Commonwealth v. Ruben Pina. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-316
COMMONWEALTH
vs.
RUBEN PINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions of armed assault
with intent to murder, in violation of G. L. c. 265 § 18 (b);
assault and battery by means of a dangerous weapon causing
serious bodily injury, in violation of G. L. c. 265, § 15A (c)
(1); commission of a felony while in possession of a firearm, in
violation of G. L. c. 265, § 18B; carrying a firearm without a
license, in violation of G. L. c. 269, § 10 (a); and possession
of ammunition without a firearm identification card, in
violation of G. L. c. 269, § 10 (h) (1). The defendant also
appeals from the denial of his motion for a new trial, which was
grounded in a claim of ineffective assistance of counsel. The
appeals were consolidated. We affirm.
Discussion. 1. Evidentiary claim. The defendant argues
that a police officer's testimony was improper because the
officer identified the defendant from photographs and video
footage. Because there was no objection, we review for a
substantial risk of a miscarriage of justice. See Commonwealth
v. Randolph, 438 Mass. 290, 297 (2002) (where issue not
preserved for appeal, court determines whether claimed error
produced substantial risk of miscarriage of justice).
The general rule is that identification by a lay witness is
admissible only "when the witness possesses sufficiently
relevant familiarity with the defendant that the jury cannot
also possess." Commonwealth v. Wardsworth, 482 Mass. 454, 475
(2019), quoting Commonwealth v. Vacher, 469 Mass. 425, 441
(2014). The testimony at issue by the officer was:
"I compared the individual characteristics as well as
clothing. I looked closely at the individuals, in
particular the individual I believed to be Mr. Ruben Pena
[sic]. I looked at the clothing. I observed the moose on
the clothing. I observed at close look that there was a
slight scar above his eyebrow, near the bridge of his nose.
There was also a small mole on the side of his face, and I
found that -- I observed that that was consistent with Mr.
Pena [sic]."
The Commonwealth argues that the officer's testimony was not a
direct identification of the defendant, but merely explained why
the defendant was the target of the investigation. In this
case, the testimony was especially relevant because prior to the
police officer's testimony, the defendant had attacked the
nature and quality of the police investigation. See
Commonwealth v. Avila, 454 Mass. 744, 755 (2009) (where
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defendant attacks police investigation, "the Commonwealth was
entitled to elicit testimony about why the investigators chose
the particular investigative path they did").
We need not decide whether the testimony was in fact an
identification and admitted in error because the defendant has
not shown that the testimony created a substantial risk of a
miscarriage of justice. The jury had the ability themselves to
view the video footage and the still photographs to determine
whether the person in the video and pictures was in fact the
defendant and whether he was present at the scene of the crime.
See Commonwealth v. Grier, 490 Mass. 455, 477-478 (2022) ("Here,
a single detective described what the still images at issue
depicted, without at any point actually identifying the
defendant as the individual seen in them . . . because the
testimony likely had only a slight effect on the jury and thus
did not substantially sway them, admitting the testimony was not
prejudicial error").
2. Motion for new trial. In his motion for new trial, the
defendant claimed his trial counsel was ineffective in two
respects: (1) by failing to file a motion to suppress, and (2)
by failing to question the officers about their illegal search
of another individual's car. "[W]e review the denial of a
motion for a new trial for 'a significant error of law or other
abuse of discretion.'" Commonwealth v. Duart, 477 Mass. 630,
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634 (2017), cert. denied, 138 S. Ct. 1561 (2018), quoting
Commonwealth v. Forte, 469 Mass. 469, 488 (2014). To establish
a claim of ineffective assistance of counsel, a defendant must
show both that trial counsel's performance fell "measurably
below that which might be expected from an ordinary fallible
lawyer" and that the defendant was consequently deprived "of an
otherwise available, substantial ground of defence."
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
a. Failure to file a motion to suppress. The firearm at
the root of the charges was recovered during a search of another
individual's motor vehicle when the defendant was not present.
See Pina v. Commonwealth, 491 Mass. 1020, 1020 (2023). In the
case against the other individual, all the evidence of the
search of that motor vehicle was suppressed on the basis that it
had been illegally seized, and the Commonwealth nolle prossed
the charges against the individual. In this case, trial counsel
did not file a motion to suppress the evidence found in the
other individual's motor vehicle, and evidence regarding the
firearm was introduced against the defendant.
Where an ineffective assistance of counsel claim involves
counsel's failure to file a motion to suppress, "the defendant
must demonstrate that the evidence would have been suppressed if
properly challenged." Commonwealth v. Cavitt, 460 Mass. 617,
626 (2011). "[A] defendant contesting a search or seizure will
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need to show his or her own reasonable expectation of privacy in
the place searched." Commonwealth v. DeJesus, 489 Mass. 292,
296 (2022). The defendant had no expectation of privacy in the
other individual's motor vehicle as he was not present at the
time of the search and had no connection to the motor vehicle.1
Since a motion to suppress would have been unsuccessful, trial
counsel was not ineffective for failing to file one.
b. Failure to cross-examine the officers. "We have
applied a stringent standard of review to claims of ineffective
assistance because of failure to impeach a witness."
Commonwealth v Jenkins, 458 Mass. 791, 805 (2011). In general,
the mere failure to impeach a witness does not constitute
ineffective assistance of counsel. See Commonwealth v. Fisher,
433 Mass. 340, 357 (2001). Unless counsel failed "to pursue
some obviously powerful form of impeachment . . . it is
speculative to conclude that a different approach . . . would
likely have affected the jury's conclusion." Commonwealth v.
Knight, 437 Mass. 487, 502 (2002), quoting Fisher, supra.1 "In one limited situation, however, a defendant may rely on
another's reasonable expectation of privacy: where the
defendant has been charged with possessing contraband at the
time of the search and, also at the time of the search, the
property was in the actual possession of a codefendant or in a
place where the codefendant had a reasonable expectation of
privacy, the defendant may assert the same reasonable
expectation of privacy as the codefendant." DeJesus, 489 Mass.
at 296-297. That limited situation is not applicable to this
case.
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Putting aside whether counsel could permissibly have questioned
the officers about whether the search of the other individual's
car was unlawful, the defendant has failed to demonstrate with
reasoned argument, as opposed to conclusory assertions, how such
a cross-examination would have undermined the evidence against
the defendant or otherwise affected the jury verdict. We
therefore discern no abuse of discretion or error of law in the
motion judge's determination that the defendant failed to meet
his burden of establishing that his trial counsel provided
ineffective assistance or that he was prejudiced as a result.2
Judgments affirmed.
Order denying motion for new
trial affirmed.
By the Court (Massing,
Hershfang & D'Angelo, JJ.3),
Clerk
Entered: March 16, 2023.
2 The Commonwealth and the defendant agree that the case should
be remanded for reconstruction of a missing portion of the
impounded transcript regarding the discharging of a juror.
There is no suggestion or indication that the missing transcript
pages have any relevance to the issues raised in this appeal.
Where we are affirming in full the judgments and the order
referenced in the defendant's notices of appeal, a remand would
be inappropriate. However, the defendant is free to pursue, in
the trial court, reconstruction of the transcript and any
claims, not previously available, that such reconstruction might
suggest.
3 The panelists are listed in order of seniority.
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