COMMONWEALTH vs. THOMAS J. MALONEY.

NOLAN, J. Following a trial without a jury in the Superior Court, the defendant was found guilty of arson and of eight counts of attempted murder (there were eight persons in the house which the defendant burned). He appealed, and we took

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the case on our own motion. In this appeal, he raises two issues concerning: (1) the denial of his motion to suppress his statements to police after arrest; and (2) the denial of his motion for a required finding of not guilty as to attempted murder. There is no error.

After setting fire to its front porch, the defendant was seen running from the scene by a young inhabitant of the house. The fire occurred at approximately 1:30 A.M., on June 30, 1983, when the eight occupants were in bed. The police searched for the defendant and finally found him asleep in the basement of a home in which his sister, her children, a brother, and her friend lived. After interrogation, the defendant admitted setting the fire but protested that he did not intend to harm the occupants.

1. Motion to suppress. The defendant was not unknown to the police who first went to his sister's home in Marshfield in search of him at 3 A.M. The police talked to his sister who said that she had not seen the defendant and that he was not allowed in the house. Her live-in boyfriend was present during this conversation. The police returned to the sister's house at 5 A.M. and spoke with both the defendant's sister and her boyfriend. The police asked the boyfriend to check the basement. He did so and returned to tell the police that the defendant was asleep there and that he wanted him removed.

The police officers went to the basement, arrested the defendant for trespass, and gave him his Miranda warnings. [Note 1] After he was taken to the police station, the defendant was again given Miranda warnings and an opportunity to make a telephone call. He narrated a story of unrequited love of a young woman in the house which he burned. He admitted setting the fire but wanted only to scare her and her family. He hid in the bushes after setting the fire and ultimately went to his sister's house.

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During the interrogation, he became sick and a police officer accompanied him to a toilet where he vomited a few times. The police asked if he wished to continue the interview after leaving the toilet and he agreed to continue.

He then described in more detail his activities. He told the police that he used gasoline which he obtained from a nearby shed to ignite the porch and waited in the bushes until the police and firefighters arrived before he left the scene. He then declared that he wished to say nothing further and the interrogation, which lasted between 45 minutes and one hour, ended.

The police testified, and the judge found, that the defendant had been drinking but was not drunk, nor under the influence of liquor. He appeared to understand the questions and he was neither promised anything, nor was he threatened. The judge concluded that he "voluntarily, intelligently and knowingly waived his rights." That finding was warranted.

The defendant attacks the validity of the arrest on the ground that the boyfriend had no authority to permit the police to enter. The judge found (and there was evidence to support the finding) that at approximately 5 A.M. the police returned to the house of the defendant's sister and again spoke to her and her boyfriend. The police officer asked the boyfriend if he had seen the defendant. He responded that the he had not seen him and the police asked him if he had checked the basement since the police's last visit. The boyfriend rejoined that he had not gone to the basement but that he would do so. The officers returned to the cruiser which was parked in the driveway and waited for the boyfriend, who within a short time reported that the defendant was asleep in the basement. The judge ruled that, "[a]s a result of conversation and observation, the police reasonably and correctly concluded that [the boyfriend] could authorize them [the police] to enter the premises." We see no error in this conclusion.

The entry of the police, however, was as much the fruit of the invitation of the defendant's sister who was present as it was of the boyfriend. She did not object to the entry and it may be inferred that he had her authority to permit the police to enter. Further, the boyfriend appeared to be a lawful occupant

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with authority to permit the police to enter. See United States v. Matlock, 415 U.S. 164, 171 & n.7 (1974).

Moreover, the police had reason to believe that the defendant was trespassing in violation of G. L. c. 266, Section 120, set forth in the margin, [Note 2] in light of the court order. See note 1, supra. Section 120 permitted the police to enter the basement.

Finally, the defendant argues that he was "tricked" into the confession. The record does not support this argument and the judge did not so find. Rather, the judge ruled that there was "no indication of any physical or psychological coercion." There was no error.

2. Motion for required finding. The defendant argues that he should not have been found guilty of attempted murder because he did not intend to kill. It is true that the crime of attempted murder, like the crime of assault with intent to murder, requires proof of an intent to kill. See Commonwealth v. Henson, 394 Mass. 584, 590-592 (1985). Despite the defendant's protest that he intended only to scare, the fact finder could infer, as he did, an intent to kill from the defendant's conduct in setting fire to the house at 1:30 A.M., when all occupants were in bed. See Henson, supra at 591. The trier of fact is not compelled to accept the defendant's explanation. See Commonwealth v. McInerney, 373 Mass. 136, 142 (1977) (jury were not required to accept the defendant's explanation in negating malice). There was sufficient evidence to satisfy beyond a reasonable doubt a rational trier of fact of the intent

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to kill (as well as the other elements of the crime). Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).

Judgments affirmed.