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03/29/78 COMMONWEALTH v. JOSEPH SUBILOSKY

March 29, 1978

COMMONWEALTH
v.
JOSEPH SUBILOSKY



We discern no error in the denial of the defendant's motion for a new trial. *fn1 On the evidence the Judge was not required to and did not find credible the testimony of the defendant or that of a co-defendant who had pleaded guilty to the same murder prior to the defendant's conviction or the testimony of a friend of the defendant whose wife, since deceased, had given damaging testimony against the defendant at trial. The question of credibility was a preliminary matter for the Judge, and his decision thereon is final. Commonwealth v. Bernier, 359 Mass. 13, 16 (1971). Commonwealth v. Thompson, 362 Mass. 382, 385 (1972). Commonwealth v. Grace, 370 Mass. 746, 751-753 (1976). Commonwealth v. Fillippini, 1 Mass. App. Ct. 606, 613 (1973). There was, as well, support for the Judge's Conclusion that the testimony offered by the defendant was not newly discovered and was available to him at the time of trial. Commonwealth v. De Christofor, 360 Mass. 531, 542 (1971). Commonwealth v. Grace, supra at 751-752. Nor was any evidence introduced at the hearing on the motion which lent new support to the constitutional claim which has already been reviewed. See Subilosky v. Commonwealth, 358 Mass. 390 (1970); Subilosky v. Moore, 443 F.2d 334 (1st Cir.), cert. denied, 404 U.S. 958 (1971).

Order denying motion for new trial affirmed.


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