Opinion
11-P-873
01-17-2012
COMMONWEALTH v. SERGIO PADILLA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Sergio Padilla was found guilty of a number of felony offenses, including home invasion and armed assault with intent to commit murder, as a result of an incident in which he shot the victim three times at close range because, as he told the police, the victim had been 'walking' with his girlfriend and had thereby 'disrespected' him. On direct appeal to this court, the defendant's convictions were affirmed. Commonwealth v. Padilla, 73 Mass. App. Ct. 1103 (2008). After entry of the rescript, the defendant filed several motions. The present appeal is from the denial by the trial judge, without a hearing, of the defendant's motion pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), challenging the sufficiency of the evidence.
1. Sufficiency of the evidence. Despite the fact that the defendant did not comply with Mass.R.Crim.P. 25(b)(2), which provides that the defendant may renew a motion for a required finding 'within five days after the jury is discharged,' and did not raise the issue of the sufficiency of the evidence on his direct appeal, we consider whether the omission created a substantial risk of a miscarriage of justice. See Commonwealth v. Bell, 455 Mass. 408, 411-412 (2009). The standard for a required finding of not guilty is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt' (emphasis omitted). Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). Based on the testimony of the victim, who knew the defendant, that the defendant shot him multiple times in circumstances in which there was no evidence of justification, excuse, or mitigation, there is no merit to the defendant's rule 25(b)(2) argument.
2. Testimony of Cingular Wireless engineer and admission of documentary evidence. The defendant merely restates the arguments that were previously addressed and rejected by this court. See Commonwealth v. Padilla, supra.
3. Testimony of State police ballistics expert. State Police Trooper Schrijn was qualified by his training and experience as an expert witness in ballistics. At trial he expressed opinions about the type of ammunition used in the shooting (revolver or pistol) and, based on his examination of the fragments of projectiles recovered from the crime scene, how the passage of projectiles through the victim's home could produce the damage depicted in crime scene photographs. There was no objection to this testimony at trial. For the reasons set forth in the Commonwealth's brief at 6-10, the admission of this testimony did not create a substantial risk of a miscarriage of justice. The fact that the firearm used to shoot the victim was not recovered and no scientific tests were conducted on the shell fragments does not affect the basis for Trooper Schrijn's opinion.
4. Denial of request for a hearing. Even if we were to view the defendant's rule 25(b)(2) motion as a motion for a new trial under Mass.R.Crim.P. 30(b), 435 Mass. 1501 (2001), the trial judge was under no obligation to grant a hearing based on the self-serving and unverified claims made by the defendant. See Commonwealth v. Thomas, 399 Mass. 165, 167-168 (1987).
Order denying motion pursuant to rule 25(b)(2) affirmed.
By the Court (Kantrowitz, Rubin & Agnes, JJ.),