Opinion
13-P-1940
04-10-2015
COMMONWEALTH v. JOSEPH PACHECO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the District Court of trespass, G. L. 266, § 120, receiving a firearm with a defaced serial number, G. L. 269, § 11C, carrying a loaded firearm, G. L. 269, § 10(n), and carrying a firearm without a license, G. L. 269, § 10(a). On appeal he asserts insufficiency of the evidence, error in the judge's instructions to the jury, and error in the admission in evidence of prejudicial testimony concerning gang activity. We refer to the facts as the jury could have found them from the evidence, and as they relate to the issues raised on appeal.
Evidence of gang activity. The judge allowed the defendant's pretrial motion in limine and precluded the Commonwealth from introducing evidence that suggested the defendant was affiliated with a gang. The arresting officer was allowed to testify, without objection, that he was a member of the Fall River Police Department Special Operations Division/Gang Unit, that on the night of the defendant's arrest he was among a group of officers working an extra shift "due to a recent increase in gang activity involving shootings," and that he was working at an apartment complex that the police had identified as "gang territory." When ruling on the motion, the judge reasoned, and we agree, that this testimony was probative to explain the presence of ten or more officers on the stairway of the apartment complex where the defendant was detained, and the circumstances in which the police concluded that he was carrying a firearm.
The judge stated: "Certainly, the police -- in my view the jury shouldn't be in the dark as to why are the police there to begin with, you know, shootings in the area, these young men, suspected gang activity, all that stuff, but when we start zeroing in on this defendant as being a primary gang participant, that's where I would draw the line, that's all. So, I would just ask . . . that, you know, when you talk to your officers to say just limit it to these more generalized statements as opposed to this individual defendant."
The judge exercised his discretion appropriately in balancing the presentation of the narrative sought to be introduced by the Commonwealth with the avoidance of testimony that would portray the defendant as a bad person simply because of gang affiliation. The testimony did not specifically link the defendant with membership in a gang and, as in Commonwealth v John, 442 Mass. 329, 337 (2004), the judge was able to allow the limited amount of testimony as "background." There was no error. See Commonwealth v. Booker, 386 Mass. 466, 469-470 (1982); Commonwealth v. Tobin, 392 Mass. 604, 613 (1984).
Sufficiency. a. Trespassing. To support the charge of trespass, the Commonwealth is required to prove that "without right," the defendant entered or remained in a building of another. G. L. c. 266, § 120. Viewing the evidence in the light most favorable to the Commonwealth, we "must find that there was enough evidence that could have satisfied a rational trier of fact of each such element beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979).
The Commonwealth presented evidence that the defendant was lingering as part of a group in the building's entrance leading to a common area hallway. Signs on the exterior of the building read "NO TRESPASSING POLICE TAKE NOTICE" and "NO TRESPASSING OR LOITERING POLICE TAKE NOTICE." Additionally, one of the officers testified that one individual from the group lived in the building. While the evidence established that the defendant was on notice that the premises were not open to the public, the Commonwealth did not introduce any evidence that the defendant was on the premises without invitation, or otherwise without a right to be present. The defendant's conviction for trespassing must be reversed.
We therefore do not address the defendant's assignment of error to that portion of the jury instructions relating to trespass.
b. Possession of a firearm with a defaced serial number. The defendant asserts that the Commonwealth failed to prove that the firearm possessed by him at the time of arrest had been manufactured with a serial number and that, therefore, he could not be convicted of defacing the serial number. Two witnesses, both police officers, testified that the serial number had been "altered" or "scratched out." The weapon itself was admitted in evidence and available for the jury to inspect. Further, possession of a firearm from which the serial number has been removed or defaced is prima facie evidence of a violation of the statute, as it is presumed that a firearm has a serial number on it when it is manufactured. G. L. c. 269 § 11C. See Commonwealth v. Moore, 54 Mass. App. Ct. 334, 342-343 (2002). The defendant's attempt on cross-examination to weaken the Commonwealth's evidence on this issue was unsuccessful. The jury could properly infer from the evidence that the defendant possessed a firearm with a defaced serial number.
On cross-examination defense counsel asked one police witness: "You would agree with me that serial numbers . . . have not always been required to be put on firearms?" The witness responded, "I do not know that."
Conclusion. The judgment as to the trespass charge is reversed and that verdict is set aside. The remaining judgments are affirmed.
So ordered.
By the Court (Grainger, Brown & Milkey, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: April 10, 2015.