Commonwealth v. Alexander Rosario.

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
21-P-1115
COMMONWEALTH
vs.
ALEXANDER ROSARIO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a jury-waived trial, a Juvenile Court judge found
the defendant guilty as a youthful offender on indictments
charging unlawful possession of a firearm (G. L. c. 269,
§ 10 [a]), unlawful possession of a loaded firearm (G. L.
c. 269, § 10 [n]), and three counts of assault with a dangerous
weapon (G. L. c. 265, § 15B [b]). On appeal, the defendant
contends that the evidence at trial was insufficient to
establish his identity as the person who fired gunshots at
occupants of a car and asks that we vacate his convictions. We
affirm.
Background. We summarize the facts in the light most
favorable to the Commonwealth, reserving some details for our
discussion of the sufficiency of the evidence. Commonwealth v.
Lopez, 484 Mass. 211, 211 (2020).
On February 5, 2020, at about 10:53 A.M., an assailant shot
twice at Jasaiah Belmont's Nissan as he drove along North Warren
Avenue in Brockton with his mother and girlfriend riding as
passengers. One of the gunshots struck the window of another
vehicle parked at Superior Bakery. The assailant and two
companions fled on foot along North Warren Avenue. The gunshots
activated Brockton's "ShotSpotter" system, triggering an
immediate investigation. Brockton police found two .40 caliber
shell casings at the scene. No percipient witness of the
shooting saw the shooter's face. Detectives subsequently
canvassed the neighborhood for video surveillance cameras and
gathered footage of the shooting and the shooter's movements
throughout the morning.
Through a review of video surveillance from Fernandez
Liquors, detectives identified the defendant as a customer about
fifty minutes before the shooting. Detective Ernest Bell, who
was familiar with the defendant, viewed the Fernandez Liquors
video and identified the defendant as the person depicted.
Detectives isolated a still photograph from the video and showed
it to Probation Officer Bonnie Vonasek, who was also familiar
with the defendant and identified him as the person depicted.
Based upon these images, the defendant appeared to be a male
with a clean-shaven light complexion. He wore distinctive
clothing: a black coat with a light brown fur-trimmed hood and
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an orange lining; a dark blue, hooded sweatshirt with a white
Nike logo on the front; black pants; and black sneakers. Two
males accompanied him to the store. One wore light blue pants
and a light blue coat. The second, with a darker complexion and
some facial hair, wore a black baseball cap with a white logo, a
black coat with a dark-brown fur-trimmed hood, light blue pants,
and white sneakers.
With the identification of the defendant wearing this
distinctive clothing in the company of two other men, detectives
utilized other area surveillance video within several contiguous
city blocks to develop a timeline that included the defendant's
movements on the morning of the shooting. According to the
surveillance videos, at about 10:00 A.M., the defendant and the
two men walked south along North Warren Avenue until arriving at
Fernandez Liquors where the store video recorded the defendant's
facial image and his distinctive clothing. Less than ten
minutes later, the defendant and the man with the baseball cap
left the liquor store and walked back in the direction of their
route. At about 10:36 A.M., two unknown individuals threw
bricks at a BMW parked on Wyman Street, several houses from the
intersection with North Warren Avenue. At about 10:47 A.M., the
defendant, the man with the baseball cap, and a third male
emerged from a residence on North Warren Avenue and walked a
short distance (about three houses) to view the damaged BMW
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around the corner on Wyman Street. The defendant and the man
with the baseball cap appeared as before in the surveillance
video except they changed footwear, with the defendant now
wearing white sneakers (instead of black) and the man with the
baseball cap wearing black sneakers (instead of white). While
on the corner of Wyman Street and North Warren Avenue, the
defendant, the man with the baseball cap, and the third male
raised their arms and appeared to yell at the occupants of the
Belmont Nissan that drove past. The defendant's group then
walked back to the residence on North Warren Avenue. At 10:51
A.M., the man with the baseball cap and the third male emerged
from the residence on North Warren Avenue, walked to the BMW,
and then walked back to the corner of North Warren Avenue and
Wyman Street where the defendant joined them.
At about 10:53 A.M., the Belmont Nissan returned to the
corner of North Warren Avenue and Wyman Street where the
defendant, the man with the baseball cap, and the third
individual stood. The defendant, wearing the same distinctive
clothing from the liquor store (except for the sneakers),
reached into his jacket, produced a handgun, and fired two shots
at the passing Belmont Nissan. The defendant and his two
companions fled north.
Discussion. After viewing this evidence, the trial judge
denied the defense motion for a required finding of not guilty.
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On appeal, the defendant claims the judge erred because the
evidence failed to identify him as the shooter. In reviewing a
challenge to the sufficiency of the evidence, the "question 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."
Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting
Jackson v. Virginia, 443 U.S. 307, 318-319 (1979). "The
relevant question is whether the evidence would permit a jury
[or judge] to find guilt, not whether the evidence requires such
a finding." Commonwealth v. Brown, 401 Mass. 745, 747 (1988).
Upon careful review of the record, we are satisfied the evidence
permitted the judge to conclude that the defendant fired the
gunshots.
The Fernandez Liquors surveillance video provided critical
identification evidence that ultimately linked the defendant to
the shooting. Detective Bell and Probation Officer Vonasek
identified the defendant as the person depicted in that video.
Because of the distinctive clothing worn by the defendant,
detectives utilized other area surveillance video within several
contiguous city blocks to develop a timeline that traced the
defendant's movements up to the time of the shooting. The
videos, timeline, testimony, map, and the defendant's constant
pairing with the man wearing the baseball cap all combined to
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cabin the defendant's movements within a tight temporal and
physical proximity, which would enable a fact finder to conclude
that he was the shooter. See Davis v. Commonwealth, 491 Mass.
1011, 1014 (2023) (sufficient evidence identifying shooter
included inconclusive surveillance video "presented
sequentially" with other circumstantial evidence "in a logical
order"); Commonwealth v. Brown, 490 Mass. 171, 177 (2022)
(sufficient evidence identifying shooter included "positive
identification of the defendant in the surveillance video
footage, a few blocks from the scene of the shooting,
approximately ten minutes before the shooting took place, by two
witnesses who knew him"); Baxter v. Commonwealth, 489 Mass. 504,
509 (2022) (sufficient evidence identifying shooter included
video footage showing person resembling defendant driving car
about six minutes before shooting occurred).
In support of his argument, the defendant points to
countervailing facts. He emphasizes the absence of physical
evidence such as the firearm, fingerprints, ballistics,
clothing, and "clear photographic evidence" depicting the facial
features of the shooter. He also stresses the absence of any
identification from a "contemporaneous eyewitness" to the
shooting and underscores the changed footwear. In reviewing the
denial of a motion for a required finding of not guilty,
however, "we do not weigh the supporting evidence against
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conflicting evidence." Commonwealth v. Merry, 453 Mass. 653,
660 (2009). "That evidence is conflicting does not demand a
required finding of not guilty." Id. at 661. Also, to the
extent conflicting inferences are possible from the evidence, it
was for the judge "to determine where the truth lies, for the
weight and credibility of the evidence [was] wholly within [her]
province" as the fact finder. Commonwealth v. Lao, 443 Mass.
770, 779 (2005). We also note that the Fernandez Liquors video,
unlike the other videos, did depict facial features that would
enable identification. The other videos, though of lower
quality, depicted the movements of very few individuals and
vehicles during a limited period, and the defendant's
distinctive clothing was clearly visible. This is not a case
where the defendant's convictions rest on "speculation" or
"conjecture." Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).
Finally, the defendant makes a passing reference to the
judge's failure "to instruct herself correctly in evaluating the
evidence." Putting aside that the defendant does not elaborate
on this contention and we therefore "need not pass upon" it,
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628(2019), we discern nothing in the record to even suggest that
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the judge failed to apprehend her role in evaluating the
evidence or in applying the controlling law.
Judgments affirmed.
By the Court (Wolohojian,
Shin & Hodgens, JJ.1),
Clerk
Entered: August 11, 2023.
1 The panelists are listed in order of seniority.
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