defendant did here
was disgusting, appalling.
That's not what we're talking about.
The challenge is,
after the crime's already been committed,
you can put the pieces together and say,
yeah, he knew that it was going to be a kidnapping.
But the question is,
did he know that something untoward, really appalling,
was going to happen?
Why is it that it was a kidnapping?
-: Because the Commonwealth suggests the...
The defense appellate counsel makes a lot of comments
that there wasn't direct communication.
There was direct communication here.
When the initial conversation,
when Feeney asked the defendant for these items,
and at the grand jury testimony, went item by item.
First the defendant says, "I was taken aback."
So he knows this is important.
He knows this is a big deal.
He knows this is not within the,
not within the common knowledge of what one would normally,
I suggest legally, do with these items.
Two, as to the badge, and this testimony was specific.
The question was,
"Did he say what he was gonna do with the badge?"
And the answer was, "Oh, I just want to use it."
That's a direct communication.
He's asking for these three items
at the same time that he wants to use.
And the defendant says,
the defendant, who has knowledge of the animosity
of Feeney's wanting to track the victim by asking
for his Board of Probation record
so he could see what he was up to
for his license information.
And then shortly thereafter,
getting 15 pills as a Christmas gift, then says,
knowing all of this, he didn't,
that he didn't really question Feeney on the rest of it
because he wanted to keep his drug connection open.
-: So that's my issue is that you say that on the one hand,
because he wanted to keep his drug connection open,
and yet you have to show that
he shared Feeney's intent to kidnap.
-: And Your Honor, the Commonwealth suggests
that this is an apathy or a willful disregard,
that with knowledge of the circumstances,
the defendant here knew what was likely to happen,
or substantially likely to happen,
and did not care that it would happen
because he had a different motive.
That is shared intent,
if you look at Commonwealth versus Richards,
as to conditional or contingent intent,
that if you look at Commonwealth versus Paget,
an appeals court case,
which says it's not that the defendant
had to have wanted this to happen.
In fact, the defendant may have
not wanted a shooting to happen.
But with the knowledge that the defendant had,
he shared the intent that it was conditionally
or contingently possible for this to happen.
And to address a point that this is not a case
where there needs to be another crime
for conditional or contingent intent,
pointing to Commonwealth versus Erickson,
another appeals court case,
where the defendant wanted to send images to a 16-year-old,
graphic images to a 16-year-old,
but wanted her to send them to him first,
the appeals court noted that
the intent to disseminate was still there
even though it was a conditional or a contingent one.
And this goes back to case law from this court,
Commonwealth versus Richards.
And therefore, you had both the knowledge
that the defendant was looking to use these items
to restrain somebody unlawfully
and the intent that the defendant here was okay with that.
-: Let me ask you two questions.
You proceed on the procure theory, not the assist theory?
-: So the indictment came from this court's footnote,
I think it was footnote 10 from Rodriguez
of the new statutory form of the indictment,
which had come from 277-79.
The Commonwealth asked that the statutory language
of procuring, hiring,
procuring, counseling, or hiring be read,
and two points be made here.
One, the judge's comments that appellate counsel
makes a lot of weight of here
didn't come from a directed verdict finding.
This came from musings on a jury instructions,
and there was a lot of discussion about what procurement.
And I suggest where the parties fundamentally differ here
is on the narrowness of the word procure.
The Commonwealth suggests that-
-: I don't know if I agree with you
on whether procure,
but are you disavowing the assist theory
of accessory before the fact?
-: No, I suggest the assist theory is part and parcel
of counseling, hiring, or procure,
that the assist,
that if you look at accessory before the fact,
and if you look at Marshall and Rodriguez,
that case suggested that there was actions
that happened during the crime,
and they talk about aiding,
being physically present during the crime,
and then actions that happened before the crime.
And Marshall makes clear
that these are two means to the same end.
And the Commonwealth suggests if you look at Reposo
and you look at cases going back to the common law,
it all goes back to the same point
that for accomplice or joint venture liability,
you need knowledge, intent, and a significant act
of the person who is the accomplice or the joint venturer.
-: But specifically, because counseling and hiring
seems pretty obvious,
but procure in such felony to be committed,
you say, encompasses the assist theory.
-: I would suggest counseling includes the assist theory,
and that goes back to Commonwealth versus Francis,
where this court found clear and forceful instructions
defining counsel including to assist, to encourage.
Procure is not nearly as narrowly read as cause and effect.
There is cases such as to procure alcohol.
Procuring can be an item, an item of great importance.
And here the defendant said he was taken aback
by the defendant's request
for his lawfully issued police items
to be used by his drug supplier.
That procure in counseling and hiring
are all assistance type verbs
that go to actions a party may take prior to the offense,
which distinguish this case from Marshall and Rodriguez
where the very issue before the court-
-: So when I go at 274 section two in the two clauses,
your position is whoever aids in the commission of a felony
is just straight joint venture.
And then the second part,
or is an accessory before the fact,
just describes accessory before the fact liability.
-: Under Marshall I do think this-
-: Yes or a no? -: Yes.
This court made clear it has to be before the fact.
And that was the very linchpin of Marshall.
-: Yeah, that's the before of the before the fact.
-: Right. -: Right.
But let let me ask you my second question.
The judge made a finding,
I forgot the nature of the crime
on the director verdict standard,
that this was more of a prank.
Pamela: I don't think that the judge
made that finding, Your Honor.
Could you-
-: I thought the judge said this could be a prank.
-: I don't know,
that is not my memory of the record, Your Honor.
My memory of the record is he clearly found
that this was a close case,
but that the inferences before the jury were sufficient to-
-: I'll look at it again.
I may be wrong.
I thought at one point Judge Cosgrove
said it could be a prank.
-: And I also want to note, Your Honor,
that there was a 25B2 motion here,
where this very same issue was raised again.
So to the extent there was any issue
about Judge Cosgrove's reasoning,
the Commonwealth did include that in the addendum.
And he found that this met the statute of 274 section two.
-: The defendant did say, though, in a second interview
that he thought this was all a joke,
and that statement was not allowed in substantively.
So there was an issue.
This is one of the issues in the appellant's brief.
-: So I think that is cumulative of grand jury testimony
that, and again, the defendant here had the opportunity.
-: Well, so what?
Because you're impeached in one way,
you can't impeach with a second statement?
-: So going back, so as to the third issue,
this wasn't an impeachment of the officer's credibility.
The officer was certainly entitled to be impeached
over the fact that he put this,
he testified that the defendant said he did not want to know
what Feeney wanted the items for.
He was certainly entitled to impeachment
that that was not in his police report.
What the defendant here was trying to get statements,
statements that the judge found to be similar,
that he didn't know from an interview 13 days later
after he had been arrested,
these were being submitted for their truth,
not for impeachment.
-: That's a fair point.
I mean, that was not suggested
as impeachment evidence at trial.
It was suggested for its truth as state of mind,
which it obviously didn't fit.
And did they raise the issue
of doctrine of completeness at trial?
-: They did.
They...
I believe it was raised in a motion of limine.
It was an abuse of discretion standard.
But the judge quite properly found that these were,
or certainly the Commonwealth would argue,
13 days apart and after an intervening event of an arrest,
self-serving statements fall were just that.
David: Well, it's not that their self-serving,
it's a different conversation.
-: It's a different conversation.
It is, Your Honor.
If there are no further questions,
the Commonwealth asks that the conviction be affirmed.