COMMONWEALTH vs. DIANE FARLEY.

COMMONWEALTH vs. DIANE FARLEY.

438 Mass. 1003

November 20, 2002

Diane Farley appeals from a judgment of a single justice of this court allowing the Commonwealth's petition pursuant to G. L. c. 211, § 3. We dismiss the appeal as moot.

In its petition, the Commonwealth sought relief from an order of a Superior Court judge in an underlying criminal case. The judge had denied the Commonwealth's motion in limine, which sought to exclude a statement made by Farley. The single justice granted the Commonwealth's petition, vacated the judge's order, and ordered the entry of an order in the Superior Court allowing the Commonwealth's motion in limine (subject to a proviso). Farley appeals, and the matter is now before us on her memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).

Rule 2:21 by its terms applies only "[w]hen a single justice denies relief from a challenged interlocutory ruling in the trial court . . ." (emphasis added). The rule, therefore, is inapplicable here.

We note, however, that Farley's criminal trial has recently concluded, and she has been convicted of murder in the first degree. The question in the appeal presently before us -- whether she would be permitted to introduce her statement in evidence at trial in the underlying criminal prosecution -- has

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thus become academic. Moreover, if she is aggrieved by what has transpired with respect to this evidence at the trial, it is not apparent why she could not now adequately pursue her claim in an appropriate posttrial motion or on her direct appeal.

Appeal dismissed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Greg T. Schubert & Joseph A. Franco for the defendant.