JOHN R. DUNN, JR. vs. HOWARD K. HOLLADAY & another.

COMMONWEALTH vs. FRANK M. ELWOOD.

6 Mass. App. Ct. 842

February 3, 1978

As no question of the sufficiency of the evidence that the defendant was the robber has been raised on appeal, it is only necessary for us to consider whether it was error for the judge to admit the defendant's statements. The "relevancy of testimony depends upon the question, whether it has a rational tendency to prove the issues made by the pleadings or other incidental material issues developed in the course of the trial." Commonwealth v. Fillippini, 1 Mass. App. Ct. 606 , 611 (1973), quoting Commonwealth v. Durkin, 257 Mass. 426 , 427-428 (1926). The trial judge has great discretion in admitting evidence, and his decision will be sustained if the evidence tends even remotely to show the existence of a fact in controversy. Commonwealth v. Fillippini,

Page 843

supra. See Torcia, Wharton's Criminal Evidence Section 155 (13th ed. 1972). There was sufficient coincidence of factors (e.g., sex of the accomplice, caliber of the handgun) to meet this test. The fact that the defendant's statement differed in several respects from the circumstances of the crime as testified to by the victim goes to the weight and not the admissibility of the evidence. Accordingly, we conclude that the judge did not err or abuse his discretion. Moreover, in light of the overwhelming incriminating evidence introduced at trial, we would have concluded that, if admission of the statement had been error, that error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 21-24 (1967). See Harrington v. California, 395 U.S. 250, 253-254 (1969); Commonwealth v. Morgan, 369 Mass. 332 , 340-342 (1975), cert. denied, 427 U.S. 905 (1976). Contrast Milton v. Wainwright, 407 U.S. 371, 382-384 (1972) (Stewart, J., dissenting).

Judgment affirmed.