Opinion
18-P-583
04-24-2019
COMMONWEALTH v. FREDERICK PEPE.
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
Following a jury trial in the Superior Court, the defendant, Frederick Pepe, was convicted of distribution of heroin. In an ensuing jury-waived trial, the defendant was convicted of distribution of heroin, second or subsequent offense. On appeal the defendant argues that (1) the evidence at trial was insufficient to sustain the conviction; (2) the judge erred in admitting a detective's "opinion" testimony; and (3) the jury instruction on intent lowered the Commonwealth's burden of proof. We affirm.
The defendant was also charged with possession of heroin with intent to distribute, distribution of cocaine, subsequent offense, and possession of buprenorphine, subsequent offense. Prior to trial, the Commonwealth entered a nolle prosequi on the charge of possession of heroin with intent to distribute. The jury found the defendant not guilty on the remaining charges.
Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. On June 2, 2015, Detective Sergeant Brian O'Neill and Detective Peter Regan of the Tewksbury Police Department conducted surveillance from an unmarked vehicle parked at the Motel 6 in Tewksbury. At approximately 7:30 P.M., the detectives observed a blue Ford Escape parked in the rear of the Motel 6 parking lot. Despite the availability of parking spaces at the front and "around the entire hotel," the Escape was parked "towards the wood line," which was "not a common parking spot for people to take." Also, the Escape was facing in a direction such that the driver "had to back into the spot." The defendant sat in the driver's seat of the Escape, accompanied by a man in the front passenger seat. Within a minute or two, the detectives observed a woman walk from the rear area of the Motel 6, approach the passenger side of the Escape, and engage in conversation with the passenger and the defendant. The detectives observed the woman hand something to the passenger through the open passenger-side window, "and in return received an item back." The woman walked away with a "closed cupped hand" and "sneakily" placed items "inside her left bra/shirt area." Her interaction with the occupants of the Escape lasted between thirty and sixty seconds.
The detectives had pulled two spots away from the defendant's vehicle, such that they had an unobstructed view.
Detective O'Neill approached the woman and instructed her to give him the drugs she had purchased. In response, she reached into her bra and handed him two small bags containing heroin and cocaine. In the meantime, Detective Regan approached the passenger side of the Escape, while Detective Patrick Connor, who had arrived at the scene, approached the driver side. Detective Regan displayed his badge, announced that he was a police officer, and directed the occupants to put their hands on the dashboard. Rather than comply, the defendant turned toward the center console, and "placed his hands below the window line and started moving them around . . . and he was reaching down towards the floor area." Detective Connor removed the defendant from the Escape and placed him under arrest. After receiving Miranda warnings, the defendant admitted that the passenger "sold the girl $60 worth of heroin." Detective Connor also located a hypodermic needle in the defendant's pocket and a small knife "inside his waistband, clipped onto his belt." Officers also found a Suboxone pill in the center console of the Escape along with sixty dollars on the passenger seat.
The detectives also removed the passenger from the Escape and arrested him. They retrieved a brown pill bottle from his hand, which contained heroin.
Discussion. 1. Sufficiency of evidence. The defendant contends that the Commonwealth failed to introduce sufficient evidence of knowledge and intent to participate in the crime. We review the defendant's claims to determine whether, 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. Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
Here, there was sufficient evidence to support the defendant's conviction under a theory of joint venture. "[J]oint venture criminal liability has two essential elements: that the defendant knowingly participated in the commission of the crime charged, and that the defendant had or shared the required criminal intent." Commonwealth v. Zanetti, 454 Mass. 449, 467 (2009). The defendant's presence, in combination with plus factors, "i.e., incriminating evidence of something other than presence" (citation omitted), establish that he was engaged in a joint venture with the passenger. Commonwealth v. Lara, 58 Mass. App. Ct. 915, 916 (2003). These plus factors include (1) the defendant's presence and behavior in the Escape during the drug transaction; (2) the defendant transporting the passenger, who had no luggage with him, to the motel; (3) the parking of the Escape "towards the wood line," in an unusual, removed parking area despite the availability of parking spaces closer to the motel; (4) the manner in which the defendant parked the Escape, from which it can be inferred that the defendant prepared for a swift exit if necessary; (5) the woman's quick arrival to the Escape within a minute or so of the defendant's arrival; (6) the observation of the defendant's apparent participation in the conversation during the transaction; (7) the defendant's admission to the officer, which revealed his knowledge that the substance sold to the woman was heroin; (8) the defendant's lack of compliance with the command to place his hands on the dashboard; and (9) the observations of the defendant's hand movements toward the floor of the vehicle and the console after the command to place his hands on the dashboard. These factors, viewed in their totality, were sufficient to prove knowledge and intent to participate in the crime under the Latimore standard. See Commonwealth v. Roman, 74 Mass. App. Ct. 251, 254 (2009) ("reasonable to infer from the manner in which the defendant drove the SUV -- he quickly pulled into the pizza restaurant parking lot and backed the vehicle into a parking spot that limited visibility of the vehicle at precisely the time two drug users were in the process of purchasing narcotics from his passengers -- that the defendant participated in the venture and that he 'sought to make it succeed'" [citation omitted]); Lara, 58 Mass. App. Ct. at 916.
2. Officer testimony. The defendant contends that the judge erred in admitting Detective Regan's testimony that his "sense" was that the defendant, passenger, and woman "were all engaged in the same conversation." We disagree. Viewed in full context, Detective Regan's testimony spoke to his observations of the defendant who "was turned towards" the woman on the passenger side of the Escape during the drug transaction. The judge did not err in allowing the witness to testify to what he saw. See generally Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 647 (1961). Even assuming that Detective Regan's reference to his "sense" could have been construed as "supposition," any error was harmless in view of the brief and isolated nature of the testimony, and the totality of evidence described, above.
Detective Regan was asked if he was able to see "what, if anything, the driver was doing" while the woman was engaged with the passenger during the transaction. He responded, "I don't have a direct recollection of it. . . . My sense was that they were all engaged in the same conversation." Asked "what was the driver's body language like that gave you that impression," he testified, "I don't have a direct recollection of that. But I would say that everyone was turned towards the . . . towards the female at the window."
3. Jury instruction. The defendant contends that the judge's instructions on intent were confusing and improper. As the defendant did not object to these instructions at trial, our review is limited to a determination whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
We evaluate jury instructions as a whole, "looking for the interpretation a reasonable juror would place on the judge's words" (quotation and citation omitted), Commonwealth v. Glacken, 451 Mass. 163, 168-169 (2008), and "do not consider bits and pieces of the instruction in isolation." Commonwealth v. Young, 461 Mass. 198, 207 (2012). "The adequacy of instructions must be determined in light of their over-all impact on the jury" (quotation and citation omitted). Glacken, supra at 169.
In the present case the instructions on the intent element, viewed as a whole, did not create a substantial risk of a miscarriage of justice. The judge instructed that mere presence at the scene of the crime is not enough to find the defendant guilty. Moreover, the judge repeatedly instructed that the Commonwealth had the burden to prove beyond a reasonable doubt that the defendant "participated knowingly and intentionally." As the judge specified, the Commonwealth had to prove that the defendant "intentionally participated in some fashion in committing that particular crime and had or shared the intent required to commit the crime." He further instructed, "It is not enough to show that the defendant simply was present when the crime was committed or that he knew about it in advance." In addition, the clear and comprehensive instructions on joint venture further negated any risk of juror confusion. Finally, in response to a jury question about intent, the judge instructed that the Commonwealth had the burden to prove beyond a reasonable doubt that the defendant "participated knowingly and intentionally," which required proof that he "did so consciously, voluntarily and purposefully, and not because of ignorance, accident or mistake." Given the opportunity to object to the judge's additional instruction on intent, defense counsel did not do so. Instead, he agreed with the judge's proposed instruction, which the judge then provided to the jury. The judge's instructions were clear, and we presume the jury followed them. See Commonwealth v. Salinkas, 433 Mass. 678, 702 (2001).
We note that the judge's instruction differentiating specific intent from general intent may have been unhelpful in this particular case. That notwithstanding, viewing the instructions as a whole, and in light of their over-all impact on the jury, we discern no substantial risk of a miscarriage of justice. See Glacken, 451 Mass. at 168-169.
Judgment affirmed.
By the Court (Green, C.J., Neyman & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 24, 2019.