Commonwealth v. Brandon Ferreira. ( 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-807
COMMONWEALTH
vs.
BRANDON FERREIRA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial in the District Court, the
defendant was found guilty of assault and battery on a family or
household member.1 On appeal, he contends that the judge erred
in denying his motions for a required finding of not guilty,
both at the close of the Commonwealth's case and at the close of
all the evidence, because the Commonwealth's case-in-chief
rested on "illogical speculation," and the Commonwealth failed
to disprove that he acted in self-defense. We affirm.
Discussion. In reviewing the denial of a motion for a
required finding of not guilty, we consider "whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
1 The judge found the defendant not guilty of violating an abuse
prevention order.
essential elements of the crime beyond a reasonable doubt."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979). We apply the
same standard in assessing whether there was sufficient evidence
to prove that the defendant did not act in self-defense. See
Commonwealth v. Kamishlian, 21 Mass. App. Ct. 931, 932 (1985)
("Once self-defense is put in issue, the Commonwealth must prove
that the defendant did not act in self-defense").
Despite conflicting testimony to the contrary, the trial
judge could have found the following facts. See Commonwealth v.
Kapaia, 490 Mass. 787, 793 (2022) ("'[i]t does not matter that
some of the evidence could be characterized as equivocal or
contradictory,' as '[c]redibility is a question for the [fact
finder] to decide; [the fact finder] may accept or reject, in
whole or in part, the testimony presented'" [citations
omitted]).
On the evening of July 26, 2021, the victim obtained an
emergency abuse prevention order against her then-husband, the
defendant. The next morning, the victim was in her bedroom
getting ready to attend a court hearing to request an extension
of the order when she heard the front door unlock, followed by
the defendant entering the home. The victim began to dial 911
until the defendant entered the room, pushed her, and slapped or
grabbed the phone out of her hands. A struggle ensued, where
2
the defendant pushed the victim multiple times as she tried to
retrieve her phone from him. Eventually, the victim ran to the
front door to call for help. The defendant then stepped out
onto the front porch and threw the victim's phone into the
street. The victim went and grabbed the phone and then ran up
the street to seek help from a neighbor. Moments later, the
defendant walked away from the scene, prompting the victim to
run back to the house and call 911. This evidence, if credited
by the judge, was sufficient to support the elements of assault
and battery on a family or household member2 and the absence of
self-defense.3
2 To sustain a conviction for assault and battery on a family or
household member, the Commonwealth must prove that (1) the
defendant intentionally touched the victim, (2) the touching was
likely to cause bodily harm or was offensive, and (3) the
defendant and victim were family or household members at the
time of the offense. See G. L. c. 265, § 13M (a). See also
Commonwealth v. Dustin, 476 Mass. 1003, 1004-1005 (2016);
Commonwealth v. Eberhart, 461 Mass. 809, 818 (2012). The
Commonwealth's theory was that the defendant's pushing of the
victim as she tried to retrieve her phone from him constituted
an offensive touching.
3 To satisfy its burden of proving, beyond a reasonable doubt,
that the defendant did not act in self-defense, the Commonwealth
had to establish that one of the following factors did not
exist: "(1) the defendant had reasonable concern for his
personal safety; (2) he used all reasonable means to avoid
physical combat; and (3) 'the degree of force used was
reasonable in the circumstances, with proportionality being the
touchstone for assessing reasonableness'" (citation omitted).
Commonwealth v. King, 460 Mass. 80, 83 (2011). The defendant's
claim of self-defense was not directed at the operative assault
-- the initial pushing of the victim as she tried to retrieve
her phone, but rather, related to a later incident where the
3
The defendant's claim that the Commonwealth's case rested
on illogical speculation is directed more to the weight and
credibility of the victim's testimony, rather than the
sufficiency of the evidence presented.4 It is well settled that
"[i]f, from the evidence, conflicting inferences are possible,
it is for the [fact finder] to determine where the truth lies,
for the weight and credibility of the evidence is wholly within
[the fact finder's] province." Commonwealth v. Lao, 443 Mass.
770, 779 (2005) S.C., 450 Mass. 215 (2007) and 460 Mass. 12(2011). Thus, the judge was entitled to reject any evidence
supporting the existence of self-defense. See., e.g.,
Commonwealth v. Ruci, 409 Mass. 94, 97 (1991). See also
Commonwealth v. Coffman, 84 Mass. App. Ct. 33, 38-39 (2013)
("Where, as here, the evidence at trial 'turns solely on the
credibility of [the defendant's] witnesses,' the Commonwealth's
victim jumped on the defendant's back in another effort to
retrieve her phone.
4 The defendant cites the following testimony of the victim as
unbelievable and contrary to her claim that the defendant
assaulted her: that the victim could not call 911 between the
time that she heard the defendant enter the house and the time
that he took the phone away from her, that the victim was pushed
in the chest but had only a bruise in the calf, that the victim
did not take opportunities to flee from the house and instead
struggled with the defendant, and that the defendant was intent
on attacking the victim but just walked away when he got
outside. While these points may raise grounds for cross-
examination and argument to the fact finder, they do not
establish that the Commonwealth's theory of the case was based
on "illogical speculation."
4
case cannot deteriorate" [citation omitted]). We will not
"substitute our judgment for that of the judge on credibility
questions." Commonwealth v. Werner, 81 Mass. App. Ct. 689, 698
(2012). Further, contrary to the defendant's assertion, no
conjecture was required for the judge to conclude that the
defendant committed the assault and battery against the victim.
See Commonwealth v. Santos, 100 Mass. App. Ct. 1, 3 (2021), and
cases cited (victim's testimony alone may be sufficient to
support a finding of guilt beyond a reasonable doubt).
In short, because the Commonwealth's evidence, if believed,
negated the defendant's claim of self-defense and proved the
elements of the crime charged, the judge properly denied the
defendant's motions for a required finding of not guilty.
Judgment affirmed.
By the Court (Massing,
Ditkoff & Singh, JJ.5),
Clerk
Entered: August 25, 2023.
5 The panelists are listed in order of seniority.
5